Kerala High Court

Sushmitha vs State Of Kerala on 13 September, 2024

Author: Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

                                                        2024:KER:69885

W.P (Crl.) No. 941 of 2024          :1:


                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

         THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

                                          &

                     THE HONOURABLE MR. JUSTICE G.GIRISH

FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946

                             WP(CRL.) NO. 941 OF 2024

PETITIONER:

                    SUSHMITHA
                    AGED 26 YEARS
                    D/O SATHEESH KUMAR, PULITHITTA HOUSE,
                    KUNDOOR COLONY, ELAMADU, KOTTARAKKARA,
                    KOLLAM, PIN - 691533


                    BY ADVS.
                    M.H.HANIS
                    P.M.JINIMOL
                    T.N.LEKSHMI SHANKAR
                    NANCY MOL P.
                    ANANDHU P.C.
                    NEETHU.G.NADH
                    RIA ELIZABETH T.J.
                    SINISHA JOSHY
                    ANN MARY ANSEL



RESPONDENTS:

        1           STATE OF KERALA
                    REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
                    TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT,
                    GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
                                                      2024:KER:69885

W.P (Crl.) No. 941 of 2024         :2:



                    PIN - 695001

        2           THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
                    KOLLAM DISTRICT, PIN - 691013

        3           THE DISTRICT POLICE CHIEF
                    KOLLAM RURAL, KOLLAM DISTRICT,
                    PIN - 691001

        4           THE CHAIRMAN
                    ADVISORY BOARD, KAAPA, SREENIVAS,
                    PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA,
                    ERNAKULAM DISTRICT, PIN - 682026

        5           THE SUPERINTENDENT OF JAIL,
                    CENTRAL JAIL, VIYYUR, THRISSUR DISTRICT,
                    PIN - 670004


                    SRI. K A ANAS, PUBLIC PROSECUTOR.


     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 13.09.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
                                                                       2024:KER:69885

W.P (Crl.) No. 941 of 2024                   :3:



                                        JUDGMENT

Raja Vijayaraghavan, J.

The above Writ Petition is filed seeking the following reliefs:

i. Call for the records leading to Exts.P1 & P2 orders and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction;

ii. issue a writ of habeas corpus commanding the respondents to produce the body of the detenu, viz., Satheesh Kumar@ Pattalam Satheeshan, aged 54 years, S/o. Narayanan Pillai, Pulithitta House, Kundoor Colony, Elamadu, Kottarakkara, Kollam, PIN - 691 533, the father of the petitioner who is illegally detained in Central Prison, Viyyur before this Hon'ble Court and set him at liberty forthwith.

2. The petitioner herein is the daughter of Sri. Satheesh

Kumar @ Pattalam Satheesh, ('detenu' for the sake of brevity) who has

been ordered to be preventively detained, in terms of Ext.P1 detention

order dated 02.06.2024, issued by the 2nd respondent under Section

3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAAP

Act').

3. The brief facts leading to this case are as follows:

2024:KER:69885

a. The District Police Chief, Kollam Rural submitted a proposal

dated 15.05.2024 and an additional report dated

25.05.2024, before the 2nd respondent recommending the

initiation of proceedings under the KAAP Act, by classifying

the detenu as a 'known rowdy' so as to prevent him from

committing further prejudicial anti-social activities, as

defined under Section 2(a) of the Act.

b. Based on the above report, the authorized detaining

authority, the 2nd respondent, has issued Ext.P1 detention

order dated 02.06.2024, wherein, after arriving at the

subjective satisfaction based on the materials, came to the

conclusion that the detenu falls under the category of a

'known rowdy' as defined under Section 2(p) of the KAAP

Act and that he is to be preventively detained with a view to

prevent him from committing further prejudicial anti-social

activities. The order was executed on 03.06.2024.

4. For declaring the detenu as a 'known rowdy', his

involvement in four cases were considered. The final report had been

filed in three cases and one case was under investigation. The details 2024:KER:69885

of the cases in which the detenu got involved are as under:

 Sl.           Crime                              Complaint         Sections
                             Police Station                                             Status of Case
 No.          Number                                Date            Involved




                                                               u/s 120(b), 109, 302,
                                                               201, r/w. 34 of IPC,
        Cr.No. 1314/2018     Pathanapuram         16.07.2018

1. Sec. 3(2)(V) of SC/ST S.C.No. 1485/2019 (POA) Act.




                                                               u/s 294(b), 324, 326,   S.C.No. 728/2023
        Cr. No. 161/2020     Chadayamangalam      21.01.202
   2                                                           307, r/w. 34 of IPC


                                                               u/s 341, 324, 308       S.C.No. 8282/2022
        Cr. No. 30/2022                           02.01.2022
   3                         Chadayamangalam                   r/w 34 IPC


                                                               323, 324, 341, 307 &
        Cr. No. 410/2024                          31.03.2024   34 of IPC
   4                         Chadayamangalam                                           ...........

5. It is mentioned in the order that the detenu was earlier

charged for having committed offence punishable under Section 55(i) of

the Abkari Act and by judgment dated 30.4.2024, he had been acquitted

of all charges.

6. Sri M.H. Hanis, the learned counsel appearing for the

petitioner, raised the following contentions:

a) The last prejudicial activity was on 31.03.2024. The detenu

was arrested on 01.04.2024 and released on bail on 2024:KER:69885

08.04.2024. However, the proposal was submitted only on

15.05.2024, and the detention order was passed on

02.06.2024. No explanation has been offered for the delay

of about two months and two days in passing the order of

detention.

b) Crime No.1314/2018 of the Pathanapuram Police Station has

been registered, inter alia, for offence under Section 302 of

the IPC. In the said case, the detenu has been roped in

with the aid of Section 120B of the IPC. As Section 120B

falls under Chapter VA of the IPC, the same cannot be

reckoned for classifying the detenu as a 'rowdy' under

Section 2(t) of the KAAP Act.

c) Crime No.161/2020 and Crime No. 30 of 2022 are in respect

of offences committed by the detenu by virtue of his

involvement as a neighbor or a close relative. A perusal of

the records would disclose that the incident had taken place

on the property of the detenu. At any rate, they are all

incidents that relate to violation of law and order, and cannot 2024:KER:69885

be said to be incidents that are prejudicial to public order.

d) Exts.P3 and P5 are representations submitted by the detenu

before the Board and the Government on 13.08.2024. These

representations have not been considered to date. Failure to

consider them diligently will violate the rights guaranteed to

the detenu under the Constitution of India.

7. Sri. K.A.Anas, the learned Public Prosecutor, submitted

that the contention of the detenu that the objective satisfaction has

not been properly arrived at cannot be sustained. The learned counsel

would refer to Section 2(t) of the KAAP Act and it is pointed out that

'rowdy' includes a person, who abets the commission of offences

mentioned in the said provision. He would also refer to Section 120B

of the IPC and it is urged that a person who is a party to a criminal

conspiracy is liable to be punished in the same manner as if he had

abetted such offence. It is urged that in view of the above, on the

ground that the detenu has been roped in with the aid of Section 120B

of the IPC, he cannot claim that he be excluded from the definition of

'rowdy'. It is further submitted that there is absolutely no delay in 2024:KER:69885

passing the order of detention and the action has been prompt. He

would also refer to the detention order and the explanation offered for

the minimal delay to substantiate his contention. Finally, it is

submitted that Exts.P3 and P4 representations were submitted on

13.08.2024 after passing the order of confirmation, the same was

received on 16.08.2024, and orders were passed on 21.08.2024.

According to the learned Public Prosecutor, there has been prompt

consideration of the representation and the detenu cannot claim any

relief on that ground.

8. We have carefully considered the submissions advanced

and have perused the records.

9. The first contention is that Crime No. 1314/2018 ought to

have been excluded from consideration on the ground that the detenu

was roped in with the aid of Section 120B of the IPC. The specific

contention of the learned counsel is that only a person who either by

himself or as a member of a gang commits or attempts to commit or

abets the commission of any offence under Section 153A and Section

153B of Chapter VIII and Chapter XV, XVI, XVII & XXII of the IPC or 2024:KER:69885

offences under the provision of the Arms Act, 1959 or the Explosive

Substances Act, 1908 can be classified as a 'rowdy'. It is pointed out

that Section 120B comes under Chapter V-A, which Chapter is not

included in Section 2(t) of the KAAP Act. We are afraid that the said

contention cannot be accepted. Section 2(t) includes a person who

abets the commission of any offences under the Chapters made

mention of in the said provision and a reading of Section 120B of the

IPC clearly says that a party to a criminal conspiracy if found guilty,

can be punished in the same manner as if he had abetted the offence.

Furthermore, identical contentions were raised concerning Sections 34

and 149 which come under Chapter II and Chapter VII respectively

and such contention was repelled in Kiran Shaji v. State of Kerala

and Ors.1

10. The next contention is with regard to the delay in passing

of the order. We find that the last prejudicial activity was on

31.03.2024 and the detenu was arrested on 01.04.2024. He was

granted bail by the jurisdictional court on 18.04.2024. The proposal

[2018 (4) KHC 465] 2024:KER:69885

was submitted by the District Police Chief on 15.05.2024 and a

follow-up report was submitted on 25.05.2024. The detention order

was passed on 02.06.2024. As held by the Apex Court in T.A.Abdul

Rahman v. State of Kerala2, following the observations in Golam

Hussain v. Commissioner of Police, Calcutta3, the question of

whether the prejudicial activities of a person warrant a detention order

being issued in proximity to the time of the order, or whether the

live-link between the prejudicial activities and the purpose of detention

has been severed, depends on the facts and circumstances of each

case. No rigid or mechanical rule can be formulated that applies

universally to all situations, nor can exhaustive guidelines be laid down

in this regard. The test of proximity is not a strict or mechanical one,

merely involving the counting of months between the offending acts

and the detention order. However, when there is a significant delay

between the prejudicial activities and the issuance of the detention

order, the court must scrutinize whether the detaining authority has

satisfactorily examined the delay and provided a tenable and

reasonable explanation for it when called upon to do so. Additionally,

[(1989) 4 SCC 741]

[(1974) 4 SCC 530] 2024:KER:69885

the court must investigate whether the causal connection has been

broken in the specific circumstances of each case. In the facts and

circumstances, we are of the view that there is no inordinate delay in

passing the order of detention.

11. We are unable to accept the contention advanced by the

learned counsel that the crimes in which he got involved are merely

acts that affect the law and order and not acts prejudicial to public

order. Crime No. 30 of 2022 was registered involving offences under

Section 308 of the IPC and Crime No. 161 of 2020 was registered for

offence under Section 307 of the IPC. The true distinction between

the areas of "public order" and "law and order" lies not in the nature

or quality of the act, but in the degree and extent of its reach upon

society. The distinction between the two 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. In one

case it might affect specific individuals only and therefore touch the

problem of law and order, while in another it might affect public order.

The act by itself, therefore, is not determinant of its own gravity. It is 2024:KER:69885

the potentiality of the act to disturb the even tempo of the life of the

community which makes it prejudicial to the maintenance of public

order (See: Ashok Kumar v. Delhi Administration and others4).

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. The length, magnitude, and intensity of the terror

wave unleashed by a particular act of violence creating disorder

distinguishes it as an act affecting public order from that concerning

law and order. The particular acts enumerated in the grounds of

detention clearly show that the activities of the detenu cover a wide

field and fall within the contours of the concept of public order.