Kerala High Court
Nisha Salim vs State Of Kerala on 21 January, 2009
Bench: A.K.Basheer, Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 455 of 2008(S)
1. NISHA SALIM, AGED 31 YEARS,W/O.S.P.SALIM
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DISTRICT COLLECTOR, ERNAKULAM AND
3. THE SUPERINTENDENT OF POLICE (RURAL)
4. THE CIRCLE INSPECTOR OF POLICE,
5. THE SUB INSPECTOR OF POLICE,
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :21/01/2009
O R D E R
A. K. Basheer & Thomas P. Joseph, JJ.
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W.P (C).No. 455 of 2008
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Dated this the 21st day of January, 2009.
Judgment Basheer, J:
Ext.P1 order of detention of petitioner's husband Sri.P.Salim, issued by the District Collector and District Magistrate, Ernakulam under Section 3(2) of the Kerala Anti Social Activities (Prevention) Act, 2007 is under challenge in this writ petition. Petitioner contends that Ext.P1 order is liable to be quashed since it is illegal and vitiated. She further prays for issue of a writ of Habeas Corpus for immediate release of her husband from the illegal preventive detention.
2. In Ext.P1 order the District Collector and District Magistrate, (the Authorised Officer under the Act), has stated that the detenu who is involved in not less than six crimes had been indulging in anti social activities in the area in question, causing harm, danger and feeling of insecurity and threat to public life. If the detenu is allowed to remain at large, he would indulge in such anti social activities further. Therefore the Authorised Officer, having regard to the materials placed before him by the Superintendent of Police, was satisfied that the detenu had to be WP.Cr.455/08. : 2 :
detained in prison under the Act.
3. The Authorised Officer issued Ext.P1 order of detention on October 21, 2008 and the grounds of detention were furnished to the detenu along with copies of the relevant documents, based on which the order of detention was passed. Copy of the grounds of detention is on record as Ext.P3.
4. The detenu was admittedly taken into custody at about 8.30 p.m. on December 6, 2008 and he has been under detention eversince. The Government, after considering the report of the Authorised Officer and the relevant records, had approved the order of detention within 12 days, as stipulated under section 3(3) of the Act. It is also on record that the Government has placed the matter before the Advisory Board for its opinion as provided under section 9 of the Act. The opinion of the Advisory Board is awaited.
5. It is contended by the petitioner that Ext.P1 order has been issued by the Authorised Officer without any application of mind since it is revealed from Ext.P1 order that the Authorised Officer had received report dated October 20, 2008 from the Superintendent of Police, Ernakulam Rural, Aluva and passed Ext.P1 order on the next day itself viz., on October 21, 2008. Curiously, the Authorised Officer has referred to a crime WP.Cr.455/08. : 3 :
registered at the Thodupuzha Police station in Idukki District also, along with certain other crimes registered by Perumbavoor Police in Ernakulam District. It is further contended by the petitioner that the detenu will not fall within the definition of "known rowdy" under section 2(p) of the Act, as mentioned in Ext.P3 grounds of detention. The other contention raised by the petitioner is that the detenu was not served with copies of all the relevant documents as mandated under the Act.
6. Respondents 1, 2 and 5 in their separate counter affidavits have stoutly denied the allegations made in the writ petition and contended that the order of detention was passed after carefully examining the report of the sponsoring officer and the relevant records. All the statutory mandates and formalities were also complied with.
7. It is true that in the grounds of detention, the Authorised Officer has referred to crime No.617/2002 registered by Thodupuzha Police against the petitioner for the offences punishable under sections 379 and 411 read with Section 34 IPC in connection with purchase of a stolen vehicle and the subsequent sale of the same after fixing a fake number plate. According to the Authorised Officer, the above case is now consigned to Long Pending register (LP.60/07), obviously for the reason that the accused has been absconding.
WP.Cr.455/08. : 4 :
8. But it has to be noticed that the detenu is admittedly involved in 5 other crimes registered by Perumbavoor Police. The detenu, it appears, is a resident within the limits of Perumbavoor Police Station. In crime No.820/05, the detenu and co-accused have been charge sheeted for the offence punishable under sections 323 and 324 read with Section 34 IPC. The allegation against the accused is that they had assaulted the de facto complainant and caused hurt to him. The detenu who had obtained bail from the Sessions Court had been absconding and the case is pending as CC.NO.81/06 on the file of the Judicial Magistrate of First Class, Perumbavoor.
9. In Crime No.1004/08 of Perumbavoor Police Station, the detenu and his associates had allegedly committed robbery of 1,80,0000/- from the de facto complainant after taking him in a car. In this case also the detenu is allegedly absconding after obtaining bail.
10. The other crime referred to in Ext.P3 is in relation to theft of Rs.25,000/- from the de facto complainant in Crime No.1159/08 registered by Perumbavoor Police for an offence punishable under section 392 IPC. The allegation is that the detenu had snatched away the bag containing money after putting the de facto complainant for fear of his life at the point of a knife. Police could not so far apprehend the detenu in connection with WP.Cr.455/08. : 5 :
the above crime.
11. The other crime registered by Perumbavoor Police against the detenu is also for the offence punishable under section 392 read with Section 34 IPC in Crime No.1160/08. The case against the detenu is that he and the co-accused had assaulted the de facto complainant, one Babu Joseph in a bar on May 22, 2008 and snatched away a gold chain weighing 1 = sovereigns.
12. The fifth crime registered against the detenu is for the offence punishable under section 120B, 192, 403, 406, 420, 465 and 468 read with Section 34 IPC. The allegation is that the detenu and the other co-accused had cheated a Finance Company (de facto complainant) and caused loss to the tune of Rs.1,40,000/- by creating forged documents in respect of a vehicle (Crime No.680/08).
13. It is vehemently contended by Sri.K.Ramkumar, learned senior counsel that the number of crimes pending against the detenu cannot form the basis to label him as a "known rowdy" as defined under section 2(p) of the Act.
14. "Known rowdy" as defined under the Act means any person who had been, by reason of acts done within the previous 7 years as calculated from the date of the order imposing any restriction or detention under the WP.Cr.455/08. : 6 :
Act, and who has been found guilty by a competent court at least once for an offence of the nature under sub-clause (i) of clause (t) of section 2 for any offence notified as such under the said clause or who has been found guilty at least twice for any offence of the nature under sub-clause (ii) of clause (t) of Section 2. Undoubtedly, the detenu in this case will not fall under sub-clauses (i) and (ii) of section 2(p) of the Act.
15. But clause (iii) of Section 2(p) postulates that if any person has been found to have committed any offence mentioned in clause (t) of Section 2 either by a competent Police Officer or other authority, in an investigation or enquiry as the case may be, on complaints initiated by persons other than Police Officers in 3 separate instances not forming part of the same transaction, such person shall fall within the ambit of the definition clause of "known rowdy."
16. Clause (t) of Section 2 defines "rowdy" as 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 section 153A and 153B of Chapter VIII and Chapter XV, XVI, XVII and XXII of the Indian Penal Code or any offences under the Arms Act or the Explosive Substances Act, punishable with 5 or more years of imprisonment of any type. Clause (ii) of Section 2
(t) is with regard to offences punishable with less than 5 years of WP.Cr.455/08. : 7 :
imprisonment excluding those punishable with less than one year's imprisonment.
17. A conjoint reading of the definition clause of "known rowdy"
and "rowdy" as defined under the Act will undoubtedly show that the Authorised Officer is justified in ordering detention of the detenu invoking the power under section 3(2) of the Act, since admittedly the detenu is involved in 5 crimes registered by Perumbavoor Police. It is true that in three cases investigation is in progress. In the 4th case investigation is partially complete. In the 5th case, the detenu had jumped bail after the charge sheet was laid before the Court. It may also be noticed that all the above crimes were registered at the instance of the respective de facto complainants who were the victims. These crimes relate to separate instances not forming part of the same transaction.
18. It may be true that investigation in three crimes is not yet concluded, but still the detenu was arraigned as one of the accused on the basis of the complaints lodged by the de facto complainant in those cases before the Police. It has to be remembered that the purpose of preventive detention is different from the ultimate conviction and imposition of punishment in a criminal case. The Investigating Agency can file the final report before the Court of competent jurisdiction only after completing the WP.Cr.455/08. : 8 :
investigation. But if the Police authorities are satisfied that the detenu has been involved in a series of crimes and the nature of the offence is such that he has been indulging in anti social activities in such a manner as to cause or likely to cause, directly or indirectly, a feeling of insecurity, danger or fear among the general public or any section thereof, they can make a request to the detaining authority to detain him. The Authorised Officer has to necessarily arrive at a substantive satisfaction before invoking the power under Section 3(2) of the Act.
19. Though learned senior counsel has tried to take the alleged criminal acts of the detenu out of the definition clause of "anti social activity" as defined under the Act, we are not impressed with the said argument. It is contended by the learned senior counsel that the allegations against the detenu in the crimes referred to above, are not likely to have any impact, either directly or indirectly, on the safety and security of the public. He contends that the offences allegedly committed by the detenu are only stray instances and that too against individuals, which may not pose any threat to the security of the general public, public health, ecological system etc.
20. "Anti Social Activity" is defined under section 2(a) thus:
"2(a). 'Anti Social Activity' means acting in such WP.Cr.455/08. : 9 :
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 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 to in clauses ), (e), (g), (h), (i),
(l), (m), (n), (q) and (s) of this section"
21. It is evident from the above definition that any activity to be characterized as an anti social activity must be such as to create a feeling of insecurity, danger, fear etc. among the general public or any section thereof. The act or activity cannot be viewed in isolation. A criminal act perpetrated by an accused may at times be an isolated incident that may not cause much repercussion in the society, though any criminal act by itself is an affront to the civilized community. An individual may indulge in a criminal act by force of circumstances. But the crucial aspect about a criminal act that may have an impact on the society, either direct or indirect, is always the manner in which it is committed. In the case of organised crimes, the entire scenario may change. Even if a single individual commits a series of crimes by adopting a particular modus operandi in order to generate a sense of insecurity, it cannot be said that such crimes WP.Cr.455/08. : 10 :
will not have any repercussions in the society at large. As mentioned earlier, it is the mode or manner in which the crimes are committed (be it by a solitary individual or a group of them) that is more relevant, rather than the number of such crimes. If an individual succeeds in creating fear psychosis in the society, that individual will undoubtedly be a menace to the society. Such people will undoubtedly create a sense of insecurity among the members of the public. We need not elaborate much.
22. If one individual is allowed to hold the people in a locality to ransom by his audacity and dare devilry, and if he indulges in series of criminal acts, such an individual cannot be allowed to escape from the clutches of law on the specious plea that in all the cases registered against him only one individual or two had been at the receiving end. If the argument of the learned senior counsel for the petitioner is accepted by giving a narrow interpretation to "anti social activity", such an interpretation will undoubtedly do violence not only to the Act but also to the whole concept of civilized society.
23. It can be seen from Ext.P3 that 4 crimes have been registered by Perumbavoor Police against the detenu and his accomplices between April and August 2008. They are Crime Nos.680/08, 1004/08, 1159/08 and 1160/08. Three of the above crimes are punishable under section 392 and WP.Cr.455/08. : 11 :
394 IPC, while the fourth one involves offences punishable under sections 403, 406, 420, 465, 468 etc. Therefore obviously the detenu will fall within the ambit of "rowdy" and "known rowdy" as defined under the Act since he has been found to have committed offences falling under Chapter XVII at least, if not any other. It may be true that the above crimes have been registered on the basis of complaints received from the respective de facto complainants in those cases, in separate instances which do not form part of the same transaction; but those crimes will definitely have a common factor. Undoubtedly those crimes will create a feeling of insecurity and fear among the local people. In that view of the matter, we have no hesitation to hold that the activities of the detenu can be easily characterised as anti social activity as defined under the Act.
24. Having carefully perused the order and grounds of detention, we do not find any circumstance or material to indicate that the Authorised Officer had ordered detention of the detenu without any application of mind. The sponsoring authority and the detaining authority in our view, had discharged their statutory functions with proper application of mind. They have apparently come to the conclusion that the detenu may indulge in further such anti social activities if he remains at large. The series of crimes in which the detenu got himself involved during the span of 4 months in WP.Cr.455/08. : 12 :
2008 will undoubtedly show that the action of the detaining authority is eminently justified.
25. The other contention raised by the petitioner is that the detenu had not been furnished copies of the relevant documents. But we find that the detenu was given copies of the F.I.Rs in relation to the 4 crimes which are under investigation. The final report in respect of the case registered by Thodupuzha Police was also furnished which, in our view, may not have any relevance in the peculiar facts and circumstances of this case. But as regards Crime 820/05, the detenu was served with final report also since admittedly the above case is pending in CC.81/06 on the file of the Judicial Magistrate of First Class, Perumbavoor. As far as other crimes are concerned, investigation is still in progress, as has been mentioned earlier.
26. Having carefully perused the entire materials available on record and having considered the contentions raised by the petitioner, we do not WP.Cr.455/08. : 13 :
find any reason to interfere with the order of detention, which in our view, is not illegal or vitiated, as contended by the petitioner.
There is no merit in any of the contentions urged before us. The writ petition fails and it is accordingly dismissed.
A.K. BASHEER Judge Thomas P. Joseph Judge an.