IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 RP.No. 1131 of 2008(S) ---------------------- AGAINST THE JUDGEMENT IN WPCR.267/2008 Dated 07/10/2008 .................... REVIEW PETITIONER(S): PETITIONER -------------------------------- POORNIMA JACOB, AGED 27 YEARS, W/O. SHEEN MONDY JOSE, T2, CRESCENT OPULENT APARTMENTS, 7TH MAIN, 12TH CROOS, BTM 2ND STAGE, BANGALORE - 560076. BY ADV. SRI.M.G.KARTHIKEYAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY (HOME AFFAIRS) GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, PALAKKAD. 3. THE SUPERINTENDENT OF CENTRAL PRISON, VIYOOR, THRISSUR. 4. THE DISTRICT SUPERINTENDENT OF POLICE, PALAKKAD. ADDITIONAL DIRECTOR GENERAL OF PROSECUTION SRI.K.K.RAVEENDRANATH THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 03/11/2008, ALONG WITH RP NO. 1132 OF 2008 RP NO.1133 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.P.Nos.1131/2008 in W.P.(Crl.)No.267/08, 1132/2008 in W.P.(Crl.)No.266/2008 & 1133/2008 in W.P.(Crl.)No.265/2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of November, 2008. O R D E R Ramachandran Nair, J. These review petitions have been filed by the respective petitioners mainly aggrieved by the observations contained in paragraphs 22 and 23 of our judgment. The review is sought to the extent to which freedom is given to the detaining authority to pass fresh orders of detention. 2. Heard learned Senior Counsel for the petitioners Shri C.C. Thomas and learned Addl. Director General of Prosecutions, Shri K.K. Raveendranath. 3. It is contended by the learned Senior Counsel that the view taken by us by relying upon the decisions of the Apex Court in Makkan Singh Tarsikka v. State of Punjab (AIR 1952 SC 27), Narajan Singh Nathawan v. State of Punjab (AIR 1952 SC 106) and Aysha Nazreem v. Govt. of Kerala & others (2002 (2) KLJ 464), is not correct. It is contended that once a detention order is quashed by this court, then no liberty can be given to pass a fresh order. Only if the parent order is in RP 1131, 1132 & 1133/08 -2- existence, then alone the authority can exercise the power conferred under Section 13(2)(iii) of the Kerala Anti-social Activities (Prevention) Act, 2007 to modify or revoke an order and once the parent order is set aside or quashed, then the Government or the detaining authority lacks power to pass a fresh order. It is also contended that as the detenus have already undergone nearly three months of detention, and as the maximum period of detention as per the Act is only six months, on that ground also no liberty could have been granted. 4. Learned Senior Counsel invited our attention to the judgments cited supra. After referring to the facts of the decided cases, {Makkan Singh Tarsikka's case and Narajan Singh Nathawan's case (supra)} which were referred to by a Division Bench of this court in Sanjay Dutt v. State through C.B.I., Bombay (II) {(1994) 5 SCC 410}, it is submitted that in those cases fresh orders were passed by the detaining authority while the matter was pending adjudication before the court and therefore that provides a clear distinction in the matter. It is also contended that this court in Aysha Nazreem's case (supra) in paragraph 8 clearly took the view that in that case “it may not be possible for the detaining authority to pass fresh detention orders, since only a few more months remaining for the detenus to RP 1131, 1132 & 1133/08 -3- be released.” 5. A reading of Aysha Nazreem's case (supra) shows that the Division Bench was of the view that “in appropriate cases where there are procedural infirmities, the detaining authority can pass fresh orders after clearing the procedural defects.” In para 9 it was further held that “we are of the view in appropriate case it would be possible to cure such defects and pass fresh detention orders.” In support, Their Lordships extracted one paragraph of the judgment of the Apex Court in Makkan Singh Tarsikka's case (supra). We are of the view that the above decisions do not help the petitioners to contend for the position that any modification or revocation can be done by the detaining authority only during the period when the parent order was in force and once after the same is quashed by this court, no fresh order can be passed. As we have noticed already in our judgment, Section 13(2)(iii) of the Act confers power on the authority to pass a subsequent order rectifying the procedural errors or omissions in the initial order passed. It is well settled that this court, when quashes an order on the ground of violation of the principles of natural justice or non- compliance with the mandatory and statutory procedures, can give liberty to the authority to pass a fresh order after complying with such legal RP 1131, 1132 & 1133/08 -4- formalities. We cannot accept the contention that once the detention order is quashed, this court lacks power to issue such directions, especially in the light of the express provisions of the statute considered herein. Therefore, the review petitions are dismissed. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/