Kerala High Court
Rosamma Mathai vs State Of Kerala on 7 August, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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W.P(Crl) No. 771/2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
WP(CRL.) NO. 771 OF 2025
PETITIONER:
ROSAMMA MATHAI, AGED 73 YEARS
W/O MATHAI, CHENGANNUR VILAYIL, KAIPUZHA NORTH P.O, KULANADA,
PATHANAMTHITTA, PIN - 689503
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SHRI.ANANDHU P.C.
SMT.NEETHU.G.NADH
SMT.RIA ELIZABETH T.J.
SHRI.SAHAD M. HANIS
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF
SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
CIVIL STATION, PATHANAMTHITTA DISTRICT, PIN - 689645
3 THE DISTRICT POLICE CHIEF,
CIVIL STATION, PATHANAMTHITTA DISTRICT, PIN - 689645
4 THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, ERNAKULAM PIN - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, VIYYUR, THRISSUR DISTRICT, PIN - 670004
BY ADVS.
PUBLIC PROSECUTOR:SRI ANAS K. A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
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21.07.2025, THE COURT ON 07.08.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
K. V. Jayakumar, J.
The petitioner is the mother of Biju Mathew [‘detenu’ for the sake of
brevity] approached this Court challenging Ext.P1, detention order passed by the
2nd respondent dated 05.04.2025 invoking Section 3(1) of the Kerala Anti-Social
Activities (Prevention) Act, 2007 [‘KAA(P) Act’ for the sake of brevity]. The said
order was passed while the detenu was in judicial custody from 11.01.2025.
2. The records would reveal that the detenu has been involved in
altogether 30 crimes, out of which 5 crimes were considered for passing the
detention order. The detenu has been classified as ‘Known Rowdy’. The details of
the crimes are as follows:
i. Crime No.1867/2018 of Panthalam Police Station registered for
offences under Sections 294(b), 323, 324, 427 r/w 34 of IPC.
ii. Crime No.178/2020 of Enathu Police Station registered for offences
under Sections 452, 354, 506, 427 r/w 34 of IPC and Section 27 of
the Arms Act.
iii. Crime No.939/2021 of Panthalam Police Station registered for
offences under Sections 451, 294(b), 323, 506(ii), 353 r/w 34 of IPC
and Section 3(2)(e) of Prevention of Damage to Public Property Act.
iv. Crime No.1419/2022 of Adoor Police Station registered for offences
under Section 457, 380, 411 r/w 34 IPC.
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v. Crime No.36/2025 of Elavumthitta Police Station registered for
offences under Sections 333, 296(b), 351(3), 118(1), 118(2), 115(2),
324(4) and 3(5) of BNS.
3. The last prejudicial act is Crime No.36/2015 of Elavumthitta
Police Station. The detenu was implicated as accused No.2 in the last crime. The
alleged incident was on 09.01.2025. He was arrested on 11.01.2025 and has
been in judicial custody since that date. The case is under investigation.
4. The learned counsel for the petitioner submitted that there is a
long gap of three months between the last prejudicial act and the detention
order. The detenu has been in judicial custody from 11.01.2025 and therefore,
there was no compelling reason to justify the order of the preventive detention.
Placing reliance on the judgments in Kamarunnissa v. Union of India and
Another1 and Rekha v. State of Tamil Nadu Tr. Sec to Govt. and
Another2 the learned counsel for the petitioner contended that the parameters
laid down in these cases were not complied. It is argued that the triple test laid
down in Kamarunisa (supra) was not considered by the detaining authority
before passing the detention order.
5. It is further pointed out that the offences in which the detenu has
been involved are of private nature and would not affect the public order or
1
1991 KHC 870
2
2011 KHC 4343
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prejudicially affect the interest of the society at large. The impugned detention
order has been passed in a mechanical and perfunctory manner, without proper
application of mind to the facts and circumstances of the case.
6. It is further submitted that the detaining authority failed to arrive
at both objective and subjective satisfaction before passing Ext.P1 order.
Furthermore, it is submitted that the two representations submitted by the
detenu were not considered either by the Government or by the Advisory
Committee, thereby violating the detenu’s constitutional and statutory rights.
The Submissions of the learned Public Prosecutor
7. Sri. Anas K. A., the learned Public Prosecutor, strenuously opposed
the contentions of the counsel for the petitioner and submitted that the delay of
94 days is properly explained. The delay was occasioned for the collection and
scrutiny of materials. It is submitted that the detenu was involved in as many as
30 crimes. Even after being granted bail in multiple cases, he has persistently
engaged in anti-social conduct, thereby posing a serious and immediate danger
to the community. It is submitted that Ext.P3 representation was considered by
the Government and the fate was communicated to the detenu. Regarding
Ext.P2 representation, it was submitted that it was not received by the
Government.
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8. We have carefully considered the rival submissions advanced by
the learned counsel for the petitioner and the learned Public Prosecutor.
9. The first submission by the learned counsel for the petitioner is
that since there is a time gap of three months between the last prejudicial act
and the detention order, the live link and the rational nexus have been snapped.
Admittedly, the detenu has been in judicial custody since 11.01.2025. The last
alleged prejudicial act occurred on 09.01.2025, in which he was implicated as
accused No. 2. Since the detenu has already been in judicial custody, the delay
in passing the detention order cannot be considered unreasonable.
10. The learned counsel would then submit that the offences in which
the petitioner is involved pertain to private acts and would not affect the public
order. The Apex Court in Ashok Kumar v Delhi Administration and others3
held that the true distinction between the areas of “public order” and “law and
order” lies not in the nature or quality of the act, but in the degree and extent of
its reach upon society. The distinction between the two concepts of “law and
order” and “public order” is a fine one, but this does not mean that there can be
no overlapping.
11. Relevant paragraphs of the aforementioned judgment is extracted
hereunder:
3
AIR 1982 SC 1143
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“13. The true distinction between the areas of ‘public order’
and ‘law and order’ lies not in the nature or quality of the act, but in
the degree and extent of its reach upon society. The distinction
between the two concepts of ‘law and order’ and ‘public order’ is a
fine one but this does not mean that there can be no overlapping.
Acts similar in nature but committed in different contexts and
circumstances might cause different reactions. In one case it might
affect specific individuals only and therefore touch the problem of
law and order, while in another it might affect public order. The act
by itself therefore is not determinant of its own gravity. It is the
potentiality of the act to disturb the even tempo of the life of the
community which makes it prejudicial to the maintenance of public
order. That test is clearly fulfilled in the facts and circumstances of
the present case.”
12. The records would reveal that the detenu has been involved in
serious and grave offences which are prejudicial to the interest of society at
large. Therefore, we are unable to accept the contention that the detenu is
involved in activities affecting law and order.
13. It appears that the representation submitted by the petitioner
dated 27.05.2025 was considered at the time of confirmation of the order and
rejected. The second representation submitted by the detenu, Biju Mathew,
before the KAA(P)A Advisory Board was also rejected, and the fate was
communicated to the detenu.
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14. The next contention of the learned counsel for the petitioner is that
the compelling circumstances under which Ext.P1 detention order was passed
are not stated in the order. In order to buttress this contention, the counsel has
placed reliance on the dictum laid down in Kamarunnissa (supra), Rekha
(supra), K. Veeramani v. State of Tamil Nadu4, and Union of India v. Paul
Manickam5.
15. Paragraph 13 of Kamarunnissa (supra) reads thus:
“13. From the catena of decisions referred to above it seems
clear to us that even in the case of a person in custody a detention
order can validly be passed (1) if the authority passing the order is
aware of the fact that he is actually in custody; (2) if he has
reason to believe on the basis of reliable material placed before
him (a) that there is a real possibility of his being released on bail,
and (b) that on being so released he would in all probability
indulge in prejudicial activity and (3) if it is felt essential to detain
him to prevent him from so doing. If the authority passes an order
after recording his satisfaction in this behalf, such an order cannot
be struck down on the ground that the proper course for the
authority was to oppose the bail and if bail is granted
notwithstanding such opposition to question it before a higher
Court. What this court stated in the case of Ramesh Yadav, (AIR
1986 SC 315) (supra) was that ordinarily a detention order should
not be passed merely to pre empt or circumvent enlargement on
bail in cases which are essentially criminal in nature and can be
dealt with under the ordinary law. It seems to us well settled that
even in a case where a person is in custody, if the facts and4
1994 (2) SCC 337
5
(2003) 8 SCC 342
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circumstances of the case so demand, resort can be had to the
law of preventive detention. This stems to be quite clear from the
case law discussed above and there is no need to refer to the High
Court decisions to which our attention was drawn since they do
not hold otherwise. We, therefore, find it difficult to accept the
contention of the counsel for the petitioners that there was no
valid and compelling reason for passing the impugned orders of
detention because the detenus were in custody.”
16. In Rekha (supra), the Apex Court observed that Article 21 is the
most important fundamental right guaranteed by the Constitution of India.
Liberty of a citizen is a most important right won by our forefathers after long,
historic, and arduous struggles. Preventive detention is only an exception to
Article 21 of the Constitution. Relevant paragraphs of this judgment are
extracted hereunder:
“10. In our opinion, if details are given by the respondent
authority about the alleged bail orders in similar cases
mentioning the date of the orders, the bail application number,
whether the bail order was passed in respect of the co-accused
in the same case, and whether the case of the co-accused was
on the same footing as the case of the petitioner, then, of
course, it could be argued that there is likelihood of the accused
being released on bail, because it is the normal practice of most
courts that if a co-accused has been granted bail and his case is
on the same footing as that of the petitioner, then the petitioner
is ordinarily granted bail. However, the respondent authority
should have given details about the alleged bail order in similar
cases, which has not been done in the present case. A mere
ipse dixit statement in the grounds of detention cannot sustain
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the detention order and has to be ignored.
11. In our opinion, the detention order in question only
contains ipse dixit regarding the alleged imminent possibility of
the accused coming out on bail and there was no reliable
material to this effect. Hence, the detention order in question
cannot be sustained.
12. Moreover, even if a bail application of the petitioner
relating to the same case was pending in a criminal case the
detention order can still be challenged on various grounds e.g.
that the act in question related to law and order and not public
order, that there was no relevant material on which the
detention order was passed, that there were mala fides, that the
order was not passed by a competent authority, that the
condition precedent for exercise of the power did not exist, that
the subjective satisfaction was irrational, that there was
non-application of mind, that the grounds are vague, indefinite,
irrelevant, extraneous, non-existent or stale, that there was
delay in passing the detention order or delay in executing it or
delay in deciding the representation of the detenu, that the
order was not approved by the Government, that there was
failure to refer the case to the Advisory Board or that the
reference was belated, etc. 13. In our opinion, Article 22(3)(b) of the Constitution of
India which permits preventive detention is only an exception to
Article 21 of the Constitution. An exception is an exception, and
cannot ordinarily nullify the full force of the main rule, which is
the right to liberty in Article 21 of the Constitution. Fundamental
rights are meant for protecting the civil liberties of the people,
and not to put them in jail for a long period without recourse to
a lawyer and without a trial. As observed in R. v. Secy. of State
for the Home Deptt., ex p Stafford [(1998) 1 WLR 503 (CA)]” … The imposition of what is in effect a substantial term
of imprisonment by the exercise of executive discretion,
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without trial, lies uneasily with ordinary concepts of the
rule of law.”
Article 22, hence, cannot be read in isolation but must be
read as an exception to Article 21. An exception can apply
only in rare and exceptional cases, and it cannot override
the main rule.
14. Article 21 is the most important of the fundamental rights
guaranteed by the Constitution of India. Liberty of a citizen is a
most important right won by our forefathers after long, historical
and arduous struggles. Our Founding Fathers realised its value
because they had seen during the freedom struggle civil liberties
of our countrymen being trampled upon by foreigners, and that
is why they were determined that the right to individual liberty
would be placed on the highest pedestal along with the right to
life as the basic right of the people of India.”
17. In K. Veeramani (supra), it was observed as under in Paragraph
Nos. 7 and 8 of the judgment:
“7. Learned counsel, however, submitted that by making a
sweeping statement that the petitioner is likely to be released on
bail, the detaining authority cannot pass a detention order and
when there is no likelihood of his being released on bail from
custody, the order of detention is illegal inasmuch as there is no
proper application of mind. In this context the learned counsel also
submitted that since the detenu was in actual custody in
connection with the murder case, no reasonable person can arrive
at the conclusion that he was likely to be released on bail and that
the statement of the detaining authority in the grounds that the
detenu is likely to file a bail application and to come out on bail and
that he was aware that bail is usually granted by the Courts in such
cases, is illogical and unsound. In this context, the learned counsel
relied on an unreported judgment of this Court in Rivadeneyta
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Ricardo Agustin v. Government of the National Capital Territory of
Delhi, (subsequently reported in 1994 SCC (Cri) 354). In that case,
in the grounds it was only mentioned that there was a ‘possibility’
of the detenu being released in case he moves a bail application.
This Court observed that since the grounds did not indicate that
such release was likely or that it was imminent and that on a mere
possibility the detention order could not have been passed. The
Bench also examined the relevant file and observed that there was
no material indicating that the release of the petitioner was likely.
8. But in the instant case what we have to mainly see is
whether there was awareness in the mind of the detaining
authority that the detenu is in custody and that he had reason to
believe that he is likely to be released. The grounds do disclose
that the detaining authority was aware that the detenu is in
custody and it is further mentioned that he was also aware that
bail is usually granted by the courts in such cases and it is further
emphasised that there is ‘imminent possibility’ of the detenu
coming out on bail…….”
18. In Paul Manickam (supra), the principles were reiterated, and it
was held as under in paragraph No. 14 of the judgment:
“14. So far as this question relating to the procedure to be
adopted in case the detenu is already in custody is concerned, the
matter has been dealt with in several cases. Where detention orders
are passed in relation to persons who are already in jail under some
other laws, the detaining authorities should apply their mind and
show their awareness in this regard in the grounds of detention, the
chances of release of such persons on bail. The necessity of keeping
such persons in detention under the preventive detention laws has to
be clearly indicated. Subsisting custody of the detenu by itself does
not invalidate an order of his preventive detention, and the decision in
this regard must depend on the facts of the particular case.
Preventive detention being necessary to prevent the detenu from
acting in any manner prejudicial to the security of the State or to the
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maintenance of public order or economic stability etc. Ordinarily, it is
not needed when the detenu is already in custody. The detaining
authority must show its awareness to the fact of subsisting custody of
the detenu and take that factor into account while making the order.
If the detaining authority is reasonably satisfied with cogent materials
that there is likelihood of his release and in view of his antecedent
activities which are proximate in point of time, he must be detained in
order to prevent him from indulging in such prejudicial activities, the
detention order can be validly made. Where the detention order in
respect of a person already in custody does not indicate that the
detenu was likely to be released on bail, the order would be vitiated.
(See N. Meera Rani v. Govt. of T.N. [(1989) 4 SCC 418] and
Dharmendra Suganchand Chelawat v. Union of India [(1990) 1 SCC
746]). The point was gone into detail in Kamarunnissa v. Union of
India [(1991) 1 SCC 128]. The principles were set out as follows :
even in the case of a person in custody, a detention order can be
validly passed : (1) if the authority passing the order is aware of the
fact that he is actually in custody; (2) if he has a reason to believe on
the basis of reliable material placed before him (a) that there is a real
possibility of his release on bail, and (b) that on being released, he
would in all probability indulge in prejudicial activities; and (3) if it is
felt essential to detain him to prevent him from so doing. If an order
is passed after recording satisfaction in that regard, the order would
be valid. In the case at hand the order of detention and grounds of
detention show an awareness of custody and/or a possibility of
release on bail.”
19. The principle laid down in the aforementioned cases is that when
the detenu is already in judicial custody, a detention order can be validly passed
only if the detaining authority is satisfied, based on cogent material, that there is
a real possibility of the detenu being released on bail, and that upon such
release, he is likely to indulge in anti-social activities imminently.
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20. We have perused Ext.P1 detention order, wherein it is stated that
the detenu is in judicial custody and that, if released on bail, he would engage in
various anti-social activities, thereby posing a threat to the life and liberty of the
public. However, in the present case, it is mentioned that the bail application
filed by the detenu was rejected. Whether he filed another application for bail
before the same court or approached the High Court is not stated in the order.
The detaining authority has failed to consider whether there existed a real and
imminent possibility of the detenu being released on bail. A mere bald statement
that, if the detenu is released on bail, he would engage in anti-social activities
and the detenu is a threat to the public order, life, and the liberty of the citizen,
is insufficient to pass an order under Section 3 of the KAA(P)A Act.
21. It is trite law that the order of detention must be exercised
sparingly with utmost circumspection. The authority must ensure that the
detention order is passed after proper application of mind and after arriving at
objective and subjective satisfaction.
22. On a careful consideration of the available materials on record and
hearing the submissions of both sides, we are of the considered view that the
writ petition is to be allowed.
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In the result,
1. W.P(Crl) No. 771/2025 is allowed.
2. Ext.P1 order of detention is set aside.
3. The Superintendent, Central Prison, Viyyur, is directed to release the
detenu, Biju Mathew, aged 48 years, S/o. Mathai, Chengannur Vilayil,
Kaipuzha North P.O., Kulanada, Pathanamthitta forthwith, if his detention
is not required in connection with any other case.
The Registry is directed to communicate the order forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna/
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APPENDIX OF WP(CRL.) 771/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO. DCPTA/1720/2025-B3 DATED
05.04.2025 OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION DATED
27.05.2025. SUBMITTED BY THE PETITIONER BEFORE
THE 1ST RESPONDENT
Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED
27.05.2025 SUBMITTED BY THE PETITIONER BEFORE THE
4TH RESPONDENT