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.
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W.P.(C) No. 9377 of 2010-V
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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
