Ammini w/o Surendan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **FRIDAY, THE 4TH DAY OF OCTOBER 2013/12TH ASWINA, 1935** **WP(Crl.).No. 368 of 2013 (S) -----------------------------** **PETITIONER(S):** **--------------------------** **AMMINI W/O. SURENDRAN, AGED 50 YEARS, MADHUPPULLY HOUSE, UDAYAPURAM COLONY KANNARA DESOM, THRISSUR TALUK, THRISSUR DISTRICT.** **BY ADVS.SMT.DAISY A.PHILIPOSE SRI.JAI GEORGE** ## **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT HOME AND VIGILANCE DEPARTMENT THIRUVANANTHAPURAM-695001.** ## **2. THE DISTRICT COLLECTOR THRISSUR.** ## **3. THE SUPERINTENDENT** ## **CENTRAL PRISON, KANNUR.** **R1,2 BY ADV. DIRECTOR GENERAL OF PROSECUTION SRI.ASAF ALI** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04-102013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(Crl.).No. 368 of 2013 (S)** ## **-----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT P1- A TRUE COPY OF THE ORDER OF DETENTION NO. C1-17870 DATED 24-42013 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2- A TRUE COPY OF THE PRELIMINARY REPORT SUBMITTED BY THE SUB INSPECTOR OF POLICE, PEECHI BEFORE THE DISTRICT POLICE CHIEF, THRISSUR. EXHIBIT P3- A TRUE COPY OF THE FINAL REPORT IN CRIME NO. 441 OF 2006 OF VIYYOOR POLICE STATION.** **EXHIBIT P4- A TRUE COPY OF THE FINAL REPORT IN CRIME NO. 253 OF 2009 OF VIYYOOR POLICE STATION.** **EXHIBIT P5- A TRUE COPY OF THE FINAL REPORT IN CRIME NO. 612 OF 2009 OF PEECHI POLICE STATION.** **EXHIBIT P6- A TRUE COPY OF THE FINAL REPORT IN CRIME NO. 704 OF 2010 OF MANNUTHY POLICE STATION.** **EXHIBIT P7- A TRUE COPY OF THE FINAL REPORT IN CRIME NO. 371 OF 2011 OF WADAKKANCHERY POLICE STATION.** **EXHIBIT P8- A TRUE COPY OF THE FINAL REPORT IN CRIME NO. 5 OF 2012 OF VIYYOOR POLICE STATION.** **EXHIBIT P9- A TRUE COPY OF THE FINAL REPORT IN CRIME NO. 1260 OF 2012 OF VIYYUR POLICE STATION.** **EXHIBIT P10- A TRUE COPY OF THE ORDER NO. 44863/SS A1/2013 DATED 8-5-2013 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P11- A TRUE COPY OF THE G.O.(RT)NO. 1857/2013 HOME DATED 4-7-2013.** **RESPONDENT(S)' EXHIBITS NIL** **---------------------------------------** **//True Copy//** **PA TO JUDGE** **Rp** ## **ANTONY DOMINIC & P.D.RAJAN, JJ. ======================== W.P.(Crl.) No. 368 OF 2013 =======================** ## **Dated this the 4[th] day of October, 2013** ## **J U D G M E N T** ## Antony Dominic, J. Petitioner, the mother of one Satheesh @ Sinderla has filed this writ petition with a prayer to set aside Ext.P1 order of detention issued under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the Act' for short) and to set his son at liberty. 2. The detenu is accused in Crime Nos.441/2006, 253/09, 5/2012 and 303/05 of Viyyur Police Station, Crime No.612/09 of the Peechi Police Station, Crime No.704/2010 of the Mannuthy Police Station and Crime Nos. 371/11 and 1260/12 of the Wadakkancherry Police Station. Based on the above, the Station House Officer of the Peechi Police Station submitted Ext.P2 report to the District Police Chief, Trichur requesting that steps be initiated for getting him classified as “known rowdy” as defined in Section 2(p)(iii) of the Act and for his detention as provided under Section 3 of the Act. Based on the above report, the District Police Chief, Trichur made a report under Section 3(1) of the Act ## **W.P.(Crl.) No.368/13** **: 2 :** to the 2[nd] respondent on 21/3/13. Based on the above, the 2[nd] respondent issued Ext.P1 order under Section 3(2) of the Act dated 24/4/13. In that order, the detenu was classified as a known rowdy under Section 2(p) of the Act and in order to prevent him from continuing his anti-social activities as defined under Section 2(a) of the Act, he was ordered to be detained. 3. Pursuant to Ext.P1 order, the detenu was arrested and detained on 2/5/13. The detaining authority reported the matter forthwith to the Government and the Government approved his detention under Section 3(3) of the Act by Ext.P10 order dated 8/5/13. Later, the matter was referred to the Advisory Board constituted under Section 8 of the Act and the Advisory Board made its report and on that basis, the Government confirmed the detention under Section 10(4) of the Act by issuing Ext.P11 order dated 4/7/13. It is in this background, the petitioner has filed this writ petition seeking to invalidate the proceedings and to set her son at liberty. 4. We heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. ## **W.P.(Crl.) No.368/13** **: 3 :** 5. The contention raised by the learned counsel for the petitioner was that since the offences which are the subject matter of Crime Nos.253/09 and 612/09 are involving neighbours, those offences are liable to be excluded in view of the provisions contained in the proviso (ii) to Section 2(p) of the Act. The proviso (ii) to Section 2(p) provides 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 which occurred due to a dispute between the immediate neighbours, shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy. The scope of this provision has been explained by a Division Bench of this Court in the judgment in _**Abidha Beevi v. State of Kerala**_ (2013(1) KLT 286). _6. The Proviso (ii) to S.2(p) of KAA(P)A reads as follows:_ _“Provided that any offence committed by a person,-_ _(i) xxxxxxxxxxxx_ _(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;_ **W.P.(Crl.) No.368/13** **: 4 :** _(iii) xxxxxxxxxxxx_ _(iv) xxxxxxxxxxxx (v) xxxxxxxxxxxx_ _(vi) xxxxxxxxxxxxx_ _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. 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 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_ **W.P.(Crl.) No.368/13** **: 5 :** _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'._ 6. If the principles thus laid down by the Division Bench are applied to the facts of this case, it can be seen that the detenu cannot get the benefit of clause (ii) of the proviso to Section 2(p). If that be so, Crime Nos.253/09 and 612/09 of the Viyyur Police Station are not liable to be omitted. Therefore, this contention does not merit acceptance. 7. The second contention raised by the learned counsel for the petitioner is that there was non application of mind on the part of the detaining authority. According to him, while issuing Ext.P1 order, the detaining authority has not adverted to the pendency of the proceedings under Section 107 of Cr.P.C and also has not explained why such proceedings are not sufficient or good **W.P.(Crl.) No.368/13** ## **: 6 :** enough to prevent the detenu from continuing the anti-social activities requiring preventive detention. In so far as this aspect of the matter is concerned, reading of the order shows that the detaining authority has considered this aspect and held that despite having initiated proceedings under Section 107 of the Cr.P.C, those proceedings did not deter the detenu from continuing his activity. The fact that the detaining authority is justified in holding so, is evident from the fact that though Section 107 proceedings were initiated against the detenu in the year 2011, in 2012 also, the detenu got involved in Crime No.5/12 of Viyyur Police Station and Crime No.1260/12 of Wadakkancherry Police Station involving grievous offences. This itself demonstrates that Section 107 proceedings could, in no manner, control the detenu and therefore we are not in a position to agree with the learned counsel either on his contention regarding non application of mind or regarding the alleged insufficiency of the reasons assigned by the detaining authority. 8. Learned counsel for the petitioner then proceeded to contend that the FIR in Section 107 proceedings and the rowdy history sheet relied on by the detaining authority were not ## **W.P.(Crl.) No.368/13** ## **: 7 :** supplied to him. In so far as this contention is concerned, we must state that this is a factual contention and if such a contention is to be urged, the petitioner should have pleaded the same. Only if it is so done, could the respondents have either admitted, denied or explained it. The pleadings in the writ petition do not show that any such contention has been urged and therefore we are not in a position to consider this contention. 9. Learned counsel then contended that Crime No.303/05 of the Viyyur Police Station registered in relation to an occurrence on 9/6/05, also has been reckoned in computing the number of cases. It is true that such a crime has also been reckoned. It is also correct that under the provisions of Section 2(p) of the Act, the offences to be reckoned are related to acts done within previous seven years as calculated from the date of the order imposing detention. Therefore the offences should not occur within 7 years from 24/4/13. If so reckoned, the occurrence in Crime No.303/05 has occurred beyond the seven year period. However, Section 2(p)(iii) only requires three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of Section 2. In so far as this case ## **W.P.(Crl.) No.368/13** **: 8 :** is concerned, admittedly, there are seven cases. Therefore, even if the occurrence in Crime No.303/05 of the Viyyur Police Station is also excluded, still there are six cases left. Therefore, that will not invalidate the order of detention. 10. Counsel then contended that the last prejudicial activity relied on in Ext.P1 was on 23/11/12, in relation to which, Crime No.1260/12 of the Wadakkancherry Police Station is registered. According to him, Ext.P1 order of detention was issued only on 24/4/13 and that on account of the delay, the live link between the last prejudicial activity and the requirement of detention is lost, rendering the detention illegal and unconstitutional. It is true that unexplained and inordinate delay in passing the order of detention and in the execution of an order of detention will render both unconstitutional. In other words, if there is delay and if that delay is explained by the respondents, and if the explanation is accepted, such delay will not render an order of detention unconstitutional. Therefore, this contention needs to be urged specifically by the petitioner and should be answered to the satisfaction of the Court. This contention has not been raised in the pleadings and therefore the respondents did ## **W.P.(Crl.) No.368/13** **: 9 :** not have notice of such contention requiring it to be explained to this Court. If that be so, in the absence of pleadings in this behalf, this Court will not be justified in considering this contention now raised across the bar. Therefore, we are unable to accept any one of the contentions urged by the learned counsel for the petitioner and the writ petition is dismissed. Sd/- **ANTONY DOMINIC, Judge** Sd/- **P.D.RAJAN, Judge** Rp **//True Copy//** **PA TO JUDGE**