Shibu @ Shivakumar 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 MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 WP(C).No. 5234 of 2010(D) ------------------------- PETITIONER(S): --------------- SHIBU @ SHIVAKUMAR, S/O.KRISHNAN, KUNNAMPARAMBU HOUSE, VITHANASSERY, NENMARA P.O., PALAKKAD. 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 INSPECTOR GENERAL OF POLICE, THRISSUR RANGE, THRISSUR. 3. SUPERINTENDENT OF POLICE, THRISSUR. 4. THE CHAIRMAN, ADVISORY BOARD, KERALA ANTI SOCIAL ACTIVITIES (PREVENTION) ACT, VIVEKANANDA NAGAR, ELAMAKKARA. GOVERNMENT PLEADER SRI. K.J. MOHAMMED ANZAR FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------W.P.(C) No. 5234 of 2010-D ------------------------------------------------Dated this the 26[th] day of July, 2010** ## **JUDGMENT** ## **Basant,J.** The petitioner has come to this Court with this petition challenging an order of restraint passed on him under Sec.15 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA'). 2. The petitioner in involved in three cases. They are: (i) Crime No.223/07 of the Nenmara Police Station registered, inter alia, under Sec.308 read with Sec.149 IPC. (ii) Crime No.67/09 of the Nenmara Police Station registered under Sec.302 read with Sec.34 IPC. (iii) Crime No.572/08 of the Town North Police Station, Palakkad, registered under Sec.489B IPC. 3. It is not disputed that on the relevant date investigation ## **W.P.(C) No. 5234 of 2010** -: 2 :- in respect of Crimes (i) and (ii) shown above was complete and final reports had been filed. The third case was pending investigation. 4. At this juncture, the petitioner received Ext.P1 notice dated 11/8/09 issued by the 2[nd] respondent under Sec.15(1) of the KAAPA calling upon him to show cause why an order of restraint under Sec.15(1) of the KAAPA should not be passed. 5. The petitioner promptly submitted Ext.P2 reply to the 2[nd] respondent. Thereupon, the 2[nd] respondent proceeded to pass Ext.P3 order of restraint dated 3/11/09 under Sec.15 of the KAAPA. The petitioner was restrained from entering to the Palakkad revenue district for a period of one year. 6. The petitioner challenged Ext.P3 order by filing W.P.(C) No.34025/09. By judgment dated 26/11/09 (copy produced as Ext.P4), this Court dismissed the writ petition holding that the option of making an appeal/representation against Ext.P3 order had not been exhausted and the writ petition cannot, in these circumstances, be entertained. 7. Thereupon, the petitioner submitted Ext.P5 representation dated 26/11/09 before the Advisory Board under Sec.15(2) of the KAAPA. 8. According to the petitioner, that petition was not ## **W.P.(C) No. 5234 of 2010** -: 3 :- considered by the Advisory Board. This obliged the petitioner to come before this Court again with this writ petition - W.P(C). No. 5234/10. By way of defence in the writ petition, it was contended that the Advisory Board has already disposed of the petitioner's representation under Sec.15(2) of the KAAPA by Ext.P7 order dated 7/12/09. The said representation/appeal was dismissed as belated. 9. The petitioner, in these circumstances, amended the writ petition to challenge Ext.P7 order also. It was contended that Ext.P3 order as well as Ext.P7 order are not legally sustainable and the same is liable to be set aside. 10. We have heard the learned counsel for the petitioner/restrainee as also the learned Government Pleader. The learned counsel for the petitioner assails the impugned order of restraint (Ext.P3) on the following sole ground at the stage of argument. Even though several other grounds are raised at the stage of arguments, it is conceded that the following ground alone need be considered. We are also satisfied that it is not necessary to proceed to consider the other grounds of challenge against Ext.P3 order of restraint. 11. The contention of the learned counsel for the petitioner, in short, is this. The order of restraint is passed ## **W.P.(C) No. 5234 of 2010** -: 4 :- under Sec.15 of the KAAPA reckoning the petitioner as a known rowdy. Three cases are relied on by the respondents to classify the petitioner as a known rowdy. We have already referred to the three cases. The counsel argues that the third case could not, at any rate, have been reckoned by the 2[nd] respondent as relevant for the purpose of inclusion of the petitioner as a known rowdy under Sec.2(p) of the KAAPA. 12. Sec.489 IPC comes in Chapter XVIII of the Indian Penal Code and going by the definition of a `rowdy' under Sec.2(t) of the KAAPA, an offence under Sec.489B IPC will not bring a person within the sweep of the expression 'rowdy' under Sec.2(t) of the KAAPA. Consequently, he will not be a known rowdy under Sec.2(p) of the KAAPA. The learned counsel for the petitioner argues, in these circumstances, that the petitioner is not a known rowdy under Sec.2(p) of the KAAPA and consequently, the impugned order Ext.P3 reckoning him as a known rowdy is not legally sustainable. 13. We find force in this contention. A `rowdy' is defined under Sec.2(t) in the KAAPA as follows: “2(t) `rowdy' means and includes a person who either by himself or as a member of a gang commits or attempts to commit, or abets the commission of any offences ## **W.P.(C) No. 5234 of 2010** -: 5 :- under Sections 153A and 153B of Chapter VIII and Chapters XV, XVI, XVII & XXII of the Indian Penal Code, 1860 (Central Act 45 of 1860), or any offences under the provision of the Arms Act, 1959 (Central Act 54 of 1959), or the Explosive Substances Act, 1908 (Central Act 6 of 1908),-- (i) punishable with five or more years of imprisonment of any type, or; (ii) with less than five years of imprisonment of any type, except those punishable with less than one year of imprisonment; or (iii) such offences under any other law for the time being in force, coming under item (i) or (ii), as may be notified by the Government, from time to time.” Offences under Chapter XVIII are not included in the definition of 'rowdy' and therefore commission of an offence under Sec.489B IPC which falls under Chapter XVIII cannot be made use of to classify the petitioner as a `rowdy'. 14. Sec.2(p) defines the expression 'known rowdy'. Admittedly, Clauses (i) and (ii) are not applicable. To include the petitioner within the sweep of the expression 'known rowdy', ## **W.P.(C) No. 5234 of 2010** -: 6 :- he must answer Clause (iii) of Sec.2(p) of the KAAPA. To be included in the said Clause, he must have committed an offence under Sec.2(t) of the KAAPA. “(p) 'known rowdy' means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,-- **==> picture [123 x 13] intentionally omitted <==** (ii) x x x x x x x x (iii) fond, on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of Section 2.” (others omitted as irrelevant) 15. It is thus crystal clear that the third crime referred above cannot be taken into consideration to include the petitioner as a rowdy under Sec.2(t) of the KAAPA or a known rowdy under Sec.2(p) of the KAAPA. The learned Government ## **W.P.(C) No. 5234 of 2010** -: 7 :- Pleader also fairly concedes this. It is hence unnecessary to go into the details. 16. How then can the impugned order be justified? The learned Government Pleader submits that to attract an order of restraint under Sec.15 of the KAAPA, it is not invariably necessary that a person must be a known rowdy. An order of restraint under Sec.15 can be passed against a person who is either a known rowdy or a known goonda. Even if the third crime is excluded and eschewed altogether, the other two crimes against the petitioner will bring him squarely within the sweep of the expression 'known goonda' under Sec.2(o)(ii) of the KAAPA. He would answer the definition of the expression 'goonda' under Sec.2(j) of the KAAPA and 'known rowdy' under Sec.2(p)(ii) of the KAAPA. In these circumstances, the impugned order cannot be held to be bad in law. Notwithstanding the inadequacy in describing the petitioner to be a known rowdy and not a known goonda in Ext.P3 the fact remains that the petitioner is a known goonda and consequently is liable to be visited with an order under Sec.15 of the KAAPA. The learned Government Pleader submits that notwithstanding the fact that the petitioner has been described as a known rowdy in Ext.P1 (show cause notice) and Ext.P3 order of restraint, the impugned order is not liable to ## **W.P.(C) No. 5234 of 2010** -: 8 :- be set aside. 17. The contention thus appear to be impressive at the first blush. We agree that an order of restraint can be passed against a person who is either a known rowdy or a known goonda. But pointed application of mind of the authority is required. We have already adverted to this aspect to the matter though in the context of an order of detention in **Shiny A. v. State of Kerala** (2009 (4) KHC 645 [DB]). Pointed application of mind must be there to decide whether the person is a known goonda or known rowdy. Both in Exts.P1 and P3 the petitioner is described as a known rowdy. Notwithstanding the contention raised in Ext.P2 that the petitioner will not be a rowdy or a known rowdy pointed application of mind to this aspect of the matter is not seen rendered in Ext.P3. The learned counsel for the petitioner contends that the 2[nd] respondent/authority competent to pass the order of restraint under Sec.15 of the KAAPA has not even considered the question whether the petitioner is liable to be restrained as a known goonda. The learned counsel for the petitioner points out that neither in the counter statement filed by the 2[nd] respondent prior to the amendment, nor in the additional counter statement filed after the amendment, the 2[nd] respondent has not taken a specific stand that even as a known ## **W.P.(C) No. 5234 of 2010** -: 9 :- goonda if not as a known rowdy the petitioner is liable to be restrained. To this extent, we agree with the learned counsel for the petitioner that the 2[nd] respondent - the competent authority, has not applied his mind to the relevant question and has not decided whether the petitioner is liable to be visited with an order of restraint in his capacity as a known goonda. In the total absence of application of mind to this crucial aspect, we agree that the impugned order must fail for the reason that proper application of mind has not been there. 18. We conclude the discussions holding that the impugned order reckoning the petitioner as a known rowdy for the purpose of passing an order under Sec.15 of the KAAPA is not sustainable for the reason that he is not a known rowdy under Sec.2(p) of the KAAPA when we exclude crime No.(iii) referred. The valiant attempt made by the learned Government Pleader, though such an attempt is not reflected in the original or additional counter affidavit filed by the 2[nd] respondent that the petitioner is liable to be restrained, at any rate, as a known goonda cannot also succeed for the reason that the authority concerned i.e., the 2[nd] respondent has not applied his mind even at the stage of filing the counter affidavit. Consequently, the impugned order of restraint cannot be justified on that assumed ground which ## **W.P.(C) No. 5234 of 2010** -: 10 :- assumption has not been made by the 2[nd] respondent. 19. We are, in these circumstances, satisfied that the impugned order must fail for the above reason. We are not adverting to the other grounds, including the question whether the Advisory Board has the power to condone the delay in filing an application or not. 20. In the result: - (a) This writ petition is allowed. (b) The impugned order of restraint under Sec.15 of the KAAPA, a copy of which is produced as Ext.P3 is hereby set aside. **Sd/R. BASANT (Judge)** **Sd/M.C. HARI RANI (Judge)** **Nan/** //true copy// P.S. to Judge