IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24243 of 2009(A)
1. ANOOP, AGED 32 YEARS, S/O.THANKAPPAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY HOME
... Respondent
2. INSPECTOR GENERAL OF POLICE,
For Petitioner :SRI.RAJAGOPAL PADIPPURACKAL
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :20/10/2009
O R D E R
R. BASANT & M.C. HARI RANI, JJ. "CR"
-------------------------------------------------
W.P.(C) No. 24243 of 2009-A
-------------------------------------------------
Dated this the 20th day of October, 2009
JUDGMENT
Basant, J.
How are the expressions “neighbour” and “immediate
neighbour” in the proviso (ii) to Section 2 (p) of the Kerala Anti-
Social Activities (Prevention) Act, 2007 (hereinafter referred to
as `the KAAPA’) to be understood? This question arises for
consideration in this Writ Petition.
2. The petitioner against whom an order of restraint has
been passed by the 2nd respondent under Sec.15 of the KAAPA
has filed this writ petition with a prayer that the said order of
restraint may be set aside.
3. To the skeletal facts first. The 2nd respondent allegedly
received information that the petitioner is likely to indulge in
anti-social activities. The 2nd respondent also received
information that the petitioner was involved in three different
cases which all bring him within the sweep of the definition of
`rowdy’ under Sec.2(t) of the KAAPA and consequently a `known
rowdy’ under Sec.2(p) of the KAAPA. Ext.P8
notice was hence issued by the 2nd respondent to the
W.P.(C)No.24243 of 2009-A -2-
petitioner giving him opportunity to make his submissions under
Sec.15(1) of the KAAPA. The petitioner submitted his reply –
Ext.P9, to the said notice. It is thereafter that Ext.P1 order has
been passed by the 2nd respondent restraining the movements of
the petitioner. The order of restraint is dated 3/6/09. It has
been served on the petitioner on 10/6/09. The petitioner
claiming to be aggrieved by the impugned order (Ext.P1)
represented before the Advisory Board under Sec.15(2) of the
KAAPA and thereupon Ext.P2 order has been passed by the
Advisory Board. The petitioner in this writ petition assails the
restraint placed on him under Ext.P1 and upheld in Ext.P2 orders.
4. Following are the cases registered against the petitioner:
Sl.No. Crime No. Date of Offences, inter Status of the De facto
the alia. case complainant
offence
1 23/08 20/4/08 Ss.323 & 354 IPC Pending trial One Leelamma
One Saneesh
allegedly a distant
relative of
39/08 30/6/08 Secs.324 read Pending trial Leelamma and a
with Sec.34 IPC witness in the case
(Cr.23/08) initiated
2 by Leelamma
Not related to
79/08 23/11/08 Sec.324 read with Pending trial Leelamma; but a
Sec.452 IPC witness in the case
(Cr.23/08) initiated
3 by Leelamma
W.P.(C)No.24243 of 2009-A -3-
5. In addition to these three cases it is alleged that there
was a later incident on 4/12/08 in which Sathi, D/o. Leelamma was
allegedly threatened by the petitioner. No crime has been
registered in respect of that incident.
6. The learned counsel for the petitioner assails the
impugned order mainly on the following grounds:
(i) There has been no proper application of mind by the
authority before Ext.P1 order was passed.
(ii) The authority must have taken note of the fact that the
dispute is one between neighbours and that the petitioner cannot
hence be held to be a known rowdy under Sec.2(p) of the KAAPA.
7. Though various grounds are urged, we are satisfied that
the question to be considered mainly is whether the authority has
applied his mind properly to the relevant facts. The learned
counsel for the petitioner submits that there has been no due and
proper application of mind before the impugned order of restraint
Ext.P1 was passed against him. The conclusion that the petitioner
is a known rowdy has been rendered without due and proper
application of mind, contends counsel.
8. The learned counsel builds up this argument from the
circumstance that the first case referred above i.e., Crime
W.P.(C)No.24243 of 2009-A -4-
No.23/08 is one between him and one Leelamma – a neighbour.
According to the petitioner, there was disagreement and dispute
between the said Leelamma and himself. On account of such
strain, he was allegedly attacked and an earlier crime was
registered as Crime No.22/08. The petitioner was the victim/de
facto complainant in that case and Leelamma as well as the
relatives and associates of Leelamma were the accused in that
crime. The said Leelamma as also the de facto complainants in
Crime Nos.39/08 and 79/08 (cases 2 and 3 referred above) are
accused in that crime i.e, Crime No.22/08. Final report has
already been filed and cognizance has been taken by the court in
Crime No.22/08. According to the petitioner, Crime Nos.23, 39
and 79/08 are all, in fact, only retaliation against the petitioner for
having initiated Crime No.22/08. The learned counsel contends
that the authority had mechanically and without proper
application of mind come to the conclusion, first of all, that the
petitioner is a known rowdy and then that an order of restraint is
necessary to prevent him from indulging in anti-social activities.
9. Be that as it may, the main contention raised by the
learned counsel for the petitioner on the broad head of `non-
application of mind’ is that, at least, in so far as the first case (ie.
W.P.(C)No.24243 of 2009-A -5-
Crime No.23/08) is concerned the same should not have been
reckoned and counted as relevant while considering the play of
Sec.2(p)(iii) of the KAAPA. According to the petitioner,
Leelamma is his neighbour. The dispute was between Leelamma
and himself. The crime charge sheeted by the police – Crime
No.23/08 must, at any rate, have been excluded as the said crime
was relating to a dispute between himself and his neighbour
Leelamma and his involvement in the said case was only as such
neighbour.
10. The learned counsel for the petitioner submits that this
is very evident from the nature of averments and grievances
raised by Leelamma in the First Information Statement in Crime
No.23/08. Leelamma alleged that she has a strained relationship
with her husband and that she resides away from her husband.
She alleges that the petitioner allegedly a neighbour has been
attempting to make advances towards her which she alletedly
resisted. It is aggrieved by such resistance of such attempts that
the petitioner allegedly indulged himself in Crime No.23/08. This
is very specific allegation raised in the First Information
Statement in Crime No.23/08. The learned counsel promptly
W.P.(C)No.24243 of 2009-A -6-
relies on the statement given by the said Leelamma before the
Doctor about the alleged cause. That is a contemporaneous
statement made at the time when she was admitted to the hospital
shortly after the alleged incident. It is very specifically alleged in
such wound certificate that she was attacked by a neighbour –
obviously referring to the petitioner, the sole accused. The
learned counsel heavily relies on the fact that the petitioner has
been referred to as a neighbour by the de facto complainant
Leelamma in the wound certificate. The learned counsel wants
this Court to read the wound certificate along with the First
Information Statement which, according to him, indicate that the
dispute was one between the neigbours.
11. The learned counsel contends that if the parties are
neighbours as revealed from the statement of Leelamma before
the Doctor and the police, the petitioner is entitled to insist that
Case No.1 i.e., Crime No.23/08 must be excluded while
considering the question whether the petitioner is a known rowdy
or not. If Crime No.23/08 is so excluded, there will be only two
cases remaining and consequently the petitioner will not come
within the sweep of Sec.2(p)(iii). The remaining two cases, even
if they be reckoned as relevant, cannot bring the petitioner within
W.P.(C)No.24243 of 2009-A -7-
the purview of Sec.2(p)(iii) as there will be shortage of one case.
12. The learned counsel for the petitioner submits that in
Ext.P9 reply submitted by him to the authority i.e., the 2nd
respondent he had very specifically raised this contention in para-
14. The relevant portion in para-14 is extracted below:
“The 3 cases cited arise out of differences
between neighbours. The fact they are neighbours
can be found in the statement of Leelamma itself.”
13. The learned counsel for the petitioner contends that
most surprisingly and unfortunately the 2nd respondent, when he
passed Ext.P1 order, did not at all apply his mind to this very
serious contention raised by the petitioner. Without adverting to
that contention at all the authority has come to the conclusion
that the petitioner is a known rowdy. This is unjustified. This
reveals want of application of mind, contends the learned counsel
for the petitioner.
14. We have gone through Ext.P1 order. We find merit in
the contention that this plea raised in para-14 has not at all been
considered by the 2nd respondent in Ext.P1. We find merit in the
contention of the learned counsel for the petitioner that the 2nd
respondent has grossly erred in not even adverting to this specific
W.P.(C)No.24243 of 2009-A -8-
contention raised in para-14 of Ext.P9.
15. A reading of the averments in the FI statement as also
the alleged cause narrated to the Doctor in the wound certificate
must clearly notify the authority of the need to advert specifically
to the question whether the second proviso to Section 2(p)would
apply at least in so far as the first case; i.e., Crime No.23/2008 is
concerned. But, significantly, mind of the authority has not at all
been applied to that aspect of the matter. This conclusion is
inevitable from a total reading of Exhibit P1 order of restraint.
There is not a semblance of evidence of application of mind to this
crucial and vital aspect. The learned counsel for the petitioner is,
in these circumstances, correct in his contention that the order of
restraint must fail for the reason that mind of the authority has
not been pointedly applied to this aspect, notwithstanding the fact
that the objection was raised specifically in paragraph 14 of the
reply extracted above.
16. The learned Government Pleader contends that proviso
(ii) cannot apply to the facts of the case. We extract the relevant
portion of Section 2(p) and the proviso below.
“2(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 imposingW.P.(C)No.24243 of 2009-A -9-
any restriction or detention under this Act,-
(i) XXXXXXXXXXX XXXXXXX XXXXXXXXX
(ii) XXXXXXXXXXX XXXXXXX XXXXXXXXX
(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 any offence committed by a person, –
(i) XXXXXXXXXXX XXXXXXX XXXXXXXXX
(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.
(iii) XXXXXXXXXXX XXXXXXX XXXXXXXXX
(iv) XXXXXXXXXXX XXXXXXX XXXXXXXXX
(v) XXXXXXXXXXX XXXXXXX XXXXXXXXX
(vi) XXXXXXXXXXX XXXXXXX XXXXXXXXX
shall be omitted from the computation of the number
of offences taken into account for deciding whether a
person is a known rowdy.” (emphasis supplied)
17. The expressions “neighbour” and “immediate neighbour”
are not defined in the statute. Those expressions have
W.P.(C)No.24243 of 2009-A -10-
to be understood as known in language and reasonably.
Neighbour and immediate neighbour appearing in proviso (ii) of
Section 2(p) according to us cannot bring with it any rigid norms
or notions about the distances between the houses of the known
rowdy and the victim. The expressions have to be reasonably
understood. They are elastic enough to persuade the Court to
understand the same without any specific stipulation or embargo
on the distances. We are unable to introduce a requirement that
a neighbour must be resident within any distance to be specified
by the Court or that the expression immediate neighbour must
exclude all who are not adjacently residing. Nor can any artificial
idea about the distance between the two houses be introduced to
understand the expression neighbour or immediate neighbour.
The anxiety of the legislature obviously was to ensure that only
those who pose a threat to public order and not those who may
pose threat to law and order are brought within the provisions of
the KAAPA. A crime in relation to a dispute between the
neighbours was directed to be excluded under proviso (ii) only
with this laudable purpose. The expressions neighbour and
immediate neighbour in proviso (ii) must be read and understood
in this background and not mechanically or casually.
W.P.(C)No.24243 of 2009-A -11-
18. We take note firstly of the fact that the victim
Leelamma in her statement to the Doctor has specifically asserted
that the petitioner herein, the sole accused in Crime No.23/08 is
her neighbour. The nature of the cause for the alleged strain in
the relationship between the parties also suggests that they are
neighbours. We have no satisfactory material to indicate the
precise location of the house of the petitioner and the said
Leelamma. Contradictory assertions are made. Tangible data is
not available, except the averments in the FI statement and the
alleged cause narrated to the Doctor.
19. Moreover, we do not in this case propose to come to
any specific conclusion of fact about the distance between the
house of Leelamma and the petitioner, nor do we intend to enter a
specific finding as to whether they are neighbours or immediate
neighbours. We take note of the simple fact that the mind of the
detaining authority has not been specifically applied to this aspect
which is specifically raised by the petitioner in Ext.P9. We further
take note of the circumstance that it is not an empty and bald
contention raised by the petitioner to assail the impugned order.
The contention of the petitioner is probabilised by the assertions
in the FI statement of Leelamma and the statement to the Doctor
W.P.(C)No.24243 of 2009-A -12-
made by the said Leelamma in the wound certificate. We are
satisfied that for the simple reason that the mind of the authority
has not been applied properly to this crucial aspect, the impugned
order of restraint Exhibit P1 must fail.
20. The learned Government Pleader contends that the
requirements appear in a proviso and the burden must be placed
squarely on the shoulders of the petitioner to establish before this
Court that he is not only a neighbour but an immediate
neighbour. In a case of detention/restraint under the KAAPA, we
cannot afford to ignore the fact that valuable rights of citizens are
sought to be restrained/taken away not for any offences
committed by him, but only on the prophecy or anticipation or
belief that he is likely to abuse his freedom and liberty. In such a
case where the authority concerned does not apply its mind
properly, it would be idle for such authority to contend that the
detenu/person restrained has not discharged any burden of proof,
before applying his mind alertly to the facts in controversy. The
burden and duty to apply his mind rests with the authority and he
cannot claim absolution from that responsibility by falling back on
theories regarding burden of proof.
W.P.(C)No.24243 of 2009-A -13-
21. The learned Government Pleader attempts to contend
that disputes between immediate neighbours must definitely
relate to some disputes between them as neighbours – suggesting
thereby that boundary disputes, property disputes, etc. alone shall
come within the sweep of the second proviso to Section 2(p). We
are unable to accept this contention. There is nothing in the
language in the second proviso that can limit the disputes to the
category of disputes canvassed by the learned Government
Pleader. Any dispute between the neighbours which stems from
and is incidental to such relationship of theirs as such neighbours
must certainly bring it within the sweep of the second proviso to
Section 2(p).
22. The learned Government Pleader then submits that at
any rate, Exhibit P2 order passed by the Advisory Board shows
that mind of the Advisory Board had been applied to this
circumstance. Reliance is seen placed on some information
furnished that there is a distance of 2 KMs between the house of
the petitioner and the house of the victim Leelamma. We are
unable to agree that this scanty information placed before the
Advisory Board is sufficient to efface or obliterate the vital defect
in Exhibit P1 order – of non-application of mind effectively. This
W.P.(C)No.24243 of 2009-A -14-
contention based on Exhibit P2 order cannot, in these
circumstances, succeed. The vital defect of total non application
of mind by the original authority on a specific aspect cannot
obviously be cured by the alleged application of mind later by the
superior/appellate authority.
23. The above discussions lead us to the conclusion that
the impugned order warrants interference.
24. In the result:
(a) this Writ Petition is allowed.
(b) the impugned order Exhibit P1 is set aside.
Consequently, Exhibit P2 is also set aside.
R.BASANT, JUDGE
M.C.HARI RANI, JUDGE
dsn