The High Court dismissed a writ petition challenging a detention order under the Kerala Anti-Social Activities (Prevention) Act, 2007, held prior to execution, finding insufficient grounds for pre-execution interference.
The writ petition was dismissed as the petitioner failed to make out sufficient grounds to challenge the detention order before its execution.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN &
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
WEDNESDAY, THE 6TH DAY OF JUNE 2012/16TH JYAISHTA 1934
WP(C).No. 10487 of 2012 (I)
PETITIONER(S):
RAJESH BABU
S/O RAJENDRA BABU, KALLINGEL VEEDU M.C. PUREM, THAZHAM THEKKU CHERY MOONADU VILLAGE
KOLLAM TALUK, KOLLAM DISTRICT.
BY ADV. SRI.V.VENUGOPALAN NAIR
RESPONDENT(S):
LEGISLATURE SECRETARIAT THIRUVANANTHAPURAM-695001.
W.P.(C) NO.10487/2012
BY ADGP SRI.K.I.ABDUL RASHEED
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) NO.10487/2012
APPENDIX
PETITIONER(S) EXHIBITS :
EXHIBIT P1: TRUE COPY OF THE ORDER OF THE GOVERNMENT OF KERALA BEARING NO.28000/SS.A5/HOME DATED 3.6.11 REVOKING THE EARLIER DETENTION ORDER PASSED BY THE 4TH RESPONDENT DISTRICT MAGISTRATE KOLLAM.
EXHIBIT P2: TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.6778/12 DATED 4.4.12.
ADDITIONAL DOCUMENTS :
EXHIBIT P3: COPY OF W.P.(C) NO.6778/12 DATED 16.3.2012.
RESPONDENTS' EXHIBITS :
NIL
//TRUE COPY//
P.A. TO JUDGE
K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.
W.P.(C) No.10487 of 2012
Dated this the 6th day of June, 2012
JUDGMENT
K.T.Sankaran, J.
The reliefs prayed for in the Writ Petition are the following :
“(i) issue a writ of mandamus, direction or order directing respondents 5 to 8 not to arrest the petitioner on the basis of any detention order passed by 4th respondent under the provisions of Kerala Anti Social Activities (Prevention) Act, 2007.
(ii) Call for the records pertaining to the last detention order passed by the 4th respondent against the petitioner and quash the same.
(iii) Declare that petitioner cannot be treated as a 'known goonda' or 'known rowdy' as defined in Kerala Anti Social Activities (Prevention) Act, 2007 on the basis of all or any the cases so far registered against the petitioner by the police.
W.P.(C) No.10487/2012
2
(iv) to grant any other appropriate relief considering the nature and circumstances of the case.”
W.P.(C) No.10487/2012
3
after curing the defects and the cases are pending consideration before the Magistrate's court. It is also stated that two other crimes were registered against the petitioner subsequently and on that basis, steps were taken to pass an order under the KAAPA against the petitioner. On getting reliable information, the petitioner submitted representations before respondents 1 to 5 putting forward his grievance. The petitioner also filed W.P.(C) No.6778 of 2012 challenging the intending detention order. W.P.(C) No.6778 of 2012 was disposed of as per Exhibit P2 judgment dated 4th April 2012, wherein the Division Bench held thus :
“4. After having heard the learned counsel for the parties, we do not think that we need grant the reliefs sought for as such. An order of detention is to be passed under Section 3 of the Act by the authorised officer. There are two indispensable elements. Firstly, the Magistrate must be satisfied on the basis of the objective criteria that the person sought to be detained is either a “known goonda” or a “known rowdy”. No doubt, learned counsel for the petitioner would submit that the definition of the word “depredator of environment” under Section 2(g) of the Act
W.P.(C) No.10487/2012
4
requires that a person should be involved in direct act.
W.P.(C) No.10487/2012
5
a “known rowdy” or “known goonda”, the Magistrate must also consider all the relevant inputs to decide whether an order of detention is necessary, that is to say, he must entertain the requisite subjective satisfaction as well.”
“The courts have the necessary power and
W.P.(C) No.10487/2012
6
they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question.”
The decision in Additional Secretary to the Government of India and others vs. Alka Subhash Gadia and another (1992 Supp (1) SCC 496) was followed in Union of India and others vs. Atam Parkash and another (2009 (1) SCC 585).
W.P.(C) No.10487/2012
7
We are not satisfied that the petitioner has made out sufficient grounds to successfully challenge the order of detention passed under the KAAPA before it is executed. Accordingly, the Writ Petition is dismissed.
K.T.SANKARAN
M.L.JOSEPH FRANCIS
csl
3 issues framed by the court
Whether a petitioner can challenge an order of detention under the Kerala Anti-Social Activities (Prevention) Act before its execution, given the availability of grounds under precedent.
Whether the petitioner has made out sufficient grounds to successfully challenge the detention order before execution.
Whether the mechanical issuance of a detention recommendation without applying mind constitutes valid grounds for pre-execution challenge.
Colour shows how this judgement treated each authority
Additional Secretary to the Government of India and others vs. Alka Subhash Gadia and anotherFollowed¶65
(1992 Supp (1) SCC 496) · Who else cites this
Union of India and others vs. Atam Parkash and anotherFollowed¶70
(2009 (1) SCC 585) · Who else cites this
1 provisions across 1 enactments
Rajesh Babu
State of Kerala
K.T.Sankaran
M.L.Joseph Francis
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
