Sonija K vs State Of Kerala

A.Muhamed Mustaque, J

This writ of habeas corpus is filed by the wife of the detenu, Biju@Jenmi Biju. Four cases were considered for passing the detention order, which are as follows:-

Sl.Nos.

FIR No.

Police Station

1.

239/2017

Panoor Police Station

2.

915/2017

Panoor Police Station

3.

803/2023

Panoor Police Station

4.

1349/2023

Thalassery Police Station

As seen from the first crime, the address of the de facto complainant is the same as that of the detenu. According to the petitioner, the de facto complainant in the first crime is the brother of the detenu. Thus, the learned counsel for the petitioner contended that this crime has to be excluded from the purview of the detention order. The second crime is based on a chitty transaction. It seems that out of chitty transaction, there arose a dispute and the detenu attacked the de facto complainant. The third crime is a robbery. The fourth crime is registered for the offences punishable under Sections 341 and 323 of IPC alleging that the detenu attacked the de facto complainant. The above crime is not significant to initiate proceedings under the Kerala Anti-Social Activities (Prevention) Act,2007 [for short ‘KAA(P)A’]. However, the previous crime was committed on 04.08.2023. It appears that the detenu was involved in heinous crime in 2009. But, the commission of that offence cannot be subjected to detention order for the reason that those crimes were committed beyond seven years. It may be true that certain offences registered against the detenu would attract the provisions under the KAA(P)A. But mere reference to the offence itself cannot be the basis for proceeding under the KAA(P)A. The nature of act, the nature of involvement and its impact that is likely to ensue in a society, are all the relevant factors to be taken into account while passing the detention order.

After referring to all the offences registered under the four cases, we are of the view that only the offence coming under the third case as such would vitiate the public order, though offences registered under the three cases would also come within the ambit of KAA(P)A. That being the case, the solitary instance itself cannot result in initiating proceedings under the KAA(P)A. We also note that the detenu was in judicial custody from 6.10.2023.

Taking note of overall circumstances, we are of the view that the impugned order has to be set aside.

Accordingly, the impugned order is set aside. We direct the concerned prison authorities to release the detenu forthwith, if his detention is not otherwise required under law.

The writ petition is allowed as above.