Abidha Beevi v. State of Kerala

[W.P.(Crl.).No.520/2012]2anti-social activities?iii) Whether the detention order passed on23.6.2012 after the last prejudicial activity allegedlycommitted by the detenu on 6.2.2012 is vitiated bydelay? 2. The petitioner is the mother of the detenu. The detenuwas placed under preventive detention with immediate effect atCentral Prison, Thiruvananthapuram, by Ext.P1 detention orderdated 23.6.2012 passed by the 2nd respondent, the DistrictMagistrate. The 2nd respondent has passed Ext.P1 orderexercising his powers under Section 3 of the Kerala Anti-SocialActivities (Prevention) Act, 2007 [for short, KAA(P)A]. Pursuantto Ext.P1, the detenu was taken into custody on 29.6.2012 andadmitted him to the Central Prison, Thiruvananthapuram. Ext.P1order has been approved by the Government, the firstrespondent, as per order dated 5.7.2012. The Advisory Boardsent a report dated 25.8.2012 finding that there was sufficientcause to detain the detenu. Thereafter, the first respondent hasissued Ext.P7 order dated 5.9.2012 confirming the order of [W.P.(Crl.).No.520/2012]3detention and directing to continue the detention for six monthsfrom the date of detention. The petitioner challenges Ext.P1detention order on various grounds in this Writ Petition.3. Heard Shri.Blaze K.Jose, the learned counsel appearing forthe petitioner, and Shri. K.I.Abdul Rasheed, the learned Addl.State Public Prosecutor appearing for the respondents. Detailedarguments have been advanced by both the sides before us.4. The Deputy Commissioner of Police, 3rd respondent,submitted Ext.P2 report to the 2nd respondent requesting him topass an order under Section 3 of KAA(P)A for detaining the detenuas he is a 'known rowdy' indulging himself in anti-social activitiesnecessitating his detention. The 2nd respondent, after consideringExt.P2, found the detenu to be a 'known rowdy' as definedunder Section 2 (p) of KAA(P)A. The 2nd respondent, in Ext.P1detention order, considered the following five criminal cases inwhich the detenu is involved: Sl.No.CrimeNumberName ofPoliceStationDate ofOccurrenceOffences Alleged1198 of 2008Fort29.03.2008S. 393 of IPC. [W.P.(Crl.).No.520/2012]4Sl.No.CrimeNumberName ofPoliceStationDate ofOccurrenceOffences Alleged2418 of 2009Fort01.05.2009Ss.341,323, 324 and 34 of IPC.31155 of 2010Fort08.11.2010Ss. 341, 323, 324, 294(b) and506(ii) of IPC.41326 of 2010Fort21.12.2010Ss. 452, 323, 324, 427 and 34of IPC.5234 of 2012Fort06.02.2012 Ss. 143, 341, 323, 427 and149 of IPC.Ext.P3 copy of the judgment (not a full text) of the Judicial FirstClass Magistrate's Court -V, Thiruvananthapuram, shows that thedetenu was acquitted in Crime No.198 of 2008. Moreover, CrimeNo.198 of 2008 has not been taken into account by the secondrespondent for passing Ext.P1 detention order as it wasregistered based on the complaint of a police officer. Ext.P4order passed by the Judicial First Class Magistrate's Court-II,Thiruvananthapuram, shows that the detenu was acquitted underSection 320(8) of Cr.P.C. in Crime No.418 of 2009 as the offenceshave been compounded. In other cases, after investigation, FinalReports have been filed in the court.5. Learned counsel for the petitioner submitted that thedetenu cannot be found to be a 'known rowdy' as defined under [W.P.(Crl.).No.520/2012]5Section 2(p) of KAA(P)A for the reason that the last three criminalcases, namely, Crime Nos. 1115 of 2010, 1326 of 2010 and 234 of2012, have been registered for the offences allegedly committedin three separate incidents that occurred between the detenu andhis immediate neighbours. The petitioner's specific case is thattwo incidents allegedly occurred between the detenu and one ofhis immediate neighbours and another incident allegedlyoccurred between the detenu and his another immediateneighbour. Therefore, by virtue of Proviso (ii) to Section 2(p) ofKAA(P)A, the offences in the said three cases shall be omittedfrom the computation of the number of offences taken intoaccount for deciding whether the detenu is a known rowdy, thelearned counsel further submitted. The fact that the detenu andthe de facto complainants in the last three criminal cases areimmediate neighbours is not disputed. Similarly, the fact thatthe detenu allegedly committed the offences in these three casesalong with others is also not in dispute. Even then, these threeincidents are treated as allegedly occurred between the detenuand his immediate neighbours as submitted by the learned [W.P.(Crl.).No.520/2012]6counsel, for the purpose of appreciating his argument. Moreover,no question arises in this case in respect of others involved alongwith the detenu in these three incidents. 6. The Proviso (ii) to Section 2(p) of KAA(P)A reads asfollows:“Provided that any offence committed by a person,―(i) xxx xxx xxx xxx xxx (ii) by virtue of his involvement as a neighbour or as aclose relative of the neighbour in an incident whichoccurred due to a dispute between immediate neighbours; (iii) xxx xxx xxx xxx xxx (iv) xxx xxx xxx xxx xxx (v) xxx xxx xxx xxx xxx (vi) xxx xxx xxx xxx xxxshall be omitted from the computation of the number ofoffences taken into account for deciding whether a person is aknown rowdy;”This Proviso shows that any offence committed by a person byvirtue of his involvement as a neighbour or as a close relative ofthe neighbour in an incident that occurred due to a disputebetween immediate neighbours shall be omitted from the [W.P.(Crl.).No.520/2012]7computation of the number of offences taken into account fordeciding whether a person is a known rowdy. The incidentcontemplated in this Proviso is an incident that occurred due to adispute between immediate neighbours. And the Proviso directsto omit only those offences committed by a person by virtue of hisinvolvement as a neighbour or as a close relative of the neighbourin an incident that occurred due to a dispute between immediateneighbours. So, a neighbour or a close relative of a neighbourinvolving in an incident that occurred due to a dispute betweenimmediate neighbours alone shall be omitted. Here, theneighbour or a close relative of the neighbour means theneighbour or a close relative of such a neighbour of anyimmediate neighbours and the incident giving rise to the offenceshould be one occurred due to a dispute between thoseimmediate neighbours. Therefore, this proviso does not omit theimmediate neighbours who are parties to the dispute whichgenerate the incident leading to the involvement of any of theirneighbours or close relatives of such neighbours. The positioncan be elucidated by giving a simple example. A and B are two [W.P.(Crl.).No.520/2012]8immediate neighbours. C and D are their neighbours. X is a closerelative of C and Y is a close relative of D. There is a disputebetween A and B. Due to that dispute an incident occurs leadingto the involvement of C and/or D. This Proviso does not protect Aor B. But, it protects C and D. Similarly, X and Y also will beprotected if they involve in that incident. In the case on hand, thedispute in each of the three criminal cases is between the detenuand his immediate neighbour as in the case of A and B. Theprotection available to C and D or X and Y under this Provisocannot be claimed by the detenu in respect of an incident thatoccurred due to a dispute between him and the de factocomplainant in each of the said three criminal cases. Therefore,the argument so advanced by the learned counsel for thepetitioner is liable to be rejected and we do so. The offencescommitted by immediate neighbours in an incident that occurreddue to a dispute between them cannot be omitted from thecomputation of the number of offences taken into account fordeciding whether a person is a 'known rowdy'.7. Learned counsel for the petitioner submitted that [W.P.(Crl.).No.520/2012]9proceedings under Section 107 of Cr.P.C. have been initiatedagainst the detenu on 23.5.2012 as per F.I.R. No.889 of 2012 ofFort Police Station. But, the 2nd respondent has not consideredwhether such proceedings initiated against the detenu weresufficient or not for preventing him from committing anti-socialactivities. The records made available by the learned Addl.State Public Prosecutor show that proceedings under Section107 of Cr.P.C. have been initiated against the detenu on23.5.2012. The 2nd respondent stated in Ext.P1 order that FinalReport in the proceedings under Section 107 of Cr.P.C. initiatedagainst the detenu has been submitted in the Sub DivisionalMagistrate's Court as reported by the 3rd respondent. Also madean observation that the criminal activities of the detenu cannot beprevented by way of proceedings under Section 107 of Cr.P.C. inthe light of his past history. This is the statement made by the 2ndrespondent in Ext.P1 dealing with the proceedings underSection107 of Cr.P.C. initiated against the detenu. A detaileddiscussion on the basis of the connected records in theproceedings under Section 107 of Cr.P.C. did not find a place in [W.P.(Crl.).No.520/2012]10Ext.P1. Ext.P1 is, therefore, bereft of the required details showingconsideration of the proceedings under Section 107 of Cr.P.C. bythe 2nd respondent.8. The proceedings under Section 107 of Cr.P.C. areinitiated against a person for preventing him from committingbreach of peace or disturbing public tranquillity. In other words, itis intended for keeping peace and public tranquillity. KAA(P)A isalso intended to prevent persons from committing anti-socialactivities. If proceedings initiated under Section 107 of Cr.P.C.are sufficient for preventing a person from committing anti-socialactivities, the detention order under Section 3 of KAA(P)A is notnecessary. Whether the proceedings under Section 107 of Cr.P.C.are sufficient or not is a question of fact depending upon variousfactors. In the case of certain persons, the proceedings underSection 107 of Cr.P.C. may be sufficient for preventing them fromcommitting anti-social activities causing breach of peace ordisturbing public tranquillity. In respect of certain other persons,the proceedings under Section 107 of Cr.P.C. may not besufficient. One thing is quite certain. Unless the detaining [W.P.(Crl.).No.520/2012]11authority specifically addresses the question whether theproceedings under Section 107 of Cr.P.C. initiated against aperson are sufficient or not in the light of the materials concerningthose proceedings produced before that authority, the questionwhether the proceedings under Section 107 of Cr.P.C. aresufficient or not cannot be decided. 9. In the case on hand, the last prejudicial activity allegedlycommitted by the detenu was on 6.2.2012. There is no case forthe respondents that the detenu has committed anti-socialactivities after 6.2.2012. No documents also have been producedin order to show that the detenu has continued his anti-socialactivities by way of committing offences after 6.2.2012. Theproceedings under Section 107 of Cr.P.C. have been initiatedagainst the detenu for the purpose of preventing him fromcommitting breach of peace or disturbing public tranquillity.KAA(P)A is also intended to prevent persons from committinganti-social activities. If the proceedings initiated under Section107 of Cr.P.C. are sufficient for preventing the detenu fromcommitting anti-social activities, the detention order under [W.P.(Crl.).No.520/2012]12Section 3 of KAA(P)A is not necessary. When the proceedingsunder Section 107 of Cr.P.C. initiated against the detenu by thepolice on 23.5.2012 is considered in the light of the fact that thelast anti-social activity allegedly committed by the detenu was on6.2.2012, much prior to the initiation of the proceedings underSection 107 of Cr.P.C., the proceedings under Section 107 ofCr.P.C. assume much relevance. The respondents could notsupply any material to show that the proceedings under Section107 of Cr.P.C. initiated against the detenu were insufficient forpreventing him from committing anti-social activities. A merestatement, without applying mind, as done in Ext.P1, is notsufficient for finding that the proceedings initiated against thedetenu under Section 107 of Cr.P.C. were not sufficient forpreventing him from committing anti-social activities. The 2ndrespondent should have considered the sufficiency orinsufficiency of the proceedings under Section 107 of Cr.P.C.initiated against the detenu with the support of relevant materialsand necessary discussions in Ext.P1 order. But, he failed to doso. In the facts obtained in this case, we are of the considered [W.P.(Crl.).No.520/2012]13view that there was no reason for the 2nd respondent to arrive at aconclusion that the proceedings under Section 107 of Cr.P.C.initiated against the detenu were insufficient for preventing himfrom committing anti-social activities. Therefore, absence ofapplication of mind on his part is writ large in this case. This, infact, vitiated the detention order. Hence, it is liable to bequashed. 10. We shall now consider as to whether Ext.P1 detentionorder passed by the 2nd respondent on 23.6.2012 after thealleged last prejudicial activity committed by the detenu on6.2.2012 is vitiated by inordinate and unexplained delay. The2nd respondent has relied on Crime No. 234 of 2012 of FortPolice Station in order to arrive at the finding that the detenuwas continuing his anti-social activities. The occurrence inCrime No.234 of 2012 was on 6.2.2012. Therefore, the last anti-social activity alleged against the detenu has taken place on6.2.2012. But, Ext.P1 detention order has been passed by the2nd respondent only on 23.6.2012. This shows that there was adelay of more than 4½ months in passing the detention order [W.P.(Crl.).No.520/2012]14after the last anti-social activity allegedly committed on6.2.2012. The 2nd respondent observed in Ext.P1 order that ifthe detenu was at large he would indulge in anti-social activitieswhich would directly or indirectly cause danger or threat topublic life etc. So, in order to protect the members of thegeneral public from the anti-social activities of the detenu, Ext.P1has been passed. But, the 2nd respondent has passed Ext.P1detention order only on 23.6.2012 after the last prejudicialactivity allegedly committed by the detenu on 6.2.2012.Therefore, apparently there was long delay in passing thedetention order after the last prejudicial activity. That the causeof delay has not been explained at all in Ext.P1. Moreover, therespondents 1 and 2 have not given any satisfactory explanationin their counter affidavits for the delay caused in passing Ext.P1order. So, the delay occurred in this case remains unexplainedby the respondents 1 and 2. Mere delay in passing the detentionorder after the last prejudicial activity alone is not a sufficientground for vitiating the order of detention provided the delay issatisfactorily explained by the authorities concerned. [W.P.(Crl.).No.520/2012]1511. Dealing with the delay in passing the detention order,the Supreme Court held in T.A. Abdul Rahman v. State ofKerala (AIR 1990 SC 225) as follows:“........However, when there is undue and longdelay between the prejudicial activities and thepassing of detention order, the Court has toscrutinize whether the detaining authority hassatisfactorily examined such a delay and affordeda tenable and reasonable explanation as to whysuch a delay has occasioned, when called upon toanswer and further the Court has to investigatewhether the causal connection has been broken inthe circumstances of each case.”Dealing with the unexplained delay, the Supreme Court inP.N.Paturkar v. S. Ramamurthi (AIR 1994 SC 656) held asfollows: “14. Under the above circumstances, takinginto consideration of the unexplained delaywhether short or long especially when theappellant has taken a specific plea of delay, weare constrained to quash the detention order......” 12. The maximum period of detention under KAA(P)A shallnot exceed six months from the date of detention as determined [W.P.(Crl.).No.520/2012]16under Section 12. KAA(P)A is intended to effectively preventingand controlling anti-social activities in the State of Kerala.Therefore, the detaining authority is passing a detention orderexercising his powers under Section 3 of KAA(P)A for the purposeof preventing a known goonda or known rowdy from committingany anti-social activities. This is for protecting the membersof the general public from such anti-social activities. TheLegislature thought it proper to fix the maximum period ofdetention under KAA(P)A as six months. In the case on hand, thelast alleged anti-social activity occurred on 6.2.2012. But, the 2ndrespondent has passed Ext.P1 detention order only on 23.6.2012.When the maximum period for which a person can be detained isdetermined to be six months, a delay of more than 4½ months inpassing the detention order after the last anti-social activity canonly be considered as an inordinate delay. Here, no explanationhas been given for the delay either in Ext.P1 detention order orin the counter affidavits filed by the respondents 1 and 2.Therefore, the inordinate and unexplained delay occurred in thiscase is fatal in nature and hence, it vitiates the detention order. [W.P.(Crl.).No.520/2012]17Such a delay, definitely, cast doubt on the genuineness of thesubjective satisfaction of the detaining authority. Such delayedorder cannot be considered as one passed for protecting themembers of the general public from the anti-social activities asclaimed by the second respondent in Ext.P1. Therefore, thedetention order is liable to be quashed for this reason as well. In the result, Ext.P1 order issued by the second respondentand approved and confirmed by the first respondent is quashed.The Superintendent, Central Prison, Thiruvananthapuram, isdirected to set the detenu at liberty forthwith, if he is not wantedin any other case. The Registry of this Court is directed to issuerelease order forthwith. This Writ Petition is allowed. Sd/- PIUS C. KURIAKOSE, JUDGE. Sd/- BABU MATHEW P. JOSEPH,krs. JUDGE.// True Copy//P.S. to Judge. [W.P.(Crl.).No.520/2012]18The words “shall be omitted from the computation of thenumber of offences taken into account for deciding whether aperson is a known rowdy” are added immediately after the words“immediate neighbours” occurring in the last part at page 6 of thejudgment in W.P.(Crl.) 520/2012 dated 20.12.2012 and the word“Section” is inserted in between “under and 107” in line one ofquestion (ii) at page one of the judgment vide order dated11.02.2013 in W.P.(Crl.) No.520/2012.Sd/-Registrar (Judicial)