Kerala High Court
Soumya Paul vs The District Collector And District on 2 February, 2010
Author: K.M. Joseph
Bench: K.M.Joseph, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 506 of 2009(S)
1. SOUMYA PAUL, W/O.SHAJU VARGHESE,
... Petitioner
Vs
1. THE DISTRICT COLLECTOR AND DISTRICT
... Respondent
2. THE SECRETARY TO THE GOVERNMENT,
3. STATE OF KERALA, REPRESENTED BY ITS
4. THE SUPERINTENDENT OF POLICE,
5. THE DIRECTOR GENERAL OF POLICE,
6. THE SUPERINTENDENT, CENTRAL PRISON,
7. THE ADVISORY BOARD, CONSTITUTED UNDER
For Petitioner :SRI.K.M.FIROZ
For Respondent :ADDL.DIRECTOR GENERAL OF PROSECUTION
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :02/02/2010
O R D E R
K. M. JOSEPH &
P.Q. BARKATH ALI, JJ.
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W.P(CRL). NO. 506 OF 2009 S
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Dated this the 2nd February, 2010
JUDGMENT
K.M. Joseph, J.
Petitioner is the wife of one Shri Shaju Varghese who has been detained under the provisions of the The Kerala Anti- Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). She challenges the detention order as also the approval order, Report of the Advisory Board, confirmation order and seeks to release her husband from custody by a writ of habeas corpus. Though there is a prayer to declare certain provisions of the Act as unconstitutional, it is not pressed before us.
2. Ext.P1 order of detention is dated 31.08.2009. It was passed by the District Magistrate, Kozhikode. Reference is made therein to credible information from the Superintendent of WP(CRL).NO.506/09 2 Police, Kozhikode Rural by letter dated 25.07.2009. There are four offences which are referred to. Firstly, it is stated that on 18.06.2004, the detenu and others were arrested for stealing a motor cycle. Crime No.100/04 was registered under Sections 379 and 414 read with Section 34 IPC on 19.06.2004 and the detenu was charge-sheeted and found guilty and convicted for one year rigorous imprisonment and fine of Rs.2,000/=. Secondly, it is stated that on 27.12.2007, the detenu criminally entered into the shop owned by the complainant with a chopper, threatened him and destroyed the glass jar etc. of the shop with the chopper and caused loss of Rs.25,000/= to the complainant. Crime No.127/07 was registered under Sections 452, 506 (ii) and 427 IPC on 27.12.2007 and he was charge-sheeted before the Magistrate Court as C.C.No.176/08 on 23.02.2008. The said case is pending trial. Thirdly, it is stated that on 16.12.2008 the detenu attacked the friend of the complainant who was sitting with the complainant while he was asked about the work which WP(CRL).NO.506/09 3 was entrusted to him and he threw a stone towards the complainant and sustained injuries. FIR was registered against the detenu as Crime No.202/08 under Sections 341, 323 and 324 IPC on 16.12.2008. The case has been charge-sheeted before the Magistrate Court as CC.No.96/09 on 28.02.2009. It is stated that the detenu attacked the complainant at the Mosque at Kakkayam with an iron rod and caused injuries to the complainant. Crime No.208/08 was registered under Sections 324 and 308 IPC on 20.12.2008 and the detenu has been charge- sheeted on 27.04.2009. This case also is stated to be pending trial. Thereafter, there is reference to the Report of the Superintendent of Police to the effect that the detenu is indulging in anti-social activities that endanger public safety, public order and tranquility and it is stated that the detenu is in active involvement in anti-social activities. It is further stated that the detenu was involved in four cases of which three are pending trial and in one case the detenu was convicted. On this WP(CRL).NO.506/09 4 basis and finding that the detenu is a known rowdy, the detention was ordered.
3. The order of detention has been approved and confirmed. This necessarily means that the Advisory Board has not deemed it fit to interfere with the order of detention.
4. We heard Shri Firoz K.M., learned counsel for the petitioner and also the learned Government Pleader.
5. Learned counsel for the petitioner would impress upon us that the order of detention is unsustainable. He would point out that one of the cases, namely the case relating to theft of motor cycle, took place in the year 2004. He would further submit that while it is true that the Magistrate Court has convicted the detenu and the matter was unsuccessfully carried in Appeal, the detenu challenged the order in Revision and it is pending before this Court. He would make an attempt to persuade us to consider essentially the merits of the matter and convince us that the allegation against the detenu are without any foundation. He would next submit that as far as Crime WP(CRL).NO.506/09 5 No.127/07 is concerned, it was an incident which arose from out of a dispute between neighbours. Next, he would submit that Crime Nos.202/08 and 208/08 are both registered on the basis of a complaint by one Shri Jayan and it arose out of a contract to construct a building. He would plead malafides in the matter. He would submit that when the facts are such, there was no basis to order detention. He would then submit that as far as Crime No.100/04 is concerned, it ought not to have been taken into consideration at all by the detaining authority. He expatiates and submits that the complaint was infact lodged by a Police Officer and, therefore, it was liable to be excluded. In this regard, he relied on Section 2(p)(iii) of the Act. He would lastly contend that this is a case where the detenu has given a representation as Ext.P2 before the Government and the Government has rejected the same by a cryptic order, without considering the same as is required in law (Ext.R6(a)). Petitioner has a case that the detenu is on a pace-maker and a WP(CRL).NO.506/09 6 cardiac patient and that he was incapable of committing the offences alleged against him. Learned counsel for the petitioner also raised a contention that Crime under Section 379 IPC cannot be a crime which would fall within the four walls of Section 2(t) of the Act.
6. Learned Government Pleader, on the other hand, countered these complaints and contended that there is no merit. He would submit that there are four cases referred to and those cases would bring the detenu within the ambit of Section 2(p) of the Act. He would point out that it is not correct to say that Crime No.100/04 was filed by a Police Officer. He would point out that there was a defacto complainant and, therefore, reckoning the said crime for the purpose of bringing the detenu under Section 2(p) of the Act is fully justified.
7. As far as Crime No.127/07 is concerned, learned Government Pleader would submit that the exclusion provided by Clause (2) of the proviso to Section 2(p) of the Act may not be applicable in the facts of the case. He would further contend that at any rate, even if the said incident is excluded, in view of WP(CRL).NO.506/09 7 Section 7(4) of the Act, the order of detention cannot be interfered with, as with the remaining three incidents, the order of detention can be treated as passed validly. With regard to Crime Nos.202/08 and 208/08, he would point out that they are supported by Wound Certificates and it is not the result of any malafides. He points out that a case of malafides can be made lightly, but the Court will not accept it unless there are particulars pleaded and it is established with materials before the Court. As regards consideration of the representation, it is submitted before us by the learned Government Pleader that it is trite law that a representation need not be rejected by an order supported by reasons (See Haradhan Saha v. State of West Bengal and Others (AIR 1974 SC 2154) which has been followed in John Martin v. State of West Bengal (AIR 1975 SC
775). He would submit that in the circumstances of this case, the decision rejecting the representation cannot be complained against for non-consideration of the same. He would refer us to WP(CRL).NO.506/09 8 the files, the Notes prepared which were placed before the Secretary who considered and passed the orders and it is submitted that there has been a proper consideration of the representation. He would further submit that even if there may be a valid point raised by the detenu in regard to Crime No.127/07, in view of Section 7(4) of the Act, with the remaining three incidents fulfilling the minimum criteria as indicated in Section 7(4) in so far as Section 7(4) is the dictate of the Legislature which is binding not only on the detaining Authority, but also on the Advisory Board and also the Government, it may be taken that the Government when it considered the representation, was aware of Section 7(4) and even after excluding the incident referred to as Crime No.127/07, with the remaining three incidents, it cannot be said that the constitutional right of the petitioner is infringed.
8. We will firstly consider whether there is any merit in the contention of the petitioner that the order of detention is bad WP(CRL).NO.506/09 9 for the reason that Crime No.100/04 should have been excluded from consideration for the reason that it was a complaint filed by the Police Officer and, therefore, it could not have been made use of to find that the detenu was a known rowdy. The definition of "known rowdy" reads, inter alia, as follows:
"2(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,-
(iii) found, 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 (i) of Section 2."
Therefore, it is clear that if the complaint which led to the registration of a crime was lodged by a Police Officer, it was liable to be excluded. Learned counsel appearing for the detenu, in an attempt to establish his case in this regard, invited WP(CRL).NO.506/09 10 our attention to the First Information Report (Ext.P15). In the same, it is stated in Column 4 that the complainant is the Sub Inspector of Police, Atholy Police Station. Indeed, the FIR relates to Crime No.100/04. As against this, the learned Government Pleader drew our attention to Ext.P27 Judgment of the Judicial Magistrate of First Class, Koyilandy in C.C. No.916/04 arising from Crime No.100/04. He would point out that there is reference in the same to the defacto complainant whose motor cycle was allegedly stolen. It is stated in the Judgment, inter alia, as follows:
"To prove the case, the defacto complainant whose motor cycle was allegedly stolen by the accused was cited as CW1. He could not be examined as he expired prior to commencement of trial. The son of defacto complainant cited to prove ownership and loss of motor cycle as CW2, was examined as PW1."
Ext.P28 is a copy of the order appended to the Judgment of the Magistrate in C.C. No.916/04. The case was split up in trial. It supports the learned Government Pleader on the same lines as WP(CRL).NO.506/09 11 Ext.P28. It is important to bear in mind that what is excluded is the finding on an investigation or an enquiry by a competent Police Officer or other Authority on complaints initiated by Police Officers. Therefore, the word "complaint" used is not to be confused with the concept of the word "complainant" invoking the Court as such. It is true that the complainant in C.C.No.916/04 is the Station House Officer. But, what is relevant is the initial complaint on the basis of which the investigation commenced leading to the finding by the Police Officer or other competent Officer. Of course, it is the case of the detenu that the incident arose out of a case of overloading of the motor cycle as there were three persons riding the motor cycle and the Sub Inspector of Police accosted them and booked the case against them including for theft. But, the fact remains that as far as the case of theft is concerned, it is as evident from Exts.P27 and P28 that there was a defacto complainant. Though the learned counsel for the petitioner submitted that he would make available records to show that the complaint was WP(CRL).NO.506/09 12 actually filed by Police Officer, no such records also were made available. The irresistible conclusion which flows from the materials on record is that the complaint was indeed not filed by a Police Officer as contended by Shri K.M. Firoz, learned counsel for the petitioner, but there was a defacto complainant which led to the registering of the case and the conviction of the detenu also.
9. It may be true that the detenu has challenged the same and the matter is at large before this Court in a Revision Petition. That is not a matter which should detain us in considering the question whether in arriving at the objective satisfaction that the detenu was a known rowdy, the incidents leading to the registration of Crime No.100/04 wherein the detenu was charge-sheeted also and what is more, the detenu was convicted also by the Magistrate should have been considered. Quite clearly, the Magistrate was justified in relying on the said incident.
WP(CRL).NO.506/09 13
A perusal of Section 2(t), inter alia, reads 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 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;"
According to him, Section 2(t) only refers to Sections 153A and 153B of the IPC. He contends that an offence under Section 379 of IPC is not within the sweep of the Section. He would further submit that the conviction for the offence in Ext.P27 Judgment is only for one year. Both these contentions are WP(CRL).NO.506/09 14 meritless. A perusal of Section 2(t) would show that not only Sections 153A and 153B of Chapter VIII are included, but the offences in Chapters XV, XVI, XVII & XXII of the IPC are among the offences which would attract the wrath of the Section. Section 379 comes under Chapter XVII of the IPC. The punishment provided for under Section 379 is imprisonment of either description for a term which may extend to three years or with fine or with both. Therefore, it is an offence falling in Chapter XVII which will squarely attract provisions of Section 2
(t). There is also no merit in the contention that the offence may not be sufficient to invoke Section 2(t) for the reason that the detenu was sentenced only to one year imprisonment. What is provided in law is only that the offence should not be punishable with less than one year of imprisonment. It is not the actual punishment which was rendered in a particular case which matters, but what is decisive is the maximum sentence that can be awarded for the offence in question. The maximum sentence that can be awarded under Section 379 IPC, as we have already WP(CRL).NO.506/09 15 noticed, is three years. Therefore, on both counts, we find the contention of the petitioner without any merit at all.
10. Crime No.100/04 related to an incident which took place in the year 2004. What the Act provides for is that the incidents which took place within a period of seven years can be taken into consideration for the purpose of arriving at the objective satisfaction. We would notice that apart from Crime No.100/04, the detenu came to be involved in Crime No.127/07 and later, he was again involved in Crime Nos.202/08 and 208/08 which which are incidents which took place in December, 2008, in the space of a few days, the last two crimes taking place in the space of a few days.
11. We will next consider that in respect of Crime Nos.202/08 and 208/08, even though the petitioner had a contention that it was between neighbours, the petitioner has not persevered with the contention before us. The further question which arises essentially hovers around the incident which took place in 2007 leading to Crime No.127/07. According to WP(CRL).NO.506/09 16 petitioner, the alleged incident took place as a result of the tussle between neighbours and, therefore, it ought not to have been considered at all for deciding that the detenu was a known rowdy. We will at once notice the provisions in this regard. After defining the word "known rowdy" in Clauses (i), (ii) and
(iii), certain categories are excluded. They are contained in Clauses (i) to (vi) in the proviso. Clause (ii) of the proviso reads as follows:
"Provided that any offence committed by a person.- (ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours."
He would further submit that the detention is bad for the reason that though the detenu had specifically brought this aspect into focus in Ext.P2 representation before the Government. By an order which is without any reasons, Ext.R6(a) was issued. It reads as follows:
WP(CRL).NO.506/09 17
"I am directed to inform you that your representation cited has been examined by the Additional Chief Secretary (Home & Vigilance) on behalf of Government. Since there are no valid points in the petition for consideration and the detention order issued by the District Collector is found based on valid grounds and as per law, the petition deserves no merit and the same is rejected. I am also to inform you that you have the legal right to engage an Advocate during the time of hearing with the permission of the Advisory Board."
He would submit that clearly, it is a case where the said incident should have been excluded and, therefore, it is vitiated the alleged satisfaction of the detaining authority. At any rate, when the matter was brought to the notice of the Government, the Government should have considered the same and the fact that even this aspect is not considered, would show that the constitutional right to have the representation considered, has been observed in its breach by the Government. In this regard, he relied on a Judgment of a Division Bench of this Court in WP(CRL).NO.506/09 18 Shruthi v. State of Kerala (2009 (4) KLT 893). Therein, the Divison Bench was considering a case where there were five grounds in the order of detention. In respect of the first ground, it was contended that the detenu had been acquitted. In respect of another ground, the case was that it could not have been considered at all for ordering detention. The Division Bench after review of case law on the point, reiterated that though no reasons need be stated, the detenu is entitled to a real consideration of the representation. It was, inter alia, held as follows:
"51. We are unable to persuade ourselves to agree that Ext.P8 reveals such consideration which is insisted by the precedents referred above. The sure test for us to decide whether there has been proper consideration or not, is the omission/failure to refer to the contention that cases 1 and 5 referred above should not have been taken into consideration. We agree with the learned counsel for the petitioner that the very same Ext.P8 order (with a change in the date of representation) can be used by the Government to reject the WP(CRL).NO.506/09 19 representation of any other detenu detained on any other ground. The language of Ext.P8 order clearly betrays that a real and proper consideration has not been given to the representation made by the detenu."
12. Learned Government Pleader, on the other hand, would point out that the detenu may not be justified in contending that Crime No.127/07 is to be excluded as such. He would point out that the incident essentially was the detenu went to the shop of the complainant armed with chopper and though it was aimed at the person, he ducked and there was a property loss which was valued at Rs.25,000/=. He would contend that it cannot be said that the requirements of exclusionary clause in Section 2(p) is attracted. He would further contend that, at any rate, even excluding Crime No.127/07, the fact remains that the detenu is involved in three other incidents which was sufficient to bring him under Section 2(p) of the Act. In this regard, reference was made to Section 7(4) of the Act which reads as follows:
WP(CRL).NO.506/09 20
"7: Grounds of order of detention to be
disclosed.-
(4) The order of detention shall not be
deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorized Officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied."
In regard to the representation also, learned Government Pleader would contend that the representation was duly considered. He would reiterate that what was expected is only that they should consider the representation. The files were produced before us and the Notes were shown to us. It is, therefore, contended with the Notes and the order passed, it could not be contended that there was an infraction of the fundamental right of the WP(CRL).NO.506/09 21 detenu to have his representation considered. At any rate, it is pointed out that having regard to Section 7(4) of the Act, even assuming that the Government has failed to advert to Crime No.127/07 and the plea arising from the exclusionary clause which we have referred to already, in view of the fact that there are three incidents which are cited in the order of detention, which would constitute the minimum requirement within the meaning of Section 7(4) of the Act, it may not be contended that there is any flaw in the matter of disposal of the representation. It is contended that Section 7(4) of the Act is not addressed only to the Magistrate exercising powers under Section 3(2), but it is to be borne in mind by the Advisory and also the Government. Therefore, it is contended that even accepting the case of the petitioner that there is non-consideration of the representation, in so far as it relates to the exclusion provided under the proviso to Section 2(p), the Government was clearly satisfied that with the other cases against the detenu, the order of detention was justified and there was no basis to grant relief to the detenu, it is WP(CRL).NO.506/09 22 submitted.
13. In this context, it is first of all necessary to refer to the representation as such. Article 22(5) of the Constitution is a constitutional guarantee vouchsafed to a detenu under any law of preventive detention to be supplied with the grounds of detention and to represent against the detention. The case law evolving from Article 22(5), we would notice, has led to the establishment of various fundamental rights from the said two main rights. It can be safely taken that the detenu has a right to be informed of the detention at the earliest (The Act in question indicates that it should be served within five days of the detention). The grounds must be supplied in a language with which he is familiar. The detenu has a right to make a representation to the appropriate authority provided under the Statute providing for detention. The representation must be considered without any delay. No doubt, any delay may be excplained in the facts of each case to the satisfaction of the Court. Lastly, the detenu has a constitutional right to have the WP(CRL).NO.506/09 23 representation considered.
14. Now, we will examine the nature of the representation. Ext.P2 is the representation. We notice that various contentions are taken, including, surprisingly, the contention based on the constitutionality of the provision of the Act. In particular, we notice that it is contended that in regard to C.C. No.176/08 arising from Crime No.127/07, it is stated as follows:
"19. The allegation raised in C.C. No.176 of 2008 is also not correct. The said case was falsely registered based on a false complaint, since the defacto complainant in that case, who is my neighbour, had a property dispute with me. My property was falsely claimed by the defacto complainant in that case, which was objected by me. Hence the above said false complaint was registered. The police has misused their power and has charge sheeted me."
We further notice that there is also reference to Crime Nos.202/08 and 208/08 which is sought to be brushed with the taint of malafides by the detenu. We notice that there is WP(CRL).NO.506/09 24 reference to a case arising out of the complaint of the detenu about his motor cycle being taken away at the instance of the officials of the financier of the motor cycle. The order of the Magistrate is produced along with the representation to establish malafides. It is further stated that the detenu had to visit the Police Station several times after passing the order. It is further stated that it is because the detenu has raised a complaint before the Magistrate that the Police had told him that they will teach him a lesson and Crime Nos.202/08 and 208/08 were charge- sheeted with haste. It is specifically stated that the proceedings are malafide. We notice that the petitioner has a case also in the Writ Petition that there is malafides.
15. Now, it is necessary to refer to another important document which is relied on by the petitioner. It is Ext.P16 FIR. Ext.P16 refers to Crime No.127/07. The F.I. Statement given by the complainant, inter alia, reads as follows:
"
WP(CRL).NO.506/09 25
Going by the Statement, the alleged attack on the complainant and the property came about, following a dispute arising out of property rights between neighbouring land owners, it is pointed out. No doubt, the learned Government Pleader would attempt to contend that what the exclusionary provision contemplates is a dispute between immediate neighbours and, therefore, they should be residing closeby as neighbours. In this connection, we notice a decision of a Bench of this Court in Anoop v. State of Kerala (2009 (4) KLT 923). Therein, the Court held, inter alia, as follows:
"The expressions "neighbour" and "immediate neighbour" are not defined in the statute. Those expressions have to be understood as known in language and reasonably. Neighbour and immediate neighbour appearing in proviso (ii) of S.2(p) according to us, cannot bring with it any rigid norms or notions about the distances between the houses of the known rowdy and the victim. The expressions WP(CRL).NO.506/09 26 have to be reasonably understood. They are elastic enough to persuade the Court to understand the same without any specific stipulation or embargo on the distances. We are unable to introduce a requirement that a neighbour must be resident within any distance to be specified by the Court or that the expression "immediate neighbour" must exclude all who are not adjacently residing. Nor can any artificial idea about the distance between the two houses be introduced to understand the expression neighbour or immediate neighbour. The anxiety of the Legislature obviously was to ensure that only those who pose a threat to public order and not those who may pose threat to law and order, are brought within the provisions of the KAAPA. A crime in relation to a dispute between the neighbours was directed to be excluded under proviso (ii) only with this laudable purpose. The expressions "neighbour"
and "immediate neighbour" in proviso (ii) must be read and understood in this background and not mechanically or casually."
Apparently, the complainant in Crime No.127/07 and the detenu were having properties nearby, going by the version of the WP(CRL).NO.506/09 27 complainant himself and the incident is traced by him to the dispute arising from the same as apparently the detenu wanted the complainant not to step into his property and the complainant apparently was not prepared to yield and the detenu went and committed the crime alleged against him. In the Notes, which were produced before us, after referring to the representation of the detenu, it is stated that he has a pace-maker implanted in his body. There is reference to Crime Nos.100/04 and 202/08 and 208/08. In regard to the same, there is reference to the case of the detenu that Crime Nos.202/08 and 208/08 are disputes between neighbours and part of the same transactions. In regard to Crime No.127/07, it is stated is that it is on a false complaint.
16. In paragraph 19 of Ext.P2, it is stated that the case is false and apparently attempting to justify that statement, reference is made to the complainant having a property dispute with the detenu and it is in that context that reference is made to the complainant being a neighbour and there being a property WP(CRL).NO.506/09 28 dispute. In the Notes submitted before the Government, probably this is a reason why the only aspect which is projected is that the case is false. Learned counsel for the petitioner would point out that even in pleadings in the Courts relating to Habeas Corpus, it is settled law that in a country like India, the Court must not attach much importance to the lacuna in the pleadings or grounds. He would further point out that in paragraph 13 of Ext.P2, it is specifically stated that all the cases mentioned in the detention order fall under the exclusionary clause covered by Section 2(p) of the Act. He would further submit that this is a case where in the representation there is a case of malafides pleaded. He would submit that more importantly, if only the Government had looked into the F.I. Statement given by the complainant in Crime No.127/07 relating to C.C. No.176/08, it would have been clear that the detenu was entitled to the benefit of the exclusionary clause in Section 2(p). We have already referred to the said statement. He would also submit that if the Government had genuinely considered the WP(CRL).NO.506/09 29 representation, in view of the facts, the Government could have been satisfied about the absence of subjective satisfaction necessary to sustain the order of detention.
17. Of course, the learned Government Pleader would submit that paragraph 19 would not make out a case where the detenu has pleaded clearly that he is invoking the benefit of Clause (ii) to the proviso to Section 2(p). He would further submit that in the case referred to by the petitioner, there was a specific plea relatable to the particular exclusionary clause. He would submit that in paragraph 13, there is only a general statement. He would further contend that the allegations of malafides are not proved and also the allegeation was made vaguely against the Police Station as such. He would also point out in this regard that, in fact, Crime Nos.202/08 and 208/08 were investigated by two different Officers. He would further point out that paragraphs 14 and 15 of Ext.P2 would show that the detenu had specifically invoked Clause (ii) to the proviso to Section 2(p) in respect of Crime Nos.202/08 and 208/08. WP(CRL).NO.506/09 30
18. It is no doubt true that in paragraph 19 of Ext.P2, there is a reference to C.C. No.176/08 being a falsely registered complaint, based on a false complaint. The reason for the falsity is stated that the defacto complainant is his neighbour who had a property dispute with the detenu. He has a case that the property was falsely claimed by the defacto complainant which was objected to by him. Therefore, the thrust of the ground is on the complaint being false as such. But, at the same time, there is reference to the complainant being a neighbour who had a property dispute with him. In paragraph 13, the cases based on the detention order are stated to come under the purview of the proviso to Section 2(p) of the Act. It is no doubt true that in paragraph 14, in regard to Crime Nos.202 and 208/08, there is reference to dispute being between neighbours and also Mr. Jayan, the defacto complainant being his immediate neighbour. In this case we must also not overlook the fact that a perusal of the F.I. Statement of the defacto complainant which led to C.C. No.176/08 which has been referred to by us, would appear to WP(CRL).NO.506/09 31 bring the case within the ambit of Clause (ii) to the proviso to Section 2(p) of the Act. There is also reference in paragraph 19 to the defacto complainant being a neighbour having a property dispute with the detenu. The detenu has also stated in paragraph 13 that the cases based on which the detention order is made, would come within the proviso. There is also another aspect which we cannot overlook. In regard to the lodging of Crime Nos.202/08 and 208/08, the detenu has set out in the representation a case of malafides. In the circumstances of this case, we feel that the Government should have considered whether the detenu was entitled to the benefit of exclusion provided under Clause (ii) of the proviso to Section 2
(p).
19. In the light of the facts and circumstances of this case, we are of the view that there is merit in the complaint of the petitioner that there was no proper consideration of the representation as required in law. We cannot be oblivious to the context of the case being one relating to personal liberty and its WP(CRL).NO.506/09 32 deprivation. In such circumstances, we feel that the continued detention of the detenu cannot be sustained. Accordingly, we allow the Writ Petition and declare the continued detention of the detenu as illegal and we direct the detenu to be set at liberty, unless his custody is required in any other case.
The Registry will communicate this Judgment to the Superintendent of Central Jail, Kannur.
Sd/= K.M. JOSEPH, JUDGE Sd/= P.Q.BARKATH ALI, JUDGE kbk.
// True Copy // PS to Judge WP(CRL).NO.506/09 33