(2015) 407 KLW 799

IN THE HIGH COURT OF KERALAAT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA 

TUESDAY, THE 4TH DAYOF JUNE 2013/14TH JYAISHTA 1935 

WP(C).No. 8126 of 2013 (M) 

PETITIONER: 

AJI @ VETTU AJI

BY ADVS. SRI.AJITH MURALI SRI.K.V.ANIL KUMAR 

RESPONDENTS: 

1. STATEOF KERALA REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM-695 001.

2. INSPECTOR GENERAL OF POLICE ERNAKULAM RANGE, ERNAKULAM DISTRICT-682 031.

3. THE SUPERINTENDENT OF POLICE ALAPPUZHA, ALAPPUZHA DISTRICT-688 001.

4. THE CIRCLE INSPECTOR OF POLICE CHENGANNUR POLICE STATION ALAPPUZHA DISTRICT-689 121.

5. THE SUB INSPECTOR OF POLICE CHENGANNUR POLICE STATION ALAPPUZHA DISTRICT-689 121. 

BY DIRECTOR GENERAL OF PROSECUTION SRI.ASAF ALI 

JUDGMENT 

K.T.Sankaran, J. 

The questions involved in this Writ Petition are the following: 

2. The Inspector General of Police, Kochi Range (second respondent) passed Ext.P1 order dated 13.12.2012 under Section 15(1) of the KAAPA restraining the petitioner (Aji @ Vettu Aji) from entering into the limits of Alappuzha District, for a period of one year. The second respondent passed Ext.P1 order on the ground that the petitioner was involved in five crimes as shown below: 

3. Aggrieved by Ext.P1 order, the petitioner made a representation before the Advisory Board under sub-section (2) of Section 15 of the KAAPA. The Advisory Board, who passed Ext.P2 order dated 25.2.2013, did not interfere with the order passed by the second respondent except to the extent of reducing the period of externment to nine months from the date of service of the order impugned. The Advisory Board held that the petitioner cannot be termed as a "known rowdy", since two of the crimes, namely, Crime Nos.133 of 2011 and 565 of 2011, were registered at Koyipram Police Station, outside the jurisdiction of the second respondent. The Advisory Board also held that out of the remaining three cases, two cases are under the Abkari Act and therefore, they do not come under the scope of the definition of "known rowdy". It was held that the remaining one case does not satisfy the definition of "known rowdy" since it requires three separate instances under sub-clause (iii) of clause (p) of Section 2 of the KAAPA. However, the Advisory Board held that the petitioner satisfies the definition of "known goonda" under Section 2(o) of the KAAPA. The Advisory Board also took the view that the order under Section 15(1) can be sustained on the ground that the petitioner is a "known goonda" and the Advisory Board has the power to amend the ground under Section 15(1) from "known rowdy" to "known goonda" to sustain an order under Section 15(1).

4. The relevant part of Section 15 of the KAAPA is extracted below for convenience: 

5. In the present case, the second respondent passed Ext.P1 order on the ground that the petitioner satisfies the definition of "known rowdy" as defined in Section 2(p) of the KAAPA.

6. The Advisory Board held that two out of the five crimes mentioned in Ext.P1 order were registered at Koyipram Police Station, which is within the territorial limits of Pathanamthitta District, over which the Inspector General of Police, Kochi Range (who passed Ext.P1 order), does not have jurisdiction. After deleting those two crimes registered at Koyipram Police Station, the Advisory Board took into account the other three crimes referred to in Ext.P1 order and held that the petitioner satisfies the definition of "known goonda" as defined in Section 2(o) of the KAAPA. On that basis,the Advisory Board amended Ext.P1 order and sustained the order of restraint.

7. Learned counsel for the petitioner submitted that the Advisory Board has no jurisdiction to treat the petitioner as a "known goonda" and sustain the order of restraint, after holding that the petitioner does not satisfy the definition of "known rowdy". It is submitted that the subjective satisfaction of the authority who passed Ext.P1 order cannot be substituted by the Advisory Board. It is submitted that if the Advisory Board finds that the subjective satisfaction is vitiated, the order of restraint must be set aside. 

8. Section 15(1) empowers the District Magistrate or a Police Officer of and above the rank of Deputy Inspector General having jurisdiction, to pass an order under sub-section (1), if he is satisfied that the person concerned is a "known goonda" or "known rowdy". In other words, an order under Section 15(1) can be passed if the person concerned is either a "known goonda" or "known rowdy". Section 15(2) of KAAPA confers jurisdiction on the Advisory Board to annul, amend or confirm the order passed by the authority under Section 15(1) (emphasis supplied).

9. To deal with the contention raised by the learned counsel for the petitioner, it is only appropriate to comprehend the scheme of the Act in the matter of preventive detention under Section 3 as well as in the matter of restraint order under Section 15. Under sub- section (1) of Section (3) of the KAAPA, the Government or an Officer authorised by the Government may make an order directing that the person concerned be detained. When an order of detention is passed under sub-section (1) of Section 3 by the authorised officer, he has to report that fact to the Government and the Director General of Police, Kerala, in the manner indicated in sub-section (3) of Section 3. Sub-section (3) of Section 3 also provides that no such order of detention shall remain in force for more than twelve days, excluding public holidays, from the date of detention of such "known goonda" or "known rowdy", unless, in the mean time, it has been approved by the Government or by the Secretary of Home Department, if so authorised by the Government. Within three weeks from the date of detention of a person, the Government shall place before the Advisory Board the grounds on which the order of detention has been made and the records mentioned in Section 9 of the KAAPA. Section 10 of the KAAPA provides that the Advisory Board shall prepare a report containing its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same to the Government within nine weeks from the date of detention. In every case where the Advisory Board has reported that, in its opinion, there is sufficient cause for detention of a person, the Government may confirm the detention order and continue the detention of the person concerned (see sub- section (4) of Section 10). However, where the Advisory Board has reported that there is no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person concerned to be released forthwith. Section 13 of the KAAPA empowers the Government to revoke or modify a detention order. That power can be exercised at any time and even after the confirmation of the order under Section 10 of the KAAPA.

10. Where an order of restraint is passed under sub-section (1) of Section 15, it does not require approval by the Government, or reference to the Advisory Board, or getting the opinion of the Advisory Board or confirmation or revocation of the order of restraint. On the other hand, sub-section (2) of Section 15 gives liberty to the person aggrieved by an order under sub-section (1) of Section 15 to represent before the Advisory Board within fifteen days of the date of service of the order. On receipt of the representation, the Advisory Board shall consider the same and within thirty days of the date of receipt of the representation, shall annul, amend or confirm the order passed under sub-section (1) of Section 15 of the KAAPA, either in part or in full. The Advisory Board dealing with the matter under Section 10 of the KAAPA can only submit a report specifying its opinion as to whether or not there is sufficient cause for the detention of the person concerned. The consequence of such a report is specifically provided under sub-section (4) of Section 10 and the authority who has to pass the order thereafter, either confirming or revoking the order of detention, is the Government. In the case of a restraint order under Section 15, the Government or the authority which issued the order under sub-section (1) has the power to annul or amend the order at any time, either in part or in full, on its own motion, as provided under sub-section (3) of Section 15. That power under sub-section (3) is not based on any opinion or order of the Advisory Board, but suo motu. The power of the Government under sub-section (4) of Section 10 and that under sub- section (3) of Section 15 are quite different in its nature and content. The Advisory Board can annul, amend or confirm the order as provided in sub-section (2) of Section 15 and it need not be approved by any authority. It will operate on its own.

11. Point A: Coming to the question whether the Advisory Board can treat the person concerned as "known goonda" instead of "known rowdy" as mentioned by the authority under sub-section (1) of Section 15, it depends on the meaning of the word "amend" occurring in sub-section (2) of Section 15. New Webster's Dictionary gives the meaning of the word "amend" as follows: 

12. When specific power is given to the Advisory Board to amend an order passed by the authority under Section 15(1), it takes within its sweep the categorization of a person as "known goonda" or "known rowdy" as well. 

If so, the Advisory Board can amend the order under Section 15(1) and treat a person, who is branded as "known rowdy", as "known goonda" and sustain the order under Section 15(1). The subjective satisfaction to be arrived at by the authority under Section 15(1) would not be affected by the change made by exercising the power to amend under sub-section (2). If the legislature thought that an amendment made to the order under Section 15(1) would naturally affect the subjective satisfaction of the primary authority, then such a jurisdiction to amend would not have been conferred on the Advisory Board. In the matter of preventive detention under Section 3, the Advisory Board does not have such a power, but such a specific power is conferred on the Advisory Board while dealing with a representation under Section 15(2) of the KAAPA. It only means, the Advisory Board can change the categorization of the person concerned, change the term of restraint and the like. We reject the contention raised by the learned counsel for the petitioner that the Advisory Board has no jurisdiction to treat a person as "known goonda" instead of "known rowdy" and thus sustain the order passed under Section 15(1) of the KAAPA. We are of the view that the Advisory Board has the jurisdiction to do so.

13. Point B:- The Kerala Anti-social Activities (Prevention) Act, 2007 is an Act to provide for the effective prevention and control of certain kind of anti-social activities in the State of Kerala. It extents to the whole of the State of Kerala. The definition of "known goonda" or "known rowdy" is not restricted to any particular place or any particular District. If the offence which forms the foundation for terming a person as "known goonda" or "known rowdy" is committed anywhere in the State, that can be made a basis for passing an order of detention under Section 3 or passing an order under sub- section (1) of Section 15 of the KAAPA. However, going by the wording of sub-section (1) of Section 15, the District Magistrate or a Police Officer can pass an order thereunder to prevent anti-social activities within the jurisdiction of such Magistrate or Officer. In other words, the order passed under Section 15(1) will have operation within the territorial limits of the District Magistrate or Police Officer who passes the order. It cannot have operation throughout the State of Kerala. Even if a person is found guilty by a competent court or authority situate outside the territorial limits of the authority under Section 15(1) or even if the crime is registered in a police station outside the local limits of the authority under Section 15(1), it does not disentitle that authority under Section 15(1) to pass an order of restraint against such a person so as to have its operation within the jurisdiction of the authority under Section 15(1). The expression "within the jurisdiction" occurring in sub-section (1) of Section 15 has reference only to the satisfaction of the authority that the person concerned is indulging in or about to indulge in or likely to indulge in anti-social activities. It has no reference to the place where the person concerned was convicted or the place where a crime was registered against the person concerned. The expression "having jurisdiction" occurring in sub-section (1) of Section 15 has reference to the jurisdiction of the District Magistrate or Police Officer over a particular area with reference to which he is empowered to pass the order of restraint. It does not have reference to the place where the crime is registered. It is to be noted that a person becomes a "known rowdy" if he is found guilty by a competent court as provided in sub-clauses (i) and (ii) of clause (p) of Section 2 of the KAAPA. Likewise, a person can be termed as a "known goonda" if he is found guilty by a competent court in the manner indicated in sub- clauses (i) and (ii) of clause (o) of Section 2. A person becomes a "known goonda" or "known rowdy" not only when he is convicted by a competent court, but he becomes so even if cases are registered against him in the manner indicated in the KAAPA. If so, we are of the view that 

the expression "having the jurisdiction" does not mean that the person who passes the order under Section 15(1) should have jurisdiction to register the crime or should have jurisdiction over the area in which the crime is registered against the person concerned.

14. For the aforesaid reasons, we disagree with the finding of the Advisory Board that two crimes registered against the petitioner at Koyipram Police Station cannot be taken into account.

15. The State, as a respondent in the Writ Petition, is entitled to support the order passed by the Advisory Board and at the same time oppose some of the findings rendered by the Advisory Board. We found that the two crimes left out by the Advisory Board from consideration also can be taken into account. If so, the petitioner would satisfy the definition of "known rowdy", as held by the authority under Section 15(1) of KAAPA. The restraint order, therefore, can be well supported, though for reasons different from the reasons stated by the Advisory Board. 

16. For the aforesaid reasons, we are of the view that 

it is not necessary that the offences must have been committed within the territorial jurisdiction of the District Magistrate or the Police Officer to enable him to pass an order under Section 15(1) of the KAAPA.

17. Point C.- The learned counsel for the petitioner submitted that Crime No.132 of 2009 of Chengannur Police Station was really a "counter case" of Crime No.131 of 2009, in which, the petitioner is an injured. It is submitted that, in these circumstances, Crime No.132 of 2009 should not have been taken into account for passing the restraint order under Section 15(1) of the KAAPA. Crime No.132 of 2009 was registered for the offences under Sections 324 and 326 of the Indian Penal Code and Section 27 of the Arms Act, which would attract clause (t) of Section 2 of the KAAPA. If the conditions mentioned in clause (p) are satisfied, the person concerned can be treated as a "known rowdy". The definition of "known rowdy" contains six provisos. The petitioner has no case that he comes under any of the provisos constituting exception to the definition of "known rowdy" under Section 2(p). His contention is that Crime No.132 of 2009 being a "counter case" in respect of another crime in which he is the injured, Crime No.132 of 2009 should be taken out of the purview of consideration. This argument cannot be accepted for the simple reason that it does not come within any of the provisos to clause (p) of Section 2. 

The Court is not entitled to make another category of exception apart from the exceptions already provided in clause (p) of Section 2 of the KAAPA. 

We, therefore, reject the contention put forward by the learned counsel for the petitioner.

18. Point D.- The learned counsel for the petitioner contended that Crime No.132 of 2009 is likely to be compounded and steps are being made to settle the disputes and differences. The offences alleged against the petitioner, as stated above, are under Sections 324 and 326 of the Indian Penal Code and Section 27 of the Arms Act. These offences are not compoundable. Therefore, we reject the contention put forward by the learned counsel for the petitioner.

19. The Advisory Board has reduced the period of restraint from one year to nine months. The order passed by the Advisory Board is legal and proper in that regard. 

For the aforesaid reasons, we do not find any merit in the Writ Petition. The Writ Petition is, accordingly, dismissed. 

(K.T.SANKARAN) Judge 

(B.KEMAL PASHA) Judge 

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