IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 WP(Crl.).No. 237 of 2010(S) --------------------------- PETITIONER(S): --------------- DAINABI.K, W/O.KHADER @ ABDUL KHADER AGED 57 YEARS, KUSHAL NAGAR, KANHANGAD, HOSDURG TALUK, KASARAGOD TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): --------------- 1. THE DISTRICT MAGISTRATE,KASARAGOD, KASARAGOD. 2. THE ADDITIONAL CHEIF SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE SUPERINTENDENT, CENTRAL PRISON, KANNUR. ADDL. D.G.P. SRI. K.K. RAVINDRANATH. SR. G.P. SRI. P. RAVINDRA BABU & SRI.K.J. MOHAMMED ANZAR ADVOCATE SRI.S.RAJEEV, AMI.CURIAE THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17/08/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(Cri) No.237 of 2010-S ------------------------------------------------- Dated this the 17th day of August, 2010 JUDGMENT Basant,J. How is the expression “excluding those offences punishable with less than one year of imprisonment” in Section 2(t)(ii) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA') to be understood? (ii) Is it to be insisted that offences must be mandatorily visited with a sentence of imprisonment of one year before such offence is included within the ambit of Section 2(t)(ii)? (iii) Are all offences, which may in the discretion of the Court, be visited after trial with the punishment of imprisonment less than one year or fine only, to be excluded from consideration under Section 2(t)(ii) of the KAAPA? These questions of importance arise for consideration in this Writ Petition. W.P.(Cri) No.237 of 2010 -: 2 :- 2. To the vital and relevant facts first. The petitioner is the mother of Shamsudheen, S/o. Khader (hereinafter referred to as `the alleged detenu'), who is preventively detained under Ext.P1 order dated 18.02.2010 passed by the 1st respondent - District Magistrate, Kasaragod. In execution of Ext.P1 order of detention, the detenu has been arrested and he continues in custody from 19.02.2010. Approval under Section 3(3) of the KAAPA and confirmation under Section 10(4) of the KAAPA have been granted vide orders dated 03.03.2010 and 22.04.2010. The detenu has been classified as a 'known rowdy' under Section 2(p) of the KAAPA. There are 9 criminal cases to his credit which are enumerated in Ext.P1 order of detention. The offences alleged against the detenu in these cases include offences punishable under Sections 143, 147, 148, 447, 323, 324, 302, 332, 341 and 153A read with Sec.149 I.P.C. In one of these 9 cases, the allegations are raised under Sections 326 and 435 I.P.C also. The detenu continues in custody from 19.02.2010. The petitioner herein, the mother of the detenu, has filed this application for issue of a writ of habeas corpus to set aside the order of detention - Ext.P1 and to release the detenu from custody. Various contentions have been raised in this Writ W.P.(Cri) No.237 of 2010 -: 3 :- Petition. Arguments have been heard. The learned counsel for the petitioner Sri.Sunny Mathew raises a very interesting question and contends that all the other 8 cases must be excluded from consideration while deciding whether the detenu is a known rowdy. In short, the contention of the learned counsel for the petitioner is that in all the other 8 cases, the detenu faces indictment only for offences which can possibly be punished actually with a sentence of fine only or imprisonment for a period of less than one year. To be more specific, the contention is that in none of these 8 cases, is there an allegation that the detenu has committed an offence with imprisonment for a term of 5 years or more as insisted by Section 2(t)(i) of the KAAPA. There is also no allegation that the detenu is guilty of any offence which is punishable mandatorily with one year of imprisonment. In all these 8 cases, it is possible that, after trial, the criminal court may, in its discretion, impose a sentence of fine only or a sentence of imprisonment for a term less than one year. The counsel hence contends that such offences cannot fall within the sweep of the definition “rowdy” in Section 2(t) of the KAAPA. If this contention were accepted by this Court, needless to say, there will be only one case, i.e., Crime No.283 of 2009 W.P.(Cri) No.237 of 2010 -: 4 :- registered for offences punishable, inter alia, under Sections 326 and 435 I.P.C, which can fall within the sweep of Section 2(t). One such case by itself cannot [at least 3 such cases are necessary] bring the offender within the sweep of the expression `known rowdy' in Section 2(p) of the KAAPA. 3. The contention did appear to us to be interesting. Detailed arguments were advanced by the learned counsel for the petitioner Sri. Sunny Mathew and the learned Director General of Prosecutions Sri.K.K.Ravindranath. As we found that an identical contention has been raised by Senior counsel Sri.K.Ramakumar in another matter, we requested Sri.K.Ramakumar also to advance arguments on this point alone to assist us. We also requested Sri.S. Rajeev, counsel, to assist us as amicus curiae. All these counsel have advanced detailed arguments. 4. First of all, we think it necessary to ascertain the type of punishments that can be imposed by criminal courts on persons found guilty. The following options of punishments are available depending upon the nature of the offences. Offences, according to us, can be broadly classified into the following six classes of offences: W.P.(Cri) No.237 of 2010 -: 5 :- (i) Offences punishable with death. (ii) Offences punishable with imprisonment for life. (iii) Offences punishable with imprisonment of either description for a specified term or less. (iv) Offences punishable with imprisonment of either description for a specified term or less and fine. (v) Offences punishable with imprisonment of either description for a specified term or less or fine. (vi) Offences punishable with fine only. 5. In respect of offences, falling under Clauses (iii) to (v), a minimum mandatory term of imprisonment of either description can also be specified by the concerned law. In respect of offences falling under Clauses (iv) to (vi) a minimum mandatory sentence of fine may also be specified by the concerned law. 6. If the above are the classification of offences depending on the punishment that can possibly be imposed, we find several instances where consequences are prescribed depending upon the nature of the punishment that can be imposed. Under the Code of Criminal Procedure such classification is employed at various places to specify consequences. The nature of punishment is used by different enactments to identify and W.P.(Cri) No.237 of 2010 -: 6 :- specify the consequences. It would be appropriate straightaway to take note of Sec.437 Cr.P.C. where consequences are specified depending on the nature of the sentence with which the offence is punishable. Under Sec.167(2) Cr.P.C. also we find consequences stipulated depending on the question whether the offence is one punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years. In the Schedule to the Code of Criminal Procedure also we find consequences stipulated depending upon the nature of the punishment that can be imposed. Part II of the First Schedule classifies offences as cognizable/non-cognizable and bailable/non-bailable depending on the extent of the punishment. Part II also specifies the court by which the offences are triable depending upon the nature of the punishment that can possibly be imposed. In the Code of Criminal Procedure a summons offence or a warrant offence is also to be ascertained on the basis of the punishment that can be imposed. 7. We have also other enactments in which the nature of punishment that can possibly be imposed is taken into consideration for prescribing consequences. The provisions of the Probation of Offenders Act is one classic example. We also W.P.(Cri) No.237 of 2010 -: 7 :- come across special enactments like the Borstal Schools Act in force in various States which also make use of the nature of the possible punishment to prescribe consequences. 8. That takes us to the important question as to how the expression “punishable” is to be understood. It appears to be well settled that the expression “punishable” takes into account the possible punishment that can be imposed and not the punishment that will actually be imposed or that must be imposed in a criminal trial. We feel that it would be advantageous to refer to three decisions of the Supreme Court on this aspect. 9. A three Judge Bench of the Supreme Court had occasion to consider the meaning to be assigned to the expression “punishable” while interpreting the provisions of the Punjab Borstal Act. Sec.2(4) of the said Act defined an offence to mean: “an offence punishable with transportation or rigorous imprisonment under the Indian Penal Code other than - (a) an offence punishable with death.” The question that arose for consideration was whether an W.P.(Cri) No.237 of 2010 -: 8 :- offence under Sec.302 IPC where the actual punishment imposed on the offender was only imprisonment for life would fall within Clause (a) above. The three Judge Bench of the Supreme Court in Subhash Chand v. State of Haryana (AIR 1988 SC 584) observed thus in paragraph-4: “One of the punishments for the offence of murder is death and therefore, the offence of murder would be covered within Section 2(4)(i)(a) of the Punjab Act and to such a conviction the Punjab Borstal Act would have no application.” Later, in paragraph-5 the three Judge Bench of the Supreme Court proceeded to observe thus: “The petitioner is not entitled to the benefit of the Punjab Borstal Act as he has been sentenced to imprisonment for life for the offence of murder punishable under Section 302 I.P.C. for which the sentence of death is prescribed as an alternate.” 10. A two Judge Bench of the Supreme Court later in Sube Singh v. State of Haryana ([1989] 1 SCC 235) considered the meaning of the expression “punishable with” in greater detail. Their Lordships delved deeper into the expression “punishable” W.P.(Cri) No.237 of 2010 -: 9 :- in Sube Singh (supra). Their Lordships followed the decision of the three Judge Bench; felt bound by the said decision, but still thought it necessary to advert in detail to the meaning to be assigned to the expression “punishable”. The following passages in paragraphs, 6, 7, 8, 9 and 10 which we extract below reveal the discussion on this aspect: “6. In the Webster's Third New International Dictionary the following meaning has been given to the word `punishable': Deserving of, or liable to, punishment: capable of being punished by law or right. 7. Aiyar's The Law Lexicon (Reprint Edition 1987) gives the meaning of `punishable' thus: The word 'punishable' as used in statutes which declare that certain offences are punishable in a certain way, means liable to be punished in the way designated. 8. In Bouvier's Law Dictionary, the meaning of the word 'punishable' has been given as 'liable to punishment'. In Words and Phrases-- Permanent Edition, the following meaning has been given: W.P.(Cri) No.237 of 2010 -: 10 :- The word 'punishable' in a statute stating that a crime is punishable by a designated penalty or term of years in the State prison limits the penalty or term of years to the amount or term of years stated in the statute. 9. The word 'punishable' is ordinarily defined as deserving of or capable or liable to punishment, punishable within statute providing that defendant may have ten (sic) peremptory challenges if offences charged is 'punishable' with death or by life imprisonment; means deserving of or liable to punishment; capable of being punished by law or right, may be punished, or liable to be punished and not must be punished. 10. Corpus Juris Secundum gives the meaning as: Deserving of, or liable to, punishment; capable of being punished by law or right; said of persons or offences. The meaning of the term is not 'must be punished', but 'may be punished', or 'liable to be punished'. In the absence of a definition of 'punishable' we have referred to these for W.P.(Cri) No.237 of 2010 -: 11 :- gathering the exact meaning of the word. In the sense given to the word, as above, there can be no doubt that the offence of murder is punishable with death even though the punishment awarded is not death but imprisonment for life.” (emphasis supplied) That was also a case where their Lordships had considered the question whether the offence under Sec.302 IPC will fall within the sweep of Sec.2(4) of the Punjab Borstal Act. 11. Still later, a two Judge Bench of the Supreme Court was called upon to consider the very same question in Bhupinder Singh v. Jarnail Singh (2006 (4) KLT 460 [SC]). Their Lordships were called upon to decide the question whether Sec.304B IPC would be an offence punishable with imprisonment for life. Their Lordships took note of the fact that the offence under Sec.304B IPC is mandatorily punishable with imprisonment of not less than 7 years; but the sentence can go upto imprisonment for life. In paragraphs-12 to 14, their Lordships considered the sweep of the expression “punishable”. Their Lordships, of course, were considering the question to W.P.(Cri) No.237 of 2010 -: 12 :- decide whether the offence under Sec.304B would fall within Sec.167(2)(a)(i) Cr.P.C. 12. The three decisions of the Supreme Court referred above clearly and unmistakably show that when an offence is classified or referred to by the extent of punishment, it is not the actual punishment that may eventually be imposed after trial which has to be taken into account; but only the maximum punishment that can possibly be imposed. In short, the question is what punishment can be imposed and not what punishment must be or may eventually be imposed. The discussion on the questions raised in paragraph-1 can commence only with such a clear understanding of the expression “punishable”. We feel that we are bound by convincing authority by the three decisions referred above as to what is an offence “punishable” with the sentences specified. 13. Sec.302 IPC is an offence punishable either with death or with imprisonment for life. Two alternative sentences are possible. A sentence of life can be imposed for the offence under Sec.302 IPC. But the offence under Sec.302 IPC will continue to be an offence punishable with death notwithstanding the fact that the lesser sentence of imprisonment for life may be W.P.(Cri) No.237 of 2010 -: 13 :- imposed or has actually been imposed after a trial in a given case. Similarly, an offence under Sec.326 IPC is punishable with imprisonment for life. But in actual practice that offence may be tried by a Magistrate of the First Class and such Magistrate may have jurisdictional competence only to impose a sentence of imprisonment not exceeding three years. Actually, after trial for an offence under Sec.326 IPC, ordinarily and normally only a sentence of imprisonment less than three years alone is likely to be imposed. But that does not militate against the concept that the offence under Sec.326 IPC is one punishable with imprisonment for life. 14. To extend the analogy further, an offence under Sec.307 IPC is punishable with imprisonment for a period of 10 years. Actually, the sentence imposed in a prosecution under Sec.307 IPC may be much lesser. Again, it is not the actual sentence that is imposed or can possibly be imposed or the minimum sentence that must mandatorily be imposed which is to be taken into consideration while ascertaining the punishability for the offence. Sec.307 IPC continues to be an offence punishable with imprisonment for 10 years notwithstanding the fact that the actual imprisonment imposed can and may be much W.P.(Cri) No.237 of 2010 -: 14 :- lesser. 15. Having thus understood the concept of “punishability” clearly we will now go to Sec.2(t) of the KAAPA. We extract the relevant provision below: “(t) 'rowdy' means and includes a person who either by himself or as a member of a gang commits or attempts to commit, or abets the commission of any offences under Sections 153A and 153B of Chapter VIII and Chapters XV, XVI, XVII & XXII of the Indian Penal Code, 1860 (Central Act 45 of 1860), or any offences under the provision of the Arms Act, 1959 (Central Act 54 of 1959), or the Explosive Substances Act, 1908 (Central Act 6 of 1908),-- (i) punishable with five or more years of imprisonment of any type, or; (ii) with less than five years of imprisonment of any type, except those punishable with less than one year of imprisonment; or such offences under any other law for the time being in force, coming under item (i) or (ii), as may be notified by the Government, from time to time.” (emphasis supplied) W.P.(Cri) No.237 of 2010 -: 15 :- 16. We feel that to correctly understand Sec.2(t)(i) and Sec.2(t)(ii), it may be necessary to refer to the definition of the expression “known-rowdy” in Sec.2(p) of the KAAPA. We extract Sec.2(p) of the KAAPA below: “(p) '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,-- (i) made guilty, by a competent Court at least once for an offence of the nature under item (i) of clause (t) of Section 2 or any offence notified as such under the said clause; or (ii) made guilty, by a competent Court at least twice for any offence of the nature mentioned under item (ii) of clause (t) of Section 2 or any offence notified as such under the said clause; or (iii) found, on investigation or enquiry by a competent police officer or other authority, on complaints initiated by W.P.(Cri) No.237 of 2010 -: 16 :- persons other than police officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of Section 2:” (Provisos omitted being unnecessary and irrelevant for the present purpose) 17. We have attempted to analyse Sec.2(t) in detail. While analysing Sec.2(t) and trying to understanding the concept of a rowdy under Sec.2(t), we think it necessary to broadly advert to the aims, objects and purposes of the KAAPA. Organised criminal activity by rowdies, goondas, hired ruffians, immoral traffic offenders etc., are having a field day in Kerala. The legislature felt that their activities must be curbed and controlled. The punitive provisions of the Penal Code and other Penal Statutes are very much there. But they were found to be inadequate to meet the very peculiar situation of lawlessness and rowdy/goonda activity in Kerala. It is hence that provisions for preventive detention have been introduced by enactment of the KAAPA. The Kerala statute resorts to, what we feel an earnest attempt to prevent misuse of such powers. First of all, it has to be ascertained whether a person is a rowdy. The concept of W.P.(Cri) No.237 of 2010 -: 17 :- rowdy is defined under Sec.2(t) of the KAAPA. We shall advert to Sec.2(t) in detail later. It is not enough if a person falls within the sweep of the expression 'rowdy'; it must be further seen whether he is a known-rowdy or not. The power of preventive detention under Sec.3 of the KAAPA can be used only against a known-rowdy. He must be a known-rowdy. It must be further satisfied by the detaining authority that the detention of such a known-rowdy is necessary to prevent him from committing anti-social activity within the State. Only then, can the power of preventive detention under Sec.3 of the KAAPA be invoked. 18. Commission, attempt to commit or abetment of the commission of all offences will not bring a person within the sweep of the expression 'rowdy'. He must have committed or attempted/abetted to commit certain classes of offences specified under Sec.2(t) of the KAAPA. Further, those classes of offences must be punishable with imprisonment. It is not enough if the specified offences are punishable with imprisonment, they must be punishable with imprisonment of specified terms. This is the scheme of the KAAPA. 19. A careful reading and analysis of Sec.2(t) leads us to the W.P.(Cri) No.237 of 2010 -: 18 :- conclusion that certain essential requirements or pre-conditions must be satisfied before a detenu can be said to be a rowdy. 20. The requirements can be classified under two heads. First is the requirement regarding the nature of the offence. Second is the extent of punishment of imprisonment that can be imposed for such offences. 21. We note that the following requirements must be shown to exist: I. It must be offences of the following nature: (a) specified offences under Chapters VIII, XV, XVI, XVII, and XXII of the IPC. (b) any offence under the Arms Act. (c) any offence under the Explosive Substances Act. (d) such offences under any other law as may be notified by the Government from time to time. 22. The offence must be one falling under (a), (b), (c) and (d) stipulated above. 23. It is not enough if the offences would fall under the above categories, a further requirement has also got to be satisfied and that is: II. (a) The offence must be punishable with imprisonment. W.P.(Cri) No.237 of 2010 -: 19 :- (b) The term of imprisonment imposable must be one year or more (i.e., offences punishable with less than one year of imprisonment have to be excluded). 24. We feel that a reading of Sec.2(t) of the KAAPA must necessarily lead to the above conclusions regarding the nature of the offences as also the term of imprisonment for which the offence is punishable. Requirements I and II above must be simultaneously satisfied before a particular offence can be taken into reckoning for the purpose of Sec.2(t) of the KAAPA. 25. We may straightaway deal with the argument that the extent of punishment/sentence is irrelevant when the offence is one punishable under the Indian Penal Code. The argument is that the stipulation regarding the extent of punishment can apply only when the offence is one punishable under a Statute other than the IPC - i.e., (b), (c) and (d) of I referred above. A careful reading of Sec.2(t) shows clearly that the qualifications regarding extent of punishment would apply to offences punishable under the specified Chapters of the IPC or under the Arms Act or under the Explosive Substances Act. By no known cannon of interpretation is it possible to conclude that the further restriction regarding the extent of punishment is W.P.(Cri) No.237 of 2010 -: 20 :- applicable only to offences punishable under the Arms Act and Explosive Substances Act. All the three classes of offences - those punishable under specified Chapters of the IPC, under the Arms Act and under the Explosive Substances Act are linked with the word `or'. The later stipulation regarding extent of punishment must hence necessarily apply to all the three classes of offences. The mere fact that while specifying the Chapters of the IPC, 2 offences under Chapter VIII and other Chapters are referred to is of no significance. The use of the conjunction and in that part of the Section is in no way significant, according to us, in view of the employment of the word 'or' to link the 3 classes of offences later in Sec.2(t). 26. An interesting question arises as to why there has been sub-division of Sec.2(t) into Sec.2(t)(i) and Sec.2(t)(ii). Would it not have been sufficient for the legislature to have stated that the offences must be punishable with one year or more of imprisonment of any type? Why did the legislature sub-divide the offences into two categories of offences punishable with 5 or more years