Abidha Beevi v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE** **& THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH** **THURSDAY, THE 20TH DAY OF DECEMBER 2012/29TH AGRAHAYANA 1934** ## **WP(Crl.).No. 520 of 2012 (S)** **----------------------------** **PETITIONER(S): -------------** **ABIDHA BEEVI, TC 39/1883, KARIMADAM COLONY, MANACAUD THIRUVANANTHAPURAM.** **BY ADVS.SRI.BLAZE K.JOSE SMT.N.DEEPA SMT.DAYANA DAVID** ## **RESPONDENT(S):** ## **--------------** **1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO HOME DEPARTMENT SECRETRIAT, THIRUVANANTHAPURAM-695001** **2. THE DISTRICT MAGISTRATE/DISTRICT COLLECTOR (N/C) THIRUVANANTHAPURAM-695001** **3. THE DEPUTY COMMISSIONER OF POLICE (L & O) THIRUVANANTHAPURAM-695001** ## **BY ADDL. STATE PROSECUTOR SRI.K.I. ABDUL RASHEED** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17-12-2012, THE COURT ON 20-12-2012 DELIVERED THE FOLLOWING:** ## **WP(Crl.).No. 520 of 2012 (S)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** **P1: TRUE COPY OF THE ORDER OF DECLARATION ISSUED BY THE 2ND RESPONDENT NO.S.13-55987/2012 DATED 23.06.2012 SERVED ON 29.06.2012** **P2: TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT NO.94/CAMP/DCP(L&O)TVPM/2012 DATED 30.05.2012** **P3: TRUE COPY OF THE JUDGMENT IN C.C.NO.351/2008 OF THE JFCM V, TVPM IN CRIME NO.198/2008 OF FORT POLICE STATION DATED 4/6/2012** **P4: TRUE COPY OF THE ORDER IN C.CNO.395/2007 OF JFCM-II, TVPM IN CRIME NO. 418/2009 OF FORT POLICE STATION DATED 7-8-2012** **P5: TRUE COPY OF THE ORDER NO.G.O.(Rt) NO.2633/2012/HOME DATED 05/9/2012.** **RESPONDENTS' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A. TO JUDGE.** **dlk** ## **C.R.** ## **PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.** -----------------------------------------------------------W.P.(Crl.) No. 520 of 2012 ------------------------------------------------------------Dated this the 20[th] day of December, 2012 ## **JUDGMENT** ## **Babu Mathew P. Joseph, J.** The following questions arise for consideration in this Writ Petition: i) Whether an offence committed by one of the immediate neighbours in an incident that occurred due to the dispute between them should be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy or not? ii) Whether the proceedings under Section 107 of Cr.P.C. initiated against the detenu in this case were sufficient or not for preventing him from committing [W.P.(Crl.).No.520/2012] 2 anti-social activities? iii) Whether the detention order passed on 23.6.2012 after the last prejudicial activity allegedly committed by the detenu on 6.2.2012 is vitiated by delay? 2. The petitioner is the mother of the detenu. The detenu was placed under preventive detention with immediate effect at Central Prison, Thiruvananthapuram, by Ext.P1 detention order dated 23.6.2012 passed by the 2[nd] respondent, the District Magistrate. The 2[nd] respondent has passed Ext.P1 order exercising his powers under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 [for short, KAA(P)A]. Pursuant to Ext.P1, the detenu was taken into custody on 29.6.2012 and admitted him to the Central Prison, Thiruvananthapuram. Ext.P1 order has been approved by the Government, the first respondent, as per order dated 5.7.2012. The Advisory Board sent a report dated 25.8.2012 finding that there was sufficient cause to detain the detenu. Thereafter, the first respondent has issued Ext.P7 order dated 5.9.2012 confirming the order of [W.P.(Crl.).No.520/2012] 3 detention and directing to continue the detention for six months from the date of detention. The petitioner challenges Ext.P1 detention order on various grounds in this Writ Petition. 3. Heard Shri.Blaze K.Jose, the learned counsel appearing for the petitioner, and Shri. K.I.Abdul Rasheed, the learned Addl. State Public Prosecutor appearing for the respondents. Detailed arguments have been advanced by both the sides before us. 4. The Deputy Commissioner of Police, 3[rd] respondent, submitted Ext.P2 report to the 2[nd] respondent requesting him to pass an order under Section 3 of KAA(P)A for detaining the detenu as he is a 'known rowdy' indulging himself in anti-social activities necessitating his detention. The 2[nd] respondent, after considering Ext.P2, found the detenu to be a 'known rowdy' as defined under Section 2 (p) of KAA(P)A. The 2[nd] respondent, in Ext.P1 detention order, considered the following five criminal cases in which the detenu is involved: |**Sl.**<br>**No.**|**Crime**<br>**Number**|**Name of**<br>**Police**<br>**Station**|**Date of**<br>**Occurrence**|**Offences Alleged**| |---|---|---|---|---| |1|198 of 2008|Fort|29.03.2008|S. 393 of IPC.| [W.P.(Crl.).No.520/2012] 4 |**Sl.**<br>**No.**|**Crime**<br>**Number**|**Name of**<br>**Police**<br>**Station**|**Date of**<br>**Occurrence**|**Offences Alleged**| |---|---|---|---|---| |2|418 of 2009|Fort|01.05.2009|Ss.341,323, 324 and 34 of IPC.| |3|1155 of 2010|Fort|08.11.2010|Ss. 341, 323, 324, 294(b) and<br>506(ii)of IPC.| |4|1326 of 2010|Fort|21.12.2010|Ss. 452, 323, 324, 427 and 34<br>of IPC.| |5|234 of 2012|Fort|06.02.2012|Ss. 143, 341, 323, 427 and<br>149 of IPC.| Ext.P3 copy of the judgment (not a full text) of the Judicial First Class Magistrate's Court -V, Thiruvananthapuram, shows that the detenu was acquitted in Crime No.198 of 2008. Moreover, Crime No.198 of 2008 has not been taken into account by the second respondent for passing Ext.P1 detention order as it was registered based on the complaint of a police officer. Ext.P4 order passed by the Judicial First Class Magistrate's Court-II, Thiruvananthapuram, shows that the detenu was acquitted under Section 320(8) of Cr.P.C. in Crime No.418 of 2009 as the offences have been compounded. In other cases, after investigation, Final Reports have been filed in the court. 5. Learned counsel for the petitioner submitted that the detenu cannot be found to be a 'known rowdy' as defined under [W.P.(Crl.).No.520/2012] 5 Section 2(p) of KAA(P)A for the reason that the last three criminal cases, namely, Crime Nos. 1115 of 2010, 1326 of 2010 and 234 of 2012, have been registered for the offences allegedly committed in three separate incidents that occurred between the detenu and his immediate neighbours. The petitioner's specific case is that two incidents allegedly occurred between the detenu and one of his immediate neighbours and another incident allegedly occurred between the detenu and his another immediate neighbour. Therefore, by virtue of Proviso (ii) to Section 2(p) of KAA(P)A, the offences in the said three cases shall be omitted from the computation of the number of offences taken into account for deciding whether the detenu is a known rowdy, the learned counsel further submitted. The fact that the detenu and the de facto complainants in the last three criminal cases are immediate neighbours is not disputed. Similarly, the fact that the detenu allegedly committed the offences in these three cases along with others is also not in dispute. Even then, these three incidents are treated as allegedly occurred between the detenu and his immediate neighbours as submitted by the learned [W.P.(Crl.).No.520/2012] 6 counsel, for the purpose of appreciating his argument. Moreover, no question arises in this case in respect of others involved along with the detenu in these three incidents. 6. The Proviso (ii) to Section 2(p) of KAA(P)A reads as follows: ― “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 a close relative of the neighbour in an incident which occurred 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 xxx shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy;” This Proviso shows that any offence committed by a person by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident that occurred due to a dispute between immediate neighbours shall be omitted from the [W.P.(Crl.).No.520/2012] 7 computation of the number of offences taken into account for deciding whether a person is a known rowdy. The incident contemplated in this Proviso is an incident that occurred due to a dispute between immediate neighbours. And the Proviso directs to omit only those offences committed by a person by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident that occurred due to a dispute between immediate neighbours. So, a neighbour or a close relative of a neighbour involving in an incident that occurred due to a dispute between immediate neighbours alone shall be omitted. Here, the neighbour or a close relative of the neighbour means the neighbour or a close relative of such a neighbour of any immediate neighbours and the incident giving rise to the offence should be one occurred due to a dispute between those immediate neighbours. Therefore, this proviso does not omit the immediate neighbours who are parties to the dispute which generate the incident leading to the involvement of any of their neighbours or close relatives of such neighbours. The position can be elucidated by giving a simple example. A and B are two [W.P.(Crl.).No.520/2012] 8 immediate neighbours. C and D are their neighbours. X is a close relative of C and Y is a close relative of D. There is a dispute between A and B. Due to that dispute an incident occurs leading to the involvement of C and/or D. This Proviso does not protect A or B. But, it protects C and D. Similarly, X and Y also will be protected if they involve in that incident. In the case on hand, the dispute in each of the three criminal cases is between the detenu and his immediate neighbour as in the case of A and B. The protection available to C and D or X and Y under this Proviso cannot be claimed by the detenu in respect of an incident that occurred due to a dispute between him and the de facto complainant in each of the said three criminal cases. Therefore, the argument so advanced by the learned counsel for the petitioner is liable to be rejected and we do so. The offences committed by immediate neighbours in an incident that occurred due to a dispute between them cannot be omitted from the computation of the number of offences taken into account for deciding whether a person is a 'known rowdy'. 7. Learned counsel for the petitioner submitted that [W.P.(Crl.).No.520/2012] 9 proceedings under Section 107 of Cr.P.C. have been initiated against the detenu on 23.5.2012 as per F.I.R. No.889 of 2012 of Fort Police Station. But, the 2[nd] respondent has not considered whether such proceedings initiated against the detenu were sufficient or not for preventing him from committing anti-social activities. The records made available by the learned Addl. State Public Prosecutor show that proceedings under Section 107 of Cr.P.C. have been initiated against the detenu on 23.5.2012. The 2[nd] respondent stated in Ext.P1 order that Final Report in the proceedings under Section 107 of Cr.P.C. initiated against the detenu has been submitted in the Sub Divisional Magistrate's Court as reported by the 3[rd] respondent. Also made an observation that the criminal activities of the detenu cannot be prevented by way of proceedings under Section 107 of Cr.P.C. in the light of his past history. This is the statement made by the 2[nd] respondent in Ext.P1 dealing with the proceedings under Section107 of Cr.P.C. initiated against the detenu. A detailed discussion on the basis of the connected records in the proceedings under Section 107 of Cr.P.C. did not find a place in [W.P.(Crl.).No.520/2012] 10 Ext.P1. Ext.P1 is, therefore, bereft of the required details showing consideration of the proceedings under Section 107 of Cr.P.C. by the 2[nd] respondent. 8. The proceedings under Section 107 of Cr.P.C. are initiated against a person for preventing him from committing breach of peace or disturbing public tranquillity. In other words, it is intended for keeping peace and public tranquillity. KAA(P)A is also intended to prevent persons from committing anti-social activities. If proceedings initiated under Section 107 of Cr.P.C. are sufficient for preventing a person from committing anti-social activities, the detention order under Section 3 of KAA(P)A is not necessary. Whether the proceedings under Section 107 of Cr.P.C. are sufficient or not is a question of fact depending upon various factors. In the case of certain persons, the proceedings under Section 107 of Cr.P.C. may be sufficient for preventing them from committing anti-social activities causing breach of peace or disturbing public tranquillity. In respect of certain other persons, the proceedings under Section 107 of Cr.P.C. may not be sufficient. One thing is quite certain. Unless the detaining [W.P.(Crl.).No.520/2012] 11 authority specifically addresses the question whether the proceedings under Section 107 of Cr.P.C. initiated against a person are sufficient or not in the light of the materials concerning those proceedings produced before that authority, the question whether the proceedings under Section 107 of Cr.P.C. are sufficient or not cannot be decided. 9. In the case on hand, the last prejudicial activity allegedly committed by the detenu was on 6.2.2012. There is no case for the respondents that the detenu has committed anti-social activities after 6.2.2012. No documents also have been produced in order to show that the detenu has continued his anti-social activities by way of committing offences after 6.2.2012. The proceedings under Section 107 of Cr.P.C. have been initiated against the detenu for the purpose of preventing him from committing breach of peace or disturbing public tranquillity. KAA(P)A is also intended to prevent persons from committing anti-social activities. If the proceedings initiated under Section 107 of Cr.P.C. are sufficient for preventing the detenu from committing anti-social activities, the detention order under [W.P.(Crl.).No.520/2012] 12 Section 3 of KAA(P)A is not necessary. When the proceedings under Section 107 of Cr.P.C. initiated against the detenu by the police on 23.5.2012 is considered in the light of the fact that the last anti-social activity allegedly committed by the detenu was on 6.2.2012, much prior to the initiation of the proceedings under Section 107 of Cr.P.C., the proceedings under Section 107 of Cr.P.C. assume much relevance. The respondents could not supply any material to show that the proceedings under Section 107 of Cr.P.C. initiated against the detenu were insufficient for preventing him from committing anti-social activities. A mere statement, without applying mind, as done in Ext.P1, is not sufficient for finding that the proceedings initiated against the detenu under Section 107 of Cr.P.C. were not sufficient for preventing him from committing anti-social activities. The 2[nd] respondent should have considered the sufficiency or insufficiency of the proceedings under Section 107 of Cr.P.C. initiated against the detenu with the support of relevant materials and necessary discussions in Ext.P1 order. But, he failed to do so. In the facts obtained in this case, we are of the considered [W.P.(Crl.).No.520/2012] 13 view that there was no reason for the 2[nd] respondent to arrive at a conclusion that the proceedings under Section 107 of Cr.P.C. initiated against the detenu were insufficient for preventing him from committing anti-social activities. Therefore, absence of application of mind on his part is writ large in this case. This, in fact, vitiated the detention order. Hence, it is liable to be quashed. 10. We shall now consider as to whether Ext.P1 detention order passed by the 2[nd] respondent on 23.6.2012 after the alleged last prejudicial activity committed by the detenu on 6.2.2012 is vitiated by inordinate and unexplained delay. The 2[nd] respondent has relied on Crime No. 234 of 2012 of Fort Police Station in order to arrive at the finding that the detenu was continuing his anti-social activities. The occurrence in Crime No.234 of 2012 was on 6.2.2012. Therefore, the last antisocial activity alleged against the detenu has taken place on 6.2.2012. But, Ext.P1 detention order has been passed by the 2[nd] respondent only on 23.6.2012. This shows that there was a delay of more than 4½ months in passing the detention order [W.P.(Crl.).No.520/2012] 14 after the last anti-social activity allegedly committed on 6.2.2012. The 2[nd] respondent observed in Ext.P1 order that if the detenu was at large he would indulge in anti-social activities which would directly or indirectly cause danger or threat to public life etc. So, in order to protect the members of the general public from the anti-social activities of the detenu, Ext.P1 has been passed. But, the 2[nd] respondent has passed Ext.P1 detention order only on 23.6.2012 after the last prejudicial activity allegedly committed by the detenu on 6.2.2012. Therefore, apparently there was long delay in passing the detention order after the last prejudicial activity. That the cause of delay has not been explained at all in Ext.P1. Moreover, the respondents 1 and 2 have not given any satisfactory explanation in their counter affidavits for the delay caused in passing Ext.P1 order. So, the delay occurred in this case remains unexplained by the respondents 1 and 2. Mere delay in passing the detention order after the last prejudicial activity alone is not a sufficient ground for vitiating the order of detention provided the delay is satisfactorily explained by the authorities concerned. [W.P.(Crl.).No.520/2012] 15 11. Dealing with the delay in passing the detention order, the Supreme Court held in **T.A. Abdul Rahman** v. **State of Kerala** (AIR 1990 SC 225) as follows: “........However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinize whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.” Dealing with the unexplained delay, the Supreme Court in **P.N.Paturkar** v. **S. Ramamurthi** (AIR 1994 SC 656) held as follows: “14. Under the above circumstances, taking into consideration of the unexplained delay whether short or long especially when the appellant has taken a specific plea of delay, we are constrained to quash the detention order......” 12. The maximum period of detention under KAA(P)A shall not exceed six months from the date of detention as determined [W.P.(Crl.).No.520/2012] 16 under Section 12. KAA(P)A is intended to effectively preventing and controlling anti-social activities in the State of Kerala. Therefore, the detaining authority is passing a detention order exercising his powers under Section 3 of KAA(P)A for the purpose of preventing a known goonda or known rowdy from committing any anti-social activities. This is for protecting the members of the general public from such anti-social activities. The Legislature thought it proper to fix the maximum period of detention under KAA(P)A as six months. In the case on hand, the last alleged anti-social activity occurred on 6.2.2012. But, the 2[nd] respondent has passed Ext.P1 detention order only on 23.6.2012. When the maximum period for which a person can be detained is determined to be six months, a delay of more than 4½ months in passing the detention order after the last anti-social activity can only be considered as an inordinate delay. Here, no explanation has been given for the delay either in Ext.P1 detention order or in the counter affidavits filed by the respondents 1 and 2. Therefore, the inordinate and unexplained delay occurred in this case is fatal in nature and hence, it vitiates the detention order. [W.P.(Crl.).No.520/2012] 17 Such a delay, definitely, cast doubt on the genuineness of the subjective satisfaction of the detaining authority. Such delayed order cannot be considered as one passed for protecting the members of the general public from the anti-social activities as claimed by the second respondent in Ext.P1. Therefore, the detention order is liable to be quashed for this reason as well. In the result, Ext.P1 order issued by the second respondent and approved and confirmed by the first respondent is quashed. The Superintendent, Central Prison, Thiruvananthapuram, is directed to set the detenu at liberty forthwith, if he is not wanted in any other case. The Registry of this Court is directed to issue release order forthwith. This Writ Petition is allowed. Sd/- **PIUS C. KURIAKOSE, JUDGE.** krs **.** Sd/- **BABU MATHEW P. JOSEPH, JUDGE.** // True Copy// P.S. to Judge. [W.P.(Crl.).No.520/2012] 18 The words _“shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy”_ are added immediately after the words “immediate neighbours” occurring in the last part at page 6 of the judgment in W.P.(Crl.) 520/2012 dated 20.12.2012 and the word “Section” is inserted in between “under and 107” in line one of question (ii) at page one of the judgment vide order dated 11.02.2013 in W.P.(Crl.) No.520/2012. Sd/-Registrar (Judicial)