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 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 24243 of 2009(A) -------------------------- PETITIONER: --------------- ANOOP, AGED 32 YEARS, S/O.THANKAPPAN, PANAMOOTTIL HOUSE, KONDOOR VILLAGE, THIDANADU, KOTTAYAM DISTRICT. BY ADV. SRI.RAJAGOPAL PADIPPURACKAL RESPONDENT: --------------- 1. STATE OF KERALA, REPRESENTED BY HOME SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. INSPECTOR GENERAL OF POLICE, ERNAKULAM RANGE, ERNAKULAM. BY GOVERNMENT PLEADER SHRI P.RAVINDRABABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. “CR” ------------------------------------------------- W.P.(C) No. 24243 of 2009-A ------------------------------------------------- Dated this the 20th day of October, 2009 JUDGMENT Basant, J. How are the expressions “neighbour” and “immediate neighbour” in the proviso (ii) to Section 2 (p) of the Kerala Anti- Social Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA') to be understood? This question arises for consideration in this Writ Petition. 2. The petitioner against whom an order of restraint has been passed by the 2nd respondent under Sec.15 of the KAAPA has filed this writ petition with a prayer that the said order of restraint may be set aside. 3. To the skeletal facts first. The 2nd respondent allegedly received information that the petitioner is likely to indulge in anti-social activities. The 2nd respondent also received information that the petitioner was involved in three different cases which all bring him within the sweep of the definition of `rowdy' under Sec.2(t) of the KAAPA and consequently a `known rowdy' under Sec.2(p) of the KAAPA. Ext.P8 notice was hence issued by the 2nd respondent to the W.P.(C)No.24243 of 2009-A -2- petitioner giving him opportunity to make his submissions under Sec.15(1) of the KAAPA. The petitioner submitted his reply - Ext.P9, to the said notice. It is thereafter that Ext.P1 order has been passed by the 2nd respondent restraining the movements of the petitioner. The order of restraint is dated 3/6/09. It has been served on the petitioner on 10/6/09. The petitioner claiming to be aggrieved by the impugned order (Ext.P1) represented before the Advisory Board under Sec.15(2) of the KAAPA and thereupon Ext.P2 order has been passed by the Advisory Board. The petitioner in this writ petition assails the restraint placed on him under Ext.P1 and upheld in Ext.P2 orders. 4. Following are the cases registered against the petitioner: Sl.No. Crime No. Date of the offence Offences, inter alia. Status of the case De facto complainant 1 23/08 20/4/08 Ss.323 & 354 IPC Pending trial One Leelamma 2 39/08 30/6/08 Secs.324 read with Sec.34 IPC Pending trial One Saneesh allegedly a distant relative of Leelamma and a witness in the case (Cr.23/08) initiated by Leelamma 3 79/08 23/11/08 Sec.324 read with Sec.452 IPC Pending trial Not related to Leelamma; but a witness in the case (Cr.23/08) initiated by Leelamma W.P.(C)No.24243 of 2009-A -3- 5. In addition to these three cases it is alleged that there was a later incident on 4/12/08 in which Sathi, D/o. Leelamma was allegedly threatened by the petitioner. No crime has been registered in respect of that incident. 6. The learned counsel for the petitioner assails the impugned order mainly on the following grounds: (i) There has been no proper application of mind by the authority before Ext.P1 order was passed. (ii) The authority must have taken note of the fact that the dispute is one between neighbours and that the petitioner cannot hence be held to be a known rowdy under Sec.2(p) of the KAAPA. 7. Though various grounds are urged, we are satisfied that the question to be considered mainly is whether the authority has applied his mind properly to the relevant facts. The learned counsel for the petitioner submits that there has been no due and proper application of mind before the impugned order of restraint Ext.P1 was passed against him. The conclusion that the petitioner is a known rowdy has been rendered without due and proper application of mind, contends counsel. 8. The learned counsel builds up this argument from the circumstance that the first case referred above i.e., Crime W.P.(C)No.24243 of 2009-A -4- No.23/08 is one between him and one Leelamma - a neighbour. According to the petitioner, there was disagreement and dispute between the said Leelamma and himself. On account of such strain, he was allegedly attacked and an earlier crime was registered as Crime No.22/08. The petitioner was the victim/de facto complainant in that case and Leelamma as well as the relatives and associates of Leelamma were the accused in that crime. The said Leelamma as also the de facto complainants in Crime Nos.39/08 and 79/08 (cases 2 and 3 referred above) are accused in that crime i.e, Crime No.22/08. Final report has already been filed and cognizance has been taken by the court in Crime No.22/08. According to the petitioner, Crime Nos.23, 39 and 79/08 are all, in fact, only retaliation against the petitioner for having initiated Crime No.22/08. The learned counsel contends that the authority had mechanically and without proper application of mind come to the conclusion, first of all, that the petitioner is a known rowdy and then that an order of restraint is necessary to prevent him from indulging in anti-social activities. 9. Be that as it may, the main contention raised by the learned counsel for the petitioner on the broad head of `non- application of mind' is that, at least, in so far as the first case (ie. W.P.(C)No.24243 of 2009-A -5- Crime No.23/08) is concerned the same should not have been reckoned and counted as relevant while considering the play of Sec.2(p)(iii) of the KAAPA. According to the petitioner, Leelamma is his neighbour. The dispute was between Leelamma and himself. The crime charge sheeted by the police - Crime No.23/08 must, at any rate, have been excluded as the said crime was relating to a dispute between himself and his neighbour Leelamma and his involvement in the said case was only as such neighbour. 10. The learned counsel for the petitioner submits that this is very evident from the nature of averments and grievances raised by Leelamma in the First Information Statement in Crime No.23/08. Leelamma alleged that she has a strained relationship with her husband and that she resides away from her husband. She alleges that the petitioner allegedly a neighbour has been attempting to make advances towards her which she alletedly resisted. It is aggrieved by such resistance of such attempts that the petitioner allegedly indulged himself in Crime No.23/08. This is very specific allegation raised in the First Information Statement in Crime No.23/08. The learned counsel promptly W.P.(C)No.24243 of 2009-A -6- relies on the statement given by the said Leelamma before the Doctor about the alleged cause. That is a contemporaneous statement made at the time when she was admitted to the hospital shortly after the alleged incident. It is very specifically alleged in such wound certificate that she was attacked by a neighbour - obviously referring to the petitioner, the sole accused. The learned counsel heavily relies on the fact that the petitioner has been referred to as a neighbour by the de facto complainant Leelamma in the wound certificate. The learned counsel wants this Court to read the wound certificate along with the First Information Statement which, according to him, indicate that the dispute was one between the neigbours. 11. The learned counsel contends that if the parties are neighbours as revealed from the statement of Leelamma before the Doctor and the police, the petitioner is entitled to insist that Case No.1 i.e., Crime No.23/08 must be excluded while considering the question whether the petitioner is a known rowdy or not. If Crime No.23/08 is so excluded, there will be only two cases remaining and consequently the petitioner will not come within the sweep of Sec.2(p)(iii). The remaining two cases, even if they be reckoned as relevant, cannot bring the petitioner within W.P.(C)No.24243 of 2009-A -7- the purview of Sec.2(p)(iii) as there will be shortage of one case. 12. The learned counsel for the petitioner submits that in Ext.P9 reply submitted by him to the authority i.e., the 2nd respondent he had very specifically raised this contention in para- 14. The relevant portion in para-14 is extracted below: “The 3 cases cited arise out of differences between neighbours. The fact they are neighbours can be found in the statement of Leelamma itself.” 13. The learned counsel for the petitioner contends that most surprisingly and unfortunately the 2nd respondent, when he passed Ext.P1 order, did not at all apply his mind to this very serious contention raised by the petitioner. Without adverting to that contention at all the authority has come to the conclusion that the petitioner is a known rowdy. This is unjustified. This reveals want of application of mind, contends the learned counsel for the petitioner. 14. We have gone through Ext.P1 order. We find merit in the contention that this plea raised in para-14 has not at all been considered by the 2nd respondent in Ext.P1. We find merit in the contention of the learned counsel for the petitioner that the 2nd respondent has grossly erred in not even adverting to this specific W.P.(C)No.24243 of 2009-A -8- contention raised in para-14 of Ext.P9. 15. A reading of the averments in the FI statement as also the alleged cause narrated to the Doctor in the wound certificate must clearly notify the authority of the need to advert specifically to the question whether the second proviso to Section 2(p)would apply at least in so far as the first case; i.e., Crime No.23/2008 is concerned. But, significantly, mind of the authority has not at all been applied to that aspect of the matter. This conclusion is inevitable from a total reading of Exhibit P1 order of restraint. There is not a semblance of evidence of application of mind to this crucial and vital aspect. The learned counsel for the petitioner is, in these circumstances, correct in his contention that the order of restraint must fail for the reason that mind of the authority has not been pointedly applied to this aspect, notwithstanding the fact that the objection was raised specifically in paragraph 14 of the reply extracted above. 16. The learned Government Pleader contends that proviso (ii) cannot apply to the facts of the case. We extract the relevant portion of Section 2(p) and the proviso below. “2(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 W.P.(C)No.24243 of 2009-A -9- any restriction or detention under this Act,- (i) XXXXXXXXXXX XXXXXXX XXXXXXXXX (ii) XXXXXXXXXXX XXXXXXX XXXXXXXXX (iii) found, on investigation or enquiry by a competent police officer or other authority, on complaints initiated by 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: Provided that any offence committed by a person, - (i) XXXXXXXXXXX XXXXXXX XXXXXXXXX (ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours. (iii) XXXXXXXXXXX XXXXXXX XXXXXXXXX (iv) XXXXXXXXXXX XXXXXXX XXXXXXXXX (v) XXXXXXXXXXX XXXXXXX XXXXXXXXX (vi) XXXXXXXXXXX XXXXXXX XXXXXXXXX shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy.” (emphasis supplied) 17. The expressions “neighbour” and “immediate neighbour” are not defined in the statute. Those expressions have W.P.(C)No.24243 of 2009-A -10- to be understood as known in language and reasonably. Neighbour and immediate neighbour appearing in proviso (ii) of Section 2(p) according to us cannot bring with it any rigid norms or notions about the distances between the houses of the known rowdy and the victim. The expressions have to be reasonably understood. They are elastic enough to persuade the Court to understand the same without any specific stipulation or embargo on the distances. We are unable to introduce a requirement that a neighbour must be resident within any distance to be specified by the Court or that the expression immediate neighbour must exclude all who are not adjacently residing. Nor can any artificial idea about the distance between the two houses be introduced to understand the expression neighbour or immediate neighbour. The anxiety of the legislature obviously was to ensure that only those who pose a threat to public order and not those who may pose threat to law and order are brought within the provisions of the KAAPA. A crime in relation to a dispute between the neighbours was directed to be excluded under proviso (ii) only with this laudable purpose. The expressions neighbour and immediate neighbour in proviso (ii) must be read and understood in this background and not mechanically or casually. W.P.(C)No.24243 of 2009-A -11- 18. We take note firstly of the fact that the victim Leelamma in her statement to the Doctor has specifically asserted that the petitioner herein, the sole accused in Crime No.23/08 is her neighbour. The nature of the cause for the alleged strain in the relationship between the parties also suggests that they are neighbours. We have no satisfactory material to indicate the precise location of the house of the petitioner and the said Leelamma. Contradictory assertions are made. Tangible data is not available, except the averments in the FI statement and the alleged cause narrated to the Doctor. 19. Moreover, we do not in this case propose to come to any specific conclusion of fact about the distance between the house of Leelamma and the petitioner, nor do we intend to enter a specific finding as to whether they are neighbours or immediate neighbours. We take note of the simple fact that the mind of the detaining authority has not been specifically applied to this aspect which is specifically raised by the petitioner in Ext.P9. We further take note of the circumstance that it is not an empty and bald contention raised by the petitioner to assail the impugned order. The contention of the petitioner is probabilised by the assertions in the FI statement of Leelamma and the statement to the Doctor W.P.(C)No.24243 of 2009-A -12- made by the said Leelamma in the wound certificate. We are satisfied that for the simple reason that the mind of the authority has not been applied properly to this crucial aspect, the impugned order of restraint Exhibit P1 must fail. 20. The learned Government Pleader contends that the requirements appear in a proviso and the burden must be placed squarely on the shoulders of the petitioner to establish before this Court that he is not only a neighbour but an immediate neighbour. In a case of detention/restraint under the KAAPA, we cannot afford to ignore the fact that valuable rights of citizens are sought to be restrained/taken away not for any offences committed by him, but only on the prophecy or anticipation or belief that he is likely to abuse his freedom and liberty. In such a case where the authority concerned does not apply its mind properly, it would be idle for such authority to contend that the detenu/person restrained has not discharged any burden of proof, before applying his mind alertly to the facts in controversy. The burden and duty to apply his mind rests with the authority and he cannot claim absolution from that responsibility by falling back on theories regarding burden of proof. W.P.(C)No.24243 of 2009-A -13- 21. The learned Government Pleader attempts to contend that disputes between immediate neighbours must definitely relate to some disputes between them as neighbours - suggesting thereby that boundary disputes, property disputes, etc. alone shall come within the sweep of the second proviso to Section 2(p). We are unable to accept this contention. There is nothing in the language in the second proviso that can limit the disputes to the category of disputes canvassed by the learned Government Pleader. Any dispute between the neighbours which stems from and is incidental to such relationship of theirs as such neighbours must certainly bring it within the sweep of the second proviso to Section 2(p). 22. The learned Government Pleader then submits that at any rate, Exhibit P2 order passed by the Advisory Board shows that mind of the Advisory Board had been applied to this circumstance. Reliance is seen placed on some information furnished that there is a distance of 2 KMs between the house of the petitioner and the house of the victim Leelamma. We are unable to agree that this scanty information placed before the Advisory Board is sufficient to efface or obliterate the vital defect in Exhibit P1 order - of non-application of mind effectively. This W.P.(C)No.24243 of 2009-A -14- contention based on Exhibit P2 order cannot, in these circumstances, succeed. The vital defect of total non application of mind by the original authority on a specific aspect cannot obviously be cured by the alleged application of mind later by the superior/appellate authority. 23. The above discussions lead us to the conclusion that the impugned order warrants interference. 24. In the result: (a) this Writ Petition is allowed. (b) the impugned order Exhibit P1 is set aside. Consequently, Exhibit P2 is also set aside. R.BASANT, JUDGE M.C.HARI RANI, JUDGE dsn