Saraswathy 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 WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 WP(Crl.).No. 133 of 2010(S) --------------------------- PETITIONER(S): --------------- SARASWATHY, AGED 45 YEARS, D/O.THANAKAPPAN ACHARI, KRISHNAVILASOM HOUSE, VAYALA P.O., WEST, VIA ANCHAL, KOLLAM DISTRICT. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SMT.P.RANI DIOTHIMA SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME & VIGILANCE DEPARTMENT,GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, KOLLAM. 3. THE SUPERINTENDENT OF CENTRAL PRISON, THIRUVANANTHAPURAM. 4. THE SUPERINTENDENT OF POLICE, KOLLAM. 5. THE SUB INSPECTOR OF POLICE, KADAIKKAL, KOLLAM. GOVERNMENT PLEADER SRI.P. RAVEENDRA BABU FOR R1 TO 5 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------W.P.(Cri) No.133 of 2010-S ------------------------------------------------Dated this the 26[th] day of May, 2010** ## **JUDGMENT** ## **Basant,J.** The petitioner's son Syam @ Tickola Shyam has been detained by an order of detention under Sec.3 of the Kerala AntiSocial Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA'). In this petition, for issue of a writ of habeas corpus, the petitioner challenges the order of detention and consequent detention of her son. She prays that a writ of habeas corpus may be issued to cause production of her son who is under preventive detention. He may be directed to be released, it is prayed. 2. The petitioner's son hereinafter referred to as the `detenu' has been detained preventively as per the order of detention dated 4/12/2009 passed by the 2[nd] respondent. It is on the basis of a report submitted by the 4[th] respondent under Sec.3 ## **W.P.(Cri) No.133 of 2010** -: 2 :- (1) of the KAAPA that the 2[nd] respondent chose to pass the order of detention dated 4/12/09. There are five criminal cases against him. The detenu has been classified as a `known rowdy'. In four of those cases, final reports have been filed and one case is pending investigation. We give below the details of the said 5 cases in a tabular form for easy and clear understanding of the fundamental facts: |**Sl.No.**|**Crime No. **|**Police Station**|**Date of**<br>**Crime**|**Final**<br>**Report**<br>**filed or**<br>**not &**<br>**CC No.**|**Offences**|**No. of**<br>**accused**<br>**and rank**<br>**of the**<br>**detenu**|**Place where**<br>**the incident**<br>**took place**| |---|---|---|---|---|---|---|---| |1|365/07|Kadakkal|26/8/07|Filed (CC<br>No.1130/<br>2007)|Secs.143,<br>147, 427,<br>341, 324<br>read with<br>149 IPC|6 (A2)|Public Road| |2|391/08|Kadakkal|24/6/08|Filed (CC<br>No.1136/<br>2008)|Secs.294<br>(b), 323,<br>324 read<br>with S.34<br>IPC|4 (A2)|Public Road| |3|774/08|Kadakkal|2/11/08|Filed (CC<br>No.186/<br>2009)|Secs.341,<br>323, 294<br>(b) read<br>with<br>Sec.34<br>IPC|3 (A2)|Public Road| |4|846/09|Kadakkal|27/10/09|Filed (CC<br>No.2461/<br>2009)|Secs.341<br>& 324<br>IPC|Sole<br>Accused|Bus stand| **W.P.(Cri) No.133 of 2010** -: 3 :- |**Sl.No.**|**Crime No. **|**Police Station**|**Date of**<br>**Crime**|**Final**<br>**Report**<br>**filed or**<br>**not &**<br>**CC No.**|**Offences**|**No. of**<br>**accused**<br>**and rank**<br>**of the**<br>**detenu**|**Place where**<br>**the incident**<br>**took place**| |---|---|---|---|---|---|---|---| |5|535/08|Kadakkal|22/8/08|Not filed|Secs.143,<br>144, 147,<br>148, 294<br>(b), 324,<br>307 read<br>with<br>Sec.149<br>IPC|5 (A2)|Public Road| 3. There is no contention before us that cases 1 to 4 referred above on which reliance is placed by the detaining authority would not bring the detenu within the sweep of the definition of a `known rowdy' under Sec.2(p) of the KAAPA. In the absence of challenge and on the basis of the materials available, we are satisfied that on the date of the detention, the detenu answers the definition of a `known rowdy` under Sec.2(p) of the KAAPA satisfactorily. 4. We have heard the learned counsel for the petitioner and the learned Government Pleader. The learned counsel for the petitioner assails the impugned order of detention and the consequent detention of the detenu on the following two grounds: **W.P.(Cri) No.133 of 2010** -: 4 :- (i) The detaining authority has not properly applied his mind to the relevant facts before passing the impugned order of detention. (ii) The detaining authority erred grossly in coming to the conclusion that the latter subjective satisfaction – that the alleged detenu is likely to indulge in acts which threaten public order can be validly entertained on the basis of the materials available. 5. Under the scheme of Sec.3 of the KAAPA, it is trite that the detaining authority, on the basis of the materials placed before him, must entertain the twin satisfactions contemplated under Sec.3 of the KAAPA. He must initially entertain the former/threshold objective satisfaction that the alleged detenu is a `known goonda/known rowdy`. Having entertained such satisfaction, he must proceed to consider whether the latter subjective satisfaction can be entertained i.e., whether “with a view to preventing such person from committing any anti-social activity, it is necessary” to direct preventive detention of the detenu. Entertainment of either of those two satisfactions alone cannot by itself justify an order of detention. Both satisfactions will have to be simultaneously entertained by the detaining **W.P.(Cri) No.133 of 2010** -: 5 :- authority to justify the passing of a valid order of detention under Sec.3 of the KAAPA. On this proposition of law also, there is no dispute between the contestants. 6. What then is the precise contest? To summarize, the learned counsel for the petitioner submits that the detaining authority has not pointedly considered the question whether the materials available justify the conclusion that the detenu poses a threat to public order. It is further contended, as corollary, that the materials do not justify entertainment of the latter subjective satisfaction that the detention of the detenu is necessary to prevent/preempt the threat to public order. This is the only contention raised by the learned counsel for the petitioner. 7. We feel it unnecessary to advert to the law on the point in any further detail. We have already adverted to this aspect of the matter in paragraphs 12 to 19 of **Shruthi v. State of Kerala** (2009(4) KLT 893). We are not extracting the said passages again. Suffice it to say that we have adverted to and do accept the proposition that in the absence of threat to public order an order detention under Sec.3 of the KAAPA cannot be justified. We have in those passages further adverted to the distinction between the concepts of “public order” and “law and ## **W.P.(Cri) No.133 of 2010** -: 6 :- order”. We have adverted to the following decisions in detail: 1. **Nisha Salim v. State of Kerala** (2009 (3) KLT 22); 2. **Ram Manohar v. State of Bihar** (AIR 1966 SC 740); 3. **Arun Ghosh v. State of W.B.** (AIR 1970 SC 1228); 4. **Ajay Dixit v. State of UP** ((1984) 4 SCC 400); and 5. **Angoori Devi v. Unionof India** ((1989) 1 SCC 385). 8. The learned counsel for the petitioner has further drawn our attention to the decision in **K.K. Saravana Babu v. State of T.N.** ((2008) 9 SCC 89). Do the acts allegedly committed by the accused in the past justify the perception of a threat of disturbing the even tempo of the life of the community of the specified locality, is the crucial test to be answered. The learned counsel has taken us in detail through paragraphs 15 to 24 of **Saravana Babu** . Suffice it to say that we have carefully considered the discussion on the question of law regarding the distinction between the concepts of law and order and public order available in paragraphs 15 to 24 of **Saravana Babu** also. 9. We shall now specifically advert to the nature of the allegations raised in the 5 cases to come to a conclusion whether the acts alleged constitute a threat merely to law and order or whether they do really pose a threat to public order. ## **W.P.(Cri) No.133 of 2010** -: 7 :- 10. We must immediately remind ourselves that the latter subject satisfaction entertained by the detaining authority is not justiciable. This Court does not while exercising the powers of judicial review sit in appeal over the satisfaction entertained by the detaining authority. The amount of materials which induce the requisite latter subjective satisfaction cannot be gone into by this Court. It is not open to this Court to come to a conclusion that more materials should have been insisted if the court is satisfied that threat to public order is revealed from the materials available. 11. But in the interests of liberty of the citizen this Court should not hesitate to invoke the powers of judicial review if the court is satisfied that actually there is no threat to public order and the instances relied on by the detaining authority really constitute only a threat to law and order which can be and has to be dealt with under the ordinary laws. 12. Having thus reminded us of the principles of law that are applicable, we now proceed to consider the specific allegations. 13. In case No.1 the allegation is that the detenu along with 5 others indulged in the culpable conduct for the reason **W.P.(Cri) No.133 of 2010** -: 8 :- that the victim had not offered contribution to the Onam celebrations when the same was solicited. That is stated to be the alleged motive. A couple of days after such turning down the demand for contribution, the six accused persons including the alleged detenu at a public place had allegedly assaulted the victim. 14. In case No.2 extracted above, four accused persons including the detenu (A2) had allegedly assaulted the victim consequent to a dispute relating to conduct of a festival in a temple. This incident also allegedly took place at a public place. 15. In case No.3, the three accused persons including the detenu (A2) are alleged to have assaulted the victim on a public road for the sole reason that the victim did not give side to the vehicle of the miscreants on a public road. 16. So far as the 4[th] case is concerned, the allegation is that the detenu who is the sole accused at a public bus stand assaulted the victim under the impression that the victim had made fun of the detenu. 17. In the 5[th] case the allegation is that the 5 accused persons including the detenu (A2) on a public road assaulted a group of persons who were celebrating the victory of a rival **W.P.(Cri) No.133 of 2010** -: 9 :- political group in a school election. 18. The learned counsel for the petitioner alertly points out that in so far as case Nos.2 and 3 are concerned, no specific overt acts are alleged against the detenu. He further points out that in case No.2, even though the name of the detenu appears in the First Information Statement, no specific overt act is alleged against him. But in the F.I.R. registered on the basis of that First Information Statement, mindlessly overt acts are alleged against the detenu also. He further points out that so far as case No.4 is concerned, proceedings are initiated against the detenu on the basis of a private complaint filed before the learned Magistrate and referred to the police under Sec.156(3) of the Cr.P.C. 19. The learned Government Pleader promptly points out that the fact that specific overt acts are not alleged against the detenu is of no consequence when he is sought to be arrayed as an accused on the basis of acts committed by the miscreants in a group for which the detenu is alleged to be vicariously responsible. Similarly, the learned Government Pleader points out that the mere fact that a crime has been registered on the basis of reference under Sec.156(3) of the Cr.P.C. of a private **W.P.(Cri) No.133 of 2010** -: 10 :- complaint does not, in any way, alter or reduce the utility and efficacy of the allegations raised in the final report. 20. The learned counsel for the petitioner points out that so far as case No.5 is concerned, investigation is not complete and final report has not been filed. The same has not been taken into account by the detaining authority to decide whether the detenu is a known rowdy. 21. The learned Government Pleader alertly points out that the decision in **Elizebath George v. State of Kerala** (2008 (4) KLT 425) holds the field even now and the dictum therein though doubted in some later decisions of the Division Bench, has not been overruled. We take it that **Elizebath George** rules the field even now. Filing of the final report is not sine qua non even now for taking such a case - where final report is not filed, into reckoning under Sec.2(p) of the KAAPA. Be that as it may, the detaining authority had by way of abundant caution not chosen to take case No.5 into consideration while deciding whether the former objective satisfaction can be entertained or not. 22. But the fact that the case was not taken into reckoning to decide whether the former objective satisfaction can be **W.P.(Cri) No.133 of 2010** -: 11 :- entertained is no reason to exclude or eschew the same altogether while considering the question whether the latter subjective satisfaction can be entertained or not. The detaining authority, according to us, is absolutely justified in taking into consideration the 5[th] case also to consider whether the detenu against whom 4 cases have been charge sheeted deserves to be detained on the ground that his conduct threatens public order. We feel that the detaining authority has not committed any error in taking into account the 5[th] case also while considering whether the latter subjective satisfaction can be entertained. 23. We have adverted to the nature of the allegations, the venue of the alleged crimes etc. The difference between the threat to law and order and threat to public order though subtle they cannot be said to be mutually exclusive. Considerable amount of overlapping may exist. A threat essentially for law and order may threaten public order also and vice versa. They do not remain in two water tight compartments at all. A threat to law and order in a public place by the nature of the motivations and the impact which it creates in the public mind may get exalted to a threat to public order. Having very anxiously rendered our consideration to all the 5 cases referred **W.P.(Cri) No.133 of 2010** -: 12 :- above, we are unable to agree that these 5 cases can be said to merely amount to a threat to law and order and not public order at all. 24. Reminded of the principles which we have already referred to we have no hesitation to agree that going by the nature of the motivations, the nature of the overt acts, the venue of the crimes committed, the manner in which the crimes were committed and the impact which such incidents leave behind in public mind, the perception of a threat to public order is absolutely justified. We are not persuaded to invoke our jurisdiction in judicial review under Art.226 of the Constitution to interfere with the impugned order of detention. The challenge raised must, in these circumstances, fail. 25. 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