W.P. (Crl.) No. 76 of 2011 (S). Case: Girija Vs State of Kerala and Ors.. High Court of Kerala (India)
| Case Number | W.P. (Crl.) No. 76 of 2011 (S) |
| Counsel | For Appellant: S. Rajeev, Adv. |
| Judges | K. M. Joseph and M. L. Joseph Francis, JJ. |
| Issue | Kerala Anti - Social Activities (Prevention) Act, Kerala Anti - Social 2007; Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; Indian Penal Code - Sections 294, 394, 427; Code of Criminal Procedure (CrPC)- Section 82; Constitution of India - Articles 21, 22, 22(5) |
| Judgement Date | April 25, 2011 |
| Court | High Court of Kerala (India) |
Judgment:
K. M. Joseph, J.
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Petitioner is the mother of the detenu who stands detained pursuant to proceedings under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). Ext.P1 is the order dated 2.2.2010 passed by the District Magistrate under Section 3 of the Act, ordering the detention of the detenu, proceeding on the basis that the alleged detenu was a known rowdy. However, the detenu was not detained on the basis of Ext.P1 order as such. Ext.P2 is the order dated 11.11.2010 issued by the same District Magistrate who issued Ext.P1. Therein, he has referred to, inter alia, the letter from the Deputy Commissioner of Police to the effect that the alleged detenu and his associates have committed the offence in Crime No. 717 of 2010 of Thiruvalla Police Station under Section 294(b), 394 and 427 of the Indian Penal Code on 25.10.2010. The case was that the detenu and his associates entered into the works site where the complainant works with his JCB Excavator and demanded Rs. 10,000/= as goonda fee, threatened, manhandled brutally and inflicted serious injuries to him and robbed Rs. 2,500/= and broken the wind shield of the JCB Excavator from his pocket. The case is under investigation. It is further stated, inter alia, that he was reported arrested on 02.11.2010 and subsequently remanded to judicial custody. It is stated that it is informed that he has moved to get bail from the court and it has been reported that he will involve in antisocial and violent activities affecting public order, if he is released on bail. Thereafter, the Magistrate issued Ext.P2 addendum to Ext.P1 order. It is feeling aggrieved by the detention pursuant to the same that the Petitioner is before us.
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We heard Shri S. Rajeev, learned Counsel for the Petitioner and also Shri P. Ravindra Babu, learned Senior Government Pleader.
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Learned Counsel for the Petitioner would address before us the following contentions:
He would submit that though Ext.P1 order of detention was passed on 02.02.2010, the detenu came to be detained only on 14.11.2010. He would submit that no steps were taken under Section 6 of the Act to secure his presence and execute Ext.P1 order. Thus, Ext.P1 order of detention would fall to the ground. He would further point out Ext.P3 and contend that in connection with one of the cases which is referred to in Ext.P1 order, the detenu had surrendered before the Judicial First Class Magistrate Court, Neyyattinkara on 27.8.2010 and he was remanded in judicial custody till 7.9.2010. Ext.P3 order would show that he was granted bail subject to certain conditions. He would submit that this would itself show that the detenu was not actually absconding and there was clear failure on the part of the officers in executing Ext.P1 order in time. It is after a lapse of more than six months which is the maximum period of detention provided under Section 3 that on 14.11.2010 the detenu came to be detained. He would complain of non-application of mind by the detaining authority when he passed Ext.P2 order. He would further contend that when Ext.P2 order was passed, actually the detenu was in detention as is clear from a perusal of Ext.P2. He would canvass for the position that it is not even mentioned in Ext.P2 that there is a possibility of the detenu getting bail and the requirement of law is that the detaining authority must come to the conclusion which must be reflected in the order of detention that he is likely to get bail. It is further contended that there is no reference to the Addendum order in the proceedings by which Ext.P1 order came to be approved. It is further contended by the learned Counsel for the Petitioner that Ext.P2 order was procured by the sponsoring authority as it were by placing incorrect facts before the detaining authority. In this context, he buttresses his argument with reference to the fact that no steps had been taken under Section 6 of the Act. He also submits that Ext.P4 does not establish that the approving authority had in mind Ext.P2 or that it is approved. He submits further that the decision in Babu's case (2010 (1) KLT 132) requires reconsideration. He points out that Section 3(3) of the Act requiring "forthwith" reporting of the detention, inter alia, stood violated.
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Per contra, learned senior Government Pleader would support the order. He would submit that as far as Ext.P1 order is concerned, it is true that it is not executed. But, the fact remains that the detenu came to be involved allegedly in a fresh crime. This was a new circumstance. He heavily relied on the judgment of this Court in Babu v. State of Kerala 2010 (1) KLT 132. He would contend that, therefore, the fact that Ext.P1 order of detention was not executed, steps were not taken under Section 6 of the Act, was not germane. What is important is whether there was a new circumstance or changed circumstance giving rise to the need for the detaining authority to have a fresh look at the order of detention and such a changed circumstance did indeed exist in the form of the alleged involvement of the detenu in the crime committed on 25.10.201. He would contend that while it is true that the word used in Section 3(3) is "forthwith", it should be read in the context of the upper time limit being fixed for the grant of approval with reference to the actual date of detention. According to him, not only must there be an order of detention passed validly, but when the Government approves of the detention, the Government must be apprised of the fact that the detaining authority has followed the mandate of Section 7 in the manner of executing the order of detention and, therefore, actually the significance of the word "forthwith" cannot be detracted from the actual purpose behind the employment of the said word and the need of the detaining authority to comply with the requirements of Section 7, which also must be approved by the Government.
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As far as the question of the detenu being in custody at the time of passing of Ext.P2 order, he would submit that the fact that the detenu was in custody, and that he had moved for bail, was very much present in the mind of the detaining authority. He would submit that the decision of a Bench of this Court in R.P. No. 20 of 2010 in W.P.(Crl). No. 446 of 2009 for the proposition that when an order of detention is followed by an Addendum, in law, there is only one order of detention and approval is to be given for the original order of detention. He also submits that Ext.P2 reflects application of mind by the detaining authority to the relevant aspects, namely the existence of a new circumstance, and that what is stated in the report of the sponsoring authority, even if he was in error, as regards the question of the detenu absconding, it will not have any fatal effect on the order of detention.
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We must first consider the question as to what is the effect of Ext.P1 order remaining unexecuted from 2.2.2010 till 15.11.2010. It is true that in Ext.P2 order, it is stated as follows:
Deputy Commissioner of Police (L&O), Thiruvananthapuram City, has reported that, the detention order against Sri. Prakash, S/o. Vijayan was not executed since he was at desertion since the time issuance of the detention order against him.
However, there is no material placed before us to come to the conclusion that the detenu was actually absconding. On the contrary, there are circumstances which suggest the opposite. Ext.P3 would show that in respect of one of the crimes which was the subject matter of Ext.P1 order, the detenu was in judicial custody which was ordered on his surrendering before the Judicial First Class Magistrate Court, Neyyattinkara on 27.8.2010. He continued in judicial custody till 7.9.2010 on which day he was ordered to be released on bail. Thus, there can be no doubt that if Ext.P1 were to stand by itself, the detention on 14.11.2011 would be per se unsustainable. However, the learned senior Government Pleader would rely on the principle enunciated in Babu v. State of Kerala 2010 (1) KLT 132 and contend that proceeding on the basis that the detenu was not absconding, in view of the changed circumstances as reflected in the recital of the alleged involvement of the detenu in a fresh crime on 25.10.2010, a fresh lease of life was breathed into the original order of detention and the original order of detention became legally fit to be executed. In this regard, we must at once advert to the principles enunciated in Babu v. State of Kerala 2010 (1) KLT 132 which read as follows:
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But, the question is whether case No. 6, the incident in which occurred on 1.6.2009 after the passing of Ext.P1 order date. 19.1.2009 and the application of mind by the detaining authority as revealed from Ext.P2, are sufficient to undo the effect of inaction on the part of the detaining/executing authorities.
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We note that the observation of the Division Bench in Asia is evidently on the basis of another earlier decision of the Supreme Court in Bhawarlal v. State of Tamil Nadu AIR 1979 SC 541. We extract below the relevant portion of para.6 of the said judgment:
Para 6....We may in appropriate cases assume that the link is ''snapped' if there is a long and unexplained delay between the date of t4he order of detention and the arrest of the detenu. In such a case we may strike down an order of detention unless the grounds indicate a fresh application of mind of the detaining authority to the new situation and the changed circumstances. But, where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the ''link' not snapped but strengthened. That, precisely, is the state of affairs before us.
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The decision of the Supreme Court in Bhawarlal followed by this Court in Asia clearly and unmistakably suggests that where grounds indicate a fresh application...
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