Clarence Anto vs Additional Chief Secretary and Others

R. Basant, J.—The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to produce the body of his brother Shyam Antony alias Airport Shyam who is detained as per Ext.P1 order dated 18/2/2010 passed by the second respondent u/s 3 of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as the KAAPA).

We have heard the learned Counsel for the petitioner and the learned Government Pleader in detail. The learned Counsel for the petitioner assails the impugned order on the sole ground that there has been no proper application of mind by the detaining authority before the order of detention was passed. In support of this, he has advanced various contentions. On the basis of the arguments advanced, we feel that the only question to be considered is:

Whether there has been proper application of mind by the second respondent before passing Ext.P1 order of detention.

We deem it necessary to narrate the facts in detail before proceeding to consider the question. Against the petitioner, several cases have been initiated. It is unnecessary to refer to all the cases as it is not disputed before us that he falls within the sweep of the expression ''known rowdy'' u/s 2(p) of the KAAPA. In view of that acceptance, we do not proceed to narrate the details of the cases. We proceed on the admitted premise that on the date of detention, the detenu is a known rowdy answering the definition of that expression in Section 2(p) of the KAAPA.

There was an earlier order of detention passed u/s 3 of the KAAPA against the detenu. That order was passed u/s 3 of the KAAPA on 06/05/2009. The detenu was arrested; but later, on the basis of the recommendations of the Advisory Board, the Government passed an order u/s 10(4) of the KAAPA revoking the order of detention. On the basis of that order dated 02/11/2009, the detenu was released from custody.

It is the case of the petitioner that immediately thereafter, police, who were dissatisfied with the release of the petitioner by the Government, started scheming to somehow secure detention of the detenu under the KAAPA. For this purpose, the detenu was allegedly arrayed as the sole accused in crime No. 519/09 of Poonthura police station. The incident in that case took place on 17/11/2009. The crime was registered under Sections 365, 342, 506(i), 384 and 294(b) I.P.C. On the very next day, that is on 18/11/2009, the detenu was arrested by the Poonthura police. Under Ext.P3 order dated 21/11/2009, the detenu was released on bail subject to conditions. Immediately after the registration of the crime on 17/11/2009, the Valiyathura police (note that the crime was registered by the Poonthura police) made a proposal to the Superintendent of Police (Deputy Commissioner of Police, Law and Order, Thiruvananthapuram) that provisions of the KAAPA may be invoked again against the detenu to secure preventive detention of the detenu. By Ext.P3 order, the detenu was released on bail subject to conditions which conditions were to remain in force until further orders. Reading of Ext.P3 order shows that the de facto complainant, against whom the crime was allegedly committed on 17/11/2009 had, before Ext.P3 order dated 21/11/2009 appeared before the learned Magistrate and reported before the learned Magistrate that he has no allegations against the detenu. An affidavit to that effect was filed by him. According to the petitioner, investigation was hurriedly completed by the Poonthura police and the final report was filed on 23/11/2009.

On the basis of the report received by the Valiyathura police, the Superintendent of Police initiated proceedings and submitted a report. Ext.R3(a) is the report submitted by the Superintendent of Police. It is on the basis of that report that the detaining authority passed Ext.P1 order of detention dated 18/02/2010.

The learned Counsel for the petitioner contends that the detention of the petitioner u/s 3 of the KAAPA is vitiated. Proceedings are initiated against the detenu by the police only to wreak vengeance against him as he had secured release u/s 10(4) of the KAAPA on the basis of the recommendation of the Advisory Board when he was previously detained. A totally false case was foisted against him by the police on 17/11/2009 and with unholy haste, a final report was submitted on 23/11/2009. The allegations were totally false as can be seen from Ext.P3 order which shows that the de facto complainant had reported to the learned Magistrate that he has no grievance whatsoever. The learned Counsel for the petitioner contends that the renewed order of detention against the detenu vide Ext.P1 order is mala fide and vitiated.

The learned Counsel for the petitioner submits that even assuming that mala fides have not been established, the conclusion is irresistible that mind has not been applied by the detaining authority to all the relevant facts and circumstances. The learned Counsel for the petitioner submits that this is evident from the fact that the report to initiate action is made by the Valiyathura police and not by the Poonthura police where the fresh crime was registered. The learned Counsel for the petitioner further points out that the haste with which the investigation has been completed - after registration of the crime on 17/11/2009, the final report having been filed on 23/11/2009 must also eloquently convey that all is not fair with the proceedings. The learned Counsel for the petitioner points out that Ext.P3 order granting the detenue bail subject to conditions was not even seen or perused by the detaining authority. The fact that the de facto complainant had reported that he has no grievance, was a crucial circumstance in the backdrop of the peculiar facts and circumstances of this case. Surprisingly and significantly, the detaining authority does not appear to have adverted to that aspect at all. The learned Counsel for the petitioner further points out that though bail was granted to the detenu subject to conditions as per Ext.P3 order, the detaining authority had not even taken note of, considered or applied his mind to that aspect of the matter. Copy of Ext.P3 was not placed before the detaining authority and the detaining authority was not even apprised of the fact that the de facto complainant had resorted to such a course - of appearing before the learned Magistrate within days of the incident to report that he has no grievance. Those facts were suppressed from the detaining authority. The detaining authority was not apprised of that fact deliberately and with malicious intent, submits the learned Counsel. The learned Counsel for the petitioner further submits that a total reading of Ext.P1 order of detention must convey that anxious, alert and meaningful application of mind and consideration had not preceded Ext.P1 order.

The learned Counsel for the petitioner relied on the decision in Chonari Sulekha Vs. State of Kerala, The Union of India (UOI) and The Superintendent of Central Prison, as also Philip Vs. State of Kerala and Others, in support of his contention that the fact that bail has been granted subject to conditions to a detenu is a crucial fact to which mind must have been applied by the detaining authority. More importantly, the learned Counsel for the petitioner contends that the circumstance under which bail was granted in this case - submission made by the de facto complainant, who was allegedly attacked on 17/11/2009 prior to 21/11/2009 that he has no grievance against the detenu, did not enter the mind of the authority. If Ext.P3 were carefully considered, the authority would have found not only that the detenu had been released on bail subject to conditions; but that such release was on the basis of the prompt submission of the de facto complainant within a period of four days of the registration of the F.I.R that he has no grievance against the detenu.

We may hasten to observe that the fact that the de facto complainant has been persuaded to prevail upon (or coerced) to make such a statement can, by itself, deliver no advantage to a detenu. If that be so, persons anticipating action u/s 3 of the KAAPA might indulge in acts of rowdyism and goondaism to threaten and obtain such letters/statements from the victims. What we are disturbed to note is not merely that bail subject to conditions have been granted to the detenu or that the de facto complainant had stated before the learned Magistrate that he had no grievance; but the fact that these crucial circumstances were not adverted to at all by the detaining authority. In the backdrop of the facts and circumstances which have been enumerated above - where the petitioner advances a specific case that the release u/s 10(4) in the wake of the earlier order of detention had prompted the police to register such a crime to get over the bars of Section 13 of the KAAPA and to make such a further proposal for detention, we feel that the detaining authority must have alertly applied his mind to all the circumstances including the two crucial circumstances that bail subject to conditions had been granted to the detenu and that the de facto complainant had appeared before the learned Magistrate within a period of four days of the alleged occurrence to report that he has no grievance. It is significant that no one has a specific case even now that the detenu in custody had directly or indirectly coerced the de facto complainant to file such an affidavit.

The learned Government Pleader submits that the order of detention was passed after the final report had been filed. The bail conditions would have come to end with the filing of the final report. In these circumstances, the fact that the bail application was not specifically adverted to in the detention order is of no consequence, urges the learned Government Pleader. We are unable to agree. Ext.P3 order shows that conditions were to remain in force until further orders and not till the final report was filed. We may repeat that what really disturbs us is the fact that the detaining authority did not at all apply his mind even to the question that in such a crime registered, within days of the release of the detenu in the earlier case, the de facto complainant had reported that he had no grievance within a period of four days of the arrest. Non-application of mind to that crucial circumstance does not give us the satisfaction that there has been such an application of mind which ought to preceed passing of an order u/s 3, in the peculiar circumstances of this case.

The learned Government Pleader submits that in all crimes registered against the detenu, he may have been released on bail. It may not be necessary for the detaining authority in every case mechanically and rigidly to refer to all orders of bail or conditions imposed when such detenu was released. It will not be correct, in these circumstances, to insist that absence of reference to orders granting bail to a detenu would vitiate the order of detention.

We make it clear that we do not intend to lay down any such proposition. In the peculiar facts and circumstances of this case which we have already explained, we are persuaded to agree that there has been no proper application of mind. The cumulative effect of all the circumstances and not any one of them leads us to that conclusion. The fact that the accused was released u/s 10(4) from detention under the earlier order on 02/11/2009, the fact that this crime was registered on 17/11/2009 at a police station other than the police station which initiated action, the fact that bail subject to conditions had been granted on 21/11/2009 to the accused by the learned Magistrate, the fact that the learned Magistrate had granted such bail specifically referring to an affidavit filed by the de facto complainant, the fact that final report in such a serious crime was filed within a period of six days of registration of crime and the further fact that none of these facts was specifically adverted to by the District Magistrate before passing the order and not any one of them by itself do tilt the scales in favour of the detenu.

We are, in these circumstances, satisfied that the impugned order is liable to be set aside and the detenu is entitled to be released.

In the result,

a) This writ petition is allowed.

b) The impugned order of detention and the continued detention of the detenu Shyam Antony alias Airport Shyam is set aside.

c) The detenu shall forthwith be released from custody if his further detention is not necessary in connection with any other cases.

d) The Registry shall forthwith communicate the order to the Prison authorities. The learned Government Pleader shall also do the same.