Stenny Aleyamma Saju vs State Of Kerala And Others on 12 August, 2011

[Cites 45, Cited by 8]

Kerala High Court

Stenny Aleyamma Saju vs State Of Kerala And Others on 12 August, 2011

Does the law declared by a Division Bench of this Court in Elizabeth George Vs. State of Kerala [2008 (4) KLT 425], holding that filing of charge sheet under Section 173 (2) of Cr.P.C. is not necessary to invoke the power and pass an order under Section 3 (1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ['the KAAPA' in short] require reconsideration ?

When can it be authentically stated that a person "had been found" in/on investigation by a competent police officer/such other authority/Court as the case may be, to have committed any act/offence within the meaning of the term "known goonda"

or "known rowdy" under Section 2 (o) (ii) and (p) (iii) respectively of the KAAPA ?

W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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Will the acquittal of the accused/detenue in one of the three cases referred to in W.P. (Crl.) No. 410 of 2011 - witnesses having been turned hostile and also pursuant to amicable settlement (between parties) tilt the balance in favour of the detenue to contend that the provisions of KAAPA/Section 3 will not be attracted under such circumstances ? These are the points to be answered in these cases, apart from the question whether there was proper application of mind on the part of the detaining authority and the order of preventive detention is sustainable ?

2. In W.P.(Crl.) No. 410 of 2011 an interim order is seen passed by the Division Bench to cause the detenue to be released on conditions [without arriving at a finding on facts]; whereas no such interim order has been passed in the other case. The matter has been referred to by the learned Judges, vide order dated 11.10.2011 in W.P.(Crl.) No. 410 of 2011; observing that though the very same issue was referred earlier by way of separate orders of reference passed on 09.09.2009 in W.P.(C) No. 20606 of 2009 and on 16.12.2009 in W.P.(Crl.) No. 460 of 2009, the proceedings were never taken to a logical conclusion and the reference was not W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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answered, as by the time Full Bench concerned considered the matter, the maximum period of detention [6 months] was already over. In the said circumstances, the above Writ Petitions came to be closed as per the verdict passed by the Full Bench on 30.11.2010 in W.P.(C) No. 20606 of 2009 and connected cases. It was accordingly, that reference to those orders was also made in the subsequent order dated 11.10.2011 in W.P.(Crl.) No. 410 of 2011, stating that it will be in continuation of the earlier orders as aforesaid, to be read in conjunction, for proper appreciation of the points involved. In the order dated 23.08.2013 in W.P.(Crl.) No. 295 of 2013, the order of reference dated 04.10.2011 in W.P. (Crl.) No. 410 of 2011 was adverted to, and since the issue was found pending consideration before the Full Bench, W.P.(Crl.) No. 295 of 2013 also came to be referred/ordered to be tagged along with the said case.

3. Heard Sri. C. Rajendran, the learned counsel appearing for the petitioners in both the cases and Sri. K. Anas, the learned Government Pleader appearing for the State/Department.

4. By virtue of the powers conferred upon the State with reference to Entry No. 3 in the 'Concurrent List' [List III] of the 7th W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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schedule to the Constitution of India, the State of Kerala has enacted KAAPA, specifically to provide for the effective prevention and control of certain kinds of anti-social activities in the State of Kerala. By virtue of the power conferred upon the authority under Section 3 of the KAAPA, if such authority gets satisfied on the information received from a Police Officer not below the rank of Superintendent of Police, with regard to the anti-social activities being committed by any 'known goonda' or 'known rowdi' [as defined under the Act] within the State of Kerala; it is open for the said authority to detain such person.

5. As per the Scheme of the Statute, such order has to be approved by the Government within 12 days, failing which, the order will become inoperative. The rights of the citizens are sought to be protected by specifically providing that the grounds of detention should be communicated to the detenue, also serving a copy of the order and informing him as to his right to represent to the Government and also before the Advisory Board against his detention, in terms of Section 7(2) of the Act. On furnishing the information by the Advisory Board expressing opinion as to the sufficient cause for detention, it has to be confirmed by the W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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Government in terms of Section 10 (4) of the Act.

6. So as to express/record satisfaction of the detaining authority, twin circumstances have to be fulfilled. First one is the 'objective satisfaction' that the persons concerned is a 'known goonda' in terms of Section 2 (o) (ii) of the Act or 'known rowdy' in terms of Section 2 (p) (iii) of the Act. The second one is the 'subjective satisfaction', of course, based on the report of the Police Officer not below the rank of Superintendent of Police and such other materials that the detenue has pursued 'antisocial activities' by virtue of his past conduct referred to and that there is chance for perpetuating similar instances detrimental to the society at large, affecting the 'public order' which hence requires to be prevented by passing an order of detention. The role to be played by the detaining authority is very important, and the satisfaction requires to be established with proper application of mind.

7. Earlier, a question came up for consideration before this Court in Safiya Vs. State of Kerala [2009 (1) KLT 7] as to whether all the materials leading to the final report [under Section 173 (2) of the Cr.P.C.] should be made available to the detenue to sustain the order of detention passed under Section 3. The Bench W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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held that once the final report is filed by the Investigating Officer and it is forwarded with the report of a Police Officer not below the rank of the Superintendent of Police, leading to the consideration of same and expression of satisfaction by the detaining authority, it is not necessary to have all the supporting materials also to be made available to the detenue. The dictum of the said ruling was sought to be projected as if the Bench had held that once a final report was filed by the Investigating Officer, nothing else was required to be looked into. The scope of the said verdict was considered by another Bench of this Court in Uma Vs. State of Kerala [2010 (4) KLT 511] and it was held that Safiya's case [cited supra] could not be read and understood as laying down any such proposition. Subsequently, by way of separate proceedings in another case, it was observed that, it could not be said that the detaining authority was a prisoner to the finding of the Investigating Officer and that the order of detention should be passed by the detaining authority himself with proper application of mind. Pursuant to the reference order dated 01.12.2010, doubting the correctness of the 'adverse observations' in Safiya's case [cited supra], it came up for consideration before the Full Bench W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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and we answered the position in black and white terms, as per order passed in W.P.(Crl.) No. 392 of 2010 clearly holding that Safiya's case [cited supra] did not say so; that there is no conflict between Safiya's case [cited supra] and Uma's case [cited supra] and further that the Scheme of the Statute was quite categoric to the effect that the order to be passed by the detaining authority under Section 3 (1) of KAAPA is to be based on the satisfaction of the detaining authority himself, on the basis of the materials made available in terms of the Statute and not as a rubber stamp to the version put forth by the Investigating Officer/Police. The above aspects have been mentioned here only to appreciate the Scheme of the Statute and to answer the reference involved herein, in a more effective manner.

8. To have a better analysis of the legal provisions, it will be worthwhile to make a reference to Section 2 (a) defining 'anti- social activities', Section 2 (o) (ii) and Section 2 (p) (iii) defining the terms "known goonda" and "known rowdy" respectively. Similarly Section 3 is also relevant and hence the above provisions are extracted below :

"Section 2. Definitions - In this Act, unless the W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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context otherwise requires,-

(a)- "anti-social activity" means acting in such manner as to cause or is likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to the safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in clauses (c), (e), (g), (h), (i), (l), (m),(n),(q), (qb) and (s) of this section.

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(o) " known goonda" means a goonda who had been, for acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,--

*******

(ii) found in any investigation or enquiry by a competent police officer, or other authority or competent court on complaints initiated by persons other than police officers, in two separate instances not forming part of the same transaction, to have committed any act within the meaning of the term 'goonda' as defined in clause (j) of section 2.

W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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Provided that an offence in respect of which a report was filed by a police officer before a lawful authority consequent to the seizure, in the presence of witnesses, of alcohol, spirit, counterfeit notes, sand, forest produce, articles violating copyright, narcotic drugs, psychotropic substances, or currency involved in hawala racketeering may be included for consideration though the report had resulted from an action initiated by a police officer.

Explanation:- An instance of an offence involving a person, which satisfies the conditions specified in the definition of known rowdy referred to in clause (p) of section 2 can also be taken into consideration as an instance, along with other cases, for deciding whether the person is a known goonda or not.

*********

(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 W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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clause; or

(ii) made guilty, by a competent court at least twice for any offence of the nature mentioned under item (ii) of clause (t) of section 2 or any 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:

Provided that:

****** ****** "Section 3. Power to make orders for detaining Known Goondas and Known Rowdies (1) The Government or an officer authorised under sub-section (2), may, if satisfied on- information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that, with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained.

W.P. (Crl.) Nos. 410 of 2011 and 295

of 2013.

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(2) If having regard to the circumstances prevailing, or likely to prevail in any area, the Government, if satisfied that it is necessary so to do, may, by order in writing, direct that during such period as may be specified in the said order, the District Magistrate having jurisdiction may exercise the powers under sub-section (1) 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 or abet any anti-social activities within such jurisdiction.

(3) When any order is made under this section by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government."

9. By virtue of the Scheme of the Statute, the person W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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indulging in anti-social activities is a 'goonda' as defined under Section 2 (j) of the Act which includes 'rowdy' as well. Once a person, by virtue of such activities, gets/fits into the slot of 'known goonda' or 'known rowdy', as the case may be [in terms of Section 2(o) / 2(p) of the Act], it may give rise to a cause of action to proceed with further steps in terms of Section 3, subject to the requirements therein. As per the order of reference, it has been observed that a person can be found as engaged in 'anti-social activities' as a 'known goonda' or 'known rowdy' only after completion of the investigation and never during the course of investigation. Eventhough the Investigating Officer may proceed against anybody, even by arresting him later on collecting further materials and on conclusion of the investigation, it is still possible that such person may be spared as innocent. As such, completion of investigation by the Investigating Officer is stated as a 'sine quo non' to arrive at a finding by the Investigating Officer, which is to be the basis for the report to be submitted by the Police Officer not below the rank of Superintendent of Police; in turn to be scrutinized by the detaining authority for passing detention order in terms of Section 3 (1) of the Act. With great respect, this Court W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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finds it difficult to accede to the said proposition for various reasons.

10. KAAPA is an enactment providing for detention as several other preventive detention Statutes like Conservation of Foreign Exchange and Prevention of Smuggling Act [COFEPOSA], National Security Act [NSA], Maintenance of Internal Security Act [MISA] etc. The detention in all preventive detention matters is not based on guilt of the detenue, but on the basis of strong suspicion to have indulged in objectionable activities which affect the society/nation at large. In other words, there is black and white difference between 'punitive detention' and 'preventive detention'; the former being a proceeding by way of imposition of punishment for the offence already committed by the accused; whereas in the case of the latter, it is only to prevent occurrence of any such act which is recorded as possible by virtue of the past conduct of the detenue. In the case of preventive detention, the mischief is more against the society at large, adversely affecting the 'public order', which is at a much higher pedestal than the pedestal occupied by the 'law and order' situation. By way of 'punitive detention', the undesirable consequences which have already been resulted [by W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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virtue of commission of offence] cannot be ruled out and the sentence is only to punish the guilty and to send a message as to consequences to the public at large. But in the case of 'preventive detention', the probable damage to be caused is of much more magnitude, as it is likely to affect the 'public order' and hence the law makers have consciously decided to take preventive measures rather than cure, thus giving rise to such Statute to abate the possible repetition/recurrence of adverse act/offence and the consequence. At the same time, the basic liberty granted to the citizen in terms of Article 21 of the Constitution of India will have to be safeguarded. This was well in the minds of the framers of the constitution as well, who hence provided sufficient requirements by way of Article 22 (5) and such other provisions as to the various procedures to be complied with in the matters of 'preventive detention' as it was an exception carved out to the personal liberty by way of Article 22 (3) (b) of the Constitution. As made clear by the Supreme Court, there is no charge sheet in a matter of preventive detention, unlike the matters of punitive detention. Reasonable chance for repetition of the acts/offence, based on the past conduct of the detenue, if discernible from the materials W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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produced, is sufficient for the detaining authority to record his satisfaction and to pass an order of detention. Such reasons/grounds need not conclusively prove the guilt of the accused as in the case of punitive detention - wherein the degree of proof required to find a person guilty and to impose punishment is beyond all reasonable doubts. As it stands so, the expression used "found in any investigation" by the police/investigating officer, as used in Section 2 (o) (ii) or Section 2 (p) (iii) of the KAAPA, cannot be misunderstood or misconstrued as analogous to the level for arriving at the guilt of the accused for imposing any punishment on proving the guilt.

11. This can be approached in another angle as well. As mentioned already, the instances connected with preventive detention are matters of more importance in so far as the society at large is concerned, where preventive measures are also consciously designed to be pursued, besides the already existing machinery to tackle the accused and punish him once he is found guilty by the Court. A stray incident as to the commission of any offcence/activity is not enough to proceed against the person concerned. Number of such instances to proceed against is more, W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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as specified, upon which it requires to be interdicted to prevent further damage to the 'public order'. In respect of such instances, once the investigation is started by the Police and sufficient materials are collected by the Investigating Officer, it may be quite possible to find the involvement/commission of act/instance by the detenue, which alone is sufficient for proceeding further by way of preventive detention, which is only a prudent step under the jurisprudence of suspicion. Still, the Investigating Officer may have to proceed further to collect more particulars and supplement the missing links, if any, to connect all the links to form a chain, especially in a case where circumstantial evidence alone is available. Even in a case where ocular evidence is available, completion of investigation and submission of charge sheet may be delayed due to various circumstances. There may be delay in getting the report of the expert; that there may be delay in getting report of postmortem examination or lab report on chemical analysis; opinion from finger print bureau; results from the narco analysis bureau or such other aspects. These materials may be necessary to corroborate the evidence already collected and to be arrayed in a sequence before the Trial Court, for proceeding against W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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the accused by way of 'punitive detention'; to prove the guilt beyond reasonable doubt and get the offender convicted and sentenced, since the degree of proof required to punish the accused in a criminal case is much higher. The position may not be so when it comes to 'preventive detention', where the past conduct of the detenue is sufficient to be analysed in the light of the materials collected, to arrive at a finding/expression of opinion that there is a chance to repeat the offence/activity, which forms the basis to have it prevented by way of passing an order of detention. So the realm occupied by the order of 'preventive detention' is much on different pedestal than the field occupied by the 'punitive detention'. This being the position, it cannot be said that unless the investigation is completed and the charge sheet is submitted by the Police/Investigating Officer, the power and procedure under Section 3 of the KAAPA cannot be pressed into service. This otherwise will frustrate the purpose of the legislation, which definitely is not the intention of the law makers.

12. In the order of reference, the view already expressed by the Bench in Sathi Vs. State of Kerala [2009 KHC 769] has been referred to. In the said case, while expressing disagreement W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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with the view expressed in Elizabeth's case [cited supra], it was specifically observed that, in view of other grounds available [based on which the writ petition was being allowed], it was not necessary to have the issue referred to the Full Bench. As a matter of fact, the points considered in the said case are as given below :

"(i) In the light of S.7(3) of the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to as the 'KAAPA'), is the omission to furnish translated copies of some of the documents relied on by the Detaining Authority to be reckoned as fatal warranting invalidation of detention on that ground?

(ii) Is the omission to specify any period of detention in the order of detention passed under S.3(1) and approved under S.3(3) to be reckoned as evidence of fatal non application of mind by the detaining authority warranting invalidation of the order of detention?

(iii) Can the detaining authority place reliance on any confidential and secret information not revealed to him specifically which the sponsoring authority or his subordinates may have in their possession to entertain the requisite subjective satisfaction under S.3 on the need to detain a known goonda or known rowdy?" W.P. (Crl.) Nos. 410 of 2011 and 295

of 2013.

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As observed in paragraphs 3 and 4 of the said judgment, the detenue was an accused in 12 earlier criminal cases at different points of time (where he was already acquitted) and that '5 cases' were still pending. In all the said '5 cases', final report had already been filed by the police. As such, whether final report was necessary to have passed an order of detention under Section 3 (1) of the Act was actually not a subject matter for consideration. It came to be referred to only when the learned counsel for the petitioner submitted that the date of filing the final report was irrelevant and that even the final report under Section 173(2) of Cr.P.C. itself was not necessary in the light of the ruling in Elizabeth's case [cited supra]; which made the Court to differ and make some observations in this regard, as contained in paragraphs 60 and 61. The preventive detention order was set aside for the reason that there was no proper application of mind to the relevant facts.

13. Earlier, reference was made to the verdict rendered by the very same Bench in Ranjini Vs. State of Kerala [2009 (3) KLT 500]. The questions considered were mainly;

"(i) Whether a Deputy Commissioner of Police is W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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competent to file the report under Section 3 (1) of the Act ?

(ii) Which is the date to be reckoned for calculating the "7 years period" for the purpose of S 2 (p); (i) date of commission of offence or (ii) date of filing charge sheet ?

(iii) Whether the requisite satisfaction formed on the basis of an incomplete investigation is sufficient to attract S. 2(o) (ii) of S. 2 (p) (iii) of the Act ?"

Here also, interference was made and the detention order was set aside on other grounds, but for expressing disagreement with regard to the dictum laid down in Elizabeth's case [cited supra] as cited by the Additional D.G.P. It was also a case where charge sheet had already been submitted and as such, 'whether filing of charge sheet and finalization of investigation was a pre-requisite' was actually not a subject matter for consideration. Interference was made only on 'ground No. 5' i.e. with reference to omission to furnish the relevant report dated 13.03.2009 to the detenue, adversely affecting his right to know the grounds of detention and to make effective detention.

14. There was an occasion for a '4 member Bench' of the W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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Apex Court to consider the nature and scope of Article 22 of the Constitution of India. As per the decision rendered in Khudiram Das Vs. The State of West Bengal and Others [(1975) 2 SCC 81], the Bench held that Article 22 provides various safeguards calculated to protect personal liberty against arbitrary restraint without trial. These safeguards cannot be regarded as substantial, but essentially procedural in character and their efficacy depends on the care and caution and sense of responsibility with which they are regarded by the detaining authority. The Bench proceeded further to hold that the constitutional imperatives enacted under Article 22 are mainly two fold. Firstly; that the detaining authority, as soon as practicable after the detention, shall communicate to the detenue the grounds on which the order of detention has been made and secondly; the detaining authority must afford the detenue the earliest opportunity of making a representation against the order of detention. The communication of the grounds of detention is intended to subserve the purpose of enabling the detenue to make an effective representation. The Apex Court made it clear that the term 'grounds' means all the basic facts and materials which have been taken into account by the detaining W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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authority in making the order of detention and on which the order of detention is passed. If these facts [to express the subjective satisfaction as to the requirements of the Statute and to pass an order of detention] are available from the materials made available before the detaining authority, through the Police Officer not below the rank of Superintendent of Police, the order of detention will not be liable to be declared as bad for want of submission of final report under Section 173 (2) of Cr. P.C. by the Police - purpose of which is entirely different to establish the 'guilt' before the Trial Court, beyond reasonable doubt, to prove the accused guilty and to have him punished by appropriate sentence to be imposed.

15. In W.P.(Crl.) No. 410 of 2011, a contention has been raised by the petitioner [and a question has been framed by the Reference Court] as to the acquittal of the detenue in one of the 'three' criminal cases - vide Ext. P5 verdict and hence that it should not have been taken into consideration for satisfying the ingredients of the relevant provisions of the 'KAAPA'. As per the Scheme of the Statute, the commission of offence by the detenue in the past seven years from the date of passing detention order will come into the zone of consideration. The mere fact that the W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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accused in one of such cases had already been acquitted, would not be a bar for exercising the power of the detaining authority; obviously, for the reason that such acquittal need not be what is popularly called as 'honourable acquittal' in all cases, but may be giving the benefit of doubt on failure of the prosecution to prove the offence beyond reasonable doubt or due to such other circumstances including settlement of the same between the parties. In the instant case, it is clearly stated in Ext. P5 that only PW1 to PW3 were examined; that all the witnesses had turned hostile and nothing could be elicited from their cross examination made by the prosecutor. It was in the said circumstances that the other witnesses were given up. It is further stated in 'paragraph 9' of Ext. P5 verdict that the issue was sorted out and settled between the parties, which presumably made the witnesses to turn hostile. As it stands so, the acquittal or discharge under such circumstances will not enable the party to contend that he will not come within the purview of the Statute. This Court finds support from the ruling rendered by the Apex Court in AIR 1975 SC 919 [Sadhu Roy Vs. The State of West Bengal] [authored by Mr. Justice V.R. Krishna Iyer for the Bench] specifically observing in W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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paragraph 6 that discharge or acquittal by a criminal court is not necessarily a bar to 'preventive detention' on same facts for security purposes. If the witnesses are frightened off by a desperate criminal, the Court may discharge for deficient evidence, but on being convinced [on police or other materials brought up for consideration] that the witness had been scared off, the District Magistrate may still invoke his preventive power to protect the society. We also find that similar view was expressed by another Bench of this Court in Vijayamma and another Vs. State of Kerala and Others [2014 (4) KLT 563 = 2014 (4) KHC 368] to the effect that the detenue, challenging the order of detention after arriving at a settlement and getting the case against him quashed, cannot be granted any benefit and such steps should not be allowed to torpedo any order of preventive detention, which otherwise could be passed by the detaining authority on satisfaction of the requirements under the Statute.

16. The importance of 'preventive detention' to curb the menace possibly to be caused to the public order/society has been explained by the constitution Bench of the Apex Court in Ram Manohar Lohia Vs. State of Bihar and another [AIR 1966 SC W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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740 = 1966 KHC 494]. Paragraphs 52 and 53 throw much light on the subject, which hence are extracted below :

"52. We have here a case of detention under R. 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order" take in every kind of disorders or only some of them ? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community of the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under R. 30 (1) (b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

52. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order"

also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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order just as an act may affect public order but not security of the State. By using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules."

17. In W.P. (Crl) No. 410 of 2011, after differing with the view expressed in Elizabeth's case [cited supra] and passing an order of reference, the learned Judges have passed an order virtually amounting to setting aside of the detention order and releasing the detenue on conditions. Apparently, the reference order does not reveal any reason to have interfered with the order under challenge on merit; especially when all the aspects were caused to be referred to the Full Bench including the merit of the 3 specific grounds, besides the validity of the dictum in Elizabeth's case [cited supra] as evident from 'paragraphs 14 & 15' of the reference order. This Court finds that the said interim order is as good as 'final relief', which hence could not have been granted in the form of interim relief, in view of the law declared by the Apex Court in Bank of Maharashtra Vs. Race Shipping and Transport Co. Pvt. Ltd and another [JT 1995 (3) SC 175]. W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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The observation made by the Apex Court in the said decision is extracted below for convenience of reference:

'The practice of granting interim orders which practically gives the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations is deprecated.'

18. The course of such practice granting 'final relief' in the form of 'interim order', particularly quashing the order of detention at the pre-detention stage and the circumstances under which it could be done was highlighted by the Apex Court in Additional Secretary to the Government of India and Ors. Vs. Smt. Alka Subhash Gadia and Anr. [1992 Supp. (1) SCC 496]. Making a reference to the said case, the Apex Court held in Hare Ram Pandey Vs. State of Bihar and Others [AIR 2004 SC 738 = 2004 KHC 481] that the delay in execution of the detention order sought to be relied on by the appellant who tried to pursue various dilatory tactics to deflect the court of justice was never to be taken to the advantage of the wrong-doer. The objects of 'preventive detention' were explained in 'paragraph 6' which is reproduced W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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below :

"Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of preventive detention. Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of prevention detention is not punitive but only preventive. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the concerned law. The acting of Execution in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner, the failure to conform to which should lead to detention. The satisfaction of the Detaining Authority, therefore, is a purely subjective affair. The Detaining Authority may act on any material and on any information that it may have before it. Such material and information may merely afford basis for a sufficiently strong suspicion to take action, but may not W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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satisfy the tests of legal proof on which alone a conviction for offence will be tenable. The compulsions of the principle need to maintain order in society without which the enjoyment of all rights, including the right to personal liberty would loose all their meanings are the true jurisdiction for the laws of prevention detention. The pressures of the day in regard to the imperatives of the security of the State and of public order might require the sacrifice of the personal liberty of individuals. Laws that provide for preventive detention posit that an individual's conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of a possible future manifestations of similar propensities on the part of the offender. This jurisdiction has been called a jurisdiction of suspicion. The compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment for individual liberty. "To, lose our country by a scrupulous adherence to the written law" said Thomas Jefferson "woudl be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the needs". This, no W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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doubt, is the theoretical jurisdiction for the law enabling prevention detention. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by the genius of its administration so as to strike the right balance between individual liberty on the one hand and the needs of an orderly society on the other."

19. The scope of the orders to be passed by the detaining authority, in exercise of power of 'preventive detention', was further explained by the Apex Court as per the verdict rendered in Union of India Vs. Paul Manickan [2004 (1) KLT 364 = 2004 KHC 62]. The relevant portion as contained in 'paragraph 7' is reproduced below :

"7. ..........................................Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the executive is convinced on the materials available and placed before it that such detention as necessary in order to prevent the person detained from acting in a matter prejudicial W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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to certain objects which are specified by the law. The action of executive in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct, the failure to conform to which alone should lead to detention. In case of preventive detention of a citizen, Article 22(5) of the Constitution enjoins the obligation of the appropriate government of the detaining authority to accord the detenu the earliest opportunity to make a representation and to consider that representation speedily. The right to make a representation implies right of making an effective representation. It is the constitutional right of the detenu to get all the ground on which the order has been made. As has been said by Benjamin Cardozo, "A Constitution states or ought to state not rules for the passing hour but the principles for an expanding future." The concept of grounds used in the context of detention in Article 22(5) has to receive an interpretation which will keep it meaningful in tune with contemporary notions of the realities of the society, and the purposes of the Act in the light of concepts of liberty; and fundamental freedoms. While the W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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expression "grounds" for that matter includes not only conclusions of fact but also all the basic facts on which those conclusions were founded; they are different from subsidiary facts or further particulars of the basic facts. The detenu is entitled to obtain particulars as to the grounds which will enable him to make an effective representation against the order of detention.

20. In Elizabeth's case [cited supra], the points which came up for consideration were;

"(i) Whether seizure of alcohol, spirit etc. from the possession of the alleged offender himself is necessary to attract the proviso to S. 2 (o).

(ii) Whether grant of bail or possibility of grant of bail prevent the detaining authority from passing an order of detention;

(iii) Whether non-supply of documents, which have bearing on the question of detention is fatal or not."

The detention order was held as bad, for the reason that the detaining authority had failed to furnish the materials to the petitioner, under which circumstance, the liberty was granted to the authority to pass fresh orders after curing the defect. It was also W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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held that, by virtue of the Scheme of the Statute and different expressions used in the relevant provisions of law, 'final report' as envisaged under Section 173 (2) of Cr.P.C. as such was not essential for action under Section 3 of the KAAPA. Granting of opportunity to pass 'fresh detention order', after setting aside the order under challenge because of the procedural infirmities, is seen deprecated by the Bench who passed the reference order elsewhere. We respectfully disagree with the reasons stated therein, as such liberty was granted by the Bench in Elizabeth's case [cited supra] by virtue of the specific provisions available in the Statute itself. Section 13 (2) (iii) of the KAAPA clearly stipulates as to the course which should be pursued under such circumstances, which grants such liberty and this alone has been done by the Bench in Elizabeth's case [cited supra]. Reliance was also placed on the verdict passed by this Court in 2002 (2) KLJ 464 [Aysha Nazreem Vs. Government of Kerala & Ors.] which was rendered in terms of the judgment passed by the Apex Court in Naranjan Singh Nathawan Vs. State of Punjab [AIR 1952 SC 106]. It was over and above the judicial precedents that reference was made to Section 13 of the Act, which reads as W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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follows:

"13. Revocation of detention order : (1) A detention order may, at any time, be revoked or modified by the- Government.

(2) The revocation or expiry of a detention order shall not be a bar for the issuance of another detention order under section 3 against the same person, if he continues to be a person falling within the definition- of- known-

rowdy or- known- goonda as- given- in- section 2 (o) or section 2 (p) and if,---

-(i) after release, he is, found to have, again involved in an offence of the nature described in section 2(o) or section 2 (p); or at least one instance; or

(ii) the facts, which came to the notice of the Government or the authorised officer after the issuance of the earlier detention order, considered along with previously known facts are sufficient to cause a reasonable apprehension that he is likely to indulge in or promote or abet antisocial activities; or

(iii) the procedural errors or omissions, by reason of which the first order was revoked, are rectified in the procedure followed with regard to the subsequent order, even if the subsequent order is based on the very same facts as the first order."

W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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This being the position, the law declared by the Bench in Elizabeth's case [cited supra] is perfectly within the four walls of the law and does not warrant any interference.

21. The validity of the detention order, even in the case of a person in custody, had come up for consideration before the Apex Court in Kamarunnissa Vs. Union of India and Anr. [AIR 1991 SC 1640] and it was held in 'paragraph 13' as follows :

"From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. What this court W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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stated in the case of Ramesh Yadav, (AIR 1986 SC 315) (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This stems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody.

22. Placing reliance on Elizabeth's case [cited supra], another Division Bench of this Court in Beji Vs. State of Kerala and Others [2012 (3)0 KLT 255 = 2012 (3) KHC 363] has held that completion of investigation or filing of final report under Section 173 (2) of Cr. P.C. is not a pre-condition to invoke the power and pass an order of preventive detention under Section 3 W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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(1) of the KAAPA. The different terminologies used in the relevant provisions have been discussed in detail in 'paragraph 9', which is reproduced below :

9. Under sub-clause (iii) of clause (p) of S.2 of the KAAPA, the person concerned must be found, on investigation or enquiry, by a competent police officer or other authority, to have committed any offence mentioned in clause (t) of S.2. The interpretation of the expression "investigation or enquiry" in sub-clause (iii) becomes relevant in this context. "Investigation", as defined in S.2(h) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.'), includes all proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate), who is authorised by a Magistrate in that behalf. "Inquiry", as defined in S.2

(g) of the Cr.P.C. means, every inquiry, other than a trial, conducted under the Code by a Magistrate or Court. Sub-clause (iii) of clause (p) of S.2 of the KAAPA also stipulates that the finding must be on complaints initiated by persons other than the police officers. The expression "complaint" is not defined in the KAAPA.

"Complaint" is defined in S.2(d) of the Cr.P.C, as follows:

"2.(d) "complaint" means any allegation made W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."

Sub-clause (iii) of clause (p) of S.2 of the KAAPA nowhere mentions about Court, while in the definition of "known-goonda" in sub-clause (ii) of clause (o) of S.2, mention is made about investigation or enquiry by a competent police officer, authority or competent Court. Sub-clause (iii) of clause (p) of S.2 insists that the investigation or enquiry must relate to acomplaint initiated by persons other than police officers. A private person cannot make a complaint to a police officer, if we take the expression' 'complaint'' as having the same meaning, as defined in S.2(d) of the Cr.P.C. That means, the expression "complaint" is used in sub-clause (iii) of clause (p) of S.2 of the KAAPA in the ordinary parlance and not for conveying the meaning of "complaint", as defined in S.2(d) of the Cr.P.C. The requirement is that the case is not registered by the Police suo motu, but the case is registered at the instance of an aggrieved person or at the instance of a person who has got relevant information. That is to ensure that cases are not booked without substance in W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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an attempt to see that a person is detained under the KAAPA. At the same time, there cannot be any investigation, if a charge is laid. If the investigation is over, that must result in a final report under S.173(2) of the Cr.P.C. If the intention of the Legislature was that the offending acts must be found to have been committed, and that it must be revealed in a final report, there was no difficulty for making it clear in sub-clause (iii) of clause (p) of S.2 of the KAAPA. On the other hand, the specific expression "investigation" is used in sub-clause (iii). The expression "enquiry" is also used, to ourmind, as in ordinary parlance. There cannot be any enquiry by a police officer, if it is an "inquiry", as defined in clause (g) of S.2 of the Cr.P.C. Therefore, we are of the view that the word "enquiry" is used in sub-clause (iii) of clause (p) to mean that after making sufficient enquiries, the Investigating Officer is satisfied that the person concerned has committed the offence mentioned in clause (t) of S .2. In other words, to found an order of detention on the ground that the person concerned is a "known-rowdy", it is not necessary that the final report under S.173(2) of the Cr.P.C. should be filed in the cases concerned. It is sufficient, if investigation is pending and on W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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investigation made by the Investigating Officer, he is satisfied that the person concerned has committed the offence."

23. We confirm the views expressed by the Bench concerned in the above verdict to hold that 'final report' under Section 173 (2) of Cr.P.C. is not a pre-requisite to invoke the power under Section 3 of the KAAPA. For the very same reason, we are of the view that the view expressed by the Bench concerned, making some observations to the contrary in Sathi's case [cited supra] and Ranjini's case [cited supra] [holding it as compulsory to have the investigation completed and filing the charge sheet under Section 173 (2) of Cr.P.C. to find the detenue to be proceeded against by way of preventive detention] is not the correct law. The expression 'found on investigation or enquiry by a competent police officer or other authority' used in the relevant provision is in the ordinary parlance and not in terms of the Cr.P.C..

24. It has also been held by another Division Bench of this Court in Anithakumari Vs. State of Kerala and Others [2015 (4) KLT 632 = 2015 KHC 963] that while recording 'subjective satisfaction' under Section 3 (1) of the KAAPA, though it is the duty W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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of the detaining authority to arrive at the objective as well as subjective satisfaction, it is not within the domain of the detaining authority to make an enquiry as to whether the person concerned has really committed the offence; whether there is sufficient evidence to arrive at a conclusion that he is guilty of the offence, or whether any plausible defence is available to the accused. Materials to be considered and the approach to be made by the detaining authority and the Trial Court respectively, in respect of 'preventive detention' and 'punitive detention' are totally different; especially, in view of the difference in the purpose and objective to be achieved, as held by the Apex Court in Union of India Vs. Paul Manickam [AIR 2003 SC 4622 = 2004 (1) KLT 364]. In the case of 'preventive detention' no offence is proved, nor any charge is formulated and justification of such detention is 'suspicion' or 'reasonability' and there is no criminal conviction; which can only be warranted by legal evidence [paragraph 14].

25. The learned counsel for the petitioner pointed out that in Article 22 (3) of the Constitution of India, the detenue stands 'wrongly equated' to an 'enemy alien'. This Court does not find the above contention as a point which deserves any consideration, as W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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the terms 'enemy alien' are qualified by the words, for the time being, which hence depends upon various/relevant facts and circumstances. That apart, there is no challenge against such incorporation. No ground is raised in this regard and no prayer is raised as well, if at all such classification was unreasonable in any manner or beyond the legislative competence/wisdom of the law makers.

26. The learned counsel further submits that the terminology used under Section 2 (o) (ii) [defining 'known goonda] as 'found IN any investigation or enquiry by a competent police officer....' differs from the terminology while defining 'known rowdy' under section 2

(p) (iii) as 'found ON investigation or enquiry by a competent police officer....'. The learned counsel submits that 'found in the investigation' means what is found during the investigation whereas found 'on investigation' is after the investigation. Hence it is stated as obligatory to have the investigation concluded and the the final report/charge sheet filed in terms of Section 173 (2) of Cr.P.C. We find absolutely no merit in the contention, as there is no substantial difference by using the different terms 'IN/ON' in the definition clauses concerned; which does not tilt the balance on any W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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norms or semantics. The intention of the law makers is discernible from the 'Malayalam' version of the Statute published in the Gazette on the very same day. No material is brought to the notice of this Court as to any debate taken place on the floor of the Assembly, with regard to the different context/usage of the term IN/ON while defining 'known goonda' and 'known rowdy' respectively, to accept the proposition mooted by the petitioners that, though in the case of 'known goonda' the power could be invoked during the course of investigation, in the case of 'known rowdy', investigation has to be completed leading to filing of final report/charge sheet under Section 173 (2) of Cr.P.C.

27. As mentioned already, unlike the case of 'punitive detention' where the purpose is to punish the offender on proving the guilt; in the case of 'preventive detention', it is only a prudent action to prevent the possible damage which could be caused to the 'public order' and the society at large. As such, it has to be prevented at the earliest opportunity. The detaining authority, who is mulcted with the duty in this regard, cannot wait for completion of the investigation and submission of the final report under Section 173(2) of Cr.P.C. to invoke the jurisdiction, keeping W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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as eyes shut till such time; which otherwise will only be an instance of dereliction of duty. The only requirement is that he should be in a position to record the 'satisfaction' with regard to the requirements under the Statute, based on the information made available, whether it be final report or such other materials.

28. This Court does not intend to say that mere registration of FIR is enough under such circumstances. Of course, something more is necessary which is collected by the Investigating Officer during the course of investigation. If the data collected in such process is adequate enough to meet the requirements under the Statute, so as to record the 'objective' as well as 'subjective satisfaction' to the extent it is necessary, it is open for the detaining authority to have it acted upon and need not wait till completion of the investigation and submission of the charge sheet under Section 173 (2) of the Cr.P.C.

29. We have gone through the materials made available before this Court. We find no justification to have passed the interim order releasing the detenue, that too, after passing the order of reference to have all the issues to be considered and decided by the Full Bench, apart from the question whether filing of W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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the charge sheet/final report or completion of the investigation was necessary or not. All the factual aspects were also left to be considered and decided by the Full Bench, as per the reference order. This being the position, without arriving at a finding that the impugned order passed by the detaining authority was bad in any manner, it was not possible to have the same intercepted, granting relief to the detenue, which has extended undue advantage to an undeserving person. In the said circumstances, the said part of the order is set aside. However, since the petitioner in W.P(Crl.) No. 410 of 2011 was released as per the interim order dated 11.10.2011, while making the reference it does not make any sense or purpose in directing him to appear before the Chief Judicial Magistrate, Kollam for further steps to give effect to Ext. P1 order of 'preventive detention' at this distance of time, after a gap of 5= years, except for violation of the conditions, if any, as noted in the interim order.

30. The reference is answered accordingly, making it point blank that completion of investigation by the police and filing of the charge sheet under Section 173 (2) of Cr.P.C. is not necessary to enable the detaining officer to invoke the power under Section 3 W.P. (Crl.) Nos. 410 of 2011 and 295 of 2013.

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of the KAAPA and pass detention order, recording satisfaction on the requirements, if sufficient materials are available before him to justify the same.

Both the Writ Petitions are dismissed.

sd/-

P. R. RAMACHANDRA MENON, JUDGE sd/-

P. UBAID, JUDGE sd/-

A. M. BABU, JUDGE kmd /True copy/ P.A. to Judge

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