Preventive Detention Curtails Fundamental Rights, KAAPA Detaining Authority Should've Considered Bail Cancellation Instead: Kerala High Court

Quashing a preventive detention order under Kerala Anti-Social Activities (Prevention) Act (KAAPA), the High Court recently said the authorities should have considered the option of bail cancellation in respect of the first case against the detenu before resorting to the extreme measure of preventive detention.

The court clarified that it was not saying that such an option should "necessarily be mechanically pursued" in all cases, but asserted that consideration of such an option was highly crucial and relevant to the case before it.

The Division Bench consisting of Justice Alexander Thomas and Sophy Thomas said, "We have to bear in mind that, at the end of the day, what is involved is the curtailment of the personal liberties and freedoms of the detenu, which are guaranteed in terms of the safeguards contained in Articles 21 and 22 of the Constitution of India."

The order was passed on a petition moved by the 28-year-old detenu's mother against the detention order passed by a District Magistrate in April. The order was passed on the basis of three criminal cases - two of 2019 and one of March 2022, in which the detenu was allegedly involved. Pursuant to the detention order and its approval by the government, he was arrested on May 2 and thereafter was detained in Central Prison, Kannur, and later transferred to the Central Prison, Viyyur.

The court noted that there is no dispute that the detenu's involvement in the cases "would attract him to fulfill the definition of 'known-rowdy' and 'rowdy' as conceived in Sec.2(p)(3) read with Sec.2(t) of the Act, and that the activities of the detenu disclosed in the said crimes would also fulfill the ingredients of 'anti-social activities', as conceived in Sec.2(a) of the Act. "

• Argument 1

The first argument of the counsel representing the petitioner was that the bail condition in respect of the first case, which is a non-bailable offence, has not been considered by the detaining authority. The bail condition stated that the accused shall not commit any offence during the bail period.

"It was obligatory on the part of the detaining authority to consider whether the bail conditions are sufficient to prevent the detenu from continuously indulging in anti-social activities and despite the bail conditions, if the detaining authority is still satisfied that the detenu requires to be detained, then the authority is still at liberty to pass an order of detention," Advocate C. Dheeraj Rajan argued.

Rejecting the argument, the court said both the sponsoring agency as well as the detaining authority has pointedly considered the efficacy of the bail condition and other relevant aspects, and a reading of the pleadings and materials on record would make it clear, beyond any doubt that a copy of the bail order formed a part of the records.

• Argument 2

The petitioner's counsel had also argued that the detenu had been acquitted in the third case on June 18 and it was highly irrelevant to take note of the same as it was not of any serious gravity. The court said it is well settled that the acquittal or discharge of the detenu by the criminal court concerned, is not a ground to enable him to contend that he cannot be roped within the parameters of the KAAP Act.

The court also said, "the acquittal judgement was never in existence at the time when the detention order was passed, etc."

• Argument 3

The third argument of the petitioner was that the materials did not disclose that the order has been issued for the purpose of preventing the detenu from committing acts which are prejudicial to public order. The prosecutor argued that the very objective of the KAAP Act is for prevention and control of certain kinds of anti-social activities in Kerala.

The court said the contention is covered by the dictum laid by a division in Uma v. State of Kerala wherein it was said:

"Before us, in this writ petition, the constitutional validity of the KAAPA is not challenged. "Anti-social activity" is defined in Sec.2(a) of the KAAPA. A person indulging in anti- social activity is defined to be a goonda under Sec.2(j). A goonda answering the descriptions given in Sec.2(o) is a known goonda. Such a known goonda if he poses a threat of committing anti- social activity again in future can be ordered to be detained under Sec.3 of the KAAPA. We find that in the absence of a challenge to the constitutional validity of the KAAPA the petitioner cannot be heard to contend that anti-social activity as defined under Sec.2 of the KAAPA does not amount to any threat to public order".

• Argument 4

The final contention of the petitioner was that the detaining authority had not considered the option as to whether the plea for bail cancellation in respect of the first case, in which bail order was granted, should be sought instead of directly going for an extreme measure of preventive detention.

The non-consideration of the said option of bail cancellation would amount to non-consideration of a highly crucial and relevant aspect of the matter, it was argued.

The Public Prosecutor, on the other hand, contended that the aspect as to whether the option of bail cancellation should be sought for is a matter within the sole discretion of the detaining authority.

"The option of bail cancellation is a time-consuming process, and when there is an imminent threat, the insistence for seeking the option for bail cancellation would be onerous and may not be conducive for the proper enforcement of the Act," the State argued.

The Court, after considering the contentions raised by both Counsels, opined that in the present case, the aspect regarding consideration of the option of bail cancellation of the first case is undoubtedly relevant.

"This is all the more so, since this is the first detention order involved in the detenu's case and only 3 cases are alleged against the detenu, in which the last 2 are bailable offences. Hence, in the light of the facts and circumstances of this case, we are of the view that the detaining authority should have, atleast, considered as to the viability and feasibility of the option of bail cancellation, in respect of the bail granted in the first case, and considered as to whether recourse to such ordinary process of criminal law would have been sufficient to meet the scenario in hand, instead of proceeding with the extreme measure of preventive detention"

The Court further clarified that the matter would have been beyond the province of judicial review interdiction, if the detaining authority had come to the conclusion after considering these aspects of the feasibility and viability of the option of bail cancellation.

"... Total non-consideration of that aspect would disclose a non-application of mind in that crucial area, which was, as far as the present case is concerned, fatal and therefore, the decision-making process, which led to Ext.P-1 detention order, has to be held as being vitiated," the Court said.

In view of the facts and circumstances of the case and in view of the non-consideration of the said aspects, the court said the detention order is liable to be quashed.

Quashing the order, the court ordered the authorities to release the detenu immediately from jail.

Case Title: Jancy Joseph v. State of Kerala & Ors. 

Citation: 2022 LiveLaw(Ker) 541

Click Here To Read/ Download The Order