IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WP(Crl.).No. 234 of 2009(S) --------------------------- PETITIONER: --------------- RANJINI, W/O.SANTHOSH KUMAR, TC 28/387, BHAJANAMADAM LANE, KAITHAMUKKU, THIRUVANANTHAPURAM. BY ADV. SRI.M.RAJAGOPALAN NAIR RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY ADDL. CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, THIRUVANANTHAPURAM, OFFICE OF DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 3. DEPUTY COMMISSIONER OF POLICE (L&O) THIRUVANANTHAPURAM CITY, OFFICE OF THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADERS SRI P.N. SUKUMARAN & C.M. KAMMAPPU ADDL.DIR.GENL(PROSECUTIONS) SRI.K.K. RAVINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. R.BASANT & M.C. HARI RANI,JJ ============================== W.P.(CRL)NO. 234 OF 2009 ============================ DATED THIS THE 17TH DAY OF JULY 2009 JUDGMENT Basant,J. 1) Which Police Officer can make a report to the Government/District Magistrate under Section 3(1) of the Kerala Anti-Social Activities(Prevention) Act, 2007 (hereinafter referred to as the 'KAAPA') ? 2) Can an offence allegedly committed beyond seven years from the date of the order of detention be reckoned to bring a person within the sweep of 'known goonda' under Section 2(p) of the KAAPA? 3) Can an offence allegedly committed, the investigation into which by the police is not finally completed, be taken into reckoning while considering inclusion of a person within the expression known goonda and known rowdy under Section 2(o)(ii) and WPCR.234/2009 -2- 2p(iii) of the KAAPA? 4) Is the omission to furnish the document (a further report by the Police Officer under Section 3(1), on the basis of which the requisite satisfaction is entertained under Section 3(1) of the KAAPA, fatal? 2. The petitioner has filed this petition for issue of a writ of habeas corpus to cause the production of her husband Santhosh Kumar,who is detained under Section 3(1) of the Kerala Anti-Social Activities (Prevention)Act, 2007 (hereinafter referred to as the 'KAAPA'), to set aside the order of detention, Ext.P1 and to set him at liberty. 3. Against the said Santhosh Kumar, four cases are pending, the details of which are shown below: Sl.No. Crime No. Offences alleged (inter alia) Date of offence Stage 1 Crime No.22/02 of Vanchiyoor Police Station. U/s.326 IPC 13/2/2002 Trial pending WPCR.234/2009 -3- Sl.No. Crime No. Offences alleged (inter alia) Date of offence Stage 2 Crime No.31/06 of Vanchiyoor Police Station. U/s.451 IPC 29/1/2006 Trial pending 3 Crime No.13/08 of Vanchiyoor Police Station. U/s.365 IPC 15/1/2008 Investigation pending 4 Crime No. 645/08 of Fort Police Station U/s.308 IPC 26/10/2008 Investigation pending 4. A report under Section 3(1) of the KAAPA was submitted by N.Gopalakrishnan,IPS, Deputy Commissioner of Police (Law and Order), Thiruvananthapuram City(Respondent No.3) to the District Collector and District Magistrate (Respondent No.2). Ext.P3 is the said report dated 9-12-2008. That report was received by the second respondent, but no action was taken on that report. The District Magistrate, it appears, only directed that proceedings under Section 107 Cr.P.C. which was pending against the detenu as Crime No.182/2008 of Vanchiyoor Police WPCR.234/2009 -4- Station must be completed expeditiously. 5. At that stage, the third respondent submitted a further report dated 13-3-2009 to the District Magistrate (respondent No.3). It is thereafter that order of detention (Ext.P1) was passed by the District Magistrate. The detenu was arrested on 2-4-2009. His detention was approved by the Government under Section 3(3) of the KAAPA. He had made a representation to the Advisory Board. The recommendations of the Advisory Board has been received and the order of detention has been confirmed under Section 10(4) of the KAAPA. 6. The petitioner, the wife of the detenu has come to this Court with a prayer that the order of detention may be set aside and her husband, the detenu may be set at liberty. Counter affidavits filed and the documents produced have been perused. WPCR.234/2009 -5- Arguments have been heard. 7. The learned counsel for the petitioner assails the impugned order of detention on the following grounds: 1) The third respondent is not a competent officer who can submit the report under Section 3(1) of the KAAPA. 2) Case No.1 referred above in which the alleged incident took place on 13-2-2002 should not have been taken into account to decide whether the detenu is a known rowdy under Section 2(p) of the KAAPA. 3) There has been total non-application of mind before passing Ext.P1 order of detention. 4) Case Nos.3 and 4 referred above should not have been taken into reckoning to decide whether the detenu is a known rowdy under Section 2(p) of the KAAPA. WPCR.234/2009 -6- 5) At any rate, the omission to furnish the further report dated 13-3-2009 submitted by the third respondent to the second respondent, to the detenu has adversely affected his right to know the grounds of detention and to make an effective representation against the order of detention. 8. Ground No.1: Under Section 3 of the KAAPA, the Government or its delegate, the District Magistrate can act only on the basis of information received from specified officials. Section 3(1) which we extracted below clearly settles the position beyond any doubt. “3. Power to make orders detaining Known Goondas and Known Rowdies.- (1) The Government or an officer authorised under sub-section (2) may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known WPCR.234/2009 -7- Goonda or Known Rowdy, that with a view to preventing such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person or detained.” (emphasis supplied) 9. In the instant case action has been taken on the basis of two reports dated 9-12-2008 and 13-3-2009, both submitted by the third respondent herein. Counsel raises a contention that the third respondent is only a Deputy Commissioner of Police(Law and Order). He is not the District Superintendent of Police or the Commissioner of Police and, in these circumstances, he is not a competent official who can submit the relevant report under Section 3(1) of the KAAPA. We are unable to accept this contention. Under Section 3 of the KAAPA “a police officer not below the rank of a Superintendent of Police” is competent to furnish information to the Government/its delegate. WPCR.234/2009 -8- The plain words of Section 3 make it very clear that such police officer need not necessarily be the District Superintendent of Police or the Commissioner of Police. The scheme of the KAAPA shows that only a police officer can furnish the requisite information to the Government/delegates to the District Magistrate and such police officer must be one not below the rank of a Superintendent of Police. The Superintendent of Police is a rank in the police hierarchy. Any police officer, of and above the rank of a Superintendent of Police can furnish the relevant information to the Government/District Magistrate. There is nothing in the language of Section 3(1)of the KAAPA extracted above that such police officer must not only be of and above the rank of a Superintendent of Police but must also be a District Superintendent of Police or Commissioner of Police. There is nothing in the language of Section 3 which can persuade us to read and understand the WPCR.234/2009 -9- expression “a police officer not below the rank of a Superintendent of Police” to mean the head of the District Police–i.e.District Superintendent of Police or the Commissioner of Police. 10. Any police officer of and above the rank of a Superintendent of Police – whichever police establishment in the State he is serving can furnish the information. A Superintendent of Police working in the Crime Branch Wing or the Special Branch Wing or any other Wing of the police establishment can also definitely furnish the requisite information under Section 3 of the KAAPA. We do not, in these circumstances, find any merit in the contention that merely because the third respondent does not head the police outfit in the City of Thiruvanthapuram (that is he is not the Commissioner of Police, Thiruvananthapuram), his report under Section 3(1) is incompetent. We repeat that the only requirement is that the police officer WPCR.234/2009 -10- furnishing information must be of and above the rank of a Superintendent of Police. He cannot be below the rank of a Superintendent of Police. 11. There is no dispute before us that the third respondent is not an official “not below the rank of a Superintendent of Police.” The learned Government Pleader asserts that the second respondent is a Superintendent of Police and in the Commissionerate at Thiruvananthapuram, a D.I.G.heads the establishment as the Commissioner and the Deputy Commissioner is always an officer of the rank of a Superintendent of Police. There is no assertion contra. We accept the same. The challenge on the first ground must in these circumstances fail. 12. Ground No.2. The learned counsel for the petitioner contends that offence No.1 referred above allegedly committed on 13-2-2002 should not have been taken into reckoning to decide whether the detenu WPCR.234/2009 -11- is a known rowdy. The learned counsel relies on the language of Section 2(p) of the KAAPA, the relevant portion of which is extracted below: “ 2p. 'Known Rowdy' means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act.” (emphasis supplied) 13. In this case the first case relates to an offence committed on 13-2-2002. The order of detention is dated 26-3-2009. The charge sheet in respect of the first case may have been filed after 26-3-2002. But that has no relevance or significance at all considering the language of Section 2(p) which we have extracted above. The act done which brings a detenu within the sweep of the expression 'known rowdy' must have been committed within the previous seven years as calculated from the date of the detention WPCR.234/2009 -12- order. The detention order was passed on 26-3-2009 and the history prior to 26-3-2002 is irrelevant while considering whether a person is a known rowdy, contends counsel. We are in complete agreement with the learned counsel for the petitioner that case No.1 referred above should not have been taken into reckoning at all to decide whether the detenu is a known rowdy or not. The challenge on this ground succeeds. The same (crime/offence No.1 referred above) must have been excluded from consideration by the second respondent when he considered whether the detenu is a known rowdy or not. 14. Ground No.3. It is contended that there is non- application of mind as the second respondent had not considered whether the first case can be validly taken into account or not. We have already upheld the challenge raised on Ground No.2. Even if that is excluded, Section 7(4) mandates that if the mind is WPCR.234/2009 -13- properly applied to the other circumstances, the order of detention can be supported. We extract Section 7(4) of the KAAPA below: “The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised Officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied.” In the circumstances, mere omission to note that case No.1 referred above cannot be taken into reckoning while considering whether the detenu is a known rowdy and that the same was taken into consideration cannot be of any help to the detenu, if he is otherwise found to be a known rowdy excluding case No.1 referred above. The challenge on the ground that there is non WPCR.234/2009 -14- application of mind for the above reason cannot hence succeed. If the order of detention can be supported on other grounds as mentioned in Section 7(4), this inadequacy cannot by itself invalidate the detention. 15. Ground No.4. It is contended that in any view of the matter cases shown above as Sl.Nos.3 & 4 should not have been taken into account at all as they were on the relevant dates pending at the stage of investigation and final reports had not been filed. 16. Section 2(o)(ii) and Section 2(p)(iii) are worded almost identically and the question to be considered is whether before an investigation is completed, it can be held that a person has been “found on investigation ..... by a competent police officer .... to have committed any offence” . 17. In the instant case investigation into cases shown above as Sl.Nos.3 and 4 are not complete on the WPCR.234/2009 -15- date of the order. Investigation was only continuing. The learned Additional Director General of Prosecutions relies on the decision in Elizebeth George v. State of Kerala [2008(4)K.L.T.425] to contend that even before final report is filed, if the requisite satisfaction is entertained by the investigating officer, it can be held that the person falls under Section 2(o)(ii) or 2(p)(iii). We have already adverted to this aspect in Sathi v. State of Kerala (W.P.(Crl.)No. 201/2009 dated 2-7-2009). In paras. 60 and 61 of the said decision dated 2-7-2009, we had disagreed with the observations of the Division Bench in Elizabeth George which appear in Paras. 12 to 14. We have already opined that the matter deserves to be referred to a Full Bench in an appropriate case. But even in this case we do not feel the need to make a reference in the light of the conclusion which we propose to reach later on Ground No.5. For fear that such a reference to the Full WPCR.234/2009 -16- Bench may entail unnecessary protraction of the proceedings, we are not making a reference to the Full Bench in this case also. We are certainly of the opinion that an incomplete investigation or provisional conclusions pending such investigation reached by a police official cannot be held to be sufficient to attract Section 2(o)(ii) or Section 2(p)(iii) of the KAAPA. 18. Ground No.5. The learned counsel for the petitioner submits that the most crucial and vital document on which the subjective satisfaction is shown to have been entertained by the second respondent has not been furnished to the detenu. The learned counsel refers to the further report dated 13-3-2009. In this context, we deem it necessary to advert to the sequence of events once again. 19. A report under Section 3(1) of the KAAPA was submitted by the third respondent to the second WPCR.234/2009 -17- respondent. That report is dated 9-12-2008 and a copy thereof is produced as Ext.P3. This report was duly received by the second respondent. But the second respondent did not take further action on the basis of Ext.P3. The second respondent, it is now evident, took note of proceedings under Section 107 Cr.P.C. pending as Crime No.182/2002 of Vanchiyoor police station and directed the Sub Divisional Magistrate to complete the proceedings at the earliest. He was evidently not satisfied that an order of detention under Section 3 was necessary on the basis of that report dated 9-12-2008. It is at that juncture that a further report dated 13-3-2009 was submitted by the third respondent to the second respondent. That further report appears to have tilted the scales and the second respondent allegedly entertained the requisite subjective satisfaction after pursuing that further report dated 13-3-2009. He then proceeded to pass the impugned WPCR.234/2009 -18- order of detention. 20. Admittedly that further report dated 13-3-2009 has not been furnished to the detenu. There is no dispute on that aspect. It is by now trite that the omission to furnish any and every document may not entail invalidation of the detention order. But in this case, subjective satisfaction is entertained solely and mainly on the basis of one document, i.e.the report dated 13-3-2009 submitted by the third respondent to the second respondent. That document has not been furnished. We have no hesitation to agree that the failure/omission to furnish copy of such all important report has caused serious prejudice and denial of justice to the detenu. His rights under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA to know the basis on which he was detained and to make an effective representation to the Government and the Advisory Board have been blatantly impaired by such WPCR.234/2009 -19- omission to furnish the crucial, vital and the all important document. We repeat that the sequence of events clearly shows that it is only on the basis of such further report that the detaining authority changed its view and allegedly entertained the subjective satisfaction. That omission/failure is fatal and cannot but persuade us to invalidate the detention. 21. We make it clear that we are convinced that the omission to furnish a copy of the further report dated 13-3-2009 has resulted in impairment of the right of the detention to make a representation under Article 22(5) of the Constitution of India and 7(2) of the KAPPA and it is hence that we hold that the detention deserves to be invalidated. If we were not convinced about such infraction of the vital right under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA to know the reason/basis of the order of detention and to make an effective representation against the order of WPCR.234/2009 -20- detention, our conclusion may have been different. 22. It follows from the above discussions that the detention of the detenu deserves to be set aside. 23. In the result: a) this Writ Petition is allowed; b) Ext.P1 order of detention and the consequent detention of the detenu Santhosh Kumar is set aside. c) If the detention of the detenu is not necessary in connection with any other case, he shall forthwith be released from custody by the prison authorities from the Central Prison, Trivandrum. d) The Registry shall forthwith communicate the order to the prison authorities. R.BASANT, JUDGE ks. M.C.HARI RANI, JUDGE WPCR.234/2009 -21- ks