KAAPA| Magistrate Courts Shall Immediately Proceed To Secure Presence Of Absconding Detenu As Though A Warrant Has Been Issued Under CrPC: Kerala HC
The Kerala High Court directed that the Magistrate Courts in Kerala should immediately proceed to secure the presence of absconding detenu (under the Kerala Anti-Social Activities (Prevention) Act, 2007) as though a warrant has been issued under the Code of Criminal Procedure.
The Court observed thus in a writ petition in which the relevant provisions required to be considered were Sections 4 and 6 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA Act) read with other provisions of the Code of Criminal Procedure (CrPC).
A Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen said, “… we are of the view that non explanation of the delay involved is vital in this case as we held that the last prejudicial activity is the live- link for the purpose of detention order. … We order hereafter that the Magistrate Court, in the State of Kerala shall take note of this order when a detenu is ordered to be detained under the KAAPA Act is absconded and when a report is filed under Section 6(a) of the KAAPA Act, the Magistrate Court shall immediately proceed to secure the presence of detenu as though a warrant has been issued under the Code of Criminal Procedure and by proceeding in accordance with the proceedings of the Code of Criminal Procedure.”
Advocate Ajeesh M. Ummer appeared on behalf of the petitioner while Advocate K.A. Anas PP appeared on behalf of the respondents.
In this case, the short point that arose before the Court was regarding the legality of execution of the detention order issued, invoking the provisions under the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short “KAAPA Act”). The detention order was passed on November 14, 2022. The detenu was absconding and he appeared before the Panoor Police Station on June 13, 2023 and thereafter, he was detained. The point to be considered was that the delay in execution of the detention order would snap the live-link between the last prejudicial activity and the order of detention.
The High Court in the above regard noted, “We note from Section 6(2) of the KAAPA Act, on making a report of absconding the detention order would operate as a warrant against such person, issued by the Magistrate and the Magistrate will only had to follow the procedure as contemplated for proclamation and attachment. That means, the Magistrate will have to treat that detention order as a warrant and will have to proceed at the first instance against the sureties of the absconder to produce the detenu.”
It added that the Court will have to take steps against the sureties, who stood as surety for granting bail to the absconder and then all procedure for producing abscondant as contemplated under Sections 82, 83, 84, 85, and 86 of the CrPC.
“All the steps taken by the Magistrate shall be intimated to the detention authority from time to time. Other wise, the non explanation delay would frustrate the very purpose of passing detention order under the KAAPA Act. The Registrar (District Judiciary) shall intimate all the Chief Judicial Magistrates in the State about this order. The Chief Judicial Magistrates also shall inform all the Magistrates concerned about the procedure to be followed in such matter. The detenu shall be released forthwith”, directed the Court.
Accordingly, the High Court allowed the petition and ordered the release of detenu.
Cause Title- Krishnapriya K P v. State of Kerala & Ors. (Neutral Citation: 2023/KER/73705)
