[KAAPA Act] When Detenu Absconds, Magistrate Shall Secure Immediate Presence By Treating Detention Order As Warrant: Kerala High Court

In allowing the release of the detenu in the present case, a division bench of Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen observed that in such cases, the Magistrate shall immediately initiate proceedings of proclamation and attachment of the detenu’s property as per the provisions of CrPC and KAAPA Act to secure his presence before Court. It opined:

“We order hereafter that the Magistrate Court, in the State of Kerala shall take note of this order when a detenu is ordered to be detained under the KAAPA Act is absconded and when a report is filed under Section 6(a) of the KAAPA Act, the Magistrate Court shall immediately proceed to secure the presence of detenu as though a warrant has been issued under the Code of Criminal Procedure and by proceeding in accordance with the proceedings of the Code of Criminal Procedure. All the steps taken by the Magistrate shall be intimated to the detention authority from time to time. Other wise, the non explanation delay would frustrate the very purpose of passing detention order under the KAAPA Act.”,

The Division Bench also directed the Registrar (District Judiciary) to intimate all Chief Judicial Magistrates who in turn would also inform all Magistrates regarding immediate steps to be taken for ensuring the presence of the detenu without delay in such cases. 

The facts of the present case were that a detention order was passed on November 2022, after which the detenu went absconding. The detenu subsequently appeared before the police only in June 2023, causing a delay in the execution of the detention order which affected the live link between the last pre-judicial activity and the order of detention.

On analysis of Sections 4 and 6 of the KAAPA Act, the Court observed that there were two sets of procedures to be followed, the first set of procedures had to be initiated by the detention authority and the second set had to be initiated by a Magistrate. Section 4 of the KAAPA Act pertains to the execution of detention orders and Section 6 pertains to powers in relation to absconding persons.

The Court described the two sets of procedures thus:

1. Issuance of detention order by the detention authority
2. If the detenu absconds after the issuance of the detention order, then the Magistrate has to treat the detention order as a warrant and initiate proceedings for proclamation and attachment of his property as per Sections 82, 83, 84, 85 and 86 of the CrPC.

The Court elaborated that initially, proceedings would also have to be initiated against the sureties of the absconder who stood for his bail. It noted that then, the Magistrate would have to take immediate steps for proclamation and attachment of the accused's property under the CrPC.

“That means, the Magistrate will have to treat that detention order as a warrant and will have to proceed at the first instance against the sureties of the absconder to produce the detenu. The Court will have to take steps against the sureties, who stood as surety for granting bail to the absconder. Then all procedure for producing abscondant as contemplated under Sections.82, 83, 84, 85 and 86 of the Code of Criminal Procedure.”

The Court observed that if a Magistrate takes immediate steps as prescribed under the KAAPA Act for compelling the appearance of the absconder before Court, then there won’t be a delay in the execution of the detention order which would favour the detenu.

Accordingly, the Court noted that the Magistrate in this case, had not initiated steps against the absconder after the issuance of the detention order and the delay remained unexplained.

It thus allowed the petition and ordered the release of the detenu.

Counsel for the petitioner: Advocate Ajeesh M Ummer

Counsel for the respondents: Public Prosecutor K.A. Anas

Citation: 2023 LiveLaw (Ker) 692

Case title: Krishnapriya K P V State of Kerala

Case number: WP(CRL.) NO. 889 OF 2023

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