IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 20 of 2010(S)
1. M.BABU, S/O.MATHAVAN PILLAI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. DISTRICT MAGISTRATE AND
3. THE DEPUTY CMMISSIONER OF POLICE,
For Petitioner :SRI.C.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :30/01/2010
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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R.P No.20 of 2010 in
W.P(Crl) No.446 of 2009
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Dated this the 30th day of January 2010
JUDGMENT
BASANT, J.
This revision petition is filed to review our judgment dated
17.12.2009. The learned counsel for the review petitioner raises
two specific grounds to justify his prayer for review. They are:
i) Even assuming that Exts.P1 and P2 orders can be
reckoned as a composite order of detention, Ext.P2 order has not
been approved or confirmed under Section 3(3) and 10(4) of the
Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter
referred to as the `KAAPA’). The said orders of approval and
confirmation refer only to Ext.P1 order and in that view of the
matter, the continuation of the detention is not justified.
ii) Proceedings under Section 107 Cr.P.C had been
initiated against the detenu. There has been no proper
application of mind to this circumstance while passing the orders
of detention Ext.P1 or Ext.P2.
R.P No.20 of 2010 2
2. We have heard the learned counsel for the petitioner
and the learned Government Pleader. The learned Government
Pleader argues that the prayers made are totally beyond the
purview of a review petition as these contentions were not raised
in the Writ Petition nor were they canvassed when the matter
came up for arguments before passing the judgment dated
17.12.2009. We find merit in this contention raised by the
learned Government Pleader. We are satisfied that the request
made in this review petition are totally beyond the scope of the
powers of review. No error apparent on the face of the record is
pointed out. The points were not raised. They were not
considered also and, in these circumstances, we agree that the
powers of review cannot properly be invoked and this review
petition cannot be allowed.
3. However, ignoring technicality we have considered
the contentions on merits also. In our judgment dated
17.12.2009, we have taken note of the fact that Ext.P1 order
dated 19.01.09 was executed only on 28.08.09 and before
executing Ext.P1 order, the matter was considered afresh by the
detaining authority and Ext.P2 order dated 27.08.09 was passed
before the order of detention was executed. We took the view
R.P No.20 of 2010 3
that Exts.P1 and P2 must be read together and that when so
considered, we are satisfied that the delay in executing the order
of detention cannot justify the plea of snapping of the nexus. We
relied on the observations of the Supreme Court in Bhawarlal v.
State of T.N [A.I.R 1979 S.C 541] and the Division Bench of
this Court in Assia v. State of Kerala [2000 (1) KLT 673] to
come to a conclusion that proper application of mind had taken
place before the order of detention was belatedly executed.
Hence we held that the advantage of the decision in Soja
Beegum v. Additional Chief Secretary to Government
[2009 (4) KLT 550] will not be available to the detenu.
4. The counsel argues now for the first time that Ext.P2
order has not been approved or confirmed. The learned counsel
has taken us through Annexure-A3 order of approval under
Section 3(3) and Ext.R3(b) order of confirmation under Section
10(4) to contend that these orders of approval/confirmation do
not refer to Ext.P2. The argument of the learned counsel is that
as the detention was under Ext.P1 read along with Ext.P2,
approval/confirmation must have been there for Ext.P2 order
also. Inasmuch as Ext.P2 order is neither approved nor
confirmed under Annexure-A3 and Ext.R3(b), the counsel
R.P No.20 of 2010 4
contends that the continued detention of the detenu is not
justified.
5. We are unable to accept this contention. The order of
detention is Ext.P1. In Ext.P2, the detaining authority applied its
mind again to the new situation and changed circumstances
referred to in Ext.P2 and decided that though belatedly, the
order of detention has to be executed. Ext.P2 cannot be
reckoned as a different, separate or unconnected order which
requires separate approval/confirmation. We repeat that Ext.P1
was the order of detention. It was not executed within a
reasonable time. The detaining authority by Ext.P2 considered
the matter afresh in the light of the new situation and changed
circumstance and decided that the detenu must be detained.
Approval/confirmation was given to such detention ordered in
Ext.P1. The reasons for the decision to belatedly execute the
same was stated in Ext.P2. In these circumstances, the grievance
that Annexure-A3 and Ext.R2(b) do not specifically
approve/confirm Ext.P2 order under Section 3(3) and Section 10
(4) is found to be without any merit. The counsel attempts to
build up a case on the basis of the language of Ext.P2 which
suggests that it was an order of detention. We have already
R.P No.20 of 2010 5
indicated that Exts.P1 and P2 must be reckoned as a composite
order and it is the order of detention in Ext.P1 which is ordered
to be executed under Ext.P2 notwithstanding the delay, after
application of mind to the new situation and changed
circumstances. The insistence on a separate
approval/confirmation for Ext.P2 order is, in these
circumstances, found to be not justified.
6. The learned Government Pleader however points out
that it is not a case where the Government had not considered
Exts.P1 and P2 together before passing the order of approval
and the order of confirmation. The Government had taken into
consideration Ext.P1 order which was belatedly executed after
the passing of Ext.P2 order. Both these have been taken into
consideration by the Government before passing Annexure-
A3/Ext.R3(b) orders of approval/confirmation. Relevant file has
been placed before us for our consideration and we find this
contention of the learned Government Pleader to be absolutely
justified. Review prayed for on the first ground is thus found to
be not maintainable on merits also.
7. The second contention is that proceedings under
Section 107 of the Cr.P.C had been initiated against the detenu
R.P No.20 of 2010 6
earlier in Crime No.155 of 2002 and Crime No.19 of 2004.
M.C.Nos.286 and 2002 and 16 of 2004 were pending before the
Sub Divisional Magistrate, Trivandrum on the basis of these
crimes at the time when Exts.P1 and P2 were passed. The
learned counsel for the petitioner argues that the detaining
authority had not pointedly applied its mind to the question
whether it is necessary to pass an order of detention in the wake
of such proceedings which were pending. We note that the
detaining authority had applied its mind to this circumstance –
that the 2 M.Cs were pending before the Sub Divisional
Magistrate. They are referred to in Ext.P1 order. We are not
persuaded to agree that the mere pendency of those proceedings
under Section 107 Cr.P.C before the Sub Divisional Magistrate is
sufficient reason to invalidate the subjective satisfaction
entertained by the detaining authority or to sail to the conclusion
that there has been no proper application of mind. The claim for
review on the second ground must also, in these circumstances,
fail.
8. We do, in these circumstances, accept the plea of the
learned Government Pleader that the questions raised are
beyond the scope of the powers of review vested in this Court.
R.P No.20 of 2010 7
We further agree that even if the plea is considered on merits,
the review petition does not deserve to be allowed. The
judgment dated 17.12.2009 does not deserve to be altered or
modified.
9. This Review Petition is, in these circumstances,
dismissed.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
rtr/-