KAAPA- Detention Order Must Reflect How Public Order Would Be Vitiated; Detenu Must Know Reasons: Kerala HC

The Kerala High Court observed that a detention order must reflect how public order would be vitiated if the person concerned is not detained invoking the provisions under the Kerala Anti-Social Activities (Prevention) Act, 2007 [KAAPA].

The court said that a detenu must know the reasons for his detention and a detention order without reasons is illegal.

The Court was dealing with a Habeas Corpus Petition filed by the father of a detenue who was involved in eight crimes registered by the Thiruvalla Police Station.

The Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed, "Detention order is a serious matter depriving liberty of the citizens. That means, except on valid grounds a person cannot be deprived of his liberty. The detention order, therefore, must reflect how public order would be vitiated if the person concerned is not detained invoking the provisions under the Kerala Anti-Social Activities (Prevention) Act, 2007(for short “KAAPA Act”). That means, the offence in which he is involved in the past will have to be analysed to arrive at a conclusion that he will be a threat to the society when he is enlarged without detention."

 Advocates Ajith Murali, Mohanan M.K. and Swapna Vijayan appeared for the Petitioner while Advocate K.A. Anad appeared for the Respondents.

Further after considering the merits of the case, the Court remarked, "This is a typical case where the Court finds that there is no application of mind by the authority as to the exercise of power for ordering detention. The narratives in the impugned order would go to show that the authority had not examined the activities of the detenu vis-a-vis public order in respect of each offences referred in the impugned order."

The Court acknowledged that the detainee had been involved in certain offences related to individual crimes, for which he had been acquitted due to a compromise between the involved parties and made the following observation, "If any individual is involved in offences which had only an impact on the private individuals, though he might have involved in one of similar kind of offences that itself will not be a ground to detain him under the KAAPA Act unless such activity would have a ramification on the public order."

The court further emphasized that, when issuing a detention order, the relevant authority must clearly articulate the reasons demonstrating how the past conduct, particularly in relation to the offences, justifies detention for the purpose of maintaining public order. It explicitly stated that any detention order lacking such reasons would be deemed illegal and legally unsustainable.

"The authority while passing the order will have to keep in mind that the power given to detain an individual is to secure public order nor as a punitive measure to punish him. It is to secure the larger interest of the public and society that such individual is detained and not by way of a punishment for the offences committed by him", stated the Court in its order.

Holding that there is no application of mind in this case, the Court accordingly set aside the impugned order and directed the authority to release the detenue. 

Cause Title: Sukumaran v. State Of Kerala & Ors. [WP(CRL.) NO. 1081 OF 2023]

Click here to read/download the Order