KAAPA | Detention Order Can't Be Issued Without Determining Sufficiency Of Bail Conditions Already Imposed On Accused: Kerala High Court

The Kerala High Court on Monday set aside a detention order which was issued by the detaining authority without determining the nature of the bail conditions already imposed on the detenu.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha observed,

"It is trite that when an accused in a criminal case, who is enlarged on bail with conditions is sought to be detained in preventive detention, it is incumbent on the part of the detaining authority to consider whether the bail conditions are sufficient to prevent the detenu from continuing to indulge in anti-social activities and despite the conditions, if the detaining authority still considers that the detenu is required to be detained, the detaining authority is at liberty to pass an order of detention. In other words, the duty of the detaining authority is that he should pointedly consider the order passed by the court granting bail to the detenu and the conditions thereof and after due application of mind, pass orders, either to detain or not to detain the detenu."

The Court passed the order while considering a plea seeking the issuance of a writ of habeas corpus directing the respondent-State authorities to produce the body of one Naveen Suresh, who had been detained in terms of an order issued under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter, 'KAAPA, 2007'). 

The detention order was issued on the premise that the detenu is a 'known rowdy' who needs to be detained in order to prevent him from committing further anti-social activities. The detenu was arrested in connection with the last such incident on August 5, 2022, and released on bail on September 24, 2022. 

It was contended by Advocates C.P. Udayabhanu and Navaneeth N. Nath that the detention order was vitiated for non-application of mind as it was passed without considering the bail application preferred by the detenu and the Order thereon.

The Public Prosecutor K.A. Anas conceded that the bail application submitted by the detenu in the last crime and the order passed thereon were not placed before the detaining authority. However, he argued that the Order could not be said to be vitiated for that reason alone. It was submitted that the view taken by the sponsoring authority was that the detenu is a person who would indulge in prejudicial activities even violating the bail conditions and non-consideration of the bail considerations would thus not be of any significance, and the detaining authority had issued the detention order on this basis. 

The Court noted that although the detaining authority had taken note of the fact that the detenu has been enlarged on bail in the last crime in the impugned order, the detention order proceeded on the premise that the detenu is a person who cannot be prevented from indulging in anti-social activities, by means of bail conditions.

"In other words, it could be seen that the order is one passed without determining the nature of the bail conditions and without considering whether the bail conditions are sufficient to deter the detenu from indulging further in anti-social activities. If that be so, according to us, the impugned order is liable to be set aside for want of due application of mind as to the need to prevent the detenu from indulging in further anti-social activities in terms of the provisions of the Act," the Court added. 

It thus quashed the detention order and directed the authorities to release the detenu if his detention was not otherwise required.

Case Title: K. Suresh Kumar v. State of Kerala & Ors. 

Citation: 2023 LiveLaw (Ker) 320 

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