IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.T. Sankaran & M.L. Joseph Francis, JJ.

W.P.(C) No. 160 of 2012

Dated this the 18th day of June, 2012

Head Note:-

Kerala Anti- Social Activities (Prevention) Act, 2007 – Sections 3 & 10(4) –Judicial Custody - the detenu is in judicial custody, does not by itself take away the jurisdiction of the detaining authority to make an order of detention under the KAAPA. 

Kerala Anti- Social Activities (Prevention) Act, 2007 – Section 2(p)(iii) - Code of Criminal Procedure, 1973 – Section 173(2) - Final Report - 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 should be filed in the cases concerned. It is sufficient, if investigation is pending and on investigation made by the Investigating Officer, he is satisfied that the person concerned has committed the offence.

For Petitioner:- C.K. Pavithran 

For Respondents:- T. Asaf Ali, Director General of Prosecutions

J U D G M E N T

K.T. Sankaran, J.

1. Henry Jose, the husband of the petitioner was detained under the Kerala Anti-Social Activities (Prevention) Act, 2007, hereinafter referred to as 'the KAAPA'. The order of detention was issued on 17-12-2011. The detenu was arrested on 21-12-2011. In exercise of the powers under Sec.10(4) of the KAAPA, the Government confirmed the order of detention. The Advisory Board opined that there was sufficient cause for the detention of the detenu. It is not in dispute that the detenu was detained under the KAAPA on an earlier occasion, as per the order of detention dated 05-11-2009.

2. The learned counsel for the petitioner submitted that the order of detention is bad in law and therefore, the continued detention of the detenu is illegal. The counsel raised two points; (1) In Crime No.1096/11 referred to in the order of detention, the detenu was in judicial custody at the time when the detention order was issued. Though the detaining authority mentioned in the order of detention that the detenu was in judicial custody on the date of issue of the order, it was further necessary for the detaining authority to satisfy as to whether there was any possibility for the detenu to get bail and if so, whether there was any likelihood of the detenu indulging in similar criminal activities; and (2) Three of the crimes mentioned in the order of detention were under investigation and no final report was filed by the Police in those cases. If so, sub-clause (iii) of clause (p) of Sec. 2 of KAAPA would not be attracted.

3. The points raised by the learned counsel for the petitioner are discussed below.

Point No.1 :

4. The order of detention reveals that the detenu was involved in six crimes, of which three cases were pending trial and the other three cases were pending investigation. The detaining authority was satisfied that the detenu would again indulge in prejudicial activities which may adversely affect the public safety, if he is released from judicial custody. The order of detention further shows that the detaining authority was aware of the fact that the bail application filed by the detenu was dismissed by the Sessions Court on 12-12-2011. Still, the detaining authority came to the satisfaction that if the detenu were to be enlarged on bail, he would again indulge in similar anti-social activities.

5. The learned counsel for the petitioner relied on the decision of the Supreme Court in Kamarunnissa Vs. Union of India & Anr., (1991) 1 SCC 128 and the decision of the Kerala High Court in Jameela Vs. State of Kerala & Ors., 2008 (1) KHC 5 (DB). In Kamarunnissa's case (supra), the Supreme Court held thus :

"13. 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 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."

The ingredients mentioned in paragraph 13 of the judgment in Kamarunnissa's case have been satisfied in the present case. The detaining authority applied its mind to all the relevant aspects mentioned in Kamarunnissa's case.

6. The counsel also relied on the decision in Jameela Vs. State of Kerala & Ors., 2008 (1) KHC 5 (DB), in support of the contention that if the detaining authority did not consider the fact that the detenu was already in custody, the order of detention would be vitiated. In Jameela's case (supra), the order of detention did not mention whether the detenu was on bail or whether he was under judicial custody. The case in Jameela Vs. State of Kerala & Ors., 2008 (1) KHC 5 (DB) is clearly distinguishable since in the present case all the relevant details regarding the judicial custody of the detenu, his filing of an application for bail, the dismissal of the same, the likelihood of the detenu being granted bail and the satisfaction of the detaining authority that if the detenu is released on bail, he is likely to indulge in similar criminal activities, have been specifically dealt with and considered. That the detenu is in judicial custody, does not by itself take away the jurisdiction of the detaining authority to make an order of detention under the KAAPA. However, it must be established that the detaining authority was aware of the fact that the detenu was in judicial custody, but in the facts of the particular case, his detention under the KAAPA became necessary. We are fortified by the decision of the Supreme Court in Poonam Lata Vs. M.L. Wadhawan, AIR 1987 SC 2098, in this context.

7. For the aforesaid reasons, we are not inclined to accept the first contention raised by the learned counsel for the petitioner.

Point No. 2 : 

8. To consider this point, it is apposite to extract the relevant part of the definition of "known-rowdy" in clause (p) of Sec. (2) of the KAAPA.

2. Definitions -- In this Act, unless the context otherwise requires, - 

x x x  x x x x x x  

x x x  x x x x x x  

(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 Sec. 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 Sec. 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 Sec. 2 : 

Provided that any offence committed by a person,-  

x x x  x x x  x x x

9. Under sub-clause (iii) of clause (p) of Sec. 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 Sec. 2. The interpretation of the expression "investigation or enquiry" in sub-clause (iii) becomes relevant in this context. "Investigation", as defined in Sec. 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 Sec. 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 Sec. 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 Sec. 2(d) of the Cr.P.C, as follows :

"2.(d) "complaint" means any allegation made 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 Sec. 2 of the KAAPA nowhere mentions about Court, while in the definition of "known-goonda" in sub-clause (ii) of clause (o) of Sec. 2, mention is made about investigation or enquiry by a competent police officer, authority or competent Court. Sub-clause (iii) of clause (p) of Sec. 2 insists that the investigation or enquiry must relate to a complaint 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 Sec. 2(d) of the Cr.P.C. That means, the expression "complaint" is used in sub-clause (iii) of clause (p) of Sec. 2 of the KAAPA in the ordinary parlance and not for conveying the meaning of "complaint", as defined in Sec. 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 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 Sec. 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 Sec. 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 our mind, as in ordinary parlance. There cannot be any enquiry by a police officer, if it is an "inquiry", as defined in clause (g) of Sec. 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 Sec. 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 Sec. 173(2) of the Cr.P.C. should be filed in the cases concerned. It is sufficient, if investigation is pending and on investigation made by the Investigating Officer, he is satisfied that the person concerned has committed the offence.

10. In Elizabath George Vs. State of Kerala, 2008 (4) KLT 425, a Division Bench of this Court took the same view. In that decision, the Division Bench held thus :

"We are of the view that a final report as provided under Sec. 173 (2) is not a pre-condition to attract the said provision. Preventive detention is anticipatory and preventive. Thus, it is a case where the detaining authority will have to satisfy itself of the possibilities of the person indulging in acts contemplated by the respective provisions. Therefore, a final report as envisaged under Sec. 173(2) of the Cr.P.C. as such is not essential for an action under Sec. 3 of the Act. Even though investigations are pending against the detenus who are accused in various crimes and is yet to be completed for various reasons, it will not prevent the detaining authority from examining the matter to arrive at the subjective satisfaction, even in the absence of a final report."

11. Another Division Bench in Ranjini Vs. State of Kerala, 2009 (3) KLT 500, after referring to Elizabath George's case, held that a Division Bench in Sathi Vs. State of Kerala, 2010 (1) KLT SN 65 (C.No. 80) had disagreed with the view expressed in Elizabath George's case. The Division Bench in Ranjini's case did not refer the case to a Full Bench, (even though they thought that it was necessary to refer the same to a Full Bench), as the matter would be unnecessarily protracted.

12. On a consideration of the Division Bench judgment in Elizabath George's case, Sathi's Case as well as Ranjini's case, we are inclined to accept the view taken in Elizabath George's case. We also adopt the same reasoning, as mentioned in Ranjini's case, not to refer the matter to a Full Bench. We are not inclined to accept the contention raised by the learned counsel for the petitioner in this regard.

For the aforesaid reasons, the Writ Petition (Criminal) is dismissed.