Disposed

Rema Vijayalal v. State of Kerala

Kerala HC19 Feb 2024WP(Crl.)/712/2023

Case brief

AI extract

What is this about?

Third detention under the Kerala Anti-Social Activities (Prevention) Act challenged in a writ petition. The court found non-application of mind by the Government and detaining authority in imposing the maximum one-year detention period, and confined the detention order's operation, setting the detenu at liberty as he was already in judicial custody since February 2023.

What did the court decide?

Detenu set at liberty if not otherwise required under the law; operation of impugned detention order confined till date of judgment.

Rema Vijayalal Vs State of Kerala — Bail and Remand | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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MONDAY, THE 19^TH DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 W.P.(CRL.) NO.712 OF 2023

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PETITIONER:

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REMA VIJAYALAL, AGED 55 YEARS, W/O. VIJAYALAL, THEKKETHARA HOUSE, KAIPAMANGALAM, ELAMTHURUTHY, THRISSUR, PIN-680 681.

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BY ADVS. M.H.HANIS P.M.JINIMOL T.N.LEKSHMI SHANKAR ANANDHU P.C. NEETHU.G.NADH CIYA E.J.

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

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2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, THRISSUR, PIN-680 003.

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3 THE CITY POLICE CHIEF, THRISSUR, PIN-680 020.

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4 THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA, PIN-682 026.

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W.P.(CRL.) NO.712 OF 2023

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5 THE SUPERINTENDENT OF JAIL CENTRAL JAIL, KANNUR, PIN-670 004.

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SRI. K.A. ANAS, PUBLIC PROSECUTOR

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THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(CRL.) NO.712 OF 2023

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“C.R.”

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A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.

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W.P.(Crl.) No.712 of 2023

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Dated this the 19^th day of February, 2024

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JUDGMENT

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A.Muhamed Mustaque, J.

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This is the third detention order. The detenu is in judicial custody since 16.02.2023. The detention order was passed on 05.04.2023 and the detention is for one year.

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The learned counsel for the petitioner placed reliance on Section 10(4) as also Section 12 of the Kerala Anti-Social Activities (Prevention) Act, 2007. The said provisions read thus:-

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“Section 10(4):- In every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of a person concerned, the Government shall

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W.P.(CRL.) NO.712 OF 2023

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revoke the detention order and cause the person to be released forthwith.”

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(Emphasis supplied)

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Section 12 :- Maximum period of detention – In pursuance of the first detention order made against any person under this Act and confirmed under Section 10, he may be detained for a period which may extend up to six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.”

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Heard the learned counsel for the petitioner.

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A combined reading of the above provisions makes law abundantly clear that maximum period of one year is the discretion of the Government while confirming the order, as well as of the detaining authority while passing the detention order. It is submitted that it is not imperative under law that one should be detained for one year based on subsequent detention order.

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W.P.(CRL.) NO.712 OF 2023

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The learned counsel further argued that nonapplication of mind by the Government as well as the detaining authority would vitiate the detention.

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There are two parts in a detention order. One is related to the reasons justifying the detention order. The second part of the detention order is related to the period of detention. If the reasons for passing detention order can be legally sustained, the Court should not set aside the detention order mainly for the reason that there was non-application of mind in regard to imposing maximum period of detention order. The question is whether the court should interfere when there is non-application of mind as to the maximum period of detention order. This court finds that there was non-application of mind in regard to imposing maximum period of detention order. This is a fit case that ought to have been remitted for reconsideration by the authorities concerned. However, taking note of the fact that the detenu is already in judicial custody since 16.02.2023 onwards, this Court is refraining from remitting it back.

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W.P.(CRL.) NO.712 OF 2023

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We also take note of the fact that detention authority, as well as the Government has not adverted to the fact that he was in judicial custody since 16.02.2023 and if that be the case, we are of the view that the operation of the impugned order is confined till today. Accordingly, the detenu is set at liberty, if he is not otherwise required under the law.

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Sd/-

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A.MUHAMED MUSTAQUE JUDGE

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Sd/SHOBA ANNAMMA EAPEN JUDGE

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bpr

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W.P.(CRL.) NO.712 OF 2023

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APPENDIX OF WP(CRL.) 712/2023

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PETITIONER'S EXHIBITS

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Exhibit-P1 A TRUE COPY OF ORDER NO.C1 3692/2023 DATED 05.04.2023 OF THE 2ND RESPONDENT Exhibit-P2 A TRUE COPY OF THE REPRESENTATION DATED 06.05.2023 SUBMITTED BEFORE 1ST RESPONDENT Exhibit-P3 TRUE COPY OF THE POSTAL RECEIPT DATED 06.05.2023 EVIDENCING THE SENDING OF EXT P2

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Exhibit-P4 A TRUE COPY OF THE REPRESENTATION DATED 06.05.2023 SUBMITTED BEFORE 4 TH RESPONDENT. Exhibit-P5 TRUE COPY OF THE POSTAL RECEIPT DATED 06.05.2023 EVIDENCING THE SENDING OF EXT P4

Rema Vijayalal v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rema Vijayalal v. State of Kerala

Case brief

What is this about?

What did the court decide?

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