IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 WP(Crl.).No. 506 of 2009(S) ------------------------------------------------- PETITIONER(S): ---------------------- SOUMYA PAUL, W/O.SHAJU VARGHESE, THEKKANATH HOUSE, KAKKAYAM, KOZHIKODE DISTRICT. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S): ------------------------- 1. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, THE AUTHORISED OFFICER UNDER THE KERALA ANTISOCIAL ACTIVITIES PREVENTION ACT KOZHIKODE DISTRICT, CIVIL STATION, KOZHIKODE. 2. THE SECRETARY TO THE GOVERNMENT, HOME (SS.A) DEPARTMENT, HOME AND VIGILANCE, SECRETARIAT OF KERALA, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HOME (SS.A) DEPARTMENT, HOME AND VIGILANCE, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE SUPERINTENDENT OF POLICE, KOZHIKODE RURAL, OFFICE OF SUPERINTENDENT OF POLICE, KOZHIKODE. 5. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM, KERALA. 6. THE SUPERINTENDENT, CENTRAL PRISON, KANNUR. W.P.(CRL).NO. 506 OF 2009 S 7. THE ADVISORY BOARD, CONSTITUTED UNDER THE KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT, SREENIVASPADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA, KOCHI-682 026, REPRESENTED BY ITS SECRETARY. BY ADDL.DIRECTOR GENERAL OF PROSECUTION SHRI K.K. RAVEENDRANATH. GOVERNMENT PLEADER SHRI P. RAVINDRA BABU. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 02/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(CRL).NO. 506 OF 2009 S PETITIONER'S EXHIBITS: EXT.P1TRUE COPY OF THE DETENTION ORDER NO.32398/09/S2/DC/KKD DATED 31.8.2009 ALONG WITH GROUNDS OF DETENTION ISSUED BY THE FIRST RESPONDENT. EXT.P2TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE DETENU BEFORE THE SECRETARY, HOME DEPARTMENT, DATED SEPTEMBER, 2009. EXT.P3TRUE COPY OF THE ORDER OF APPROVAL BEARING NO.66357/SS/15/2009/HOME DATED 19.9.2009. EXT.P4TRUE COPY OF THE SAID REPRESENTATION SUBMITTED BEFORE THE ADVISORY BOARD DATED SEPTEMBER, 2009. EXT.P5TRUE COPY OF THE GOVERNMENT ORDER DATED 13.11.2009 CONFIRMING THE DETENTION UNDER SECTION 10(4) OF THE KAAP ACT. EXT.P6TRUE COPY OF THE OBJECTION/COMPLAINT DATED 4.8.2008 SUBMITTED BY DETENU BEFORE THE JFCM-I, PERAMBRA. EXT.P7TRUE COPY OF THE ORDER DATED 28.1.2009 PASSED BY THE JFCM-I, PERAMBRA IN CMP.NO.1730 OF 2008 AND CMP.NO.1820 OF 2008. EXT.P8TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY SRI. SATHYA SAI INSTITUTE OF HIGHER MEDICAL SCIENCES, ANDHRA PRADESH DATED 6.8.2006. EXT.P9TRUE COPY OF THE PERMANENT PACEMAKER IMPLANTATION REPORT ISSUED BY SRI SATHYA SAI INSTITUTE OF HIGHER MEDICAL SCIENCES, PUTTAPARTHY. EXT.P10 TRUE COPY OF THE INTERIM ORDER PASSED BY THE HONOURABLE HIGH COURT IN THE ABOVE MENTIONED CRL. M.C. NO.2464 OF 2009. EXT.P11 TRUE COPY OF REPRESENTATION PREPARED AND SIGNED BY THE VIKAR (PARISH PRIEST) OF KAKKAYAM PARISH PRODUCED BEFORE THE AUTHORITIES AND THE ADVISORY BOARD. EXT.P12 TRUE COPY OF REPRESENTATION PREPARED AND SIGNED BY MEMBER OF KOORACHUNDU BLOCK PANCHYATH, SHRI. JOBY KANHIRATHANKUZHY PRODUCED BEFORE THE AUTHORITIES AND THE ADVISORY BOARD. EXT.P13 TRUE COPY OF REPRESENTATION PREPARED AND SIGNED BY MEMBER OF WARD OF KOORACHUNDU PANCHAYATH, SHRI SEBASTIAN PULIKKAL PRODUCED BEFORE THE AUTHORITIES AND THE ADVISORY BOARD. EXT.P14 TRUE COPY OF REPRESENTATION PREPARED AND SIGNED BY THE SECRETARY OF KAKKAYAM VIKASANA SAMITHI, SHRI THOMSON, PRODUCED BEFORE THE AUTHORITIES AND THE ADVISORY BOARD. EXT.P15 TRUE COPY OF THE FIR IN CRIME NO.100 OF 2004 OF ATHOLI POLICE STATION. EXT.P16 TRUE COPY OF THE FIR IN CRIME NO.127 OF 2007 OF KOORACHUNDU POLICE STATION. W.P.(CRL.)NO.506 OF 2009 S EXT.P17 TRUE COPY OF THE RELEVANT PORTION OF THE FINAL REPORT IN CRIME NO.127 OF 2007 OF KOORACHUNDU POLICE STATION. EXT.P18 TRUE COPY OF THE FIR IN CRIME NO.202 OF 2008 OF KOORACHUNDU POLICE STATION. EXT.P19 TRUE COPY OF THE RELEVANT PORTION OF THE FINAL REPORT IN CRIME NO.202 OF 2008 OF KOORACHUNDU POLICE STATION. EXT.P20 TRUE COPY OF THE FIR IN CRIME NO.208 OF 2008 OF KOORACHUNDU POLICE STATION. EXT.P21 TRUE COPY OF THE RELEVANT PORTION OF THE FINAL REPORT IN CRIME NO.208 OF 2008 OF KOORACHUNDU POLICE STATION. EXT.P22 TRUE COPY OF PRELIMINARY REPORT FOR ACTION DATED NIL ISSUED BY THE SUB INSPECTOR OF POLICE, KOORACHUNDU POLICE STATION. EXT.P23 TRUE COPY OF THE ORDER DATED 25.7.2009 PASSED BY THE SUPERINTENDENT OF POLICE, KOZHIKODE RURAL. EXT.P24 TRUE COPY OF THE FIR NO.58 OF 2009 OF KOORACHUNDU POLICE STATION. EXT.P25 TRUE COPY OF THE REPORT DATED 25.7.2009 ISSUED BY THE SUPERINTENDENT OF POLICE, KOZHIKODE RURAL. EXT.P26 TRUE COPY OF CERTIFICATE DATED 23.7.2009 ISSUED BY THE ASI OF POLICE, KOORACHUNDU POLICE STATION. EXT.P27 TRUE COPY OF THE JUDGMENT IN CC.NO.916 OF 2004 PASSED BY THE JFCM COURT, KOYILANDY. EXT.P28 TRUE COPY OF THE ORDER APPENDED TO THE JUDGMENT IN CC.NO.916 OF 2004 PASSED BY THE JFCM COURT, KOYILANDY IN CC.NO.220 OF 2007. RESPONDENTS' EXHIBITS: EXT.R6(A) TRUE COPY OF THE ORDER NO.66357/SSA/09/HOME DATED 01.10.2009 ACKNOWLEDGED BY THE DETENU. // True Copy // PS to Judge K. M. JOSEPH & P.Q. BARKATH ALI, JJ. -------------------------------------------------- W.P(CRL). NO. 506 OF 2009 S --------------------------------------------------- Dated this the 2nd February, 2010 JUDGMENT K.M. Joseph, J. Petitioner is the wife of one Shri Shaju Varghese who has been detained under the provisions of the The Kerala Anti- Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). She challenges the detention order as also the approval order, Report of the Advisory Board, confirmation order and seeks to release her husband from custody by a writ of habeas corpus. Though there is a prayer to declare certain provisions of the Act as unconstitutional, it is not pressed before us. 2. Ext.P1 order of detention is dated 31.08.2009. It was passed by the District Magistrate, Kozhikode. Reference is made therein to credible information from the Superintendent of WP(CRL).NO.506/09 2 Police, Kozhikode Rural by letter dated 25.07.2009. There are four offences which are referred to. Firstly, it is stated that on 18.06.2004, the detenu and others were arrested for stealing a motor cycle. Crime No.100/04 was registered under Sections 379 and 414 read with Section 34 IPC on 19.06.2004 and the detenu was charge-sheeted and found guilty and convicted for one year rigorous imprisonment and fine of Rs.2,000/=. Secondly, it is stated that on 27.12.2007, the detenu criminally entered into the shop owned by the complainant with a chopper, threatened him and destroyed the glass jar etc. of the shop with the chopper and caused loss of Rs.25,000/= to the complainant. Crime No.127/07 was registered under Sections 452, 506 (ii) and 427 IPC on 27.12.2007 and he was charge-sheeted before the Magistrate Court as C.C.No.176/08 on 23.02.2008. The said case is pending trial. Thirdly, it is stated that on 16.12.2008 the detenu attacked the friend of the complainant who was sitting with the complainant while he was asked about the work which WP(CRL).NO.506/09 3 was entrusted to him and he threw a stone towards the complainant and sustained injuries. FIR was registered against the detenu as Crime No.202/08 under Sections 341, 323 and 324 IPC on 16.12.2008. The case has been charge-sheeted before the Magistrate Court as CC.No.96/09 on 28.02.2009. It is stated that the detenu attacked the complainant at the Mosque at Kakkayam with an iron rod and caused injuries to the complainant. Crime No.208/08 was registered under Sections 324 and 308 IPC on 20.12.2008 and the detenu has been charge- sheeted on 27.04.2009. This case also is stated to be pending trial. Thereafter, there is reference to the Report of the Superintendent of Police to the effect that the detenu is indulging in anti-social activities that endanger public safety, public order and tranquility and it is stated that the detenu is in active involvement in anti-social activities. It is further stated that the detenu was involved in four cases of which three are pending trial and in one case the detenu was convicted. On this WP(CRL).NO.506/09 4 basis and finding that the detenu is a known rowdy, the detention was ordered. 3. The order of detention has been approved and confirmed. This necessarily means that the Advisory Board has not deemed it fit to interfere with the order of detention. 4. We heard Shri Firoz K.M., learned counsel for the petitioner and also the learned Government Pleader. 5. Learned counsel for the petitioner would impress upon us that the order of detention is unsustainable. He would point out that one of the cases, namely the case relating to theft of motor cycle, took place in the year 2004. He would further submit that while it is true that the Magistrate Court has convicted the detenu and the matter was unsuccessfully carried in Appeal, the detenu challenged the order in Revision and it is pending before this Court. He would make an attempt to persuade us to consider essentially the merits of the matter and convince us that the allegation against the detenu are without any foundation. He would next submit that as far as Crime WP(CRL).NO.506/09 5 No.127/07 is concerned, it was an incident which arose from out of a dispute between neighbours. Next, he would submit that Crime Nos.202/08 and 208/08 are both registered on the basis of a complaint by one Shri Jayan and it arose out of a contract to construct a building. He would plead malafides in the matter. He would submit that when the facts are such, there was no basis to order detention. He would then submit that as far as Crime No.100/04 is concerned, it ought not to have been taken into consideration at all by the detaining authority. He expatiates and submits that the complaint was infact lodged by a Police Officer and, therefore, it was liable to be excluded. In this regard, he relied on Section 2(p)(iii) of the Act. He would lastly contend that this is a case where the detenu has given a representation as Ext.P2 before the Government and the Government has rejected the same by a cryptic order, without considering the same as is required in law (Ext.R6(a)). Petitioner has a case that the detenu is on a pace-maker and a WP(CRL).NO.506/09 6 cardiac patient and that he was incapable of committing the offences alleged against him. Learned counsel for the petitioner also raised a contention that Crime under Section 379 IPC cannot be a crime which would fall within the four walls of Section 2(t) of the Act. 6. Learned Government Pleader, on the other hand, countered these complaints and contended that there is no merit. He would submit that there are four cases referred to and those cases would bring the detenu within the ambit of Section 2(p) of the Act. He would point out that it is not correct to say that Crime No.100/04 was filed by a Police Officer. He would point out that there was a defacto complainant and, therefore, reckoning the said crime for the purpose of bringing the detenu under Section 2(p) of the Act is fully justified. 7. As far as Crime No.127/07 is concerned, learned Government Pleader would submit that the exclusion provided by Clause (2) of the proviso to Section 2(p) of the Act may not be applicable in the facts of the case. He would further contend that at any rate, even if the said incident is excluded, in view of WP(CRL).NO.506/09 7 Section 7(4) of the Act, the order of detention cannot be interfered with, as with the remaining three incidents, the order of detention can be treated as passed validly. With regard to Crime Nos.202/08 and 208/08, he would point out that they are supported by Wound Certificates and it is not the result of any malafides. He points out that a case of malafides can be made lightly, but the Court will not accept it unless there are particulars pleaded and it is established with materials before the Court. As regards consideration of the representation, it is submitted before us by the learned Government Pleader that it is trite law that a representation need not be rejected by an order supported by reasons (See Haradhan Saha v. State of West Bengal and Others (AIR 1974 SC 2154) which has been followed in John Martin v. State of West Bengal (AIR 1975 SC 775). He would submit that in the circumstances of this case, the decision rejecting the representation cannot be complained against for non-consideration of the same. He would refer us to WP(CRL).NO.506/09 8 the files, the Notes prepared which were placed before the Secretary who considered and passed the orders and it is submitted that there has been a proper consideration of the representation. He would further submit that even if there may be a valid point raised by the detenu in regard to Crime No.127/07, in view of Section 7(4) of the Act, with the remaining three incidents fulfilling the minimum criteria as indicated in Section 7(4) in so far as Section 7(4) is the dictate of the Legislature which is binding not only on the detaining Authority, but also on the Advisory Board and also the Government, it may be taken that the Government when it considered the representation, was aware of Section 7(4) and even after excluding the incident referred to as Crime No.127/07, with the remaining three incidents, it cannot be said that the constitutional right of the petitioner is infringed. 8. We will firstly consider whether there is any merit in the contention of the petitioner that the order of detention is bad WP(CRL).NO.506/09 9 for the reason that Crime No.100/04 should have been excluded from consideration for the reason that it was a complaint filed by the Police Officer and, therefore, it could not have been made use of to find that the detenu was a known rowdy. The definition of “known rowdy” reads, inter alia, as follows: “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 any restriction or detention under this Act,- (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 (i) of Section 2.” Therefore, it is clear that if the complaint which led to the registration of a crime was lodged by a Police Officer, it was liable to be excluded. Learned counsel appearing for the detenu, in an attempt to establish his case in this regard, invited WP(CRL).NO.506/09 10 our attention to the First Information Report (Ext.P15). In the same, it is stated in Column 4 that the complainant is the Sub Inspector of Police, Atholy Police Station. Indeed, the FIR relates to Crime No.100/04. As against this, the learned Government Pleader drew our attention to Ext.P27 Judgment of the Judicial Magistrate of First Class, Koyilandy in C.C. No.916/04 arising from Crime No.100/04. He would point out that there is reference in the same to the defacto complainant whose motor cycle was allegedly stolen. It is stated in the Judgment, inter alia, as follows: “To prove the case, the defacto complainant whose motor cycle was allegedly stolen by the accused was cited as CW1. He could not be examined as he expired prior to commencement of trial. The son of defacto complainant cited to prove ownership and loss of motor cycle as CW2, was examined as PW1.” Ext.P28 is a copy of the order appended to the Judgment of the Magistrate in C.C. No.916/04. The case was split up in trial. It supports the learned Government Pleader on the same lines as WP(CRL).NO.506/09 11 Ext.P28. It is important to bear in mind that what is excluded is the finding on an investigation or an enquiry by a competent Police Officer or other Authority on complaints initiated by Police Officers. Therefore, the word “complaint” used is not to be confused with the concept of the word “complainant” invoking the Court as such. It is true that the complainant in C.C.No.916/04 is the Station House Officer. But, what is relevant is the initial complaint on the basis of which the investigation commenced leading to the finding by the Police Officer or other competent Officer. Of course, it is the case of the detenu that the incident arose out of a case of overloading of the motor cycle as there were three persons riding the motor cycle and the Sub Inspector of Police accosted them and booked the case against them including for theft. But, the fact remains that as far as the case of theft is concerned, it is as evident from Exts.P27 and P28 that there was a defacto complainant. Though the learned counsel for the petitioner submitted that he would make available records to show that the complaint was WP(CRL).NO.506/09 12 actually filed by Police Officer, no such records also were made available. The irresistible conclusion which flows from the materials on record is that the complaint was indeed not filed by a Police Officer as contended by Shri K.M. Firoz, learned counsel for the petitioner, but there was a defacto complainant which led to the registering of the case and the conviction of the detenu also. 9. It may be true that the detenu has challenged the same and the matter is at large before this Court in a Revision Petition. That is not a matter which should detain us in considering the question whether in arriving at the objective satisfaction that the detenu was a known rowdy, the incidents leading to the registration of Crime No.100/04 wherein the detenu was charge-sheeted also and what is more, the detenu was convicted also by the Magistrate should have been considered. Quite clearly, the Magistrate was justified in relying on the said incident. WP(CRL).NO.506/09 13 A perusal of Section 2(t), inter alia, reads as follows: “2(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;” According to him, Section 2(t) only refers to Sections 153A and 153B of the IPC. He contends that an offence under Section 379 of IPC is not within the sweep of the Section. He would further submit that the conviction for the offence in Ext.P27 Judgment is only for one year. Both these contentions are WP(CRL).NO.506/09 14 meritless. A perusal of Section 2(t) would show that not only Sections 153A and 153B of Chapter VIII are included, but the offences in Chapters XV, XVI, XVII & XXII of the IPC are among the offences which would attract the wrath of the Section. Section 379 comes under Chapter XVII of the IPC. The punishment provided for under Section 379 is imprisonment of either description for a term which may extend to three years or with fine or with both. Therefore, it is an offence falling in Chapter XVII which will squarely attract provisions of Section 2 (t). There is also no merit in the contention that the offence may not be sufficient to invoke Section 2(t) for the reason that the detenu was sentenced only to one year imprisonment. What is provided in law is only that the offence should not be punishable with less than one year of imprisonment. It is not the actual punishment which was rendered in a particular case which matters, but what is decisive is the maximum sentence that can be awarded for the offence in question. The maximum sentence that can be awarded under Section 379 IPC, as we have already WP(CRL).NO.506/09 15 noticed, is three years. Therefore, on both counts, we find the contention of the petitioner without any merit at all. 10. Crime No.100/04 related to an incident which took place in the year 2004. What the Act provides for is that the incidents which took place within a period of seven years can be taken into consideration for the purpose of arriving at the objective satisfaction. We would notice that apart from Crime No.100/04, the detenu came to be involved in Crime No.127/07 and later, he was again involved in Crime Nos.202/08 and 208/08 which which are incidents which took place in December, 2008, in the space of a few days, the last two crimes taking place in the space of a few days. 11. We will next consider that in respect of Crime Nos.202/08 and 208/08, even though the petitioner had a contention that it was between neighbours, the petitioner has not persevered with the contention before us. The further question which arises essentially hovers around the incident which took place in 2007 leading to Crime No.127/07. According to WP(CRL).NO.506/09 16 petitioner, the alleged incident took place as a result of the tussle between neighbours and, therefore, it ought not to have been considered at all for deciding that the detenu was a known rowdy. We will at once notice the provisions in this regard. After defining the word “known rowdy” in Clauses (i), (ii) and (iii), certain categories are excluded. They are contained in Clauses (i) to (vi) in the proviso. Clause (ii) of the proviso reads as follows: “Provided that any offence committed by a person.- (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.” He would further submit that the detention is bad for the reason that though the detenu had specifically brought this aspect into focus in Ext.P2 representation before the Government. By an order which is without any reasons, Ext.R6(a) was issued. It reads as follows: WP(CRL).NO.506/09 17 “I am directed to inform you that your representation cited has been examined by the Additional Chief Secretary (Home & Vigilance) on behalf of Government. Since there are no valid points in the petition for consideration and the detention order issued by the District Collector is found based on valid grounds and as per law, the petition deserves no merit and the same is rejected. I am also to inform you that you have the legal right to engage an Advocate during the time of hearing with the permission of the Advisory Board.” He would submit that clearly, it is a case where the said incident should have been excluded and, therefore, it is vitiated the alleged satisfaction of the detaining authority. At any rate, when the matter was brought to the notice of the Government, the Government should have considered the same and the fact that even this aspect is not considered, would show that the constitutional right to have the representation considered, has been observed in its breach by the Government. In this regard, he relied on a Judgment of a Division Bench of this Court in WP(CRL).NO.506/09 18 Shruthi v. State of Kerala (2009 (4) KLT 893). Therein, the Divison Bench was considering a case where there were five grounds in the order of detention. In respect of the first ground, it was contended that the detenu had been acquitted. In respect of another ground, the case was that it could not have been considered at all for ordering detention. The Division Bench after review of case law on the point, reiterated that though no reasons need be stated, the detenu is entitled to a real consideration of the representation. It was, inter alia, held as follows: “51. We are unable to persuade ourselves to agree that Ext.P8 reveals such consideration which is insisted by the precedents referred above. The sure test for us to decide whether there has been proper consideration or not, is the omission/failure to refer to the contention that cases 1 and 5 referred above should not have been taken into consideration. We agree with the learned counsel for the petitioner that the very same Ext.P8 order (with a change in the date of representation) can be used by the Government to reject the