Subramanian V.B. @ Subran v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944** ## **WP(CRL.) NO. 541 OF 2022** ## **PETITIONER/S:** SUBRAMANIAN V.B @ SUBRAN, AGED 55 YEARS S/O. BHASKARAN, VALIYOLIPARAMBIL, EZHATTUMUKHAM, MOOKKANNOOR, ERNAKULAM DISTRICT - 683577. BY ADVS. K.M.MUHAMMED HUSSAIN K.V.SREE VINAYAKAN MANUMON A. JAYAN KUTTICHAKKU COLIN ALEX ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -695001. 2 THE DISTRICT MAGISTRATE, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, PIN - 682030. 3 THE DISTRICT POLICE CHIEF, ERNAKULAM (RURAL), SUB JAIL ROAD, ALUVA, ERNAKULAM DISTRICT, PIN - 683101. 4 THE STATION HOUSE OFFICER, ANKAMALI POLICE STATION, ANKAMALI, ERNAKULAM DISTRICT, PIN - 683575. 5 THE SUPERINTENDENT, CENTRAL PRISON, KANNUR, PIN - 670004. BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ## **OTHER PRESENT:** SRI.K.A.ANAS, GP THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(Crl.)541/2022 2 ## **'CR'** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------W.P.(Crl.) No.541 of 2022 -------------------------------------Dated this the 22[nd] day of August, 2022** **J U D G M E N T** ## Jayachandran, J **1.** Ext.P1 detention order dated 28.02.2022 issued under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [for short, 'KAA(P)A'] is under challenge in this Writ Petition. As per the order impugned, petitioner's son, Satheesh (for short, 'detenue') was directed to be detained in the Viyyur Central Jail, however, without specifying the period of detention. **2.** Heard Sri.Sreevinayakan K.V., learned counsel for the petitioner, Sri.K.A.Anas, learned Government Pleader attached to the Advocate General's office on behalf of the respondents. Perused the records. W.P.(Crl.)541/2022 3 **3.** Six crimes have been taken stock of to put the petitioner's son under preventive detention, the details of which are indicated in the tabular statement herein below. |**Sl.N**<br>**o.**|**Crime**<br>**Number**|**Police Station**|**Offences**| |---|---|---|---| |1|505/2017|Mayyil Police Station,<br>Kannur District|362, 394 IPC| |2|614/2017|Edakkad Police Station,<br>Kannur District|394 IPC| |3|824/2018|Mattannur Police Station,<br>Kannur District|342, 363, 394, 465,<br>471 IPC| |4|693/2019|Chokly Police Station,<br>Kannur District|395 IPC| |5|201/2021|Ollur Police Station,<br>Thrissur DIstrict|362, 395 IPC| |6|721/2021|Malappuram<br>Police<br>Station,<br>Malappuram<br>District|363, 395 IPC| **4.** Ext.P1 order is challenged by the petitioner on the following grounds. **(a)** The period of detention is not prescribed in Ext.P1 order by the District Magistrate, who issued it. The first respondent/Government is not authorized to fix the period of detention. **(b)** Ext.P1 order is passed without ascertaining the sufficiency or otherwise of the proceedings initiated under Section 107 of the Code of Criminal Procedure, especially when the earlier request by W.P.(Crl.)541/2022 4 the sponsoring authority was returned by the second respondent/District Magistrate as per Ext.P7 communication, stating that the proceedings under Section 107 of the Code has already been initiated. Ext.P1 is silent about the said fact as well. **(c)** Ext.P1 order was not communicated to the first respondent within the time stipulated in the Act. Similarly, the order of the first respondent confirming/approving Ext.P1 order was not communicated to the detenue or his family members. **(d)** The second respondent, who is the detaining authority has no jurisdiction to issue Ext.P1 detention order, since the crimes reckoned in Ext.P1 were committed outside the jurisdiction of the second respondent. **5.** Learned counsel for the petitioner advanced arguments emphasizing on the above grounds. Refuting the above allegations, learned Special Government Pleader invited our attention to the Full Bench judgment of this Court in **P.K.Bose** v. **Secretary to Government and Others** (2010(2) KLT 325), in answer to the first contention. As regards the second contention, learned Special Government Pleader relied upon the judgment of this Court in **Anita** W.P.(Crl.)541/2022 5 **Antony** v. **State of Kerala and Others** (2022(4) KLT 271) to point out that the scope of the proceedings under Section 107 Cr.P.C. and the one initiated under the KAA(P)A are different and independent, wherefore, the pendency of proceedings under Section 107 of the Code would not stand in the way of initiating proceedings under KAA(P)A, once the requirements stipulated in KAA(P)A are satisfied. As regards the third contention, learned Special Government Pleader pointed out that, Ext.P1 detention order is dated 28.02.2022 and the order of approval was issued by the Government of Kerala on 07.03.2022, well within the time stipulated in Section 3(iii) of the KAA(P)A. The second limb of the third contention pertaining to the allegation that the order of approval was not communicated to the petitioner or his family members is also answered by the learned Government Pleader by pointing out the endorsement in the order of approval to the effect that a copy has been received by the detenue, Satheesh. **6.** Having heard the respective contentions of the W.P.(Crl.)541/2022 6 learned counsel, we cannot but endorse the submissions of the learned Special Government Pleader. We primarily notice that the detenue satisfies the definition of a 'known rowdy' in terms of Section 2(p)(iii) of the KAA(P)A. As against the requirement of three cases/three separate instances, second respondent/District Magistrate has taken stock of as many as six cases, of which, final report has been filed in 4 cases and the remaining two are pending investigation. Having regard to the nature of the offences alleged, the detenue answers the definition of a 'rowdy' under Section 2(t) of the Act. We, therefore, find that the parameters required to invoke the power under Section 3 of the Act has been satisfied abundantly. **7.** Now, we will deal with the specific grounds raised by the learned counsel for the petitioner. The first contention is that the first respondent/Government is not competent to fix the period of detention and that, it was the second respondent/detaining authority, which ought to have fixed the period of detention in Ext.P1 order. Ext.P1 W.P.(Crl.)541/2022 7 order is therefore vitiated for want of a specific period prescribed for detention, is the contention. The contention is squarely in the teeth of the Full Bench judgment of this Court in **P.K.Bose** (supra), as argued by the learned Special Government Pleader. The question is seen considered in paragraph no.4 of the judgment, where the Full Bench held that under the KAA(P)A, only the Government, under Section 10(4) and not the detaining authority, under Section 3(1) is bound to fix the period of detention. The Full Bench specifically held that Section 3(2) of the Act does not oblige the detaining authority to fix any period of detention. Therefore the said contention will stand rejected. **8.** The second contention is with respect to nonconsideration of the sufficiency of the proceedings initiated under Section 107 of the Code. This contention is also in the teeth of the judgment of this Court in **Anita Antony** (supra) dehors and independent of the fact that the detaining authority has specifically considered and found 8 ## W.P.(Crl.)541/2022 that the proceedings under Section 107 Cr.P.C is not sufficient to curb the criminal propensity of the detenue. In Anita Antony (supra) the Division Bench found in paragraph no.15 that the relative scope of the two proceedings under Section 107 Cr.P.C and under the KAA(P)A are different and independent. While the remedy under Section 107 Cr.P.C. was held to be a lesser remedy, the one under the KAA(P)A was found to be a harsher one, to be applied in the case of habitual offenders. The Division Bench found that the feasibility, if any, of the proceedings under Section 107 Cr.P.C. is not an alternative for a proceeding under Section 3 of the KAA(P)A. **9.** Apart from the above legal position, we notice that Ext.P1 order specifically considered and found that the proceedings initiated under Section 107 Cr.P.C is not at all sufficient to deter the detenue from indulging in criminal activities. The relevant finding in paragraph no.5 of the impugned order is extracted herein. **"നനിരന്തരരം കകുറ്റകകൃതത്യങ്ങൾ ഏർപപ്പെടട്ടുപകകൊണനിരനികകുന എതനിർകകനിപകതനിപര 107 Cr.P.C. പപ്രകകൊരമകുളള നടപ്രടനികൾ സസസ്വീകരനിചട്ടു** W.P.(Crl.)541/2022 9 **എതനിർകകനിയകുപട പകനിമനിനൽ പപ്രവർത്തനങ്ങപള തടയകുവകൊൻ സകൊധനികനിലലകൊപയനകു എതനിർകകനി ഉൾപപ്പെടനിടട്ടുള്ള കകുറ്റകകൃതത്യങ്ങളട്ടുപട സസഭകൊവവകുരം എണ്ണവകുരം പ്ര നിശശകൊധനിചതനിൽ നനിനകുരം എനനികക ശബകൊധത്യമകൊയനി. എതനിർകകനിപയ കരകുതൽ തടങ്കലനിൽ പ്രകൊർപ്പെനികകുനതനിനകു ജനിലലകൊ ശപ്രകൊലസ്വീസ് ശമധകൊവനി ശരഖപപ്പെടകുത്തനിയനിടട്ടുള്ള കകൊരണങ്ങൾ തകൃപ്തനികരമകൊപണനക കപണത്തനി. കകൂടകൊപത ററൗഡനി ഹനിസ്റ്റ നി ഷസ്വീറ്റക തകുറനകു എതനിർകകനിയകുപട നടത്തരം നനിരസ്വീകനിചനിരകുനനിടട്ടുരം ആയതകു എതനിർകകനി വകപവയ്കകൊപത തകുടർചയകൊയനി കകുറ്റകകൃതത്യങ്ങളനിൽ ഏർപപ്പെടട്ടു വരകുനതകൊയകുരം, സകൊധകൊരണ നനിയമനടപ്രടനി സസസ്വീകരനിചട്ടു എതനിർകകനിയകുപട പകനിമനിനൽ പപ്രവർത്തനങ്ങപള തടയകുവകൊൻ സകൊധനികനിലലകൊപയനകുരം, KAAPA പപ്രകകൊരമകുള്ള കടകുത്ത നടപ്രടനി പകകൊണക മകൊപതശമ എതനിർകകനിപയ തകുടർ കകുറ്റകകൃതത്യങ്ങളനിൽ നനിനകുരം തടയകുവകൊൻ സകൊധനികകുകയകുള്ള എനകുരം എനനികക ശബകൊധത്യപപ്പെടട്ടു."** Therefore the said ground also fails. **10.** The third ground is with respect to non compliance of Section 3(3) of the KAA(P)A **,** as also, about non communication of the confirmation/approval order of the Government to the detenue or to the family members. Both of these contentions are not tenable. As contended by the learned Special Government Pleader, Ext.P1 detention order and its execution are dated 28.02.2022, which is seen confirmed by the Government as per order of approval dated W.P.(Crl.)541/2022 10 07.03.2022 squarely within the period of 12 days in Section 3(iii) of the Act. The contention that the order of approval dated 07.03.2022 is not communicated to the detenue is also belied by the detenue's acknowledgement in the order signifying that he had received copy, as seen from the original files produced before us. **11.** What remains is the last contention with respect to the lack of jurisdiction of the second respondent/detaining authority, for the reason of the crimes having been committed outside the jurisdiction of the second respondent. This, again, is in the teeth of a Bench decision of this Court in **Sameena Beevi** v. **State of Kerala and Others** (2014(4) KLT 874). **12.** The second respondent is the District Magistrate, Ernakulam. Admittedly, the detenue is residing at Mookkannoor, coming within the limits of Ernakulam district. Section 3 speaks of District Magistrate having jurisdiction _“in respect of such persons residing within his jurisdiction or in respect of such persons not so resident who have been indulging in or about to indulge in_ W.P.(Crl.)541/2022 11 _or abet any anti-social activities within such jurisdiction”_ . It could thus be seen that, jurisdiction is two pronged, one with respect to the residential status of the proposed detenue and the second, with respect to the situs where the anti-social activities is indulged in, or about to be indulged in, or abetted. In the instant case, the detenue satisfies the first limb that he resides within the jurisdictional limits of the second respondent/District Magistrate. The legal position in this regard has been held in paragraph number 7 of Sameena Beevi (supra). **13.** In the result, all the grounds, under which Ext.P1 is challenged, fails. This Writ Petition will therefore stand dismissed. ## **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN** **JUDGE** Sbna/ W.P.(Crl.)541/2022 12 ## **APPENDIX OF WP(CRL.) 541/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|THE TRUE COPY OF THE DETENTION ORDER NO.| ||DC/EKM/1428/2022/M7 PASSED BY THE 2ND| ||RESPONDENT.| |Exhibit P2|THE TRUE COPY OF THE REPORT SUBMITTED BY THE| ||4TH RESPONDENT BEFORE THE 2ND RESPONDENT DATED| ||06.1.2022.| |Exhibit P3|THE TRUE COPY OF THE REPORT SUBMITTED BY THE| ||3RD RESPONDENT BEFORE THE 2ND RESPONDENT DATED| ||24.01.2022.| |Exhibit P4|THE TRUE COPY OF APPEAL IN R.C. NO. 23 OF 2022| ||SUBMITTED BEFORE THE ADVISORY BOARD.| |Exhibit P5|THE TRUE COPY OF ORDER PASSED BY THE 1ST| ||RESPONDENT DATED 3.05.2022.| |Exhibit P6|THE TRUE COPY OF THE APPLICATION SUBMITTED BY| ||THE 4TH RESPONDENT BEFORE THE SUB DIVISIONAL| ||MAGISTRATE, FORT KOCHI, DATED 25.04.2021.| |Exhibit P7|THE TRUE COPY OF THE COMMUNICATION ISSUED BY| ||THE 2ND RESPONDENT TO 3RD RESPONDENT DATED| ||22.09.2021.|