Farsana.K v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ## **`& THE HONOURABLE MR. JUSTICE G.GIRISH MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 WP(CRL.) NO.743 OF 2024`** ``` PETITIONER: ``` ``` FARSANA.K,AGED26YEARS,ARANGATH(HOUSE),W/OMUHAMMADRIYAS KUZHIYAMPARAMBA,KUZHIMANNAPO,MALAPPURAM,PIN-673641 ``` ``` BYADVS.K.K.SUBEESH;ROYTHOMAS(MUVATTUPUZHA) ``` ``` RESPONDENTS: ``` - **`1 STATE OF KERALA, REPRESENTED SECRETARY, HOME DEPARTMENT GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN - 695001`** - **`2 DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, COLLECTORATE, MALAPPURAM, PIN - 680003`** - **`3 CHAIRMAN,KAAPA ADVISORY BOARD, PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA, ERNAKULAM, PIN - 682026`** - **`4 THE DISTRICT POLICE CHIEF,DISTRICT POLICE OFFICE, UPHILL POST, MALAPPURAM, PIN - 676505`** - **`5 THE STATION HOUSE OFFICER, KARIPUR POLICE STATION, KARIPUR, KUMMINIPPARAMBA POST, MALAPPURAM, PIN - 673636`** - **`6 THE STATION HOUSE OFFICER,KONDOTTY POLICE STATION, KONDOTTY POST, MALAPPURAM DISTRICT, PIN - 673638`** - **`7 SUPERINTENDENT,CENTRAL PRISON & CORRECTIONAL HOME, SHORANUR ROAD, VIYYUR, THRISSUR, PIN - 680010`** ``` ADVOCATEGENERALOFFICEKERALA;ADDL.DIRECTORGENERALOF PROSECUTION(AG-11);ADDL.STATEPUBLICPROSECUTOR(AG-28) ``` ## **`SRI K.A ANAZ, PUBLIC PROSECUTOR`** ``` THISWRITPETITION(CRIMINAL)HAVINGCOMEUPFOR ADMISSIONON05.08.2024,THECOURTONTHESAMEDAYDELIVERED THEFOLLOWING: ``` 2 W.P.(Crl) No.743/2024 ## **JUDGMENT** ## **G.Girish, J.** Aggrieved by Ext.P1 order of the District Magistrate, Malappuram, in respect of the preventive detention of the husband of the petitioner, the present petition is filed by her under Article 226 of the Constitution of India for a writ of habeas corpus. 2. Ext.P1 order is the outcome of the report dated 14.05.2024 of the District Police Chief, Malappuram about four crimes in which the husband of the petitioner is involved, which were sufficient to classify him as a ‘known rowdy’ under the Kerala Anti-Social Activities (Prevention) Act, 2007 [for short ‘KAA(P)A’]. The aforesaid four crimes are shown in the table below: |Sl.No<br>.|Crime No.|Offences|Present Status| |---|---|---|---| |1|414/2022 of<br>Karipur Police<br>Station|u/s 353 and 336<br>IPC|Final report filed and the case is<br>now<br>pending<br>trial<br>before<br>the<br>Judicial<br>First<br>Class<br>Magistrate<br>Court-I,<br>Manjeri<br>as<br>C.C.No.1641/2023| |2|556/2023 of<br>Karipur Police<br>Station|u/s 363 and 392<br>r/w 34 of IPC|Final report filed and the case is<br>now pending trial before the CJM<br>Court,<br>Manjeri<br>as<br>C.C.No.1281/2023| |3|596/2024 of<br>Kondotti Police<br>Station|u/s 341, 323, 324,<br>308 and 506 of IPC|Under investigation| |4|599/2024 of<br>Kondotti Police<br>Station|u/s 448, 353, 427<br>r/w Sec.34 IPC,<br>Sec.3(1) of PDPP|Under Investigation| 3 W.P.(Crl) No.743/2024 Act and Sec.4(1), 4(2) of Health Act 3. After analysing the case records in the aforesaid four crimes, and the report of the District Police Chief, Malappuram referred above, the Detaining Authority (District Magistrate, Malappuram) came to the conclusion that the petitioner’s husband would come under the definition of ‘known rowdy’ under KAA(P)A and hence his preventive detention is highly necessary for the maintenance of public order. Accordingly, the Detaining Authority passed Ext.P1 order on 05.06.2024. The detenu has challenged Ext.P1 order before the Advisory Board constituted under the KAA(P)A vide Ext.P2 application. The said matter is said to be pending consideration of the Advisory Board. In the present petition, the petitioner challenges Ext.P1 order on the following grounds: - i) The Detaining Authority did not hear the detenu before passing Ext.P1 order. - ii) Neither the Detaining Authority nor the Sponsoring Authority had read out and explained to the detenu the report of the Sponsoring Authority. - iii) There is a delay of one month and 25 days from the last prejudicial activity to the date of detention order which would vitiate the aforesaid order. - iv) The order of detention was not approved by the Government within twelve days as required under Section 3(3) of KAA(P)A. 4 W.P.(Crl) No.743/2024 v) The first crime reckoned by the authorities concerned for the classification of the detenu as a ‘known rowdy’ has been initiated by the officials of the Customs Department, and hence it ought to have been exempted from being considered. vi) The 3[rd] and 4[th] crime attributed to the detenu arose out of the same transaction, and hence the authorities concerned ought to have excluded the same. vii) The authorities concerned ought to have awaited the outcome of the proceedings under Section 107 of the Code of Criminal Procedure before taking decision as to the necessity to initiate preventive detention measures against the detenu. viii) The authorities concerned ought to have considered the feasibility of resorting to externment of the detenu before opting for preventive detention. ix) The authorities concerned ought to have considered the sufficiency of bail conditions imposed by the courts while granting bail to the detenu, in the crimes attributed against him, for ensuring that the detenu does not involve in further prejudicial activities. x) There were no sufficient materials placed before the Detaining Authority for reckoning the last two crimes for the purpose of classifying the detenu as ‘known rowdy’. 4. Heard Adv.Sri.K.K.Subeeshhrishikesh, the learned counsel for the petitioner and Sri.K.A.Anaz, the learned Senior Government Pleader representing the respondents. 5 W.P.(Crl) No.743/2024 5. As regards the first two grounds highlighted by the learned counsel for the petitioner to challenge the legal sanctity of Ext.P1 order, it has to be stated that there is absolutely no statutory or precedential basis to the above argument. Neither KAA(P)A nor any other precedents holding the field make it mandatory for the authorities concerned to hear the detenu before passing detaining order under Section 3(1) of the KAA(P)A. It is true that Section 15(1) of the KAA(P)A envisages the requirement to hear the affected party before passing orders of externment. But Section 3 of the KAA(P)A which deals with the detention of the ‘known goonda’ or ‘known rowdy’, does not contain any such pre-requisite before passing orders of detention. Likewise, there is no requirement to read out or hand over the report of the Sponsoring Authority to the detenu and to provide an opportunity to him to explain the insinuations, before resorting to the detention of the ‘known rowdy’ or ‘known goonda’ in exercise of the powers under Section 3 of the KAA(P)A. Thus, the argument advanced in the above regard by the learned counsel for the petitioner is devoid of merit. 6. The learned Senior Government Pleader has placed before us the relevant records showing the compliance of Sections 7(1) and 7(2) of the KAA(P)A by reading out the detention order to the detenu and serving him the said order and the relevant documents after his arrest pursuant to Ext.P1 order. The detenu is seen to have acknowledged the receipt of Ext.P1 order in the relevant records by affixing his dated signature. Therefore, it cannot 6 W.P.(Crl) No.743/2024 be said that there were any procedural violations on the part of the authorities concerned in the above matter. Thus, the challenge of the petitioner about the non-compliance of the procedural requirements of Section 7(1) and 7(2) of the KAA(P)A is totally unfounded. 7. As regards the contention of the petitioner about the delay of one month and 25 days from the last prejudicial activity and the date of detention order, it has to be stated that the chronological events following the registration of Crime No.599/2024 of the Kondotty Police Station against the detenu in connection with his last prejudicial activity, would reveal that the authorities concerned have acted without any laxity in initiating the proceedings under Section 3(1) of the KAA(P)A. The crime which is taken as the last prejudicial activity of the detenu was committed on 12.04.2024. It was on the same day that he had committed Crime No.596/2024 of Kondotty Police Station. The detenu was arrested and remanded in the aforesaid case on 13.04.2024. He was formally arrested in connection with the last crime, which is taken as the last prejudicial activity, on 24.04.2024 while he was in judicial custody in connection with Crime No.596/2024. Thereafter, the detenu was granted bail by the Sessions Court, Manjeri on 07.05.2024. The District Police Chief, Malappuram had recommended the commencement of proceedings for the preventive detention of the detenu on 14.05.2024, that is, just within a week from the date of bail order of the Sessions Court, Manjeri. After considering the above recommendation of the District Police 7 W.P.(Crl) No.743/2024 Chief, the Detaining Authority had passed Ext.P1 order on 05.06.2024, that is, within 22 days. It is not possible to say that the above said time lag, between the various proceedings, was of such a nature vitiating the sanctity of the preventive detention measures initiated against the detenu. In **Licil Antony v. State of Kerala and Another [(2014) 11 SCC 326]** , the Apex Court held while dealing with identical challenge in proceedings initiated against the detenu under COFEPOSA Act, that while dealing with the question of delay in making an order of detention, the Court is required to be circumspect and has to take a pragmatic view. It is further observed thereunder that no hard and fast formula is possible to be laid or has been laid in this regard. It is also observed by the Apex Court in the aforesaid decision that the question whether the prejudicial activity of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activity and the purpose of detention is snapped, depends on the facts and circumstances of each case. As far as the present case is concerned, it is not possible to say that the delay of one month and 25 days between the last prejudicial activity and the date of Ext.P1 order is so inordinate to snap the live-link between the said activity and the purpose for which Ext.P1 detention order is passed. Hence, we are not inclined to accept the argument advanced by the learned counsel for the petitioner in the above regard. 8 W.P.(Crl) No.743/2024 8. The contention of the petitioner about the infraction of Section 3(3) of the KAA(P)A in connection with the alleged failure of the authorities concerned to issue the order of approval of the detention of the detenu within 12 days from the date of detention, is found to be factually incorrect in the light of the relevant file placed before us by the learned Senior Government Pleader. It is revealed from the records that the order of approval of Ext.P1 order was made on 24.06.2024, which is within the period of 12 days, after excluding public holidays, from 08.06.2024, which is the date when the detenu was imprisoned in execution of Ext.P1 order. Therefore, the argument advanced by the learned counsel for the petitioner alleging non-compliance of Section 3(3) of the KAA(P)A, is also totally baseless. 9. The contention of the petitioner that the first crime reckoned for classifying the detenu as a ‘known rowdy’ ought to have been exempted by the authorities concerned since it was initiated at the instance of Customs Officers, is not supported by any law or precedents. It seems that the embargo incorporated in Section 2(p)(iii) of the KAA(P)A in respect of complaints initiated by police officers, has been stretched by the learned counsel for the petitioner to the extent of putting Customs Officers on par with police officers for the applicability of the aforesaid provision. There is absolutely no basis for the above hypothesis mooted by the learned counsel for the petitioner. This is because of the reason that the proscription in 9 W.P.(Crl) No.743/2024 Section 2(p)(iii) of KAA(P)A against reckoning the cases based on complaints initiated by police officers for classifying a person as ‘known rowdy’, is intended to avoid the embarrassing situation of officers associated with the investigating agency, having personal grievance against the accused, trying to get such persons booked under Preventive Detention Law as an act of retribution. To put it otherwise, the aforesaid provision is a measure to ensure that the crime reckoned for treating a person as ‘known rowdy’, is registered and proceeded against by the officers of the investigating agency untainted by any personal bias, and thus to safeguard fairness in the proceedings. Therefore, there is absolutely no disqualification for the first crime reckoned against the detenu which relates to the act of the detenu to cause obstruction to the official duties of Customs Officers by refusing to stop the car which he was driving, inspite of being asked to do so, and driving away the car in such a manner as to endanger the life of those officers who were trying to check the car driven by the detenu. 10. It has to be stated here that the disqualification envisaged under Section 2(p)(iii) for the cases arising out of complaints initiated by police officers has no applicability for those cases where the police officers figure as complainants due to the mere reason that the criminal law is set into motion at their instance, if the crime is one in which they are not having any personal grievance against the accused. Thus, if the crime is in respect of the obstruction caused to the discharge of official duty of the Police 10 W.P.(Crl) No.743/2024 Officer, or assault committed upon a Police Officer with the intention to deter him from discharging his official duty, as envisaged under Sections 353 or 332 of the Indian Penal Code, it cannot be classified as a case where the Police Officer concerned is having personal grievance against the accused. Such cases will not come under the exclusion of complaints initiated by Police Officers, envisaged under Section 2(p)(iii) of the KAA(P)A. On the other hand, if the case is one registered on the basis of a complaint of a Police Officer that he has been assaulted by an accused as a result of the personal enmity of the accused with him in connection with some issues which have no direct nexus with the discharge of official duty of that Officer, then such cases which originated on the basis of the complaint of the Police Officer, may come within the purview of the exclusion envisaged under Section 2(p)(iii) of the KAA(P)A. 11. A Division Bench of this Court had the occasion to consider this aspect in **Joicy v. State of Kerala and Others [2018 (1) KHC 37]** wherein it has been held in paragraph No.12 of that judgment as follows: - “12. Of course, in these two crimes, the de facto complainants are the Assistant Sub Inspectors of Police. The complaints were preferred by them as they sustained injuries in - the attack by the detenu and the co accused and they had given statements while undergoing treatment in the hospital. It is significant to note that the injured though Police Officers are the two victims in the attack by the detenu. They are two individuals / human beings. Just because of the fact that they 11 W.P.(Crl) No.743/2024 are Police Officers, they do not cease to be human beings. The provisions of this Act will no way curtail the rights of the Police Officers. At no stretch of imagination it could be construed that the words employed in Section 2(p)(iii) that "complaints initiated by persons other than Police Officers" would mean that when Police Officers are attacked and complaints are registered against the assailants those cases shall not be reckoned for passing an order under Section 3 of KAAPA for issuing detention order against the persons who are repeatedly indulging in criminal activities causing threat, fear, nuisance and disturbance to the society at large. In fact, the Police Officers are in a better position than ordinary citizen as they were prevented from discharging their official duty. In the course of that they sustained injuries. The argument advanced by the learned counsel for the petitioner, if accepted, would mean that even if Police Officers are assaulted any number of times, the assailants could not be brought to book under the KAAPA. The intention of legislature could never be so. Clause (iii) of Section 2(p) of KAAPA would only indicate misuse of powers by Police Officers and to safeguard the interest of detenu. It appears that - in both these incidents while the detenue along with the co assailants were creating threat and fear in the public, the duty bound police personnel attempted to prevent them and avert causing terror and threats to public at large by them and tried to maintain law and order at the respective places, but they were wrongfully attacked with deadly weapons and attempted to murder them. In fact, the records would indicate that the detenu is a dangerous person, who is involved in prejudicial activities and will not spare even Police Officials who are supposed to protect law and order situation for the welfare and security of the generalpublic, which is ofprime importance and that the detenu is a person who has no respect towards law 12 W.P.(Crl) No.743/2024 and order. The embargo in Section 2(p) (iii) of KAAPA does not mean to say that complaints lodged by Police Officers who sustained injuries in an attack by the detenu, which resulted in launching of prosecution against the assailants cannot be reckoned to pass a detention order to bring them under the definition of known rowdy or Known goonda. The intention of legislation could only be to avoid or prevent misuse or exploitation of the powers of Police personnel and it could never be to discard the complaints of Police Officers when they themselves become victims in the attack by such miscreants which is quite often now a days. So, it is not correct to conclude that these two crimes could not be reckoned so as to bring the detenu within the sweep of Section 2(p)(iii) of KAAPA and consequently to pass an order under Section 3 of KAAPA. So at any cost, it cannot be construed that the detaining - authority with non application of mind disregarded the provisions of the Act and passed the order of detention against the detenu. A hyper technical approach is not possible, though preventive detention is preventive and notpunitive.” Thus, there is absolutely no basis for a contention that the interdict contained in Section 2(p)(iii) of KAA(P)A would come into play in every case where Police Officers figure as complainants. 12. When viewed in the above perspective, the 1[st] crime attributed to the detenu, in respect of the commission of offence under Sections 353 & 336 I.P.C., does not suffer any disqualification even if it is taken that the Customs Officers upon whose complaint the said case is registered, are to be treated as Police Officers. Thus, the argument advanced by the learned 13 W.P.(Crl) No.743/2024 counsel for the petitioner in respect of the aforesaid challenge, is bereft of merit. 13. The contention of the learned counsel for the petitioner that the 3[rd] and 4[th] crimes attributed against the detenu are to be treated as instances forming part of the same transaction to have the commission of offence mentioned in Section 2(t) of the KAA(P)A, is also unacceptable since the facts and circumstances of the aforesaid crimes would reveal that it relate to totally different criminal acts committed by the detenu against different complainants. Crime No.596/2024 of Kondotty Police Station, which is shown as the 3[rd] crime attributed against the detenu, relates to the attempt to commit culpable homicide perpetrated upon a cake shop owner in a supermarket, and the wrongful restraint and hurt inflicted upon the above shop owner with the use of ‘Nunchuck’, a dangerous weapon. Crime No.599/2024 of Kondotty Police Station, which is shown as the 4[th] crime attributed to the detenu, is in respect of the violence committed by him at Kondotty Taluk Headquarters Hospital causing destruction to public property and obstruction to the official duty of the Medical Officer and other staff of that hospital. It is true that the aforesaid crime is said to have been committed by the detenu within a short time after the commission of crime No.596/2024 of Kondotty Police Station, when he came to that hospital. But the above casual connection between the two crimes is not sufficient to classify the same as instances forming part of the same transaction. 14 W.P.(Crl) No.743/2024 14. The learned counsel for the petitioner argued that the aforesaid two crimes ought to have been treated by the Investigating Agency as one series of acts so connected together as to form the same transaction leading to the commission of more offences by the same person, for which he could have been charged with and tried in a single crime in accordance with the provisions contained under Section 220(1) of the Code of Criminal Procedure. We are not inclined to accept the above argument of the learned counsel for the petitioner for the reason that the series of acts constituting the offence involved in Crime No.596/2024 of Kondotty Police Station and the series of acts constituting the offence in Crime No.599/2024 of Kondotty Police Station, cannot be said to be so connected together as to form the same transaction, since the nature of the acts committed by the accused, the persons against whom the crimes are committed and the place of commission of the offences are totally different. Therefore, the challenge raised by the learned counsel for the petitioner in the above regard cannot be accepted. 15. The contention of the petitioner that the Detaining Authority ought to have considered the scope of invoking the provisions under Section 107 of the Code of Criminal Procedure, and externment proceedings under Section 15(1) of the KAA(P)A before resorting to the preventive detention of the detenu, is also against the established principles of law in this regard. Ext.P1 order contains the indications that proceedings under Section 107 of 15 W.P.(Crl) No.743/2024 the Code of Criminal Procedure were already initiated against the detenu by the Sub-Divisional Magistrate, Perinthalmanna. It is stated in Ext.P1 order that, for the detenu who is found to have been involved in offences like culpable homicide not amounting to murder, the proceedings under Section 107 of the Code of Criminal Procedure may not be sufficient to deter him from involving in offences affecting public order. The subjective satisfaction of the Detaining Authority in passing the preventive detention order, cannot be assailed stating the reason that the said authority ought to have waited for the results of the proceedings under Section 107 of the Code of Criminal Procedure initiated against the detenu. Likewise, the detenu cannot be heard to say that the authorities concerned ought to have applied their subjective satisfaction, opting for externment proceedings against him, instead of resorting to preventive detention. It has been held by a Division Bench of this Court in **Hidayath.K v. State of Kerala & Ors. [2014 (1) KHC 718]** that it is not a prerequisite that an order under Section 15(1) of KAA(P)A should be passed before issuing an order of detention under Section 3(1) of the said Act, and that the contention put forward in that regard is without any merit. In **Jayalakshmi v. State of Kerala & Ors. [2015 KHC 961]** , a Division Bench of this Court in which one among us [Raja Vijayaraghavan V, J.] was a member, has held that it is not within the domain of the Detaining Authority to consider whether the authority acting under Chapter VIII of the Code of Criminal Procedure in his wisdom could 16 W.P.(Crl) No.743/2024 have initiated an appropriate proceeding which would be lesser in magnitude than an order of detention under Section 3(1) of KAA(P)A. In view of the settled position of law in the above regard, the challenge raised by the petitioner, finding fault with the Detaining Authority for not waiting for the outcome of the proceedings under Section 107 Cr.P.C. against the detenu, and also for not resorting to Section 15(1) of the KAA(P)A instead of opting for preventive detention, is totally baseless. 16. As regards the contention of the petitioner that the Detaining Authority ought to have considered the sufficiency of the bail conditions imposed by the Courts concerned while granting bail to the detenu, in all the four crimes attributed against him, before resorting to his preventive detention, it has to be stated that Ext.P1 order categorically states that the bail conditions imposed upon the detenu were found to be ineffective in checking his anti-social activities. It is observed by the Detaining Authority in the said order that inspite of imposing specific condition in the bail order that the accused shall not involve in any other offence while on bail, the detenu is seen to have been involving in crimes one after another in violation of such bail conditions. The finding of the Detaining Authority in the above regard, on the basis of its subjective satisfaction, cannot be interfered with in the proceedings in this writ petition. Therefore, the argument advanced by the learned counsel for the petitioner on that score, is bereft of merit. 17 W.P.(Crl) No.743/2024 17. It is seen from Ext.P1 order that the Detaining Authority had taken into account all the relevant records like F.I.R, F.I.S, application for formal arrest, arrest memo, certificate of the Investigating Officer, scene mahazar, bail order, etc., in respect of Crime No.596/2024 and Crime No.599/2024 of Kondotty Police Station, which are under investigation, for arriving at the finding that the detenu committed the offences alleged in the aforesaid cases. That being so, the mere fact that the Investigating Agency had not filed final reports in the said cases, would no way affect the course adopted by the Detaining Authority in relying on the said cases for classifying the detenu as a ‘known rowdy’. It has been held by a Full Bench of this Court in **Stenny Aleyamma Saju v. State of Kerala & Ors. [2017 (3) KHC 517]** that the filing of a final report under Section 173(2) of the Code of Criminal Procedure is not a prerequisite to invoke the power under Section 3 of the KAA(P)A, if the Detaining Authority is satisfied from the records of the investigation that the offence alleged thereunder is made out against the detenu. In that view of the matter, the petitioner cannot be heard to say that Ext.P1 order passed by the Detaining Authority is based on cases which are not qualified to be considered for classifying the detenu as a ‘known rowdy’. 18. As a conclusion to the above discussion, we find no reason to interfere with Ext.P1 order which is under challenge in this writ petition. The petition is accordingly dismissed. 18 W.P.(Crl) No.743/2024 Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** Sd/- **G.GIRISH, JUDGE** jsr/vgd 19 W.P.(Crl) No.743/2024 ## **`APPENDIX OF WP(CRL.) 743/2024`** ## **`PETITIONER’S EXHIBITS`** ``` EXHIBITP1TRUECOPYOFTHEDETENTIONORDER NO.DCMPM/5230/2024-S1DATED05/06/2024PASSED BYTHEDISTRICTCOLLECTOR,MALAPPURAM EXHIBITP2TRUECOPYOFTHEREPRESENTATIONBEARINGNO.RC 231/2024SUBMITTEDBYTHEDETAINEEBEFORETHE 3RDRESPONDENTON19.06.2024 ```