2014 (9) TMI 1253 - HC - Indian Laws

Preventive Detention order - petitioners argued that challenge to preventive detention order under KAAPA can be done even at pre-execution stage - HELD THAT - In the case in hand, the definite plea is that the second petitioner is mentally ill. It would be unreasonable to keep him out without even providing him medical help, if he needs treatment in that regard. This is all the more so because, if the second petitioner is shown to be one who cann - ot be tried owing to any disability in that regard, he has to be presented for treatment by the competent authority and could be put to trial only on being satisfied, on due certification by such authority that he is fit for trial - there is no statutory or public duty in any of the functionaries under KAAPA to consider such a representation, though the Government being the ultimate authority may, in its wisdom, if it desires so, consider that representation and act on it, particularly because under S. 13 of KAAPA, the Government has fairly wide powers in relation to such matters. But, let the Government remember that the Constitution and the laws are the supreme because they form the base cream for governance in terms of the collective will and declaration by We, the People of India . This Writ Petition is dismissed.

Summary

Issues:
Interference with a detention order under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA) at the pre-execution stage; Validity of detention order based on criminal cases; Impact of termination of criminal cases on preventive detention; Consideration of representation to recall preventive detention order; Applicability of Section 15 of KAAPA in the case of a mentally ill individual.

Issue 1: Interference with Detention Order under KAAPA
The Original Petition sought interference with a detention order under KAAPA, despite it not being executed. The counsel argued that challenging a preventive detention order under KAAPA is permissible even at the pre-execution stage, citing judgments of the Apex Court. The petitioners contended that the detaining authority should have considered imposing an order under Section 15 of KAAPA to keep the individual out of the district instead of resorting to preventive detention. They also highlighted that two criminal cases were quashed, leading to a representation filed before the State Government to recall the preventive detention order.

Issue 2: Validity of Detention Order Based on Criminal Cases
The detention order was not served on the proposed detenu, but four criminal cases formed the basis of the detention order. These cases fell under clause (t) of Section 2 of KAAPA, indicating that the individual had been found to be a 'known-rowdy' for committing offenses in separate instances. The Court noted that the offenses were investigated by competent police officers based on complaints, establishing the individual's status as a 'known-rowdy' under KAAPA. The Court cautioned against challenging preventive detention orders based on terminated criminal cases, emphasizing the need to prevent subversion of justice.

Issue 3: Impact of Termination of Criminal Cases on Preventive Detention
The Court analyzed two orders passed under Section 482 of the Code of Criminal Procedure, where criminal cases were terminated due to settlements between parties. It clarified that such terminations did not imply that no offense was committed but indicated the futility of continuing the prosecution. The Court warned against allowing repeated indulgence in offenses to evade preventive detention, highlighting the importance of considering investigative findings even after prosecution termination for preventive detention purposes.

Issue 4: Consideration of Representation to Recall Preventive Detention Order
The petitioners made a representation to the State Government after two criminal cases were quashed, seeking to recall the preventive detention order. The Court acknowledged the representation but emphasized that there was no statutory obligation for authorities under KAAPA to consider such representations. It noted that the Government could exercise its discretion under Section 13 of KAAPA to address such matters, emphasizing the supremacy of the Constitution and laws in governance.

Issue 5: Applicability of Section 15 of KAAPA in Case of Mentally Ill Individual
The plea to impose an order under Section 15 of KAAPA to keep the mentally ill individual out of the district was considered. The Court highlighted the need to provide medical help to the individual if required, especially if they were mentally ill and unable to stand trial. It emphasized that the detaining authority's satisfaction regarding the necessity of preventive detention should be respected, with due consideration for the individual's condition and treatment needs.

In conclusion, the Court dismissed the Writ Petition, except for the representation pending before the Government, emphasizing the importance of upholding statutory provisions and constitutional principles in preventive detention cases under KAAPA.