Loading...
Responsive image

Joseph Das vs State Of Kerala on 31 March, 2010

Kerala High Court
Joseph Das vs State Of Kerala on 31 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 9377 of 2010(V)


1. JOSEPH DAS
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REP BY
                       ...       Respondent

2. THE SECRETARY TO GOVERNMENT,

3. THE DISTRICT COLLECTOR, KOLLAM.

4. THE DISTRICT SUPERINTENDENT OF POLICE,

                For Petitioner  :SRI.DILEEP P.PILLAI

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :31/03/2010

 O R D E R
                           R. BASANT &
                      M.C. HARI RANI, JJ.
             -------------------------------------------------
                  W.P.(C) No. 9377 of 2010-V
             -------------------------------------------------
            Dated this the 31st day of March, 2010

                             JUDGMENT

Basant,J.

The petitioner has come to this Court with this writ petition

under Art.226 of the Constitution to issue directions to restrain

the respondents from executing an order of detention allegedly

passed against him under Sec.3 of the Kerala Anti-Social

Activities (Prevention) Act, 2007 (hereinafter referred to as `the

KAAPA’).

2. The petitioner asserts that an order of detention has

been passed categorizing him as a ‘known rowdy’ falling within

the ambit of the expression under Sec.2(p) of the KAAPA. Three

cases are allegedly relied upon to issue such order of detention

against him under Sec.3 of the KAAPA. The first crime relied on

is the one registered, inter alia, under Sec.308

W.P.(C) No. 9377 of 2010 -: 2 :-

IPC on the basis of Ext.P1 FIR i.e., Crime No.289/06 of the

Sakthikulangara Police Station in Kollam District. The second

crime on which reliance is placed is the one registered as Crime

No.42/08 of the Sakthikulangara Police Station in Kollam District

for offences punishable, inter alia, under Sec.308 read with

Sec.149 IPC. The third crime which is relied on by the

respondents against the petitioner is Ext.P2 crime i.e., Crime

No.233/09 of the Sakthikulangara Police Station in Kollam

District registered under Secs.323 and 324 read with Sec.34

IPC. Final reports have been filed in these crimes. It is the

submission of the petitioner that an order of detention has been

passed and the said order of detention under Sec.3 of the KAAPA

is likely to be executed against him at any moment. According

to the petitioner, such order of detention is not valid, legal and

enforcible. He hence prays that the extraordinary constitutional

powers of this Court under Art.226 of the Constitution may be

invoked to issue appropriate directions to restrain the

respondents from executing the said order under Sec.3 of the

KAAPA.

3. The learned Government Pleader, on behalf of the

respondents, does not dispute the fact that an order of detention

has been passed under Sec.3 of the KAAPA reckoning the

W.P.(C) No. 9377 of 2010 -: 3 :-

petitioner as a ‘known rowdy’ under Sec.2(p) of the KAAPA.

The learned Government Pleader does not also dispute the fact

that the said order of detention takes into account the three

crimes referred to by the petitioner in this writ petition.

4. Exts.P1 and P2 as also the FIR in the second case i.e.,

Crime No.42/08 of the Sakthikulangara Police Station have been

perused by us. There can be no doubt that these are cases

falling within the sweep of Sec.2(t) of the KAAPA. The learned

counsel for the petitioner submits that though the cases fall

within the sweep of the offences covered by the expression

‘rowdy’ in Sec.2(t) of the KAAPA, the petitioner cannot be

reckoned as a known rowdy and no order of detention is liable to

be passed against him. He contends that under the third proviso

to Sec.2(p) of the KAAPA, Ext.P1 crime cannot be taken into

reckoning to include the petitioner as a known rowdy. So far as

the second crime i.e., Crime No.42/08 is concerned, the

argument is that it was basically a traffic accident; no serious

injuries were suffered by the victim and anticipatory bail had

been granted by this Court to the petitioner. So far as the third

case is concerned i.e., Ext.P2 Crime i.e., Crime No.233/09, the

argument is that the injuries are simple and that cannot be

reckoned as relevant for the purpose of including the petitioner

W.P.(C) No. 9377 of 2010 -: 4 :-

within the sweep of the expression ‘known rowdy’.

5. We shall carefully avoid any detailed discussion on

merits, lest such discussions may adversely affect the right of the

petitioner to assail the order of detention in accordance with law

after his detention. The crucial question to be considered now

is whether the constitutional powers of this Court under Art.226

of the Constitution deserve to be invoked prior to the execution

of the order of detention under Sec.3 of the KAAPA.

6. The law on this point is well settled. The Supreme

Court in Addl. Secretary, Government of India v. Alka

Subhash Gadia (1992 Supp (1) SCC 496) had enumerated the

circumstances under which a pre-execution challenge against an

order of preventive detention can be considered by the court.

Later, in the decision in Deepak Bajaj v. State of

Maharashtra (AIR 2009 SC 628), the question has been

considered again and more liberal standards have been applied.

7. There can be no doubt that this Court under Art.226 of

the Constitution can certainly exercise the extraordinary

constitutional jurisdiction to interfere with and set aside the

order of detention even at the pre-execution stage. On that

question of law, there is and there can be no doubt at all. The

short question is whether the instant case can be brought under

W.P.(C) No. 9377 of 2010 -: 5 :-

any one of the pigeonholes stipulated in Alka Subhash Gadia

(supra) as explained later in Deepak Bajaj (supra) to justify the

invocation of such jurisdiction. Deepak Bajaj (supra) does, of

course, lay down more liberal standards for invocation of such

constitutional powers under Art.226 of the Constitution against

an order of preventive detention.

8. We have heard the learned counsel for the petitioner in

detail. We have taken into reckoning the nature of the challenge

which the petitioner wants to raise against the impugned order

of detention. Even taking the most liberal view permissible in

the light of the decision in Deepak Bajaj (supra), we are not

persuaded to agree that such power to entertain a pre-execution

challenge against the impugned order of detention can, need or

deserve to be invoked. We do not intend to express any final

opinion on the contentions raised by the learned counsel for the

petitioner referred above. Suffice it to say that we do not find

merit in the contention that the petitioner does not deserve to be

included as a known rowdy under the definition of that

expression in Sec.2(p) of the KAAPA.

9. We do accordingly dismiss this application; but we make

it clear that we have not intended to express any authentic and

final opinion on the possible grounds of challenge later when the

W.P.(C) No. 9377 of 2010 -: 6 :-

Advisory Board or the Government considers the representations

of the petitioner. No observations in this judgment shall

influence or restrain such authorities. We need only mention

that we have only taken the view that a pre-execution challenge

against the impugned order of detention need not and cannot be

entertained.

10. This writ petition is accordingly dismissed.

11. Hand over a copy of this judgment to the learned

counsel for the petitioner.

Sd/-

R. BASANT
(Judge)

Sd/-

M.C. HARI RANI
(Judge)

Nan/

//True Copy//

P.S. to Judge

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information