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Judgment
R. Basant, J.—The petitioner has come to this Court with this writ petition under Article 226 of the Constitution to issue directions to restrain the respondents from executing an order of detention allegedly passed against him u/s 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as ''the KAAPA'').
The petitioner asserts that an order of detention has been passed categorizing him as a ''known rowdy'' falling within the ambit of the expression u/s 2(p) of the KAAPA. Three cases are allegedly relied upon to issue such order of detention against him u/s 3 of the KAAPA. The first crime relied on is the one registered, inter alia, u/s 308 IPC on the basis of Ext.P1 FIR i.e., Crime No. 289/06 of the Sakthikulangara Police Station in Kollam District. The second crime on which reliance is placed is the one registered as Crime No. 42/08 of the Sakthikulangara Police Station in Kollam District for offences punishable, inter alia, u/s 308 read with Section 149 IPC. The third crime which is relied on by the respondents against the petitioner is Ext.P2 crime i.e., Crime No. 233/09 of the Sakthikulangara Police Station in Kollam District registered under Sections 323 and 324 read with Section 34 IPC. Final reports have been filed in these crimes. It is the submission of the petitioner that an order of detention has been passed and the said order of detention u/s 3 of the KAAPA is likely to be executed against him at any moment. According to the petitioner, such order of detention is not valid, legal and enforcible. He hence prays that the extraordinary constitutional powers of this Court under Article 226 of the Constitution may be invoked to issue appropriate directions to restrain the respondents from executing the said order u/s 3 of the KAAPA.
The learned Government Pleader, on behalf of the respondents, does not dispute the fact that an order of detention has been passed u/s 3 of the KAAPA reckoning the petitioner as a ''known rowdy'' u/s 2(p) of the KAAPA. The learned Government Pleader does not also dispute the fact that the said order of detention takes into account the three crimes referred to by the petitioner in this writ petition.
Exts.P1 and P2 as also the FIR in the second case i.e., Crime No. 42/08 of the Sakthikulangara Police Station have been perused by us. There can be no doubt that these are cases falling within the sweep of Section 2(t) of the KAAPA. The learned Counsel for the petitioner submits that though the cases fall within the sweep of the offences covered by the expression ''rowdy'' in Section 2(t) of the KAAPA, the petitioner cannot be reckoned as a known rowdy and no order of detention is liable to be passed against him. He contends that under the third proviso to Section 2(p) of the KAAPA, Ext.P1 crime cannot be taken into reckoning to include the petitioner as a known rowdy. So far as the second crime i.e., Crime No. 42/08 is concerned, the argument is that it was basically a traffic accident; no serious injuries were suffered by the victim and anticipatory bail had been granted by this Court to the petitioner. So far as the third case is concerned i.e., Ext.P2 Crime i.e., Crime No. 233/09, the argument is that the injuries are simple and that cannot be reckoned as relevant for the purpose of including the petitioner within the sweep of the expression ''known rowdy''.
We shall carefully avoid any detailed discussion on merits, lest such discussions may adversely affect the right of the petitioner to assail the order of detention in accordance with law after his detention. The crucial question to be considered now is whether the constitutional powers of this Court under Article 226 of the Constitution deserve to be invoked prior to the execution of the order of detention u/s 3 of the KAAPA.
The law on this point is well settled. The Supreme Court in Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another, had enumerated the circumstances under which a pre-execution challenge against an order of preventive detention can be considered by the court. Later, in the decision in Deepak Bajaj Vs. State of Maharashtra and Another, , the question has been considered again and more liberal standards have been applied.
There can be no doubt that this Court under Article 226 of the Constitution can certainly exercise the extraordinary constitutional jurisdiction to interfere with and set aside the order of detention even at the pre-execution stage. On that question of law, there is and there can be no doubt at all. The short question is whether the instant case can be brought under any one of the pigeonholes stipulated in Alka Subhash Gadia (supra) as explained later in Deepak Bajaj (supra) to justify the invocation of such jurisdiction. Deepak Bajaj (supra) does, of course, lay down more liberal standards for invocation of such constitutional powers under Article 226 of the Constitution against an order of preventive detention.
We have heard the learned Counsel for the petitioner in detail. We have taken into reckoning the nature of the challenge which the petitioner wants to raise against the impugned order of detention. Even taking the most liberal view permissible in the light of the decision in Deepak Bajaj (supra), we are not persuaded to agree that such power to entertain a pre-execution challenge against the impugned order of detention can, need or deserve to be invoked. We do not intend to express any final opinion on the contentions raised by the learned Counsel for the petitioner referred above. Suffice it to say that we do not find merit in the contention that the petitioner does not deserve to be included as a known rowdy under the definition of that expression in Section 2(p) of the KAAPA.
We do accordingly dismiss this application; but we make it clear that we have not intended to express any authentic and final opinion on the possible grounds of challenge later when the Advisory Board or the Government considers the representations of the petitioner. No observations in this judgment shall influence or restrain such authorities. We need only mention that we have only taken the view that a pre-execution challenge against the impugned order of detention need not and cannot be entertained.
This writ petition is accordingly dismissed.
Hand over a copy of this judgment to the learned Counsel for the petitioner.