ARIFA NIZAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the wife of the detenu. The detenu suffered a detention order and undergone detention for a period of six months. Thereafter, a crime was registered against him by the Pothanikad Police on 31/5/2023 as Crime No.256/2023. The offences registered against him are under Ss. 457, 461, 380 and 201 r/w Sec. 34 IPC. The detenu is suspected to be involved in this crime along with another. It is to be noted that the main allegation by the prosecution is the commission of offence of theft. However, the detenu was not apprehended from the scene nor there was any witness or any overt act attributed against the detenu. Based on the circumstantial evidence, it appears that the detenu was apprehended. Thereafter, he was released on 13/9/2023. The detention order was passed on 21/10/2023, apparently after the release from the judicial custody. No doubt, if a person who suffered a detention order repeats offence, nothing prevents the Authority invoking the provisions of KAA(P) Act to detain him again for a maximum period of one year.

(2.) Even in this, we find that there was no application of mind while considering the nature of offences committed by the detenu. On a mere registration of a crime, a person cannot be detained unless his overt act is explicit in such commission of offence so as to suspect that his act would affect the public order. We do not find any overt act attributed against the detenu in this case. In such circumstances, on a solitary incident, the provisions under the KAA(P) Act cannot be invoked against such person. Further, we note that more than four months elapsed after the registration of the crime. Delay was not explained. We also note that he has already suffered seven months' detention. It is to be noted that the statutory provision provides a maximum period of one year. There should be application of mind while considering the nature of offence committed by the detenu and its impact on the society to order maximum period of detention. Absolutely, there was no application of mind while ordering the maximum period of detention.

(3.) Taking note of the facts and circumstances, we are of the view that this is a fit case to set aside the impugned order. Accordingly, we set aside the impugned order. The detenu shall be released forthwith, provided, if he is not otherwise required in any other case under law.