Sophia v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 WP(Crl.).No. 543 of 2009(S) --------------------------- PETITIONER: --------------- SOPHIA, AGED 39 YEARS, W/O. RAMJU, ASARIPARAMBU HOUSE, PALLURUTHY MARUNNUKADA, ERNAKULAM DISTRICT. BY ADV. SRI.T.P.SANTHOSH KUMAR SRI.M.V.LALU MATHEWS RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. 2. DISTRICT MAGISTRATE (DISTRICT COLLECTOR) ERNAKULAM. 3. SUPERINTENDENT, CENTRAL PRISON, VIYYOOR. BY GOVERNMENT PLEADER, SRI. P RAVINDRA BABU ADDL. GOVT. PLEADER, SRI. K K RAVINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 02/02/2010, THE COURT ON 19/02/2010 DELIVERED THE FOLLOWING: ## **K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl).No. 543 of 2009 S - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of February, 2010 ## **JUDGMENT** ## **Joseph Francis, J.** Petitioner approached this court for a writ of Habeas Corpus to produce the body of her son, Riju, who has been kept under illegal detention as per Ext.P4 order dt. 24.10.2009 of the second respondent under the Kerala Anti Social Activities (Prevention) Act, 2007. (for short KAAPA). Petitioner's son was arrested on 2.11.2009 by the Circle Inspector of Police, Palluruthy Police station and detained him in the Central Prison, Viyyur. 2. The detention order was passed on the allegation of pendency of Ext.P1(a), P1(b) and P1(c) crimes, which are 2 ## W.P.(Crl).No. 543 of 2009 registered as Crime Nos. 340 of 2009 and 537 of 2009 of Palluruthy Police Station and Crime No. 796 of 2009 of Ernakulam Town North Police Station. On the basis of Exts.P2 and P3 reports filed by the Circle Inspector of Police and Deputy Police Commissioner of Kochi City, the second respondent has passed Ext.P4 detention order on the basis of Ext.P5, basic notes for detention. Thereafter the Home Department approved Ext.P4 order as per Ext.P6. The petitioner's son filed Ext.P7 representation dt. 13.11.2009 through the Superintendent, Viyyur Central Prison before the Additional Chief Secretary, Home Department. That representation was rejected, which is evident from Ext.P8 reply. 3. Counter affidavits have been filed by the respondents. We have gone through it. We heard the learned counsel for the petitioner and the learned Government Pleader. 4. The learned counsel for the petitioner challenges Ext.P4 order of detention on various grounds. The details of the three cases registered against the detenu are as follows: 3 ## W.P.(Crl).No. 543 of 2009 1. Crime No. 340/09 under Section 143, 147, 148, 452, 324, 326, 308 r/w. 149 I.P.C. registered at Pallurthy Police Station on the complaint of Sri. Krishnanunni, S/o. Sri, Haridas, Shyamnivas, Edakochi and charge sheeted before the Hon'ble JFCM Court-II, Kochi on 8.5.2009. The accused was granted anticipatory bail by Hon'ble Sessions Court, Ernakulam on 23.3.2009. Date of occurrence of incident: 8.3.2009. 2. Crime no. 537/09 u/s. 143, 147, 148, 341, 323, 324, r/w. 149 I.P.C. registered at Palluruthy Police Station on the complaint of Sri.Josemon, S/o. Sri.Nikkolas, Kuppakkad House, Chirakkal, Palluruthy and charge sheeted before Hon'ble JFCM Court-II, Kochi on 25.5.09. The accused was arrested and enlarged on station bail. Date of occurrence of incident: 8.3.2009. 3. Crime No. 796/09 u/s. 143, 147, 148, 452, 427, 506(ii), 308 r/w. 149 I.P.C. registered at Ernakulam Town North Police Station on the complaint 4 ## W.P.(Crl).No. 543 of 2009 of Smt. Lily Korraya, W/o. Antony Korraya, Ambattu House, Thrikkanarvattom, Ernakulam and charge sheeted before Hon'be JFCM-I Court, Ernakulam on 15.5.09. The accused was arrested on 28.4.09 and enlarged on bail on 4.5.09. Date of occurrence of incident: 27.4.09. 5. The learned counsel for the petitioner submitted that Crime Nos. 340 of 2009 and 537 of 2009 of Palluruthy Police Station arose on the same day, i.e. on 8.3.2009, at the same place at Palluruthy in connection with a dispute of two groups of youngsters in the festival of Sree Bhavaneeswari Temple and therefore it ought to be considered as one case instead of two cases to count the number for the purpose of making the list of 'known rowdy'. The learned counsel for the petitioner further submitted that in all the three cases, which are considered for Ext.P4 detention order, were registered in March-April, 2009 and before or after the months March-April no other case was registered against the detenu. 5 W.P.(Crl).No. 543 of 2009 6. The learned counsel for the petitioner further submitted that the allegations in Exts.P1(a), P1(b) and P1(c) itself would show that the detenu has not used any deadly weapon or caused any serious injury to anyone else and in that crimes the detenu is not the prime accused and arrayed respectively as 5[th] , 6[th] and 5[th] in the list of accused. The learned counsel for the petitioner further submitted that there was more than one month's delay regarding registration of the F.I.R. in Crime No.537 of 2009 of Palluruthy Police Station, which itself reveals fabrication of the case. 7. The learned counsel for the petitioner invited our attention to the decision of this Court reported in **Najuma v. State of Kerala** (2009 (3) KLT 617), in which it was held that: “Going by the well known tests of unity of purpose, unity of the venue, unity of the culpable acts allegedly indulged in by the offenders or by any known test to identify whether two incidents are separate or the same and whether they are part of the same transaction or not, it W.P.(Crl).No. 543 of 2009 6 has got to be held that the incidents alleged in Crime Nos. 24 and 26 of 2006 are not separate incidents and are both part of the same transaction. While understanding the sweep of the expression “separate instances not forming part of the same transaction” appearing in S.2(p)(iii) of the KAAPA, this Court cannot afford to ignore or overlook the salutary motivation behind such stipulation. A person must be really a 'known rowdy' posing threat to the public order. It is only then that the powers of detention on the KAAPA can be invoked against him. To prevent abuse of the powers under the KAAPA, threshold requirements are stipulated as to the persons against whom the powers of detention under the KAAPA can be invoked. The threshold requirements stipulated insist, that either the detenu must have been convicted in one case under S.2(t)(i) or must have been convicted twice for offences falling under S.2(t)(ii) of the KAAPA. Not satisfied with these stipulations, the Legislature prescribed that even the finding by a police officer on investigation that the detenu has committed an offence may be sufficient. But there must at least be 3 such instances. It is while imposing that restriction that the law mandates that such instances must be separate instances and should W.P.(Crl).No. 543 of 2009 7 not be part of the same transaction. Going by the salutary purpose of S.2(p)(iii) which insists and mandates that there must at least be 3 instances to come within the sweep of S.2(p)(iii), such instances must be separate and distinct ones and should not be part of the same transaction. Merely because the police choose to file separate charge sheets in such cases which could have been tried jointly for the reason that the alleged culpable acts are not separate instances and are part of the same transaction, the definition of S.2(p)(iii) cannot be said to be attracted against a detenu.” 8. In Crime No. 340 of 2009 of Palluruthy Police station the defacto complainant, Krishnanunni, gave Ext.P1(b) F.I. Statement, in which it is stated that the alleged occurrence took place at 11 p.m,. on 8.3.2009 in connection with the dispute arose between two groups of youngsters in connection with the temple festival of Palluruthy Sree Bhavaneeswari temple and the spot of occurrence is very near to that temple. In Crime No.537 of 2009 of Palluruthy Police Station the alleged occurrence was on 8.3.2009 at 9.30 p.m., which was registered 8 ## W.P.(Crl).No. 543 of 2009 on the basis of Ext.P1(a) F.I. Statement given by the defacto complainant, Josemon, on 20.4.2009. It is true that the occurrence in Crime No.340 of 2009 and Crime No. 537 of 2009 of Palluruthy Police Station took place on 8.3.2009 in connection with a temple festival. But one occurrence took place at 9.30 p.m. and the second occurrence at 11 p.m. and they took place at two different places. The injured in both the above crimes are different persons. The first occurrence has no connection with the second occurrence. Therefore, it can be treated only as two separate instances not forming part of the same transaction. It follows that Crime Nos. 340 of 2009 and 537 of 2009 of Palluruthy Police Station cannot be reckoned as one instance. Since the detenu is involved in three separate instances (Crime Nos. 340 of 2009 and 537 of 2009 of Palluruthy Police Station) and Crime No.796 of 2009 of Ernakulam Town North Police Station) not forming part of the same transaction and committed offence mentioned in clause (t) of Section 2 of KAAPA, the detenu will come under the purview of 'known rowdy' as defined under that Act. Therefore, we 9 W.P.(Crl).No. 543 of 2009 find no reason to interfere with Ext.P4 order. Accordingly this Writ Petition is dismissed as it is without any merit. **(K. M. JOSEPH)** Judge **(M.L. JOSEPH FRANCIS)** Judge tm