P. Balachandran v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937 WP(C).No. 1231 of 2016 (D) --------------------------- PETITIONER(S): -------------------- P.BALACHANDRAN,S/O.KRISHNAN NAIR, AGED 60 YEARS, RESIDING AT KRISHNA SADANAM, THADAYIL PARAMBA, P.O.PUTHUKKODE, MALAPPURAM-673 633. BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENTS: ------------------------ 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. STATE POLICE CHIEF POLICE HEADQUARTERS, THIRUVANANTHAPURAM-695 010. 3. THE DISTRICT COLLECTOR, MALAPPURAM-676 553. 4. SUPERINTENDENT OF POLICE, MALAPPURAM-676 521. 5. SUB INSPECTOR OF POLICE VAZHAKKAD POLICE STATION, MALAPPURAM-673 640. 6. SUB INSPECTOR OF POLICE FEROKE POLICE STATION, KOZHIKODE-673 631. 7. SASIDHARAN, S/O.DASAN, - AGED 45 YEARS, RESIDING AT KARIKULAM POTTAYIL, P.O.PUTHUKKODE, MALAPPURAM-673 633. R1-R6 BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.TOM JOSE PADINJAREKKARA R BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1231 of 2016 (D) ------------------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ----------------------------------- EXT.P1- TRUE PHOTOSTAT COPY OF THE FIR IN CRIME NO.233 OF 2008 OF THE VAZHAKKAD POLICE STATION. - EXT.P2- TRUE PHOTOSTAT COPY OF FINAL REPORT IN CRIME NO.233 OF 2008 OF THE VAZHAKKAD POLICE STATION. - EXT.P3- TRUE PHOTOSTAT COPY OF THE FIR IN CRIME NO.234 OF 2008 OF THE VAZHAKKAD POLICE STATION. - EXT.P4- TRUE PHOTOSTAT COPY OF FINAL REPORT IN CRIME NO.234 OF 2008 OF THE VAZHAKKAD POLICE STATION. - EXT.P5- TRUE PHOTOSTAT COPY OF THE FIR IN CRIME NO.593 OF 2013 OF THE VAZHAKKAD POLICE STATION. - EXT.P6- TRUE PHOTOSTAT COPY OF FINAL REPORT IN CRIME NO.593 OF 2013 OF THE VAZHAKKAD POLICE STATION. - EXT.P7- TRUE PHOTOSTAT COPY OF THE FIR IN CRIME NO.603 OF 2013 OF THE VAZHAKKAD POLICE STATION. - EXT.P8- TRUE PHOTOSTAT COPY OF FINAL REPORT IN CRIME NO.603 OF 2013 OF THE VAZHAKKAD POLICE STATION. EXT.P9- TRUE PHOTOSTAT COPY OF THE FIR IN CRIME NO.682 OF 2015 OF THE VAZHAKKAD POLICE STATION. EXT.P10- TRUE PHOTOSTAT COPY OF THE FIR IN CRIME NO.927 OF 2015 OF THE VAZHAKKAD POLICE STATION. - EXT.P11- TRUE PHOTOSTAT COPY OF FINAL REPORT IN CRIME NO.644 OF 2014 OF THE FEROKE POLICE STATION. - EXT.P12- TRUE PHOTOSTAT COPY OF THE REPRESENTATION DT. 07.09.2015 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT WITH COPIES TO THE RESPONDENT NOS.2 AND 3. - EXT.P13- TRUE PHOTOSTAT COPY OF THE REPRESENTATION DT. 17.09.2015 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT WITH COPIES TO THE 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS : -------------------------------------- NIL //TRUE COPY// P.A. TO JUDGE **C.R.** ## **K.T.SANKARAN & K.P.JYOTHINDRANATH, JJ.** -------------------------------------- W.P.(C) No.1231 of 2016 -------------------------------------Dated this the 13[th] day of January, 2016 ## _**JUDGMENT**_ ## _**K.T.Sankaran, J**_ **.** The reliefs prayed for in the Writ Petition are the following : - “i. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent Nos.1 to 4 to forthwith consider and pass orders on Exhibits P12 and P13 representations submitted by the petitioner, invoke the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007 and order for preventive detention/restriction of the 7[th] respondent in terms with Sections 3 or 15 thereunder ; - ii. Allow cost of this petition to the petitioner ; and - iii. Grant such other and further reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case.” W.P.(C) No.1231/2016 2 2. The learned Additional Director General of Prosecution submitted that the Writ Petition is not maintainable in view of the decision of a Division Bench of this Court in . **Baby v. State of Kerala (2014 (4) KLT 854)** 3. The petitioner avers in the Writ Petition that the seventh respondent satisfies all the requirements to classify him as a “known rowdy” within the meaning of Section 2(p) of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as 'the KAAPA'). It is stated that six crimes have been registered against the seventh respondent out of which four crimes have been registered at the instance of the petitioner. It is alleged that the seventh respondent is a threat to the society and he consistently indulges in anti-social activities making the life of the petitioner as well as others miserable. In **Baby v. State of Kerala (2014 (4) KLT 854)** , the Division W.P.(C) No.1231/2016 3 ## Bench held thus : “In the constitutional alchemy, respecting the salutary human right doctrines resonating in the international domain, and standing advised by the pearls of wisdom as to the most precious constitutional right to liberty under the Constitution of India, we are unable to visualise any ground of statutory or public duty in any executive authority to invoke the provisions of KAAPA at the instance of a private party. There is no statutory or constitutional right for any person; to assert as a citizen of India, to compel issuance of a preventive detention proceedings or restraint proceedings under any preventive detention laws.” 4. The KAAPA provides for preventive detention as per an order under Section 3 and an order of restraint under Section 15(1). Section 3(1) provides that the Government or an officer authorised under sub-section (2), may, if satisfied on W.P.(C) No.1231/2016 4 information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any known goonda or known rowdy, that with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained. Under Section 15(1) of the KAAPA, the authority to issue the restraint order is either the District Magistrate or a Police Officer of and above the rank of Deputy Inspector General having jurisdiction. The authority concerned could act under Section 15(1) on the basis of the satisfaction arrived at on information received in respect of a known goonda or known rowdy that he is indulging in or about to indulge in or likely to indulge in anti-social activities and with a view to prevent him from so acting, an order under Section 15(1) is required. W.P.(C) No.1231/2016 5 5. The words “on information received” occurring in Section 15 does not relate to an information which an individual can supply to the authority under the KAAPA for the purpose of initiating action nor does those words cast a duty on the authority concerned to hear such person who seeks to issue an order of restraint. 6. Detention or restraint under the Preventive Detention laws are exceptional in nature. Action under the Preventive Detention laws is required to deter the person concerned from indulging in anti-social activity, disturbing public order etc. Effective safeguards are provided in all Preventive Detention laws to protect the statutory and constitutional rights of the detenu. Article 22(5) of the Constitution of India provides for the constitutional safeguards to be taken in the matter of preventive detention. A citizen has W.P.(C) No.1231/2016 6 got the fundamental rights as enshrined under Part III of the Constitution of India. He has got remedies also either under Article 226 or 32 of the Constitution if his fundamental rights are infringed. Enforcement of fundamental right of a citizen would not extent to a right to require the authorities under the Preventive Detention laws to exercise their subjective satisfaction and to make an order to detain a person under such laws. In other words, the Preventive Detention laws contain provisions with respect to powers and duties to be exercised by the authorities under such laws in the matter of arriving at the subjective satisfaction before issuing an order of detention, execution of the order, confirmation of the detention order etc. The detenu concerned, who has been detained under such Preventive Detention laws, is entitled to make representations and that right stems from Article 22(5) of the Constitution of India. Nowhere in the KAAPA, a citizen at W.P.(C) No.1231/2016 7 whose instance criminal cases have been initiated against the person sought to be detained, is conferred with a right to approach the authorities to exercise their subjective satisfaction and to initiate proceedings. Nor does the KAAPA provide for a corresponding duty on the authorities concerned to hear the person at whose instance crimes have been registered, in the matter of exercising the statutory rights and performing the statutory duties. It is well settled that a writ of mandamus can be issued only when the person who invokes that remedy has a legal right and the authority concerned having a corresponding duty refuses or neglects to perform his duty. Since there is no right vested in any individual to approach the authorities concerned under the KAAPA to issue an order of preventive detention or a restraint order, there is no corresponding duty also on the authorities concerned to hear such person and on that basis, to issue an order of detention or an order of restraint. W.P.(C) No.1231/2016 8 Therefore, the Writ Petition is not maintainable in law. 7. Lastly, the learned counsel for the petitioner submitted that the petitioner submitted Exhibits P12 and P13 representations respectively to the Sub Inspector of Police, Vazhakkad, and the Superintendent of Police, Malappuram, and at least a direction may be issued to them to dispose of Exhibits P12 and P13 representations. The learned counsel submitted that even if the petitioner may not have any right to approach this Court if the representations are rejected, the petitioner can very well seek a relief before this Court to direct the authorities concerned to dispose of the representations. 8. We are not impressed with the submission made by the learned counsel for the petitioner that the petitioner has a right to move the authorities concerned under the KAAPA to W.P.(C) No.1231/2016 9 issue an order of detention under Section 3(1) or an order of restraint under Section 15(1). In the facts and circumstances of the case, we decline the relief sought for by the petitioner to issue a direction to dispose of Exhibits P12 and P13 representations. In the result, the Writ Petition is dismissed. **K.T.SANKARAN JUDGE** **K.P.JYOTHINDRANATH JUDGE** csl