Kerala High Court
Thahira vs State Of Kerala on 6 January, 2009
Bench: A.K.Basheer, Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 390 of 2008(S)
1. THAHIRA, AGED 25 YEARS
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE ADDITIONAL CHIEF SECRETARY
3. THE SUPERINTENDENT
4. THE SUPERINTENDENT OF POLICE
5. THE CIRCLE INSPECTOR OF POLICE
6. THE DISTRICT MAGISTRATE/THE DISTRICT
For Petitioner :SRI.MURUGAN P.V.
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/01/2009
O R D E R
A.K.BASHEER & THOMAS P. JOSEPH, JJ.
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W.P.(Criminal) No.390 of 2008 S
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Dated this the 6th day of January, 2009.
JUDGMENT
Basheer, J.
Petitioner's husband Karattu Noushad (hereinafter referred to as "the detenu"), has been ordered to be detained in prison by the District Magistrate and District Collector, Kasaragod under Section 3(2) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short, `the Act'). Petitioner prays for issue of a writ of mandamus or such other appropriate order or direction to the respondents to release her husband from custody. There is a further prayer for issue of a writ of certiorari to quash Exts.P1 to P4.
2. It is contended by the petitioner that the order of detention (Ext.P1) is wholly illegal and vitiated inasmuch as her husband cannot be termed as a 'known rowdy' coming within the ambit of Section 2(p) of the Act. It is also contended that the authorized officer while issuing the order of detention ought to have noticed that the detenue had not been found to have committed any offence in three separate instances not forming part of the same transaction on complaints initiated by persons other than police officers.
3. Per contra, it is contended by Shri Raveendranath, learned Additional Director General of Prosecution that the authorized officer had issued the order of detention after considering the relevant materials placed before him WP(Crl.)No.390/2008 2 by a competent police officer namely, Superintendent of Police, Kasaragod. While inviting our attention to Ext.P1 order of detention it is pointed out by him that petitioner had been involved in not less than four cases between August, 2006 and February, 2008. In the counter affidavit filed on behalf of the second respondent specific reference has been made to those four crimes registered by the Hosdurg police against the detenue, viz., Crime Nos.374 of 2006, 392 of 2006, 463 of 2007 and 113 of 2008. It is further stated in the counter affidavit that the Government had considered the order of detention issued by the authorized officer and approved the same by its order No.73773/SS A5/2008/Home dated 6.10.2008 within the statutory period of 12 days as contemplated under Section 3(3) of the Act. Thereafter the Government had placed the entire materials before the Advisory Board which in turn had rendered its opinion to the effect that there was sufficient cause to detain Shri Karattu Noushad, the detenu for the maximum period of six months. The order passed by the Advisory Board has also been made available for our perusal by the learned Additional Director General of Prosecution.
4. It is on record that the detenu was taken into custody and detained in the Central Prison on 28.9.2008, pursuant to the order of detention issued by the authorized officer as revealed from Ext.P1 which is in fact a composite order containing the grounds of detention as well. As mentioned earlier, in Ext.P1 the authorized officer has referred to various crimes registered against the detenu between 2006 and 2008. In Crime No.392 of 2006 registered by the Hosdurg police, the detenu and his associates were chargesheeted for the WP(Crl.)No.390/2008 3 offences punishable under Sections 457 and 380 of the Indian Penal Code. The case was that the accused persons had broken open the lock and entered a temple and stolen certain ornaments kept therein. It is further revealed that the detenu was convicted for the offences alleged against him in C.C.No.345 of 2007 on the file of Judicial Magistrate of First Class-I, Hosdurg and sentenced accordingly to undergo simple imprisonment for one and a half years.
5. In C.C.No.1008 of 2006 which is pending on the file of the Judicial Magistrate of First Class-I, Hosdurg, the detenu faces trial for the offences punishable under Sections 457 and 380 IPC. The case against the detenu and the four co-accused in this case (Crime No.374 of 2006) is that they had broken open the lock and entered a temple and committed theft of ornaments. The above case was also chargesheeted by Hosdurg police.
6. Crime No.463 of 2007 was registered by the Hosdurg police against the detenu and other co-accused for offences punishable under Sections 457 and 394 read with Section 34 IPC. Allegation against the accused in that crime is that they had broken open and entered into the complainant's house and threatened the inmates at the point of a knife and caused injuries to them while committing theft of gold ornaments. The above case is pending trial in C.C.No.1321 of 2007 on the file of the Judicial Magistrate of First Class-I, Hosdurg.
7. In Crime No.113 of 2008 registered by the Hosdurg police against the detenu and other co-accused is for offences punishable under Sections 186 IPC and under Section 3(1) of the Prevention of Destruction of Public Property WP(Crl.)No.390/2008 4 Act. The charge against the detenu and the co-accused is that they had broken open the window bars of the court building of Judicial First Class Magistrate-II, Hosdurg and caused damage to the tune of Rs.1,000/-. The above case is also stated to be pending on the file of the Judicial First Class Magistrate-I, Hosdurg.
8. It is revealed from the records that the authorised officer had taken into account the above materials as revealed from the report of the Superintendent of Police while issuing Ext.P1 order of detention. The grounds of detention were recorded in the said order.
9. The primary contention raised by the petitioner is that the detenu would not fall within the ambit of Section 2(p) at all.
10. Section 2(p) of the Act defines `known rowdy' as hereunder:-
"(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;-
(i) made guilty, by a competent Court at least once for an offence of the nature under item (i) of clause (t) of Section 2 or any offence notified as such under the said clause; or
(ii) made guilty, by a competent Court at least twice for any offence of the nature under item (ii) of clause (t) of Section 2 or any WP(Crl.)No.390/2008 5 offence notified as such under the said clause;
or
(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 (t) of Section 2."
11. A perusal of the above definition clause shows that any person who had been, by reason of acts done within the previous seven years as calculated from the date of order imposing restriction or detention under the Act, found guilty by a competent court atleast once for an offence of the nature under item No.(i) of clause (t) of Section 2 of the Act or any offence notified under the said clause shall be treated as a `known rowdy'. Similarly any person who had been found guilty by a competent court atleast twice of any offence of the nature mentioned in item No.(ii) of clause (t) of Section 2 of the Act shall also fall within the ambit of `known rowdy'. Sub-clause (iii) of Section 2(p) extracted above will show that any person who had been found to have committed any offence mentioned in clause (t) of Section 2 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 WP(Crl.)No.390/2008 6 transaction, would fall within the ambit of clause (p) of Section 2 of the Act.
12. "Rowdy" as defined in Section 2(t) of the Act 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 offence under Sections 153A and 153B of Chapter VIII, XV, XVI, XVII and XXII of the Indian Penal Code, 1860 or any offence under the provisions of the Arms Act, 1959 or the Explosives Substances Act, 1908. Thus a conjoint reading of the definition of `known rowdy' and `rowdy' will clearly show that any person who had been found involved in three separate instances not forming part of the same transaction mentioned in clause (t) of Section 2 of the Act will fall within the ambit of `known rowdy'. Annexures I to III in Ext.P4 containing details of the cases pending against the detenu will clearly show that all the three cases were initiated on the basis of complaints received from persons other than police officers. Thus, these cases would fall within Sub-clause (iii) of Section 2(p) of the Act.
13. We have carefully perused the entire materials placed on record by the petitioner and the learned Additional Director General of Prosecution. We are satisfied that the order of detention issued by the authorized officer which has been confirmed by the Government, does not warrant interference under Article 226 of the Constitution of India. The materials placed on record will undoubtedly show that detention of the detenu was warranted in the facts and circumstances of the case especially in view of the fact that in one of the four crimes registered against the detenu he had been found guilty already. The other three cases are still pending trial. We also notice that in two of the four WP(Crl.)No.390/2008 7 cases the detenu and the co-accused had allegedly committed theft of ornaments from temples while in the third case, the detenu had allegedly trespassed into a residential building and committed theft of gold ornaments after putting the inmates of the house in fear of their lives at the point of a knife. In the fourth case, the detenu and co-accused had caused damage to a court building,
14. Thus, having regard to the nature of the offences also we are satisfied that the competent authority was justified in ordering detention of the detenu under the Act. We do not find any material illegality and irregularity in the order of detention passed by the competent authority.
Writ Petition fails and it is accordingly dismissed.
A.K.BASHEER, Judge.
THOMAS P.JOSEPH, JUDGE.
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