IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 377 of 2008(S)
1. SAFIYA, AGED 49 YEARS, S/O.UBAID,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY SECRETARY,
... Respondent
2. THE DISTRICT MAGISTRATE AND DISTRICT
3. SUPERINTENDENT OF CENTRAL PRISON,
4. THE DISTRICT SUPERINTENDENT OF POLICE,
For Petitioner :SRI.RAJIT
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice K.T.SANKARAN
Dated :12/12/2008
O R D E R
"C.R"
KURIAN JOSEPH & K.T.SANKARAN, JJ.
-----------------------------------------
W.P(Crl.)No.377 of 2008-S
-----------------------------------------
Dated this the 12 day of December, 2008
th
JUDGMENT
Kurian Joseph,J.
Subjective satisfaction of the detaining authority on perusing
the report of the sponsoring authority and also the materials
forwarded by the Superintendent of Police is the sine qua non for
preventive detention under the provisions of the Kerala Anti-Social
Activities (Prevention) Act, 2007. Under Section 3 of the Act the
District Magistrate passes the order of detention after entering the
subjective satisfaction on the basis of the information received from
the police officer with regard to the activities of any Known Goonda or
Known Rowdy, with a view to preventing such person from
committing any anti-social activity within the State of Kerala. The
crucial question is whether in a situation of the investigating officer
having filed final report under Section 173(2) of the Code of Criminal
Procedure should the District Magistrate scrutinize the records leading
to the final report under Section 173(2) of the Code of Criminal
Procedure.
W.P(Crl.)No.377 of 2008
-:2:-
2, The Kerala Anti-Social Activities (Prevention) Act,
2007 (hereinafter referred to as the Act) is intended to provide for the
effective prevention and control of certain kind of anti-social activities
in the State of Kerala. Anti-social activity has been generally defined
to mean any conduct causing (likely to cause also) directly or
indirectly, any feeling of insecurity, danger or fear among the general
public or any section thereof, or any danger to safety of individuals,
safety of public, public health or the ecological system or any loss or
damage to public exchequer or to any public or private property.
Bootlegger, counterfeiter, depredator of environment, digital data and
copyright pirate, drug offender, hawala racketeer, immoral traffic
offender, loan shark, property grabber are also roped in the definition
of persons indulging in anti-social activity. Known Goonda is defined
under Section 2(o) of the Act and Known Rowdy is defined under
Section 2(p) of the Act which read as follows:-
“2(o) `Known Goonda’ means a goonda who had been,
for acts done within the previous seven years as
calculated from the date of the order imposing
any restriction or detention under this Act, –
(i) found guilty, by a competent Court or
authority at least once for an offence
within the meaning of the term `goonda’
as defined in clause (j) of Section 2, or
(ii) found in any investigation or enquiry by a
W.P(Crl.)No.377 of 2008
-:3:-
competent police officer, authority or
competent Court, on complaints initiated
by persons other than police officers, in
two separate instances not forming part of
the same transaction, to have committed
any act within the meaning of the term
`goonda’ as defined in clause (j) of Section
2;
Provided that an offence in respect of
which a report was filed by a Police Officer
before a lawful authority consequent to
the seizure, in the presence of witnesses,
of alcohol, spirit, counterfeit notes, sand,
forest produce, articles, vilolating
copyright, narcotic drugs, psychotropic
substances, or currency involved in hawala
racketeering may be included for
consideration though the report had
resulted from an action initiated by a
police officer.
Explanation. – An instance of an offence
involving a person, which satisfies the
conditions specified in the definition of
known rowdy referred to in clause (p) of
Section 2 can also be taken into
consideration as an instance, along with
other cases, for deciding whether the
person is a known goonda or not.
(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 Section 2 or
any offence notified as such under the
said clause; or
W.P(Crl.)No.377 of 2008
-:4:-
(ii) made guilty, by a competent Court at
least twice for any offence of the nature
under item (ii) of clause (t) of Section 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 Section
2.
Provided that any offence committed by a
person:-
(i) By virtue of his involvement as a member of
the family or a close relative of the
family, in an incident which took place
by a reason of a family dispute or
quarrel involving family members of
close relatives on either side; or
(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; or
(iii) By virtue of his involvement as a
employee of any establishment in an
incident which occurred in connection
with a dispute between himself and the
establishment with regard to the
conditions of service; or
(iv) As a member of the student community
in a recognized educational institution,
by virtue of his involvement, merely by
his presence but without any overt act
constituting the offence mentioned in
W.P(Crl.)No.377 of 2008
-:5:-
clause (t) of Section 2 without being
involved in any criminal conspiracy
facilitating the same, in an incident
which occurred due to the general
involvement of students of the
institution in that particular incident; or
(v) As a member of a recognized political
party, by virtue of his involvement
merely by his presence, but without
any overt act constituting the offence
mentioned in clause (t) of Section 2
without being involved in any criminal
conspiracy facilitating the same in an
incident which occurred due to the
general involvement of the workers of
that party in an agitation or protest or
programme organized by the party with
prior information given to the police
officer or Magistrate having jurisdiction;
or
(vi) by virtue of his involvement in a
criminal act committed by him before
he had attained the age of 18 years;
shall be omitted from the computation of the
number of offences taken into account for
deciding whether the person is a known rowdy”
Section 3 empowers the Government or the authorized officer to
preventively detain known goondas and known rowdies. The
provision reads as follows:-
“3. Power to make orders detaining Known
Goondas and Known Rowdies.– (1) The
Government or an officer authorised under sub-
section (2) may, if satisfied on information
received from a Police Officer not below the rank
of a Superintendent of Police with regard to the
W.P(Crl.)No.377 of 2008
-:6:-
activities of any Known Goonda or Known
Rowdy, that with a view to preventing such
person from committing any anti-social activity
within the State of Kerala in any manner, it is
necessary so to do, make an order directing that
such person be detained.
(2) If having regard to the circumstances
prevailing, or likely to prevail in any area, the
Government, if satisfied that it is necessary so
to do, may, by order in writing, direct that
during such period as may be specified in the
said order, the District Magistrate having
jurisdiction may exercise the powers under sub-
section (1) in respect of such persons residing
within his jurisdiction or in respect of such
persons not so resident who have been
indulging in or about to indulge in or abet any
anti-social activities within such jurisdiction.
(3) When any order is made under this section
by the authorised officer under sub-section (2),
he shall forthwith report the fact to the
Government and the Director General of Police,
Kerala together with a copy of the order and
supporting records which, in his opinion, have a
bearing on the matter and no such order shall
remain in force for more than 12 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, Home Department if generally so
authorised in this regard by the Government.”
3. Law is now well settled that the District Magistrate should
be satisfied on perusing the information furnished by the
Superintendent of Police or an officer not below the rank of the
Superintendent of Police and on the materials forwarded along with
W.P(Crl.)No.377 of 2008
-:7:-
the report that such person is to be detained so as to prevent and
control his anti-social activities. In Elizabeth George v. State of
Kerala, 2008 (4) KLT 425 it has been held that a final report as
envisaged under Section 173(2) of the Code of Criminal Procedure is
not essential for an action under Section 3 of the Act. Even though
investigations are pending against the persons who are accused in
various crimes, and though such investigations are not completed for
various reasons, the detaining authority is free to examine the matter
with reference to the report and the materials in order to arrive at a
subjective satisfaction, even in the absence of a final report. In
situations where the investigating officer has filed a final report under
Section 173(2) of the act, in common parlance known as having filed
a police charge, can the District Magistrate or should the District
Magistrate go beyond the final report — finding — of the investigating
officer and enter the subjective satisfaction while exercising the
power for detaining a person under preventive detention? Under the
scheme of the Act a known rowdy is a person, who is involved in the
defined circumstances within a previous period of seven years
calculated from the date of the order under Section 3 of the Act. The
defined circumstances are, the person (1) made guilty by a
competent court, at least once, for an offence punishable with five or
more years of imprisonment at a time, (2) made guilty by a
W.P(Crl.)No.377 of 2008
-:8:-
competent court at least twice for any offence punishable less than
five years of imprisonment at any time excluding those punishments
with less than one year of imprisonment; and (3) who is 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 under the definition of the
word `Rowdy’ as appearing under Section 2(t) of the Act. Known
goonda is a person who is, within a period of previous seven years
calculated from the date of the order of detention, found guilty by a
competent court or authority at least once for an offence within the
meaning of the word `Goonda’ as defined under Section 2(j) of the
Act or who is found on any investigation or enquiry by a competent
police officer or authority or competent court on complaints initiated
by persons other than police officers in two separate instances not
forming part of the same transaction, to have committed any act
within the meaning of the term `goonda’ as defined in clause (j) of
4. The process leading to a final report by a police officer
under section 173 (2) starts with Section 154 of the Code of Criminal
Procedure, 1973 (Chapter XXII). After the detailed procedure
prescribed under the Chapter, the Police files a final report under
W.P(Crl.)No.377 of 2008
-:9:-
Section 173(2). To the extent relevant Section 173 reads as
follows:-
“173. Report of police officer on completion of
investigation.–(1) Every investigation under
this Chapter shall be completed without
unnecessary delay.
(2) (i) As soon as it is completed, the officer in
charge of the police station shall forward to a
Magistrate empowered to take cognizance of the
offence on a police report, a report in the form
prescribed by the State Government, stating–
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to
be acquainted with the circumstances of
the case;
(d) whether any offence appears to have
been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his
bond and, if so, whether with or without
sureties;
(g) whether he has been forwarded in
custody under section 170.
(ii) The officer shall also communicate, in
such manner as may be prescribed by the State
Government, the action taken by him, to the
person, if any whom the information relating to
the commission of the offence was first given.”
It is clear from the provision that the report shall contain an inference
by the police officer as to whether any offence appears to have been
committed, and if so, by whom. It is this inference by the police
W.P(Crl.)No.377 of 2008
-:10:-
officer that is referred to as the finding under section 2(o)(ii) of the
Act in defining a known goonda and under section 2(p)(iii) of the Act
while defining a known rowdy. Once the investigating officer has
come to a conclusion that the accused person has committed an
offence referred to in clause (j) or clause (t) of Section 2 as the case
may be and when that finding (police report) is forwarded along with
the information by the police officer not below the rank of the
Superintendent of Police to the detaining authority under the Act, the
detaining authority cannot look into the sufficiency or otherwise of the
materials leading to the finding by the police officer regarding the
commission of the offence. That is within the exclusive jurisdiction of
the criminal court. The detaining authority cannot and shall not
appreciate the materials leading to the police report and come to a
different finding or comment on the finding as to whether on the
materials thus made available by the police officer a report under
Section 173(2)(i)(d) regarding the commission of offence could have
been made or not. As held by the Supreme Court in Union of India
v. Paul Manickam, AIR 2003 SC 4622 “In case of preventive
detention no offence is proved, nor any charge is formulated and the
justification of such detention is suspicion or reasonability and there is
no criminal conviction which can only be warranted by legal evidence”
(para 14). Thus if the detaining authority cannot go beyond the
W.P(Crl.)No.377 of 2008
-:11:-
finding of the investigating officer, it is not necessary for the
Superintendent of Police to furnish the materials leading to the police
report to the detaining authority in a situation of Section 173(2)
report. The subjective satisfaction of the detaining authority is to be
made based on the information furnished by the police officer not
below the rank of Superintendent of Police which includes the finding
under Section 173 (2)(i)(d) of the Code of Criminal Procedure. Of
course, such finding by the investigating officer cannot automatically
lead to an order for preventive detention. The findings are only one
of the materials furnished along with the information by the police
officer not below the rank of the Superintendent of Police. On perusal
of the report and the findings, the detaining authority has to enter the
satisfaction that such a person is to be preventively detained with a
view to prevent him from committing any anti-social activity within
the State of Kerala.
5. Therefore in circumstances where the detaining authority
has furnished the police report under section 173(2)(i)(d) of the Code
of Criminal Procedure, the competent officer need not furnish
materials leading to the finding of the investigating officer to the
detaining authority since the detaining authority cannot make a
different assessment as to the sufficiency of the materials leading to
the finding in the report. The satisfaction of the detaining authority
W.P(Crl.)No.377 of 2008
-:12:-
need only be based on the final report and the further information
furnished by the police officer not below the rank of the
Superintendent of Police regarding the need for preventive detention
under the Act.
6. Now coming to the facts of the case, Ext.P1 is the order of
detention passed by the District Magistrate, Thrissur. The order is
dated 8-7-2008. The detenu is the son of the petitioner. It is seen
from the report that the following materials have been perused by the
District Magistrate along with the report of the Superintendent of
Police, Thrissur:-
(a) Crime No.492/04 of Chavakkad Police Station
u/s.143, 147, 148, 427, 447, 307, 149 IPC is
on an offence committed by him on 31-10-
2004. The case is that the detenu and his
accomplices, trespassed, attacked with deadly
weapons and caused grievous injuries to the
complainants and his brothers and damaged
an autorickshaw. The case is now under trial
as SC No.126/08 in the Additional Sessions
Court, Thrissur.
(b) Crime No.76/2005 of Chavakkad Police
Station u/s.323, 324, 427, 308, 34 IPC is an
offence committed by him on 10-02-2005.
The case is that the detenu and his
accomplices attacked the complainant with
deadly weapons and caused grievous injuries
and damaged an autorickshaw. The case is
now under trial as SC No.211/2008 in Addl.
Assistant Sessions Court, Thrissur.
(c) Cr.No.739/05 of Chavakkad Police Station
u/s.126, 308, 34 IPC and section 27 of Arms
W.P(Crl.)No.377 of 2008
-:13:-
Act is an offence committed by him on 14-11-
2005. The case is that the detenu and his
accomplices attacked the complainant’s
brother with deadly weapons and injured him
grievously. The case is under trial as SC
No.883/07 in Additional Assistant Sessions
Court, Thrissur.
(d) Cr.No.235/06 of Chavakkad Police Station
u/s.436, 427, 34 IPC is an offence committed
by him on 17-4-2006. The case is that the
detenu and his accomplices, due to previous
enmity, burnt down the complainant’s
thatched house along with Rs.2 lakhs worth of
fish boxes stored in the house. The case has
been charge sheeted in Judicial First Class
Magistrate, Chavakkad on 27-12-2007.
(e) Cr.No.272/07 of Chavakkad Police Station
u/s.143, 147, 148, 452, 506(ii), 427, 149 IPC
is an offence committed by him on 29-4-
2007. The case is that the detenu and his
accomplices trespassed into the complainant’s
house and destroyed the windowpanes and
utensils worth Rs.25,000/-. The case is under
trial in Judicial First Class Magistrate,
Chavakkad as CC No.1436/07.”
All the above five cases are pending trial before the criminal court.
All the alleged offences have been committed within the period of
seven years. In all the above five cases the police reports have been
perused by the detaining authority. The contention of the learned
counsel for the petitioner is that the detaining authority was not
furnished with materials leading to the final report of the police
officer. As already held by us, once a final report on the finding of
W.P(Crl.)No.377 of 2008
-:14:-
commission of the offence referred to under the Act is given to the
detaining authority, no further materials are necessary. The only
further information is as to whether, in the background also of such
findings, a person is to be detained for the effective prevention and
control of the anti-social activities. In that regard it is seen from the
impugned order as well as the counter affidavit that the background
of the person has been assessed with regard to his involvement in
other cases also and in the light of the report of the Superintendent
of Police regarding the need for preventive detention under the Act.
It is seen that the detenu had made his representation before the
Government and that the advisory board has also considered his
case. Since all the procedural formalities have thus been duly
complied with, we do not find any merit in the writ petition. It is
accordingly dismissed.
(KURIAN JOSEPH, JUDGE)
(K.T.SANKARAN, JUDGE)
ahg.
KURIAN JOSEPH &
K.T.SANKARAN, JJ.
—————————
W.P(Crl.)No.377 of 2008
—————————-
JUDGMENT
12th December 2008