Gopinathan Pilla vs State Of Kerala
2023 Latest Caselaw 7341 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
        TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945
                        WP(CRL.) NO. 131 OF 2023
PETITIONER :

            GOPINATHAN PILLA,
            AGED 65 YEARS, S/O. NARAYANAPILLA KONOTH,
            MANJALLOOR, VAZHAKULAM.P.O.,
            ERNAKULAM, PIN - 686 670

            BY ADVS.
            K.K.DHEERENDRAKRISHNAN
            N.P.ASHA



RESPONDENTS :

    1       STATE OF KERALA,
            REP. BY HOME SECRETARY, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM, PIN - 695 001

    2       STATE POLICE CHIEF,
            POLICE HEADQUARTERS, VAZHUTHACAUD,
            THIRUVANANTHAPURAM, PIN - 695 014

    3       DISTRICT POLICE CHIEF,
            OFFICE OF THE DISTRICT POLICE CHIEF,
            ERNAKULAM, PIN - 686 670

    4       STATION HOUSE OFFICER,
            VAZHAKKULAM POLICE STATION,
            ERNAKULAM, PIN - 686 670


            BY SRI.NOUSHAD K.A., PUBLIC PROSECUTOR




     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
27.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(CRL.) NO. 131 OF 2023
                                     2



                     BECHU KURIAN THOMAS, J.
                     =-=-=-=-=-=-=-=-=-=-=-=-=
                      W.P (Crl.) No.131 of 2023
                       =-=-=-=-=-=-=-=-=-=-=
                 Dated this the 27th day of June, 2023


                                JUDGMENT

The writ petitioner seeks for a direction to the 3 rd respondent -

District Police Chief, Ernakulam, to consider and take a decision on Ext.P2

representation submitted by him.

2. A representation was submitted by the petitioner on 09.01.2022

alleging that one Sri.Tommy Thannittamakkal has indulged in several

criminal activities and is a known goonda and rowdy as defined under the

Kerala Anti Social Activities (Prevention) Act, 2017 (for short, 'the Act')

and therefore appropriate action as authorised by law ought to be

initiated against the said person.

3. A statement has been filed by the District Police Chief,

Ernakulam, alleging that there are 8 cases registered against Tommy

Thannittamakkal, who is presently the Vice President of Manjalloor Grama

Panchayath and a congress party worker. The details of the criminal

cases have also been specifically mentioned. However, the statement

refers to two decisions of this Court indicating that a private party has no

statutory or constitutional right to compel the issuance of preventive

detention proceedings against another person.

WP(CRL.) NO. 131 OF 2023

4. I have heard Sri.K.K.Dheerendra Krishnan, the learned counsel

for the petitioner as well as Sri.Noushad K.A., the learned Public

Prosecutor.

5. The grievance of the petitioner is that despite a representation

pointing out several cases committed by one Sri.Tommy

Thannittamakkal, the 3rd respondent has not initiated proceedings under

the Act nor have issued orders of preventive detention against the said

person. The learned Government Pleader after referring to the statement

filed pointed out that of the eight cases registered against the said

Sri.Tommy Thannittamakkal, he was acquitted in one case while in

another case the complaint was referred as false. It was further pointed

out that of the remaining six cases against the said persons, three relates

to processions taken out by political parties, of which the said Sri.Tommy

was a part, while three other cases relate to disputes about a pathway

between the writ petitioner and the said Sri.Tommy. It was further

submitted that proceedings under Section 107 of the Code of Criminal

Procedure, 1973 have already been initiated against Sri.Tom T.Lukas @

Tommy Tannittamakil.

6. In the decision in Balachandran P. v. State of Kerala and

Others [2016 2 KLT 768], a Division Bench of this Court had observed

that detention or restraint order under the Prevention Detention Laws are

exceptional in nature and a private citizen does not possess a right to

require the authorities under the Preventive Detention Laws to exercise a WP(CRL.) NO. 131 OF 2023

subjective satisfaction and to make an order to detain a person under

such laws. It was specifically observed that nowhere in the Act a citizen,

at whose instance criminal cases have been initiated against the person

sought to be detained, is conferred with a right to approach the

authorities to exercise their subjective satisfaction and to initiate

proceedings. The judgment further observed that the Act also does not

provide a corresponding duty on the authorities concerned to hear the

person at whose instance the crimes have been registered in the matter

of exercising the statutory rights and performing the statutory duties.

7. However, the very same Bench which decided Balachandran's

case (supra) observed later, in Sapna P.P. v. State of Kerala and

Others [2016 2 KLT 783] that, if the authority failed to initiate

proceedings under the Act, either on account of bias or on account of

misinterpretation or wrong understanding of the settled principles of law,

then the High Court would be justified in issuing appropriate directions

under Article 226 of the Constitution of India.

8. On a consideration of the above two decisions, it is evident that

the scope of this Court to issue directions to initiate proceedings under

the Act and to direct issuance of orders of preventive detention arises

only when the authorities had acted with bias or in ignorance of settled

principles of law. A situation as contemplated in the decision in Sapna's

case (supra) is not existing in the instant case. The writ petitioner has no

case that the authorities had failed to initiate proceedings under the Act WP(CRL.) NO. 131 OF 2023

due to bias or due to any misinterpretation of settled principles of law.

The three cases against the said Sri.Tommy are property disputes

pending between the petitioner and the person against whom detention

proceedings are sought to be invoked. Those are in fact criminal cases

stemming out of a civil dispute. Other three cases that are pending

against the said Sri.Tommy are those relating to processions taken out by

a political party of which the said person is a member.

9. The nature of offences alleged to have been committed by the

person against whom detention orders are sought to be issued and the

principle of law settled in Sapna's case (supra) and Balachandran's case

(supra) leads to the irresistible conclusion that a direction to consider

Ext.P2 cannot be issued.

In view of the above, there is no merit in the writ petition and it is

dismissed.

Sd/-

BECHU KURIAN THOMAS, JUDGE RKM