While considering that her daughter is at an advanced stage of her pregnancy, the Kerala High Court has ordered release of a woman detained under the Kerala Anti-Social Activities (Prevention) Act, 2007.
The Division Bench of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen passed this order while hearing a petition filed by a lady accused.
The issue that arises in the petition after hearing the Counsel for the petitioner and the Government Pleader is that whether the Court can modify the period of detention of the detenue under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA Act).
The petitioner herein is a lady, who is involved in more than 19 cases. Almost all the cases of the petitioner are related under Sections 406 and 420 of IPC.
When a person indulges in anti-social activity, which has become a pattern, then it becomes an issue related to public order. In that sense, we find no reason to interfere with the impugned order, the Court said.
The Court noted that,
However, the Counsel for the petitioner submitted that, the petitioner is a lady and her daughter is in her advanced stage of pregnancy.
It is further submitted that an order may be issued to release her to take care of her daughter and child. It is in this context, the question relating to the modification of the detention order arises for consideration before the Court.
The Government Pleader placing reliance on the judgment of the Court in Kumaran v District Collector reported in 2015(4) KLT 911, submitted that the Court has no jurisdiction to alter the period of detention under Section 3 of the KAAPA.
The Government Pleader is justified in making such submission as normally the Court cannot interfere with the detention order of the detenue under Section 3(1) of KAAPA Act. However, nothing prevents the constitutional Court from recognising the right under Article 21 under the peculiar circumstances in which an individual is placed, the Court further said.
“In exceptional circumstances, the recognition invoking Article 21 of the Constitution of India, the Court can order release of such a person who is detained in custody. This order is not with reference to invoking statutory provision but with reference to superior rights available to such persons on a justifiable ground under Article 21 of the Constitution to ensure life and liberty of such citizens and others. It is pleaded before us that nobody is there to take care of her daughter and child and on humanitarian grounds, the period of detention be modified.
The documents produced before the Court establishes that the daughter is in her advanced stage of pregnancy and she needs care and protection from her mother, who is the detenue. The detenue had already undergone a substantial period of detention and further period of detention will expire on 15.12.2023.
In such circumstances, we are of the view that the detenue shall be released from the jail on 14.11.2023, without serving further period of detention nearly one month”, the Court observed while disposing the petition.
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