Read Time: 08 minutes

Synopsis

The Kerala High Court has held that a thorough investigation or enquiry by a competent authority is essential to establish the involvement of the accused in the alleged crime and mere registration of a First Information Report (FIR) is insufficient to justify preventive detention under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA).

A Division Bench of the High Court, comprising Justice Raja Vijayaraghavan V and Justice G. Girish, quashed the detention orders in a case involving the petitioner, Shamili K.P., challenging an order passed by the District Magistrate, Kannur, which led to the preventive detention of her husband under Section 3(1) of KAAPA. The detention order classified the petitioner’s husband as a “known rowdy” based on multiple criminal cases reported against him. The District Magistrate’s decision, confirmed by the state government, led to a detention order for six months. The cases considered for this classification included several offences under the Indian Penal Code, such as rioting, causing grievous hurt, and robbery, with the most recent case still under investigation.

The petitioner contended that the District Magistrate failed to examine crucial evidence, such as the FIR, investigation reports, and other records, before classifying her husband as a “known rowdy.” It was also argued that the order was issued without proper application of mind and relied solely on the reports submitted by the District Police Chief.

The State (respondent), represented by the Additional Director General of Prosecution, defended the detention order, arguing that it was necessary to maintain public order given the series of offences attributed to the detenu.

The court examined the legality of the detention order and the materials considered by the District Magistrate. It noted that “the mere registration of an F.I.R in respect of a crime, which is qualified to be reckoned under Section 2(t) of the KAA(P)A, is not enough for showing that the said crime has been found to have been committed by the detenu on an investigation or enquiry by a competent police officer. In the absence of some more data pointing to the involvement of the detenu in the crime under investigation, it is not possible to conclude that he has committed the aforesaid crime.”

The court highlighted that while several cases were cited as evidence of the detenu’s criminal history, the most recent case was still under investigation, and there was no indication that the magistrate had reviewed relevant documents like the FIR or wound certificates.

Citing the Full Bench decision in Stenny Aleyamma Saju v. State of Kerala, the court reaffirmed that while a charge sheet is not mandatory before invoking KAAPA, some evidence from the investigation must be available to justify the detention. In this case, the court found that the authorities had failed to provide any substantial material linking the detenu to the most recent crime.“Having failed to mention in Ext.P1 order as to any such exercise undertaken by the Detaining Authority for arriving at the subjective satisfaction about the commission of the crime mentioned as the last prejudicial activity of the detenu, it can only be said that there was total absence of application of mind in passing the said order,” the court stated.

The court concluded that the detention order was issued without proper scrutiny stating that “it has to be shown that the crime under investigation reckoned for classifying a person as ‘known rowdy’, is one found on investigation or enquiry by a competent police officer or other authority, to have been committed by such person.”

As a result, the High Court set aside both the District Magistrate’s and the government’s orders, directing the immediate release of the detenu.

 

Cause Title: SHAMILI K.P v STATE OF KERALA [WP(CRL.) NO. 458 OF 2024]