Pushparani v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **& THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 WP(CRL.)NO.856 OF 2023** ## **- PETITIONER :** PUSHPARANI, AGED 60 YEARS W/O.SELVAKANI, CHOTTUPARA, VANDIPERIYAR (P.O) PEERMEDU IDUKKI DISTRICT, PIN – 685 533 BY ADV UNNIKRISHNAN V ALAPATT ## **- RESPONDENTS :** 1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME, THIRUVANANTHAPURAM – 695 001. 2 THE DISTRICT MAGISTRATE, IDUKKI COLLECTORATE, KUYILIMALA, PAINAV P.O, IDUKKI, PIN – 685 603. 3 THE DIRECTOR GENERAL OF POLICE (LAW & ORDER), POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN – 695 010. 4 THE DISTRICT POLICE CHIEF IDUKKI THODUPUZHA PULIYANMALA ROAD, IDUKKI COLONY POST, CHERUTHONI, IDUKKI, PIN – 685 602. 5 THE STATION HOUSE OFFICER POLICE STATION KUMILY, KUMILY.P.O, PIN – 685 509. BY ADVS. SRI.K.A.ANAS, GP THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 1.11.2023, THE COURT ON 27.11.2023 DELIVERED THE FOLLOWING: W.P.(Crl.) No.856 of 2023 ## -: 2 :- ## **ANU SIVARAMAN, J. & C. PRATHEEP KUMAR, J.** **-----------------------------------------------------------------W.P.(Crl.) No.856 of 2023 --------------------------------------------------------Dated this the 27[th] day of November, 2023** ## **JUDGMENT** ## **Anu Sivaraman, J.** This Writ Petition (Crl.) is filed challenging Ext.P1 order of detention as well as Ext.P4 order of confirmation passed against the son of the petitioner, Santhosh, under the provisions of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the KAA(P) Act). 2. It is contended by the learned counsel for the petitioner that 7 crimes have been taken into account for the purpose of categorising the detenue as a 'known rowdy' as also for passing an order of detention against him. It is contended that the last prejudicial activity referred to is Crime No.325/2023 of the Kumily Police Station, wherein, the date of commission of offence was on 15.4.2023. It is stated that final report has been submitted on 8.5.2023 and the matter is pending trial before the Judicial First Class Magistrate Court – II, Peermade. The offences alleged are under Sections 341, 294(b) and 323 IPC. It is contended that the last crime is one W.P.(Crl.) No.856 of 2023 -: 3 :- sought to be foisted against the detenue only to artificially create a live link for the purpose of passing an illegal order of detention against him. 3. It is contended that all the crimes alleged against the detenue disclose only the commission of offences involving law and order and that in the nature of offences, no violation referable to any anti-social activity is noticed or alleged against the detenue. Further, it is contended that there is absolutely no explanation for the delay in passing the order of detention since the last prejudicial activity alleged against the detenue was on 15.4.2023 and that he was arrested and released on station bail on same day itself. It is submitted that the detention order was passed only on 6.7.2023 and there is absolutely no reason stated for the said delay. A decision of this Court dated 29.5.2023 in W.P.(Crl.)No.277/2023 is relied on in support of this contention. Thirdly, it is contended that there is nothing to show that the copy of the detention order along with the entire documents evidencing the grounds for detention had been forwarded forthwith to the Government and the Director General of Police as provided under Section W.P.(Crl.) No.856 of 2023 -: 4 :- 3(3) of the KAA(P) Act. Reliance is placed on the decision in **Jasheela T.M.** v. **State of Kerala** [2022 (7) KHC 617]. Further, it is submitted that the order of confirmation of the detention does not consider the question as to the period for which the detenue is to be continued under detention and no reason whatsoever is stated for passing a detention order for the maximum period of detention. 4. A counter affidavit has been placed on record by the 2[nd] respondent. It is contended that 7 cases were considered as against the detenue for ordering his preventive detention. The details are as follows :- |**Sl**<br>**No. **|**Crime No. **|**Police Station**|**Section Involved**|**Case Status**<br>**(At the time**<br>**of reporting)**| |---|---|---|---|---| |1|263/2019|Vandiperiyar|406, 420, 34 IPC|Under trial| |2|538/2019|Vandiperiyar|323, 324, 307 IPC|Under trial| |3|542/2019|Vandiperiyar|294(b), 323, 34 IPC|Under trial| |4|161/2022|Vandiperiyar|294(b), 323, 324, 34 IPC|Under trial| |5|961/2022|Kumily|294(b), 323, 341, 506(1),<br>353, 332 IPC|Under trial| |6|963/2022|Kumily|283, 294(b), 323, 324,<br>427 IPC|Under trial| |7|325/2023|Kumily|341, 294(b), 323 IPC|Under trial| It is contended that only three cases are sufficient and in the instant case, the detenue was the 1[st] accused in most of the W.P.(Crl.) No.856 of 2023 -: 5 :- cases. It is contended that nothing extraneous has been considered and that the order of detention has been passed after considering only the relevant aspects of the matter. 5. It is contended that the last prejudicial activity was on 15.4.2023 and Section 323 IPC, where the sentence can extend to one year, is one of the offences charged in respect of the last prejudicial activity. Relying on a decision of this Court in **Dainabi K.** v. **District Magistrate, Kasaragod and others** [2010 (3) KHC 900], it is contended that Section 2(t)(ii) exempts only those crimes which are punishable with less than one year of imprisonment from the scope of crimes which are reckonable for considering a person as a known rowdy and that as such, the taking into account of the last crime was perfectly legal and valid. 6. With regard to the contention of the learned counsel for the petitioner that the proposal forwarded by the Station House Officer contained the offences under Sections 324 and 506(ii) of IPC also, it is contended that a reading of the order of detention would make it clear that the Sponsoring Authority as well as the Detaining Authority had correctly enumerated W.P.(Crl.) No.856 of 2023 -: 6 :- the offences in respect of the last crime and only the offences under Sections 341, 294(b) and 323 IPC have been referred to both in the report of the Sponsoring Authority as also the detention order in respect of the last crime and that therefore, the arguments advanced are without any merit. 7. Further, it is contended that since the detention order was on 6.7.2023, the contention that the detenue was subsequently acquitted in the second crime, that is, Crime No.538/2019 on 19.8.2023 can have no effect on the detention order. It is further contended with the help of documents made available at the time of hearing that the detention order along with all relevant records had been sent by mail on the day of the detention itself, that is, on 6.7.2023, both to the Government and to the Director General of Police. With regard to crimes 5 and 6, it is contended that an overt act against the police officer by the detenue had resulted in the said crimes and that the decision of this Court in **Joicy** v. **State of Kerala and others** [2018 (1) KHC 37] would cover the issue. 8. In paragraph 18 of the counter affidavit, it was specifically stated as follows :- W.P.(Crl.) No.856 of 2023 -: 7 :- “18. With regard to Ground J, the last prejudicial activity was committed by the detenu on 15/04/2023. The detenu is arrayed as sole accused in the above crime and he was arrested and released on the same day itself. Final report in the above crime was submitted on 08.05.2023. The Station House Officer, Kumily submitted preliminary report on 10.05.2023. The recommendation from sponsoring authority was received to this office on 08.06.2023. The Detention order was issued on 06.07.2023 after having considering all the facts and the documents contained in the proposal. It is evident that there was no such delay from the detention authority for passing the Exhibit P1 detention order.” 9. Having considered the contentions advanced, we are of the opinion that in the light of the subjective satisfaction recorded by the Detaining Authority with regard to the necessity to subject the detenue to preventive detention in the light of the repeated offences reported against him, the contention that the crimes committed by the detenue would disclose only law and order issues and would not affect public order cannot be accepted. The repeated offences committed which are reckonable for the classification of the detenue as a known rowdy would go to show that the requirements of Section 2(t) as well as Section 2(p) stand satisfied. In the above view of the matter, the contention that the offences W.P.(Crl.) No.856 of 2023 -: 8 :- committed would not disclose any offences against public order cannot be accepted. We are supported in our opinion by a decision of this Court in **Shaji** v. **State of Kerala and others** [2013 KHC 743]. Paragraph 11 thereof reads as follows :- “11. Principles laid down in the aforesaid judgment shows that “public order” is distinct and different from “law and order” and the Apex Court has consciously observed that “public order” may well be paraphrased in the context of legislations such as the Act as “public tranquillity”. Therefore, any act, which adversely affect the public tranquillity of an area is an act affecting public order of the area. Insofar as this case is concerned, the facts narrated in Ext.P1 order itself would show that various crimes have been allegedly committed by the detenue, in public places and in day light and as a result, the people in the locality are terrorized and that because of these acts, tranquillity in the area is affected. This certainly shows that the acts allegedly committed by the detenue, irrespective of its gravity, are those, which disturbed the even tempo of life of the community, which undoubtedly are acts prejudicial to the maintenance of the public order, the maintenance of which, is essential for the orderly life in the society. Therefore, we are unable to agree with the learned counsel for the petitioner that the offences alleged against the detenue are not those which threatened the public order to invite an order of preventive detention.” 10. We find from the materials produced before us that the copy of the detention order and the supporting documents W.P.(Crl.) No.856 of 2023 -: 9 :- were forwarded by e-mail on the date of passing of the detention order itself to the Government as well as the Director General of Police. The learned Government Pleader asserts that all documents supporting the grounds for detention were also forwarded both to the Government as well as the Director General of Police along with the copy of the detention order and that the requirement of Section 3(3) stands complied with. 11. The contention of the petitioner that two of the offences alleged against the detenue which was reckoned for passing the order of detention were registered on the basis of a complaint initiated by a police officer also cannot be accepted in view of the fact that the specific allegation was that the detenue had assaulted a police officer on whose complaint the crime had been registered. This Court in **Joicy** v. **State of Kerala and others** has specifically held that the fact that the persons who suffered the assault are police officers would not make any difference in a case where there is an allegation of assault against such officers since the intention of Clause (iii) of Section 2(p) of the KAA(P) Act is only to prevent misuse of W.P.(Crl.) No.856 of 2023 ## -: 10 :- powers by police officers and to protect the interest of the detenue. 12. Further, we find that the last prejudicial activity allegedly committed by the detenue was on 15.4.2023. After investigation, the final report was forwarded on 8.5.2023. Soon thereafter, the Station House Officer initiated proceedings for detention by his letter dated 10.5.2023. After collecting the entire materials relatable to the 7 crimes registered against the detenue, the District Police Chief forwarded his report to the Detaining Authority on 8.6.2023. After considering the said report, the order of detention was passed on 6.7.2023. In the decision relied on by the learned counsel for the petitioner, the facts were that the last prejudicial activity was on 17.6.2022 and the detenue was arrested and released on bail on 23.6.2022. The proposal for detention was forwarded only on 9.9.2022 and the order was passed on 7.12.2022. In the factual situation as narrated in the instant case, we are not persuaded to hold that there was any undue or unexplained delay in passing the order of detention W.P.(Crl.) No.856 of 2023 ## -: 11 :- since the reasons for the delay are specifically stated in the counter affidavit filed by the 2[nd] respondent. 13. With regard to the contention that the confirming authority has not stated any reason for the detention of maximum period as provided in the statute, we are not persuaded to hold that such failure to state the reasons would not by itself invalidate an order of detention which is sustainable on all other grounds. In the above factual situation, we are of the opinion that the order of detention is not liable to be set aside on the grounds raised. The W.P.(Crl.) fails and the same is, accordingly, dismissed. **Sd/-** **ANU SIVARAMAN** **JUDGE** **Sd/C. PRATHEEP KUMAR JUDGE** Jvt/6.11.2023 W.P.(Crl.) No.856 of 2023 -: 12 :- ## **APPENDIX OF WP(CRL.)856/2023** PETITIONER EXHIBITS :- Exhibit P1 TRUE COPY OF THE ORDER NO. DCIDK/3838/2023-E5, DATED 06/07/2023 OF THE 2ND RESPONDENT Exhibit P2 A TRUE COPY OF THE REPORT NO. 68/CAMP/2023-ID, DATED 08.06.2023 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT Exhibit P3 TRUE COPY OF THE APPLICATION DATED 27/07/2023 SUBMITTED BY THE PETITIONER BEFORE THE BOARD UNDER SECTION 9 OF THE KAAPA ACT Exhibit P4 TRUE COPY OF THE ORDER DATED 01/08/2023 ISSUED BY THE 1ST RESPONDENT