IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 WP(Crl.).No. 435 of 2010(S) -------------------------------- PETITIONER(S): ------------------- SUSI, W/O.JOHN, JIJO BHAVAN, PANCHAYATH THURUTHIL, MEENATHU CHERRY, SAKTHIKULANGARA, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): -------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 679 001. 2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KOLLAM - 691 001. 3. THE DISTRICT SUPERINTENDENT OF POLICE, KOLLAM- 691 001. 4. THE CIRCLE INSPECTOR OF POLICE, CHAVARA, KOLLAM- 691 001. 5. THE SUB INSPECTOR OF POLICE, SAKTHIKULANGARA POLICE STATION, KOLLAM- 691 001. 6. THE SUPERINTENDENT OF CENTRAL PRISON, THIRUVANANTHAPURAM- 679 001. R1 TO R6 GOVT. PLEADER SRI.P.RAVEENDRA BABU THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs WP(Crl.).No. 435/2010(S) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DETENTION ORDER BEARING NO.M.9-36166/KAAP-A/10 DATED 11/06/2010. P2: COPY OF THE GROUND FOR DETENTION DATED 11/06/2010. P3: COPY OF THE REPORT OF THE 3RD RESPONDENT DATED 28/05/2010 P4: COPY OF THE PRELIMINARY REPORT OF THE CIRCLE INSPECTOR. P5: COPY OF THE SAID MEMO DATED 11/06/2010. P6: COPY OF THE JAIL ADMISSION AUTHORIZATION GIVEN TO THE 6TH RESPONDENT DATED 11/06/2010. P7: COPY OF THE FIR IN CRIME NO. 75/2008 OF SAKTHIKULANGARA POLICE STATION. P8: COPY OF THE FI STATEMENT IN CRIME NO.75/2008 OF SAKTHIKULANGARA POLICE STATION. P9: COPY OF THE FINAL REPORT IN CRIME NO. 75/2008 OF SAKTHIKULANGARA POLICE STATION. P10: COPY OF THE FIR IN CRIME NO.248/2008 OF SAKTHIKULANGARA POLICE STATION. P11: COPY OF THE FIS IN CRIME NO. 248/2008 OF SAKTHIKULANGARA POLICE STATION. P12: COPY OF THE FINAN REPORT IN CRIME NO. 248/2008 OF SAKTHIKULANGARA POLICE STATION. P13: COPY OF THE FIR & FIS IN CRIME NO. 443/2008 OF SAKTHIKULANGARA POLICE STATION. P14: COPY OF THE FINAL REPORT IN CRIME NO. 443/2008 OF SAKTHIKULANGARA POLICE STATION. P15: COPY OF THE FIR IN CRIME NO. 390/2009 OF SAKTHIKULANGARA POLICE STATION. P16: COPY OF THE FIS IN CRIME NO. 390/2009 OF SAKTHIKULANGARA POLICE STATION. svs ..........2/-... ...2... WP(Crl.).No. 435/2010(S) P17: COPY OF THE FINAL REPORT IN CRIME NO. 390/2009 OF SAKTHIKULANGARA POLICE STATION. P18: COPY OF THE FIR OF SAKTHIKULANGARA DATED 07/07/2008. P19: THE POLICE SUB INSPECTOR SUBMITTED REPORT ENDORSED BY THE CIRCLE INSPECTOR OF POLICE. P20: COPY OF THE REPRESENTATION THROUGH THE 6TH RESPONDENT BEFORE THE GOVERNMENT DATED 26/10/2010. P21: COPY OF THE REPRESENTATION THROUGH THE 6TH RESPONDENT BEFORE THE ADVISORY BOARD DATED 26/10/2010. P22: COPY OF THE ORDER DATED 28/10/2010. P23: COPY OF THE ORDER DATED 28/10/2010. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs R.BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ W.P(Crl.) NO: 435 OF 2010 S ----------------------------------------------------------- Dated this the 21st January, 2011. JUDGMENT Basant, J. Is the pendency of security proceedings against a detenu under Chapter VIII of the Code of Criminal Procedure a relevant circumstance to which mind of the detaining authority must be applied before ordering preventive detention under the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the KAAPA')? Does the blissful ignorance of the pendency of such proceedings and the total omission/failure on the part of the detaining authority to apply his mind to that aspect vitiate the order of preventive detention? Does the conduct of the sponsoring authority of totally withholding/suppressing such information from the detaining authority vitiate and justify the invalidation of the order of preventive detention? These questions arise for consideration in this writ petition. 2. Fundamental facts are not disputed. The petitioner WP(Cr) 435/2010 2 concededly falls within the definition of known rowdy in Section 2(p) of the KAAPA. The Circle Inspector of Police, Chavara submitted Ext.P4 report dated 19.5.2010 to the third respondent, the Superintendent of Police suggesting the invocation of the KAAPA against the alleged detenu, Jojo, S/o.John. The third respondent, the Superintendent of Police on receipt of Ext.P4 submitted Ext.P3 report dated 28.5.2010 under Section 3(1) of the KAAPA to the second respondent, i.e., the District Magistrate, Kollam. The District Magistrate, Kollam on receipt of Ext.P3 report dated 28.5.2010 proceeded to pass Ext.P1 order of preventive detention dated 11.6.2010. The second respondent also passed Ext.P2 grounds of detention dated 11.6.2010. The detenu who is the son of the petitioner herein was accordingly taken into custody and detained with effect from 18.10.2010. The order of detention was approved by the Government under Section 3(3) of KAAPA. Later, the order was confirmed by the Government under Section 10(4) of the KAAPA. The detenu will have to remain in custody till 17.4.2010 as per the order passed WP(Cr) 435/2010 3 under Section 10(4). 3. It will be apposite straightway to note that five cases are relied on by the authorities to categorise the detenu as a known rowdy. They are: 1) Crime No.75 of 2008 of Sakthikulangara Police Station about an incident which took place on 22.2.2008. 2) Crime No.248 of 2008 of Sakthikulangara Police Station about an incident which took place on 16.6.2008. 3) Crime No.443 of 2008 of Sakthikulangara Police Station about an incident which took place on 9.11.2008. 4) Crime No.390 of 2009 of Sakthikulangara Police Station about an incident which took place on 15.9.2009. 5) Crime No.281 of 2010 of Sakthikulangara Police Station about an incident which took place on 26.3.2010. 4. As no serious contention is raised before us that the detenu will not fall within the definition of known rowdy under Section 2(p) of the KAAPA, we are not proceeding to advert in detail to the said five cases. WP(Cr) 435/2010 4 5. We have heard the learned counsel for the petitioner and the learned Government Pleader in detail. 6. Learned counsel for the petitioner has raised several contentions to assail the impugned order. In the nature of the contentions raised, we are of the opinion that it is not necessary to advert to all the contentions raised. Suffice it to say that the main and important grounds of challenge are as follows: 1) There has been no proper, real and effective application of mind by the detaining authority to the relevant facts before passing the order of preventive detention. The fact that security proceedings under Section 107 of the Cr.P.C. had been initiated against the detenu under Ext.P18 FIR and Ext.P19 report was not adverted to by the detaining authority before taking the decision to order preventive detention. 2) The sponsoring authority is guilty of suppression/withholding of the relevant and vital fact that security proceedings under Section 107 of the WP(Cr) 435/2010 5 Cr.P.C. had already been initiated against the detenu in the report under Section 3(1) of the KAAPA. 7. It will be apposite at the very outset to advert the scheme of the KAAPA. The Kerala Legislature in its commitment to the freedom and liberty of the individual and in its anxiety to ensure that the powers of preventive detention are not misused or unjustifiably exploited by persons in authority has devised a clever scheme under the KAAPA. A proposed detenu must first of all satisfy the definition of known goonda or known rowdy. A perusal of the definition of known goonda and known rowdy under Sections 2(o) and 2(p) of the KAAPA clearly reveals that what is required is not a subjective but an objective satisfaction. 8. Having entertained the initial threshold objective satisfaction the detaining authority must further consider whether the known goonda or known rowdy deserves to be preventively detained with a “view to prevent him from committing any anti-social activities.” This latter satisfaction has been described to be a subjective satisfaction. Mere subjective WP(Cr) 435/2010 6 satisfaction of the detaining authority is not sufficient. It must be preceded by the objective satisfaction as to whether the proposed detenu is a known goonda or a known rowdy. 9. Such satisfactions are to be entertained by the detaining authority. Under Section 3(1) of the KAAPA such satisfaction cannot be entertained by the detaining authority in any manner that he chooses. The satisfaction must be on information received by the detaining authority from a Police Officer not below the rank of a Superintendent of Police. In short, the Superintendent of Police (sponsoring authority) has to make information available to the detaining authority in a report submitted by him to the detaining authority under Section 3(1) of the KAAPA. What we intend to note is that the legislative scheme lays emphasis on the responsibility of the only specified sponsor - the police officer above the rank of a Superintendent of Police. 10. It has always been held that the subjective satisfaction of the detaining authority is not justiciable. Adequacy of material to induce the subjective satisfaction cannot be gone into by the WP(Cr) 435/2010 7 courts. That is the satisfaction to be entertained by the executive authority. In as much as the subjective satisfaction is not justiciable, the jurisdiction of the superior constitutional courts in judicial review is extremely limited. But this is not to say that courts exercising the power of judicial review have no effective function to perform. It has to be insisted that the detaining authority has considered all relevant aspects. It can be insisted that the detaining authority should not rely on any extraneous circumstance. A detenu preventively detained can insist that mind of the detaining authority must be applied in a real and effective manner before detention is ordered. In as much as the satisfaction of the detaining authority is not justiciable, courts in judicial review can always insist that such total, complete and effective application of mind has preceded the passing of the order of preventive detention. It is here that the real jurisdiction of the constitutional courts to review an administrative decision to preventively detain an individual lies. Courts have got the duty to ensure that all relevant materials are placed before the WP(Cr) 435/2010 8 detaining authority; that the detaining authority applies its mind to all such relevant inputs and then entertains the subjective satisfaction that the detenu deserves to be preventively detained. If there is any failure to advert to relevant circumstances and to apply the mind of the detaining authority to such relevant circumstances, the order of detention vitiates and is liable to be invalidated in judicial review. 11. We may hasten to observe that the duty of the detaining authority is to apply his mind to the relevant circumstances before passing the order of preventive detention. Later advertence to such circumstances cannot obviously cure the defect of non-application of mind properly at the initial stage. It is no excuse or reason for the detaining authority or the court later in judicial review to come to a conclusion that even if that fact were considered the conclusion would not have been different. Process of decision making is as crucial as the correctness and sustainability of the decision. In these circumstances the mere fact that the detaining authority may WP(Cr) 435/2010 9 have come to the same conclusion – regarding the requirement of preventive detention even if a relevant input which was omitted to be considered were considered at the initial stage is no defence when the court considers the question in judicial review. 12. We may however hasten to observe that the circumstance in question must be relevant and substantial. The omission to consider any and every circumstance by the detaining authority will itself not vitiate the subjective satisfaction or the order of preventive detention which follows. It is certainly necessary that the circumstance must be a relevant, vital, crucial and substantial circumstance in order to persuade the court to hold that the order of preventive detention is bad for the reason that mind was not applied to the said circumstance. 13. Several precedents have been cited in support of the above propositions but we are of the opinion that it is not necessary to advert to all the precedents cited as there is no WP(Cr) 435/2010 10 dispute between the learned counsel on the principles of law enumerated above. We are hence not proceeding to specifically refer to the proceedings that have been cited copiously at the Bar. 14. We come back to the relevant contentions in this case now. Exts.P18 and P19 produced by the petitioner along with the writ petition clearly show that proceedings under Chapter VIII of the Code of Criminal Procedure had been initiated against the detenu. Crime 674/2008 was registered on 7-7-2008 under Section 107 Cr.P.C. Report submitted to the Sub Divisional Magistrate under Section 107 Cr.P.C is produced as Ext.P19. No one has a case that the said proceedings have come to an end. Before us it is not disputed that the said proceedings under Section 107 Cr.P.C was pending before the Sub Divisional Magistrate at the relevant time. 15. It is in this context that Ext.P4 report was submitted by the Circle Inspector of Police, Chavara on 19-5-2010 to the third respondent, Superintendent of Police. Most significantly there is WP(Cr) 435/2010 11 no reference in Ext.P4 at all to proceedings initiated under Section 107 Cr.P.C. What happened to the proceedings, at what stage the proceedings are etc. are not even referred to in Ext.P4. In short a reading of Ext.P4 cannot convey to a person that such proceedings under Section 107 had at all been initiated against the detenu. 16. We now come to Ext.P3 report submitted by the third respondent to the second respondent under Section 3(1) of the KAAPA. In that report Ext.P3 also most significantly and crucially there is no reference whatsoever to proceedings under Section 107 Cr.P.C initiated against the detenu. We have been taken through the entire report. It is conceded by the learned Govt. Pleader that there is no mention of the proceedings under Section 107 Cr.P.C in Ext.P3. 17. We then come to the next document namely the order of detention Ext.P1 dated 11-6-2010. The second respondent who passed that order also significantly had not adverted to such proceedings under Section 107 Cr.P.C. Ext.P1 is accompanied WP(Cr) 435/2010 12 by Ext.P2 grounds of detention. Here also significantly there is no reference at all to the proceedings under Section 107 Cr.P.C. We may put it pithily and state that a perusal of Exts.P2, P3 and P4 cannot at all convey to any one that proceedings under Section 107 Cr.P.C were initiated against the detenu under Exts.P18 and P19. 18. Proceedings under Section 107 Cr.P.C are definitely initiated with the laudable objective of ensuring that the person proceeded against does not cause breach of peace in the locality. In that view of the matter whether 107 proceedings has been initiated or not against a person is, according to us, certainly an important and relevant input while deciding whether the more bitter pill of preventive detention deserves to be administered against the detenu. It is seen that even the fact that such proceedings were initiated was not considered to be relevant by the Circle Inspector or the Superintendent of Police and the same was not adverted to by the District Magistrate. WP(Cr) 435/2010 13 19. The learned Govt. Pleader attempts to repel this contention with his two fold arguments. First of all the learned Govt. Pleader contends that proceedings under Chapter VIII of the Code of Criminal Procedure and the proceedings under the KAAPA have totally different purposes to serve. They are intended to meet different situations. What KAAPA seeks to prevent is anti social activities by a known rowdy or known goonda whereas Chapter VIII of the Code of Criminal Procedure is expected to operate on a totally different domain i.e to insist on security for keeping the peace and for good behaviour from people of questionable antecedents. Perception of threat to public order is sine qua non before invoking the powers of preventive detention under the KAAPA, whereas threat to public order is not inevitable while initiating proceedings under Chapter VIII. Similarly the scope for exercising powers under Chapter VIII Cr.P.C and Section 3 of the KAAPA are also different. Likelihood of breach of peace is the plank from which action under Section 107 can stem, where as imminent WP(Cr) 435/2010 14 apprehension of threat to public order is the spring board from which action under Section 3 of the KAAPA can commence. Preventive detention has been euphemastically referred to as the jurisprudence of suspicion. Predicating future behaviour on the basis of the past conduct is the onerous duty which the detaining authority has to perform under Section 3 of the KAAPA, whereas the jurisdiction under Section 107 Cr.P.C is totally different. The learned Govt. Pleader in these circumstances contends that initiation, pendency, disposal or actual detention for failure to furnish security in security proceedings under Chapter VIII of KAAPA are irrelevant and non-vital while considering the preventive detention under Section 3 of the KAAPA. The learned Govt. Pleader in this context placed reliance particularly on the decision of the Supreme Court in Borjahan Gorey v. The State of West Bengal (AIR 1972 SC 2256) para 4 which we extract below: “Now merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for WP(Cr) 435/2010 15 preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure, would not by itself debar the Government from taking action for his detention under the Act. The scheme of the Act as disclosed by its clear language does not lend any support to the contention urged by Shri. Jain. Besides, the object and purpose of bringing the Act on the statute book also clearly shows that in view of the prevailing situation in the country and the developments across the border in July, 1971 the need was felt for urgent and effective preventive action in the interest of national security and the Act was retrospectively enacted to replace the Maintenance of Internal Security Ordinance, 1971. The preventive detention provided by the Act is apparently designed to deal urgently and effectively with the more serious situation, inter alia, affecting the security of India and the maintenance of public order as contemplated by S.3 of the Act. The liability of the detenu also to be tried for commission of an offence or to be proceeded against under Chapter VIII of the Code of Criminal Procedure which deals with prevention of less serious disturbances and requires execution of bonds WP(Cr) 435/2010 16 on the basis of the acts disclosed in the grounds do not in any way as a matter of law affect of impinge upon the full operation of the Act. The reason is obvious. Judicial trial for punishing the accused for the commission of an offence as also preventive security proceedings in a criminal court against a person merely for keeping the peace or for good behaviour under Chapter VIII of the Code of Criminal Procedure, we may appropriately point out, is a jurisdiction distinct from that of detention under the Act, which has in view, the object of preventing the detenu from action in any manner prejudicial inter alia to the security of the State or maintenance of public order. The fields of these two jurisdictions are not co-extensive nor are they alternative. The jurisdiction under the Act may be invoked, when the available evidence does not come up to the standard of judicial proof but is otherwise cogent enough to give rise to suspicion in the mind of the authority concerned that there is a reasonable likelihood of repetition of past conduct which would be prejudicial inter alia to the security of the State or the maintenance of public order or even when the witnesses may be frightened or scared of coming to a WP(Cr) 435/2010 17 court and deposing about past acts on which the opinion of the authority concerned is based. This jurisdiction is sometimes called the jurisdiction of suspicion founded on past incidents and depending on subjective satisfaction. The jurisdiction for trial or for preventive proceedings under Chapter VIII, Code of Criminal Procedure cannot be successfully invoked in such a situation. In other words a case under the Code of Criminal Procedure whether punitive or preventive depends on the proof of objective facts which have already taken place whereas a case under the Act providing for preventive detention depends on the subjective satisfaction of the authorities concerned of the likelihood of the person to be detained to act in future in a manner similar to the one seen from his past acts. The authorities mentioned in S.3(2) which include the District Magistrate are, in our view, best suited to decide whether it is necessary to proceed under the Act which decision rests on their subjective satisfaction. The grounds of detention relate to the past acts on which the opinion as to the likelihood of the repetition of such or similar acts is based and those grounds are furnished to the detenu WP(Cr) 435/2010 18 to inform him as to how and why the subjective satisfaction has been arrived at so as to enable him to represent against them. The fact, therefore, that a prosecution under the Code could also have been launched is not a valid ground for saying that it precludes the authority from acting under the Act. This contention is thus devoid of merit. We have discussed this aspect somewhat elaborately so as to eliminate any misunderstanding of the true import of our decision and to exclude the possibility of any impression that the Act vests in the authority arbitrary power to select one or the other course dealing with the same or exactly similar situation.” (emphasis supplied) The learned Govt. Pleader further relies on Masood Alam etc v. Union of India and others (AIR 1973 S.C 897). We extract the relevant para 4 below: “On behalf of the petitioner both the aforesaid orders of detention are assailed before us. The first contention pressed by Mr. Bashir Ahmad, appearing for the petitioner relates to the earlier order of detention. He has tried to assail that order with the object of showing malafides of WP(Cr) 435/2010 19 the detaining authority in making the second order. In this connection is is noteworthy that according to the return of the State of Uttar pradesh as averred in para 27(r) of the counter affidavit of Shri. R.K.Kau, Special Secretary, “the petitioner was arrested on 15th June 1972 under Section 107/117/151, Cr.P.C and the order of detention was also served on him by the District Magistrate on the same date. Orders for his release were issued by the District Magistrate under the Maintenance of Internal Security Act but he continued to be in Jail under the above sections of the Cr.P.C.” The order of release mentioned in this para has reference to the order dated June 25, 1972 when the petitioner was supposed to have been released from his detention because of non-approval of his detention by the State Government. Mr. Bashir Ahmad the counsel for the detenu has contended that the grounds of detention dated June 17, 1972 served on the petitioner under S.8 of the Act only suggest a threat to the security of the State and the maintenance of public order and that this does not mean that the petitioner was likely to act in WP(Cr) 435/2010 20 the near future in a manner prejudicial to the security of State and maintenance of public order. This contention ignores para 3 of the grounds in which it is clearly stated that the District Magistrate was satisfied that the petitioner was likely to act in a manner prejudicial to the security of India, security of the State and maintenance of public order and that with a view to preventing him from so acting, it was necessary to detain him. The submission that the use of the word 'likely' in this para only brings the petitioner's case within the purview of the provisions of Chapter VIII (Security Proceedings) of the Criminal Procedure Code