Kerala High Court
Girish Babu P vs State Of Kerala on 13 September, 2024
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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W.P(Crl.)No.817/2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE G.GIRISH
TH
FRIDAY, THE 13 DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
WP(CRL.) NO. 817 OF 2024
CRIME NO.621/2017 OF Dharmadam Police Station, Kannur
PETITIONERS:
GIRISH BABU P.
AGED 67 YEARS
S/O KUNJAMBU M.T, RESIDING AT VALIYAMUTTATHU HOUSE, PALAYAD
P.O, KANNUR DISTRICT, PIN - 670661
BY ADV J.ABHILASH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF
KERALA, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
2 THE DISTRICT COLLECTOR/ THE DISTRICT MAGISTRATE
COLLECTORATE, COLLECTORATE ROAD, THAVAKKARA, KANNUR, PIN -
670002
3 THE DISTRICT POLICE CHIEF,THALAP, KANNUR, PIN - 670002
4 STATION HOUSE OFFICER
DHARMADOM POLICE STATION, SWAMIKUNNU, KANNUR, PIN - 670106
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W.P(Crl.)No.817/2024 2
5 THE SUPERINTENDENT OF CENTRAL PRISON
VIYYUR CENTRAL PRISON, THRISSUR, KERALA, PIN - 680010
BY ADVS.
SMT.NEEMA T.V SR.PP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
13.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P(Crl.)No.817/2024 3
JUDGMENT
G.Girish, J.
Aggrieved by the order dated 29.06.2024 of the District Magistrate,
Kannur under section 3(1) of the Kerala Anti-Social Activities (Prevention) Act,
2007 [for short 'KAA(P)A'], in respect of the preventive detention of the son of
the petitioner, the present petition is filed by her under Article 226 of the
Constitution of India.
2. The detention order has been passed by the 2nd respondent
(Detaining Authority) classifying the detenu as a 'known rowdy' on the basis
of the reports dated 30.05.2024 and 25.06.2024 of the District Police Chief,
Kannur City in respect of the following crimes mentioned in the table below:
Sl.No Crime No. Offences Present Status
1 621/2017 of u/s 341, 323 and Final report filed and the case is
Dharmadam 294(b) IPC now pending trial before the
Police Station Judicial First cLass Magistrate
Court, Thalassery as
2 318/2018 of under section Final report filed and the case is
Dharmadam 143,147,148,341, now pending trial before the
Police Station 324,326,506(ii) Judicial First cLass Magistrate
IPC r/w 149 IPC Court, Thalassery as
3 661/2020 of u/s143,147,148, Final report filed and the case is
Dharmadam 341,324, 308 IPC now pending trial before the
Police Station r/w 149 IPC Assistant Sessions Court,
Thalassery as S.C.No.447/2022
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4 75/2024 of under section Final report filed and the case is
Dharmadam 341,294(b) and now pending trial before the
Police Station 509 IPC Judicial First cLass Magistrate
Court, Thalassery as
5 236/2024 of under Sections Under investigation
Dharmadam 323 and 326 IPC
Police Station
3. After analysing the above report of the District Police Chief,
Kannur and the documents submitted in support of it, the Detaining Authority
came to the conclusion that the preventive detention of the detenu is highly
necessary for the maintenance of public order, and accordingly, passed the
impugned order.
4. Heard Adv.Mr.Abhilash.J, the learned counsel for the petitioner
and Adv.Mrs.Neema.T.V, the learned Senior Government Pleader.
5. The impugned order is challenged by the petitioner on the
following grounds:
(i) All the cases reckoned by the Detaining Authority for treating the
detenu as a known rowdy, are political cases of trivial nature.
(ii) The second crime reckoned by the Detaining Authority took place
after one year from the first crime, and hence the long delay in the above
regard would vitiate the proceedings.
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(iii) The detenu was not arraigned in the F.I.R in respect of the third
crime. He was later on added as accused No.6 on the basis of a further
report of the Investigating Officer.
(iv) The 4th case reckoned by the Detaining Authority is a law and
order issue.
(v) The detention order had not been served on the detenu.
6. The contention of the petitioner that the cases reckoned by the
Detaining Authority for classifying the detenu as a known rowdy are political
issues of trivial nature, and hence liable to be eschewed, is not having any
legal basis. The only contingency in which a member of a recognised political
party is exempted from the proceedings under the KAA(P)A is when
proceedings are initiated against him for his involvement without any overt
act constituting the offence in an incident which occurred due to the general
involvement of the workers of that party in an agitation or protest or
programme organised by the party with prior information given to the police
officer or Magistrate having jurisdiction, as envisaged under section 2(p)(v).
The above provision, obviously, is having no application in the instant case. A
perusal of the details of the cases narrated in the table above would go to
show that all those crimes are qualified to be considered for proceeding
against the detenu for his declaration as a known rowdy. Thus, the argument
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advanced by the learned counsel for the petitioner in the above regard, is
totally unsustainable.
7. The argument of the learned counsel for the petitioner that the
second crime reckoned by the Detaining Authority took place after one year
from the date of commission of the first crime, is factually incorrect. The first
crime registered as Crime No.621/2017 of Dharmadam Police Station was
committed on 26.09.2017. The 2nd crime registered as Crime No.318/2018
of Dharmadam Police Station took place on 22.04.2018. Thus, the time gap
between the above two crimes is only seven months. It is true that the time
gap between the second and third crimes exceeds two years, and the time
gap between the third and fourth crimes exceeds three years. But the above
aspect cannot be taken as a circumstance vitiating the proceedings initiated
against the detenu. Going by the provisions contained under section 2(p) of
the KAA(P)A, the only thing to be looked into is whether the acts done by the
detenu within a period of seven years prior to the date of detention order
would constitute the commission of crimes under section 2(t) of the KAA(P)A.
The above requirement of law is fulfilled in the instant case. Therefore, the
argument advanced by the learned counsel for the petitioner that the time
gap exceeding two years between the offences attributed to the detenu would
vitiate the proceedings, is without any legal basis.
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8. The contention of the petitioner that the name of the detenu was
not earlier included in the F.I.R of the crime reckoned by the Detaining
Authority as the 3rd item, and that he was later on added as the 6th accused
on the basis of the report of the Investigating Officer, is not a ground which
would extenuate the gravity of the offence alleged in that case. Nor could it
be said that the above aspect could be taken as a valid ground to assail the
detention order passed in this case. Therefore, the argument advanced by
the learned counsel for the petitioner upon the above lines, is devoid of merit.
9. The contention of the petitioner that the 4th crime reckoned by
the Detaining Authority is only a law and order issue, and hence it ought not
have been taken into consideration for initiating proceedings against the
detenu, cannot be accepted since the offence involved in the said case comes
under the categories of cases dealt with in Section 2(t) of the KAA(P)A. The
detenu cannot be heard to say that the crimes taken into consideration by the
Detaining Authority are to be analysed separately as individual instances not
attracting any issue related to maintenance of public order. This is because of
the reason that the persistent involvement of the detenu in the commission of
five crimes during the period of seven years prior to the detention order has
to be taken as a matter affecting the maintenance of public order.
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10. In Pesala Nookaraju v. Government of Andhra Pradesh
and Others [(2023) SCC OnLine SC 1003], the Apex Court after referring
to the precedents including Dr.Ram Manohar Lohia v. State of Bihar
[(1966) 1 SCR 709], Pushkar Mukherjee v. State of West Bengal
[(1969) 1 SCC 10], Dipak Bose @ Naripada v. State of West Bengal
[(1973) 4 SCC 43], Arun Ghosh v. State of West Bengal [(1970) 1
SCC 98] and Commissioner of Police v. C.Anitha [(2004) 7 SCC 467]
held as follows:
"65. Thus, from the various decisions referred to above, it is
evident that there is a very thin line between the question of law
and order situation and a public order situation, and some times,
the acts of a person relating to law and order situation can turn
into a question of public order situation. What is decisive for
determining the connection of ground of detention with the
maintenance of public order, the object of detention, is not an
intrinsic quality of the act but rather its latent potentiality.
Therefore, for determining whether the ground of detention is
relevant for the purposes of public order or not, merely an
objective test based on the intrinsic quality of an act would not
be a safe guide. The potentiality of the act has to be examined
in the light of the surrounding circumstances, posterior and
anterior for the offences under the Prohibition Act.
66. Just because four cases have been registered against the
appellant detenu under the Prohibition Act, by itself, may not
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have any bearing on the maintenance of public order. The
detenu may be punished for the offences which have been
registered against him. To put it in other words, if the detention
is on the ground that the detenu is indulging in manufacture or
transport or sale of liquor then that by itself would not become
an activity prejudicial to the maintenance of public order
because the same can be effectively dealt with under the
provisions of the Prohibition Act but if the liquor sold by the
detenu is dangerous to public health then under the Act, 1986, it
becomes an activity prejudicial to the maintenance of public
order, therefore, it becomes necessary for the detaining authority
to be satisfied on material available to it that the liquor dealt
with by the detenu is liquor which is dangerous to public health
to attract the provisions of the 1986 Act and if the detaining
authority is satisfied that such material exists either in the form
of report of the Chemical Examiner or otherwise, copy of such
material should also be given to the detenu to afford him an
opportunity to make an effective representation.
xxxx xxxxx xxxx
73. In the case on hand, the detaining authority has specifically
stated in the grounds of detention that selling liquor by the
appellant detenu and the consumption by the people of that
locality was harmful to their health. Such statement is an
expression of his subjective satisfaction that the activities of the
detenu appellant is prejudicial to the maintenance of public
order. Not only that, the detaining authority has also recorded
his satisfaction that it is necessary to prevent the detenu
appellant from indulging further in such activities and this
satisfaction has been drawn on the basis of the credible material
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on record. It is also well settled that whether the material was
sufficient or not is not for the Courts to decide by applying the
objective basis as it is matter of subjective satisfaction of the
detaining authority."
11. Thus, the true distinction between the areas of "public order" and
"law and order" lies not in the nature of quality of the act, but in the degree
and extent of its reach upon society. The distinction between the concepts of
"law and order" and "public order" is a fine one, but this does not mean that
there can be no overlapping. Acts similar in nature but committed in different
contexts and circumstances might cause different reactions. As far as the
present case is concerned, the prejudicial activities of the detenu leading to
public disorder as revealed in the grounds of detention, consist of a consistent
course of criminal conduct. Although the criminal activities of the detenu
pertain to crimes against various individuals, the persistent involvement in
such activities have now taken a turn for the worse. There have been a
series of criminal activities on the part of the detenu and his associates for
the past several years, and the length, magnitude and intensity of the terror
wave unleashed by such acts of violence, creating disorder would distinguish
it as an act affecting public order, and not a mere law and order issue. When
viewed in the above perspective, it is not possible to say that the prejudicial
activities attributed to the detenu were mere law and order issues. For the
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above reason, we are not inclined to accept the argument advanced by the
learned counsel for the petitioner upon the above lines.
12. The contention of the learned counsel for the petitioner that the
copy of the detention order had not been served on the detenu is found to be
false in view of the facts brought to our notice by the learned Senior
Government Pleader by referring to the relevant files. Therefore, the
challenge in the above regard, is also devoid of merit.
13. As a conclusion to the aforesaid discussion, we find no reason to
interfere with the detention order.
In the result, the petition is hereby dismissed.
RAJA VIJAYARAGHAVAN V,
JUDGE
G.GIRISH,
JUDGE
jsr
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APPENDIX OF WP(CRL.) 817/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PRELIMINARY REPORT FOR ACTION
PRESENTED BEFORE THE THIRD RESPONDENT BY THE
FOURTH RESPONDENT DATED 21.05.2024
Exhibit P2 TRUE COPY OF THE LIST OF ENCLOSURES PRODUCED BY
THE FOURTH RESPONDENT
