Sapna P.P vs State Of Kerala Represented By The ... on 7 April, 2016

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Kerala High Court

Sapna P.P vs State Of Kerala Represented By The ... on 7 April, 2016

The petitioner is a practicing lawyer who claims to be actively involved in the protection of destitute women and rehabilitation of women and child victims. According to the petitioner, the fourth respondent is a habitual offender and hardened criminal. The petitioner says that the fourth respondent is involved in six criminal cases including cases under the Immoral Traffic (Prevention) Act and Protection of Children from Sexual Offences Act, 2012. It is alleged that the fourth respondent is involved in supplying minor girls for sexual harassment. The petitioner says that the fourth respondent is a threat to the society for the past seven years. W.P.(C) No.7655/2016 2

2. The grievance of the petitioner is that though the District Police Chief, Kozhikode, submitted a report under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as the 'KAAPA') for passing an order of detention against the fourth respondent classifying him as a known goonda, the District Magistrate failed to take any proper action under Section 3(1) of the KAAPA. The relief prayed for in the Writ Petition is to issue a writ of mandamus or other appropriate writ or order directing the District Magistrate, Kozhikode, to consider and pass orders on Exhibit P2 report submitted by the District Police Chief in accordance with law.

3. In Baby v. State of Kerala (2014 (4) KLT 854), a Division Bench of this Court held thus :

"3. .......................................................... In the constitutional alchemy, respecting the salutary human W.P.(C) No.7655/2016 3 right doctrines resonating in the international domain, and standing advised by the pearls of wisdom as to the most precious constitutional right to liberty under the Constitution of India, we are unable to visualise any ground of statutory or public duty, in any executive authority to invoke the provisions of KAAPA at the instance of a private party. There is no statutory or constitutional right for any person; to assert as a citizen of India, to compel issuance of a preventive detention proceedings or restraint proceedings under any preventive detention laws."

We are in agreement with the principles of law laid down in Baby v. State of Kerala (2014 (4) KLT 854). In W.P.(C) No.1231 of 2016, we also had occasion to consider this question and it was held thus :

"6. Detention or restraint under the Preventive Detention laws are exceptional in nature. Action under the Preventive Detention laws is required to deter the person concerned from indulging in anti-social activity, disturbing public order etc. Effective safeguards are provided in all Preventive Detention laws to protect the W.P.(C) No.7655/2016 4 statutory and constitutional rights of the detenu. Article 22(5) of the Constitution of India provides for the constitutional safeguards to be taken in the matter of preventive detention. A citizen has got the fundamental rights as enshrined under Part III of the Constitution of India. He has got remedies also either under Article 226 or 32 of the Constitution if his fundamental rights are infringed. Enforcement of fundamental right of a citizen would not extent to a right to require the authorities under the Preventive Detention laws to exercise their subjective satisfaction and to make an order to detain a person under such laws. In other words, the Preventive Detention laws contain provisions with respect to powers and duties to be exercised by the authorities under such laws in the matter of arriving at the subjective satisfaction before issuing an order of detention, execution of the order, confirmation of the detention order etc. The detenu concerned, who has been detained under such Preventive Detention laws, is entitled to make representations and that right stems from Article 22(5) of the Constitution of India. Nowhere in the KAAPA, a citizen at whose instance criminal cases have been initiated against the person sought to be detained, is conferred with a right to W.P.(C) No.7655/2016 5 approach the authorities to exercise their subjective satisfaction and to initiate proceedings. Nor does the KAAPA provide for a corresponding duty on the authorities concerned to hear the person at whose instance crimes have been registered, in the matter of exercising the statutory rights and performing the statutory duties. It is well settled that a writ of mandamus can be issued only when the person who invokes that remedy has a legal right and the authority concerned having a corresponding duty refuses or neglects to perform his duty. Since there is no right vested in any individual to approach the authorities concerned under the KAAPA to issue an order of preventive detention or a restraint order, there is no corresponding duty also on the authorities concerned to hear such person and on that basis, to issue an order of detention or an order of restraint. Therefore, the Writ Petition is not maintainable in law."

4. When the Writ Petition came up for admission, we directed the learned Government Pleader to get instructions and to produce copies of relevant documents for our perusal. W.P.(C) No.7655/2016 6 When the Writ Petition came up on 21.3.2016, we noticed from the counter affidavit filed by the second respondent (the District Magistrate) that he has committed serious mistakes in the matter of comprehending the principles of law governing preventive detention under the KAAPA. In the counter affidavit, it is stated that the report of the District Police Chief shows that the fourth respondent is involved in trafficking of women and he is involved in supplying girls for sexual harassment. The District Police Chief reported that the fourth respondent is involved in three cases, which are the following :

(i) C.C.No.399 of 2015 on the file of the court of the Judicial Magistrate of First Class, Kunnamangalam, which arose from a case which was registered as Crime No.610 of 2014 for the offences under Sections 3, 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act. The District Magistrate correctly took the view that this case was suo motu registered W.P.(C) No.7655/2016 7 by the S.I. of Police, Chevayoor and therefore, it cannot be taken for consideration for passing an order of detention under Section 3(1) of the KAAPA.

(ii) C.C.No.17 of 2015 on the file of the court of the Judicial Magistrate of the First Class-I, Kozhikode which relates to Crime No.509 of 2015 of Nadakkavu Police Station.

The offences alleged therein against the fourth respondent are under Sections 342, 370(2) and 376 read with Section 34 of the Indian Penal Code. It is submitted that the case is now committed to the Sessions Court where it is numbered as S.C.No.17 of 2015.

(iii) Crime No.27 of 2015 of Chevayoor Police Station registered against the fourth respondent under Section 376 of the Indian Penal Code and Section 5(i) of the Protection of Children from Sexual Offences Act, 2012. This case is under investigation.

W.P.(C) No.7655/2016 8

5. The counter affidavit further shows that a case which is under investigation and where final report is not filed cannot be considered for classifying a person as a known goonda or known rowdy for issuing an order of preventive detention. The District Magistrate relies on the decision in Ranjini v. State of Kerala (2009 (3) KLT 500) and Sathi v. State of Kerala and others :(2009 KHC 769) = 2009 (2) KLD

377. It is relevant to note that in Elizebeth George v. State of Kerala (2008 (4) KLT 425), Beji v. State of Kerala (2012 (3) KLT 255) and Anithakumari v. State of Kerala (2015 (4) KLT 632), the Kerala High Court has taken the view that even if final report is not filed in a particular crime, it is not a bar for considering that crime for reckoning whether a person is a known goonda or known rowdy for the objective as well as the subjective satisfaction.

W.P.(C) No.7655/2016 9

6. From the counter affidavit of the District Magistrate, it is seen that he is under a misapprehension that before issuing an order of detention under Section 3(1) of the KAAPA, it is a precondition that proceedings under Section 107 of the Code of Criminal Procedure should be taken. The District Magistrate relies on the decisions in Rekha Gopakumar v. State of Kerala (2012(4) KLT 990), Nisha Salim v. State of Kerala (2009(3) KLT 22) and Susi v. State of Kerala (2011(1) KLT

760). In these decisions, it is not laid down that before initiating proceedings under the KAAPA, proceedings under Section 107 should be initiated. Here also the District Magistrate did not refer to the latest view on the subject as reflected in the decisions reported in Thejas v. Inspector General of Police (2015 (3) KLT 1) and Jayalekshmi v. State of Kerala and others (2015 KHC 961), where relying on a W.P.(C) No.7655/2016 10 Constitution Bench decision of the Supreme Court in Haradhan Saha v. State of West Bengal and others (1975) 3 Supreme Court Cases 198, it was held that initiation of proceedings under Section 107 Crl.P.C. is not a pre-condition for issuing an order of preventive detention under the Preventive Detention Laws. It is seen from the counter affidavit that the District Magistrate was "not satisfied with the contentions of the District Police Chief" and he has rejected the proposal and sent it back to the District Police Chief.

7. On a careful reading of the counter affidavit of the District Magistrate, it is seen that he has apparently omitted to note the settled principles of law in several decisions of the High Court of Kerala. On the other hand, he has relied on overruled or distinguished decisions or decisions which as W.P.(C) No.7655/2016 11 such would not apply to the facts of the case in support of his conclusion.

8. The learned Additional Director General of Prosecution submitted that the District Magistrate has now realised that the steps taken by him were not fully correct and that he is prepared to correct it by issuing appropriate orders in the matter. This submission is recorded.

9. The learned Additional Director General of Prosecution submitted that the District Magistrate acted with all bonafides and it cannot be characterised as deliberate. We are inclined to believe what the learned Additional Director General Prosecution stated.

10. The learned Additional Director of General of W.P.(C) No.7655/2016 12 Prosecution submitted that two cases registered against the fourth respondent comes under the categories of offences as mentioned in 2(t) of the KAAPA where 'rowdy' is defined. It is submitted that to become a 'known rowdy' under Section 2(p) of the KAAPA, three separate instances of offences are required to attract 2(p)(iii). In the present case, there are only two instances. The learned Additional Director General of Prosecution submitted that the definition of 'goonda' under Section 2(j) includes a 'rowdy' and to become a 'known goonda' under Section 2(o), it is sufficient that the person concerned is involved in two separate instances. If Sections 2(j) and 2(o) are attracted, an order of detention could be passed if the person concerned is involved in two instances of offences.

11. The learned Additional Director General of Prosecution, in fairness, brought to our notice the decision of a W.P.(C) No.7655/2016 13 Division Bench in Sailaja and others v. State of Kerala and others : 2010(1) KHC 457) = 2010 (1) KLD 132. He referred to paragraphs 14, 28, 30, 31 and 34. It is apposite to extract paragraphs 14 and 30 of the said decision.

"14. It is relevant to note that a rowdy under S.2

(t) will, by the operation of the inclusive latter half of the definition of 'goonda' in S.2(j), be a goonda ipso facto. Though different definitions are given for the expression 'goonda' in S.2(j) and 'rowdy' in S.2(t), it is interesting to note that a rowdy ipso facto becomes a goonda under S.2(j). Why this inclusion of rowdy is made in the definition of 'goonda' in S.2(j) passes our comprehension. We must say that satisfactory explanation thereof has not been offered to us by the learned ADGP on behalf of the State. Be that as it may, we need now take note only of the fact that a rowdy under S.2(t) will ipso facto be a goonda under S.2(j) whatever may be the purpose of such inclusion of the rowdy within the sweep of the expression 'goonda' in S.2(j).

30. The argument of the learned ADGP is that W.P.(C) No.7655/2016 14 a rowdy under S.2(t) is by definition a goonda under S.2

(j). A goonda can become a known goonda if he satisfies S.2(o)(ii), 'Any act within the meaning of the term goonda' in S.2(o)(ii) must take within it an act of rowdyism-i.e., commission of an offence under S.2(t). In these circumstances, the learned ADGP argues that if a person is found on investigation by a competent Police Officer of having committed two or more 2(t) offences, that can ipso facto bring him within the sweep of the expression known goonda under S.2(o)(ii).

31. We are unable to accept this argument. We have already noted that a rowdy has been included as a goonda under S.2(j). We are unable to understand the rationale or the need for such inclusion. No explanation has been offered as to how and why a rowdy is ipso facto included within the definition of a goonda under S.2(j).

34. We are, in these circumstances, of the very firm and definite opinion that where a person is not found guilty or found in investigation to have committed any non 2(t) offences, the mere fact that he has committed 2(t) offences, whatever be the number, cannot bring him within the sweep of the expression 'known goonda' under S.2(o)(ii). This conclusion is inevitable W.P.(C) No.7655/2016 15 considering the broad scheme of the Act and also the deprivation and frustration of the advantage of S.2(p)

(iii) and provisos 1 to 6 for a rowdy if he were permitted to be classified as a known goonda under S.2(o) on the ground that he has committed 2(t) offences only."

12. KAAPA defines Anti-Social Activity, goonda, known goonda, rowdy and known rowdy in clauses (a), (j), (o),

(t) and (p) respectively as follows :

"(a) "anti-social activity" means acting in such manner as to cause or 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) and (s) of this section;

(j) "goonda" means a person who indulges in any W.P.(C) No.7655/2016 16 anti-social activity or promotes or abets any illegal activity which are harmful for the maintenance of the public order directly or indirectly and includes a bootlegger, a counterfeiter, a depredator of environment, a digital data and copy right pirate, a drug offender, an hawala racketeer, an hired ruffian, rowdy, an immoral traffic offender, a loan shark or a property grabber;

(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-

(i) found guilty, by a competent Court or authority at least once for an offence within the meaning of the term 'goonda' as defined in clause (j) of Section 2; or

(ii) found in any investigation or enquiry by a competent police officer, 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 W.P.(C) No.7655/2016 17

(j) of Section 2:

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.

(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

W.P.(C) No.7655/2016                 18




              imprisonment     of   any   type,   except  those

              punishable    with   less   than   one   year   of

              imprisonment ; or

                     (iii) such offences under any other law

for the time being in force, coming under item (i) or (ii), as may be notified by the Government, from time to time."

(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 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 W.P.(C) No.7655/2016 19 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 any offence committed by a person,-

(i) by virtue of his involvement as a member of the family or a close relative of the family, in an incident which took place by reason of a family dispute or quarrel involving family members of close relatives on either side; or

(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 ; or

(iii) by virtue of his involvement as an employee of any establishment in an incident which occurred in connection with a dispute between himself and the establishment with regard to the conditions of service; or

(iv) as a member of the student community in a recognised educational institution, by virtue of his involvement, merely by his presence but without any overt act constituting the offence mentioned in clause (t) of W.P.(C) No.7655/2016 20 Section2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of students of the institution in that particular incident; or

(v) as a member of a recognised political party, by virtue of his involvement merely by his presence, but without any overt act constituting the offence mentioned in clause (t) of Section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of the workers of that party in an agitation or protest or programme organised by the party with prior information given to the police officer or Magistrate having jurisdiction; or

(vi) by virtue of his involvement in a criminal act committed by him before he had attained the age of eighteen years, shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy; W.P.(C) No.7655/2016 21

13. The definition of 'goonda' takes in a 'rowdy' as well. In the definition of 'rowdy', it is stated that a '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 of the offences mentioned therein. To become a 'known rowdy' under Section 2(p), where the cases are under investigation, there must be three instances in which the person concerned is involved. The definition of 'goonda' shows that to become a 'goonda', the person concerned must be a person who indulges in any anti-social activity or promotes or abets any illegal activity which are harmful for the maintenance of the public order directly or indirectly. The definition of 'goonda' also includes several categories like bootlegger, counterfeiter etc. and it includes a 'rowdy'. 'Anti-Social activity' is also defined under Section 2(a). On a close reading of the definitions of 'anti-social activity', 'goonda', 'known goonda', W.P.(C) No.7655/2016 22 'rowdy' and 'known rowdy', it is clear that a person who satisfies the definition of 'rowdy' can also become a 'goonda' provided he indulges in any anti-social activity or promotes or abets any illegal activity which are harmful for the maintenance of public order directly or indirectly. If a 'rowdy' as defined in Section 2(t) indulges in any such activity, he becomes a 'goonda'. If such a 'goonda' involved in two such instances, he becomes a 'known goonda'. There is no confusion or vagueness in these definitions. There is no difficulty for properly interpreting in what cases a 'rowdy' as defined in Section 2(t) becomes a 'goonda' and a 'known goonda'.

14. The question involved in Sailaja and others v. State of Kerala and others : 2010 (1) KHC 457 = 2010 (1) KLD 132 is quite different as can be seen from the questions W.P.(C) No.7655/2016 23 posed for consideration in that case.

15. As laid down in Baby v. State of Kerala (2014 (4) KLT 854), there is no statutory or constitutional right for any person to invoke issuance of a writ of mandamus to compel the statutory authority under the KAAPA to issue a preventive detention order or restraint order against any person. At the same time, if it is brought to the notice of the Court that the authority concerned failed to initiate appropriate proceeding either on account of bias or on account of misinterpretation or wrong understanding of the settled principles of law, the High Court under Article 226 of the Constitution of India would be justified in issuing appropriate directions in the matter.

Since the learned Additional Director General of W.P.(C) No.7655/2016 24 Prosecution submitted that the District Magistrate will take appropriate proceedings within a week based on Exhibit P2 report submitted by the District Police Chief, it is not necessary to issue any directions to him in this Writ Petition. The Writ Petition is closed recording the submissions of the Additional Director General of Prosecution.

K.T.SANKARAN JUDGE K.P.JYOTHINDRANATH JUDGE csl W.P.(C) No.7655/2016 25 K.T.SANKARAN & K.P.JYOTHINDRANATH, JJ.

-------------------------------------- W.P.(C) No.7655 of 2016 F

-------------------------------------- Dated this the 4th day of April, 2016 O R D E R K.T.Sankaran, J.

Heard the learned counsel for the petitioner and the learned Additional Director General of Prosecution.

2. The learned Additional Director General of Prosecution submitted that the correct legal position was intimated to the District Magistrate on 30.3.2016 by E-Mail. It is seen from the counter affidavit filed by the District Magistrate, Kozhikode, that he relies upon certain overruled and distinguished decisions in support of his incorrect conclusion. At the same time, he omits to note the recent decisions on the subject. On a plain reading of the counter affidavit filed by the District Magistrate, it is prima W.P.(C) No.7655/2016 26 facie seen that he is lacking in the requisite knowledge to exercise the jurisdiction under the Kerala Anti-Social Activities (Prevention) Act.

3. In these circumstances, we would like to get a positive reply from the District Magistrate, Kozhikode, with reference to the specific allegations made in the Writ Petition. The view taken by the District Magistrate on the questions of law being wrong, we would like to hear the learned Additional Director General of Prosecution as to whether the District Magistrate is prepared to correct himself.

Post on 7th April, 2016.

K.T.SANKARAN JUDGE K.P.JYOTHINDRANATH JUDGE csl Hand over copy to both sides.

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