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2022 Supreme(Ker) 908
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. Vinod Chandran, C. Jayachandran, JJ.
Minimol, W/o. Kunjumon - Petitioner
Versus
State Of Kerala – Respondent
W.P.(Crl.)No.501 of 2022
Decided On : 16-09-2022
Point of Law: Section 2(p) of KAA(P)A, initiate an action for preventive detention.
Headnote:
Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 2(p)(iii), (t) 3, - Code of Criminal Procedure, 1973 - Section 107, 173, (2), 169 and 170– Constitution of India, 1950 - Article 22(3), (5) – Detention Order - Neighbourly Dispute – Rowdy - Detenue order is under challenge - Detenue does not satisfy definition of a ’known rowdy’ in terms of Section 2(p)(iii) of KAA(P)A - Definition of a ’known rowdy’ for detaining authority to be objectively satisfied about proposed detenue coming within that definition - Para 18.
Finding of the Court: Investigation and submission of charge sheet will be delayed, especially delay in obtaining reports on chemical analysis, Finger Print Bureau, NARCO Analysis etc – Court is of view that, such reports are of seminal importance for an Investigating Officer to 'form an opinion" - Without waiting for reports on scientific evidence; say, for example, in cases where final report has to be filed within statutory bail period or cases where there are clear eye witnesses to incident, who, on estimation of investigating officer, are credible and trustworthy - In such cases, it is open for I.O and quite often, it is practice to file a final report based on materials then available on record, reserving his liberty to file a supplemental final report after obtaining reports on scientific evidence, in which case, requirements of S.2(p)(iii) are satisfied, since there is a finding that accused had committed the offence, as expressed final report – Court also feel that pressing necessity to prevent damage at hands of criminals in earliest opportunity should not misdirect Court to obviate or lessen requirements of a ’known rowdy’, as defined in Section 2(p) of KAA(P)A - Refer this matter for consideration by a Full Bench, for which purpose, Court direct Registry to place matter before Honourable Chief Justice – Court note that petitioner’s preventive detention will expire.
Result: Ordered accordingly.
ORDER :
(Jayachandran, J.)
1. Ext.P1 detention order dated 28.02.2022 issued under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [for short, 'KAA(P)A'] is under challenge in this Writ Petition. As per the order impugned, petitioner's son, Mohammed Rafi, was directed to be detained for a period of one year in the Central Prison, Thiruvananthapuram.
2. Heard Sri.Jai George, learned counsel for the petitioner and Sri.Anas, learned Government Pleader [attached to the Advocate General] on behalf of the respondents. Perused the records.
3. Ext.P1 order is challenged on the following grounds :
(i) The detenue does not satisfy the definition of a 'known rowdy' in terms of Section 2(p)(iii) of the KAA(P)A, in as much as, final report has not been filed in the third crime reckoned for the purpose of preventive detention, i.e. Crime No.58 of 2022 of Nooranad Police Station.
(ii) Crime No.226 of 2021 of Nooranad Police Station, the second case reckoned for the purpose of detention, is one initiated on the complaint of a Police Officer. That apart, going by the prosecution allegations, it could be seen that the offence is committed by virtue of the detenue's involvement as a neighbour in an incident, which occurred due to the dispute between immediate neighbours. Therefore, the said crime is also not liable to be reckoned as per the definition of 'known rowdy', as also, by the proviso thereto.
(iii) In respect of the third crime, mitigating circumstances arising from a counter case namely, Crime No.62 of 2022 of Nooranad Police Station, has not been reckoned by the detaining authority; nor was the records in the counter case forwarded to the detaining authority, so as to enable consideration, thereby vitiating Ext.P1 order.
(iv) The sufficiency of proceedings under Section 107 Cr.P.C, opening a history sheet in the police station concerned and cancellation of bail pursuant to an application preferred by the Investigating Officer in the third crime were not considered while passing the impugned detention order.
As regards ground no.(iv), learned counsel would elaborate that proceedings were initiated against the detenue under Section 107 Cr.P.C. on 07.02.2022. On 08.02.2022, the detenue was granted bail in the third crime [Crime No.62 of 2022]. On 09.02.2022, a rowdy history sheet was opened against the detenue in Nooranad Police Station. On 14.02.2022, the Investigating Officer applied for cancellation of bail. On 15.02.2022, the sponsoring authority recommended action against the detenue under section 3 of the KAA(P)A. The adequacy/sufficiency of the above referred proceedings were not considered while passing Ext.P2 detention order on 28.02.2022 is the contention.
4. Per contra, all the above contentions were refuted by the learned Government Pleader. A Full Bench decision of this Court in Stenny Aleyamma Saju v. State of Kerala [2017(3) KLT 676(FB)] was propounded as the answer to the first contention that the final report in the third crime has not been filed. As regards the second contention, learned Government Pleader submitted that the complaint in the instant case is initiated by the Police Officer in his personal capacity and, not in his official capacity and that, the detenue's involvement is not in his capacity as a neighbour, pursuant to a dispute between the immediate neighbours. As regards the third contention, learned Government Pleader pointed out that, crime nos.58 of 2022 and 62 of 2022 are not case and counter. The first case, Crime no.58 of 2022, was registered at 9.30p.m. on 01.02.2022, whereas, the second case, Crime no.62 of 2022 was registered on 02.02.2022 at 11.30a.m. The first crime occurred near the Nooranad market, whereas, the second one, at the Nooranad junction. The cases are not liable to be reckoned as case and counter, as conceived in the legal parlance and hence, non supply of the records pertaining to Crime no.62 of 2022 and non consideration of the same will not vitiate Ext.P1 d
