Mary KuriaKose v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 WP(Crl.).No. 163 of 2010(S) --------------------------- PETITIONER(S): --------------- MARY KURIAKOSE, W/O.LATE MANI KURIAKOSE, KALLARAKKAL HOUSE, THURUTHI.(P.O), ERNAKULAM. BY ADV. SRI.P.VIJAYA BHANU SMT.M.M.DEEPA RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, COLLECTORATE, ERNAKULAM. 3. THE CHAIRMAN, ANTI-SOCIAL ACTIVITIES (PREVENTION) CONTROL BOARD, SREE NIVAS, PADAM ROAD, ELAMAKKARA, COCHIN-26. 4. SUPERINTENDENT OF POLICE, ERNAKULAM RURAL. BY G.P. SRI. K.J. MOHAMMED ANZAR FOR R1,2&4 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------W.P.(Cri) No. 163 of 2010-S ------------------------------------------------Dated this the 16[th] day of July, 2010** ## **JUDGMENT** ## **Basant,J.** The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to cause production of the body of her son Saneesh (hereinafter referred to as `the detenu') who stands detained under the provisions of Sec.3 of the Kerala AntiSocial Activities (Prevention) Act, 2007 (for short `the KAAPA') vide order dated 20/4/10 passed by the 2[nd] respondent and for a direction for his release. The detenu was arrested in execution of the order of detention on 26/4/10. The order has been approved under Sec.3(3) of the KAAPA. The same has been confirmed under Sec.10(4) of the KAAPA, it is submitted. 2. The detenu has been classified as a `known rowdy'. There are three cases against him which were committed in the ## **W.P.(Cri) No. 163 of 2010** -: 2 :- year 2007; whereas the last - the 4[th] took place in 2009. 21/2/07, 27/5/07, 25/6/07 and 5/10/09 are the dates of the alleged offences in the 4 crimes. The three earlier crimes were registered and charge sheeted by the Perumbavoor police; whereas the 4[th] case was investigated and charge sheeted by the Kuruppumpady police. The Sub Inspector of Police of the Kuruppampady Police Station submitted the final report on 10/12/09 in the last of the four crimes. Thereafter, on 7/1/10 he submitted a report to the Superintendent of Police. The Superintendent of Police - the sponsoring authority, submitted Sec.3(1) report to the 2[nd] respondent - the detaining authority, on 25/3/10. It is on the basis of the said Sec.3(1) report that the impugned order of detention was passed under Sec.3 of the KAAPA by the 2[nd] respondent on 20/4/10. The detenu continues in custody from 26/4/10. 3. We have heard the learned counsel for the petitioner and the learned Government Pleader. The learned counsel for the petitioner assails the impugned order on various grounds. 4. It is fundamental and trite now that an order of detention under Sec.3 of the KAAPA can be passed by the detaining authority only if the twin satisfactions are entertained ## **W.P.(Cri) No. 163 of 2010** -: 3 :- by the authority. The threshold/initial/objective satisfaction must first be entertained that the detenu is a known rowdy/known goonda. After entertaining such satisfaction, it must be considered whether the materials available before the detaining authority can induce the latter subjective satisfaction of the need to preventively detain the detenu. Only if both requirements are satisfied, can a valid order of detention be passed. 5. Before us there is no serious contention raised that the detenu will not fall within the sweep of the definition of the expression `known rowdy' under Sec.2(p) of the KAAPA. All the four crimes relate to offences under Sec.2(t) of the KAAPA. In all the four crimes investigation is complete and final report had already been filed. In these circumstances, we find no semblance of doubt in our mind that the detaining authority had correctly come to the conclusion that the detenu is a known rowdy under Sec.2(p) of the KAAPA. 6. The learned counsel for the petitioner contends, pressing into service various circumstances, that there has not been proper application of mind by the detaining authority. First of all, it is contended that three crimes were committed within the jurisdiction of Perumbavoor police in 2007. The 4[th] ## **W.P.(Cri) No. 163 of 2010** -: 4 :- i.e., the last one alone was committed within the jurisdiction of Kuruppumpady Police Station. The learned counsel argues that inasmuch as no report was submitted by the Perumbavoor police and inasmuch as the sponsoring authority - the Superintendent of Police i.e., the 4[th] respondent, after receipt of the report dated 7/1/10 from the Sub Inspector of Police, Kuruppumpady, had not called for a further report from the Sub Inspector of Police, Perumbavoor. The satisfaction entertained by the sponsoring authority (the 4[th] respondent) as also the latter subjective satisfaction under Sec.3 of the KAAPA entertained by the detaining authority must be held to be vitiated. 7. We find no merit in this contention. The detaining authority is expected to exercise his jurisdiction under Sec.3 of the KAAPA only on the basis of information furnished by the Superintendent of Police/the 4[th] respondent. The 4[th] respondent may collect information himself and pass it on to the detaining authority. Instead he may act on reports received by him from any subordinate of his. It is not at all essential that any subordinate should at the first instance initiate action or request the Superintendent of Police to initiate action. The Superintendent of Police may submit a report under Seec.3(1) of ## **W.P.(Cri) No. 163 of 2010** -: 5 :- the KAAPA to the detaining authority with or without any report from his subordinate. The fact that the sponsoring authority/the 4[th] respondent took into account four cases and that proceedings were initiated on the basis of a report submitted by a police officer who had charge sheeted only the last of the 4 cases or the further fact that the sponsoring authority did not call for report from the officer of the police station who had filed all the three previous reports are, according to us, not sufficient grounds to assail the report submitted by the sponsoring authority under Sec.3(1) of the KAAPA or the latter satisfaction entertained by the detaining authority on the basis of such report. The absence of report from the Perumbavoor police to the Superintendent of Police to initiate action under the KAAPA or the failure/omission of the Superintendent of Police to call for a report from the Sub Inspector of Police, Perumbavoor, who had charge sheeted the three previous cases is thus found to be not sufficient ipso facto to assail the report of the sponsoring authority or the latter subjective satisfaction entertained by the detaining authority. That the detenu resides within the jurisdiction of the Kuruppumpady Police Station which is within the jurisdiction of the 4[th] respondent - the District Superintendent of Police, is not ## **W.P.(Cri) No. 163 of 2010** -: 6 :- denied or disputed. 8. The learned counsel for the petitioner then contends that there has been a snapping of the nexus between the previous acts and the need for detention in future. The learned counsel builds up his arguments from the premise that the three previous instances had all taken place in 2007 - about 3 years prior to the Sec.3(1) report and the impugned order. The learned counsel argues that the first three cases having occurred in such distant points of time, the nexus must be held to be snapped. There is no live link or nexus between those three acts and the order of detention, contends the counsel. 9. We will accept that nexus between the first three acts and the order of detention is not satisfactorily established. But it is crucial to note that satisfaction is entertained not on the basis of the first three contumacious acts alone; but is on the basis of the 4[th] act which took place on 5/10/09. It is not as though the detaining authority ignored the three earlier acts, he considered them in the light of the 4[th] act which took place on 5/10/09. The law of preventive detention has been described euphemistically as the jurisprudence of suspicion. The act complained of which took place on 5/10/09 was evidently assessed and judged by the ## **W.P.(Cri) No. 163 of 2010** -: 7 :- detaining authority in the light of the previous acts. The mere fact that the three previous acts did not have a live link or proximate nexus with the order of detention cannot militate against the course adopted by the sponsoring authority and the detaining authority sponsoring and detaining the detenu after the last of the 4 acts. The fact that the three earlier acts occurred in 2007 about 3 years prior to the order of detention cannot, in these circumstances be pressed into consideration in the light of the 4[th] act which took place on 5/10/09. 10. We come to the next question as to whether the live link or nexus between that last act on 5/10/09 and the order of detention on 20/4/10 is snapped. Here we note that though the incident took place on 5/10/09 the final report was filed only on 10/12/09. Of course, the decision in **Elizebath George v. State of Kerala** (2008 (4) KLT 425) takes the view that even before final report is filed, the circumstance can be taken into consideration. But it is not the law that the sponsoring and detaining authorities need not always wait for the result of the investigation. The FIR is only a commencement point for investigation and the conclusions are reached when the final report/ charge sheet is filed. That took place on 10/12/09. The ## **W.P.(Cri) No. 163 of 2010** -: 8 :- Sub Inspector of Police of the Kuruppumpady Police Station initiated action later on 7/1/10 by submitting the report to the Superintendent of Police. The Superintendent of Police on 25/3/10 submitted Sec.3(1) report to the detaining authority. The detaining authority on 20/4/10 proceeded to pass the order of detention. In the facts and circumstances of this case, we are unable to agree that the gap of time between 5/10/09 and 20/4/10 is such as to persuade this Court to conclude that there is no live link or proximate nexus between that last alleged contumacious act and the order of detention. It has always been held that it is not a mere exercise of counting the number of days between the last act and the date of the order of detention. The totality of circumstances will have to be taken into account and when so reckoned we find no sinister significance in the gap of time between 5/10/09 and 20/4/10 to justify the prayer for quashing of the order of detention. 11. The learned counsel then contends that all the four cases/ are instances where at worst it can only be alleged that there is threat to law and order. There is no threat to public order caused even remotely by the 4 instances alleged. The counsel hence contends that there has been no application of ## **W.P.(Cri) No. 163 of 2010** -: 9 :- mind to the relevant facts. In this context the learned counsel further presses into service the circumstance that the Perumbavoor police had not submitted any report to the Superintendent of Police calling for an order of detention. 12. We have already taken note of the fact that want of a report from the Perumbavoor police is insignificant. The Superintendent of Police can himself examine all the records and come to a decision on the need to sponsor any detenu for detention. The want of a report from the Perumbavoor police does not at all weigh with us even in the present context. 13. We have been taken through all the four cases and we have made an attempt to ascertain whether the instances complained of in the four cases can be said to be instances posing a threat merely to law and order or whether they can be said to pose a threat to public order. What incidents can be said to pose a threat to public order and what incidents can be said to pose a threat to the law and order only has been the subject matter of several discussions. We had occasion to consider the same in detail in **Shruthi v. State of Kerala** (2009 (4) KLT 893). We had adverted to the relevant precedents. The crucial question is whether a threat is posed to public tranquility and ## **W.P.(Cri) No. 163 of 2010** -: 10 :- whether the tempo of life of the community is affected and disturbed by the conduct in question. We are not adverting to the relevant precedents all over again in this judgment. The crucial question has to be considered in the light of the four incidents alleged. 14. We have gone through the relevant documents to ascertain the nature of the incidents. The first crime relates to wanton acts of violence at a place where a temple festival was taking place. The incident includes attack on a woman and her husband on account of certain disputes relating to the conduct of the temple festival. The second case relates to an incident at the venue of an accident. There was an accident and the detenu allegedly called the driver of the vehicle towards him. The driver did not come. This allegedly infuriated the detenu and he indulged in the alleged violent overt act at a public place. 15. The third incident relates to the objectionable conduct of the detenu and his cohorts about 8 in number. At 10.30 p.m. on the night, in a cinema theater, a public place at Perumbavoor, the detenu and his co-accused indulged in acts of violence against the victim/the de facto complainant. 16. The 4[th] incident relates to the alleged culpable overt ## **W.P.(Cri) No. 163 of 2010** -: 11 :- acts of the detenu and four others as members of an unlawful assembly armed with dangerous weapons. They in broad day light at about 4.30 p.m. went to the house of the victim and indulged in wanton acts of violent behaviour. 17. We have carefully gone through the nature of the allegations. We are unable to accept the contention that these four acts can be described as threats merely to law and order or that they do not pose any threat to public order. 18. The learned counsel for the petitioner contends that in the counter statement filed by the 2[nd] respondent, there is no specific contention that all the four incidents pose a threat to public order. In fact, the counsel extracts some portions from Paragraph-12 of the counter statement filed by the 2[nd] respondent to contend that there are indications to suggest that even the 2[nd] respondent only felt that two of the four incidents alone relate to and do pose threat to public order. We are unable to accept this contention. Such splitting up of the counter statement does not appear to be possible. It is true that in respect of two there was a specific assertion that they amount to threat to public order. This cannot certainly be reckoned as an admission that the other two do not pose any threat to public ## **W.P.(Cri) No. 163 of 2010** -: 12 :- order. 19. Lastly the counsel contends that the detenu was on bail in all the four cases and that the nature of offences alleged must reveal that they are not of such seriousness or consequence as to warrant or justify the invocation of the extraordinary provisions authorising preventive detention. All the acts are such as could be dealt with under the general law and, in these circumstances, if mind were properly applied, the detaining authority should have satisfied himself that there is no need to invoke the powers under Sec.3 of the KAAPA, contends the counsel. 20. We have considered this contention. All offences, as we have already referred to, fall within the sweep of Sec.2(t) of the KAAPA. We have already come to the conclusion that there was threat to public order. The mere fact that the accused was on bail in all the four cases does not and cannot lead us to the conclusion that invocation of the powers under Sec.3 of the KAAPA was not needed or justified. We must alertly remind ourselves that the latter subjective satisfaction entertained by the detaining authority is not justiciable. Having satisfied ourselves that the four acts alleged against the detenu have been brought to the notice of the detaining authority by proper ## **W.P.(Cri) No. 163 of 2010** -: 13 :- materials and having satisfied ourselves that the acts alleged would affect the tempo of the life of the community, we find no merit in the contention that invocation of the powers under Sec.3 of the KAAPA was not justified. That the detenu was on bail in all cases is also not of any crucial relevance as the 4[th] crime is seen committed at a time when he was on bail. 21. No other contentions are raised. 22. We are, in these circumstances, satisfied that there is no need to interfere with the impugned order or with the continued detention of the detenu under that order. 23. In the result, this writ petition is dismissed. **Sd/R. BASANT (Judge)** **Sd/-** ## **M.C. HARI RANI** **(Judge)** ## **Nan/** //true copy// P.S. to Judge