Preventive Detention Order Can Be Passed Against Person Already In Judicial Custody On Subjective Satisfaction Of Detaining Authority: Kerala High Court

The Kerala High Court recently held that an order of preventive detention can be passed against a person already in judicial custody if the detaining authority is satisfied of its necessity.

A division bench comprising of Justice Alexander Thomas and Justice C.S. Sudha held that based on parameters such as the immediate possibility of release of the detenu from judicial custody and if released on bail, the likelihood to continue to indulge in prejudicial activities must be considered by the detaining authority while passing an order of preventive detention when the person is already in judicial custody.

The petitioner, the wife of the detenu had challenged the detention order issued by the District Magistrate, Ernakulam under Section 3(1) (Power to make orders for detaining Known Goondas and Known Rowdies) of the Kerala Anti-Social Activities Prevention Act, 2007 (KAAPA) in order to prevent him from committing further prejudicial activities.

The detenu had earlier been detained, for four crimes as he satisfied the definition of ‘known rowdy’ or ‘known goonda’ under the act. After the expiry of the previous detention order, the detenu was subsequently involved in a fifth crime, for which the impugned detention order was passed. However, at the time of issuance of the impugned detention order, the detenu was already in judicial remand.

The counsel for the petitioner Adv Ajeesh Ummer questioned legality of the subjective satisfaction formed by the District Magistrate in issuance of the detention order.

The petitioner argued that the detenu was ordered to be under judicial remand, not only in the 5th crime but also in the 4th crime, at the time of issuance the impugned detention order but the District Magistrate was not aware of the judicial remand in the 4th crime while passing the impugned detention order. Hence the subjective satisfaction formed by the Magistrate that despite the judicial remand in the 4th crime, the detenu is to be preventively detained is faulty as he was not privy to his remand in the 4th crime as well, the petitioner argued.

The Prosecutor appearing for the respondents Adv. K A Anas, argued that after the previous detention order expired, the detenu got himself involved in another crime and the impugned detention order was issued in light of the subsequent crime in accordance with Section 13(2)(i) (Revocation of detention order) of KAAPA.

The court in this case considered the applicability of Section 13(2)(i) of KAAPA, which states that revocation or expiry of detention order shall not be a bar for issuance of another detention order under Section 3 against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in Section 2(o) or Section 2(p)(i) and if after release, he is, found to have again involved in an offence of the nature described in Section 2(o) or Section 2 (p) atleast in one instance.

The court referred to several decisions of the apex court including UOI & Anr. vs. Dimple Happy Dhakad (AIR 2019 SC 3428) to conclude that the legal position on the subject is that an order of preventive detention can be passed against a person already in judicial custody but only if the following grounds of detention are present:

(1) the detaining authority must be aware of the fact that the detenu is already in detention, consequent to judicial remand
(2) On the basis of some materials, the detaining authority must be satisfied that the detenu is likely to be released on judicial custody in the near future and
(3) taking into account, the nature of the antecedent activities of the detenu, it is likely that, after his release from such judicial custody, he would still indulge in prejudicial activities and that therefore, it is necessary and imperative to detain him, with the purpose of preventing him from engaging in such activities.

The court observed that the legal principles enunciated by the Apex Court on the matter are to be strictly adhered to by the detaining authority.

“The jurisprudential basis for the said legal position is that, where a detenu is already under judicial remand in a criminal proceeding, then, ordinarily, there may not be any high necessity for resort to the extreme measure of preventive detention, which involves curtailment of liberty. However, the law still permits such preventive detention, but after fulfilling the above parameters mentioned in the above case laws stated supra. Therefore, if the detenu is on judicial remand in more than one case, then the abovesaid legal requirements should be fulfilled by the detaining authority in each of such cases, where he is under judicial remand. The rationale of the said approach is very simple, in as much as even if the detenu is subsequently released on bail in one among the crimes, he may still continue to be on judicial remand in the other crimes. Therefore, the necessity and imperativeness for resorting to the measure of preventive detention should be satisfied with reference to each of such case of judicial remand.”

Applying the above legal principle to the case at hand, the court observed that the detaining authority was only aware of the judicial remand in the 5th crime and it is in that context that the District Magistrate deemed the impugned detention order as necessary, to prevent him from committing further prejudicial activities.

“However, the detaining authority, was unaware that the detenu was under judicial remand even in the 4th crime and wrongly assumed that he was on bail in that case. The 2nd respondent [District Magistrate] has therefore not even considered as to whether the other parameters like the likelihood of being released on bail and the likelihood of committing further prejudicial activities, despite his judicial remand in the 4th crime. As a matter of fact, even if the detenu had subsequently secured bail in the 5th crime, he would have continued to be on judicial remand in the 4th crime, unless he had thereafter secured bail in the 4th crime as well.”

The court in this case quashed the impugned detention order. The court observed that if the detenu is already under judicial remand in the 4th crime, there is no question of his immediate release. The court directed the respondents to release the detenu from detention covered by the impugned detention order if his detention is not needed in any other case.

Case Title: Megha Oshin v State of Kerala

Citation: 2023 LiveLaw (Ker) 149

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