Shyla vs State of Kerala and Others

R. Basant, J.—The petitioner has come to this Court with this petition for issue of a writ of Habeas Corpus to direct the production and release from custody of her husband, Mujeeb, (hereinafter referred to as the detenue), who stands preventively detained as per Ext.P1 order dt. 4.5.2010 passed u/s 3 of the Kerala Anti-social Activities (Prevention) Act, (hereinafter referred to as KAAPA).

The order of detention is passed by the second respondent, District Magistrate, on the basis of a report of the Sponsoring Authority i.e. the third respondent, Superintendent of Police. In execution of Ext.P1 order, the detenu was taken into custody on 15.5.2010. The order of detention was approved by the Government u/s 3(3) by order dt. 26.5.2010. The order of detention was later confirmed u/s 10(4) of the KAAPA vide Ext.P2 order dt. 16.7.2010. The detenu continues in custody from 15.5.2010 and will have to remain in custody till 15.11.2010.

The detenu has been categorised as a ''known rowdy''. According to the Sponsoring/Detaining Authorities there are five cases registered against him. The details of the five cases are given below.

Sl. Crime No. & Date of Offences State of cases Victim/defacto No. Police Station offence alleged complainant 626/06 of Sasthamcotta 324 & 308 Acquitted the Shameer Police Station IPC accused on 1 03/12/06 30.9.2010 19/08 of Sasthamcotta 294B, 308, Pending trial Arifa Police Station 452, 427, 323, 354 r/w. 2 10/01/08 34 IPC 718/08 of Sasthamcotta 341, 294B, Pending trial Ravindran Police Station 323, 324 r/w. 3 01/12/08 34 IPC 729/09 of Sasthamcotta 21.10.2009 452, 427 and Pending trial Abdul Azeez 4 Police Station 323 IPC 160/10 of Sasthamcotta 341, 427 and Pending trial Shiju 5 Police Station 07/02/10 323 IPC

The first case was pending trial. The order of acquittal was recorded in that case on 30.9.2010 by the Sessions Court, Kollam after the order of detention was passed.

Detailed arguments have been advanced by the learned Counsel for the petitioner and the learned Senior Government pleader. The learned Counsel for the petitioner assails the impugned order on the following four grounds.

i) The latter subjective satisfaction u/s 3 of the KAAPA has not been entertained after due application of mind.

ii) Case Sl. No. 1 has resulted in acquittal subsequently and should not hence be taken into reckoning now to decide whether the detenu is a ''known rowdy'' u/s 2(p).

iii) Cases, Sl. Nos. 2, 4 and 5 must have been excluded from consideration as they fall under the provisos (i) and (ii) of Section 2(p) of the KAAPA.

iv) At any rate, the Detaining Authority must have noticed that all the five cases relied on by the prosecution even if accepted in toto amount only to a threat to law and order and not to public order.

Ground No. (i): It is by now well settled that both the initial/threshold objective satisfaction as also the latter subjective satisfaction must be entertained by the Detaining Authority simultaneously before an order of detention is passed u/s 3 of the KAAPA. The twin satisfactions must be entertained after proper application of mind to the materials available. Under this ground, it is contended that, there has been no proper application of mind to decide whether the latter subjective satisfaction can be legally entertained.

We have been taken through the order of detention as well as the grounds of detention. Five cases are relied on by the prosecution. At the time when the order was passed, final reports had been filed in all these five cases after due investigation and the detenu was found to be guilty of the offences alleged against him by the Investigating Police Officer on investigation. The allegations relate to events/crimes committed within the past seven years. Crimes were committed on dates shown in Col. 3 of the tabular column referred to above i.e. 3.12.2006, 10.1.2008, 1.12.2008, 21.10.2009 and 7.2.2010. A reading of the order of detention and grounds of detention clearly show that the Detaining Authority entertained the former/ threshold objective satisfaction on the basis of the five cases referred above, which allegedly brings the detenu within the sweep of the definition of ''known rowdy'' in Section 2(p). Challenge against that satisfaction shall be considered by us later.

The latter subjective satisfaction was entertained on the basis of the very five cases, which are referred to in the tabular columns. A reading of the order of detention and the grounds of detention clearly show that the Detaining Authority applied his mind to the five cases referred to in the tabular column and entertained the satisfaction that the detenu deserves to be detained preventively.

We have no hesitation to agree with the learned Counsel for the petitioner that the mere fact that a person is a ''known rowdy'' cannot automatically entail an order of preventive detention u/s 3. The threshold satisfaction must be entertained. Having entertained such threshold satisfaction, the Detaining Authority must further consider whether the latter subjective satisfaction - as to whether detention of the person is necessary to deter him from indulging in anti-social activities, can be entertained or not. The order of detention and the grounds of detention clearly show that mind was applied by the Detaining Authority to this aspect of the matter. The law of preventive detention has often been referred to as the jurisprudence of suspicion. A person is denied liberty and freedom under the law of preventive detention not punitively but because of the suspicion and assessment that he may abuse his freedom and liberty to the detriment and peril of public order. It is on the basis of judicious assessment and evaluation of his propensity to disturb public order firmly founded on the past conduct of the individual, that the decision to detain him must be taken. That subjective evaluation and assessment is not appealable. It is not justiciable. But it must be on the basis of definite material. Mind must be applied by the Detaining Authority to such material before the decision to preventively detain the detenu is taken. The very cases which induce the former objective satisfaction u/s 3 of the KAAPA can validly induce the latter subjective satisfaction also provided live link and proximate nexus exist between the past contumacious conduct and the need to detain. In this case we find that such materials are there and the Detaining Authority, as revealed from Ext,P1 and the Grounds of detention, had applied his mind to the relevant aspects. We find no merit in the contention that there is no indication revealed from Ext.P1 and the grounds of detention to evidence proper application of mind and the entertainment of the latter subjective satisfaction. The challenge raised on Ground No. 1 must, in these circumstances, fail.

Ground No. (ii): When the detenu was sponsored for detention and when the impugned order was passed on 4.5.2010, case, Sl. No. 1 had been charge sheeted and the same was pending trial. It is true that the said case ended in acquittal after the order of detention was passed on 30.9.2010 while the detenu was undergoing detention. The learned Counsel for the petitioner submits that such case which ended in acquittal cannot at all be taken into consideration now to justify either the former objective satisfaction or the latter subjective satisfaction.

The learned Government Pleader immediately counters this contention by raising the plea that mere acquittal does not obliterate case, Sl. No. 1, relied on by the Sponsoring/Detaining Authority. The reason for the subsequent acquittal is not revealed. If a known rowdy is able to intimidate a victim, make his evidence unavailable to the court and thus secures an order of acquittal subsequently that cannot lead mechanically to the obliteration of that circumstance. More detailed consideration of the nature of the acquittal is necessary at any rate submits the learned Government Pleader. The learned Government Pleader however submits that for the sake of arguments in this case, Sl. No. 1 need not be taken into consideration. The former objective satisfaction as well as the latter subjective satisfaction has been entertained validly and those satisfactions can be shown to be perfectly justified by cases, Sl. Nos. 2 to 5 shown in the tabular columns, submits the learned Government Pleader. In these circumstances, we are not going into this ground in any greater detail.

Ground No. (iii): The learned Counsel for the petitioner contends that cases, Sl. Nos. 2, 4 and 5 must be eschewed from consideration as they fall within provisos (i) and (ii) of Section 2(p). According to the learned Counsel for the petitioner, case Sl. No. 2 and Case Sl. No. 5 relate to incidents between the detenu as a member of the family of the victim and therefore the same must be eschewed from consideration under proviso (i) of Section 2(p). It is his further contention that cases Sl. Nos. 2 and 4 relate to incidents between the victims, who are neighbours of the detenu and that such instances had occurred only because of disputes between the immediate neighbours. Hence on the play of provisos (i) and (ii) cases Sl. Nos. 2, 4 and 5 must be excluded from consideration, contends the learned Counsel for the petitioner.

Learned Government Pleader points out that even accepting the argument of the petitioner in full, case No. 3 can be taken into consideration. The learned Government Pleader submits that cases Sl. Nos. 2, 4 and 5 cannot be excluded or eschewed from consideration by the play of provisos (i) and (ii) of Section 2(p).

For a proper understanding of the contentions, the two provisos referred above, are extract below:

Provided that any offence committed by a person:

(i) by virtue of his involvement as a member of the family or a close relative of the family, in an incident which took place by a reason of a family dispute or quarrel involving family members of close relatives on either side; or

(ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours; or

(iii) xxxx

(iv) xxxx

(v) xxxx

(vi) xxxx

shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy.

(Only the .. relevant portion of Section 2(p) is extracted)

We shall take into consideration and discuss case No. 2 first of all. One Arifa is the complainant. The said Arifa, her daughter-in-law and one Bhaskaran had suffered injuries in that incident. There is nothing to indicate that any one of these three persons are closely related to or is a neighbour of the detenu in this case. The counsel contends that there is a statement in the FIS that the detenu herein, who is named as the accused, is a person of the locality. That statement even if accepted as gospel truth, cannot certainly bring the case within the sweep of the provisos (i) and/or (ii) of Section 2(p) extracted above. Counsel contends that the address of the said Arifa/defacto complainant would reveal that she also hails from the same locality as that of the petitioner. This does not in any way indicate that the defacto complainant and the detenu are neighbours or close relatives to attract provisos (i) and (ii) of Section 2(p).

We are now left with cases, Sl. Nos. 4 and 5. We have been taken through the F.I. Statements and the final reports in these two cases. One Abdul Azeez is the defacto complainant and the victim in case, Sl. No. 4, whereas one Shiju is the defacto complainant and victim in case, Sl. No. 5. There is absolutely no material either in the F.I. Statements or in the final reports or in any connected documents to indicate or suggest that those victims are close relatives or neighbours of the detenu. We shall be referring to the details of these cases later when we take up the challenge on Ground No. 4. Suffice it to say now that there is not a semblance of data which can persuade this Court to conclude that the incidents in cases Sl. Nos. 4 and 5 are between the detenu on the one hand and his close relatives/immediate neighbours on the other to justify exclusion of those cases by the play of provisos (i) and (ii) of Section 2 (p). The challenge on this ground cannot, in these circumstances, succeed.

It will not be inapposite to straight away to note that there is no specific pleadings in the petition filed by the petitioner to suggest that cases, Sl. Nos. 2, 4 and 5 are liable to be excluded from consideration u/s 2(p) with the help of provisos (i) and (ii). The learned Government Pleader has taken us through the pleadings in the petition in detail. Significantly we do not find any specific assertion that Arifa, Abdul Azeez or Shiju, the defacto complainants/victims in cases, Sl. Nos. 2, 4 and 5 are closely related to the detenu or are neighbours/immediate neighbours of the detenu. We find merit in the submission of the learned Government Pleader that in the total absence of even such a plea, the respondents were not called upon to reply specifically to the present contention, which is sprung on the respondents as a surprise. We take note that this submission is factually correct.

The learned Counsel for the petitioner submits that though such a plea is not specifically raised in the petition filed by the petitioner, the detenu in the representation made by him to the Government under Article 22(5) of the Constitution/Section 7(2) of the KAAPA had raised this contention. We have accordingly been taken through the said representation dt. 1.6.2010, which is not produced before Court, but which is shown to us from the file of the learned Government Pleader. The representation does not also contain a specific statement that any one of the named defacto complainants, i.e. Arifa, Abdul Azeez or Shiju are close relatives or close neighbours of the detenu. In paragraph 2 under Clauses (a) to (c) specific reference is made to the five cases. It is not mentioned that in cases, Sl. Nos. 2, 4 and 5 the detenu and the victims are close relatives or neighbours. So far as case Sl. No. 2 is concerned, there is a statement that the detenu and Arifa have monetary transactions between them. What we intend to note is that the present plea based on application of provisos (i) and (ii) is not specifically raised in paragraph 2 of that representation also.

The learned Counsel for the petitioner then contends that 10 points have been raised in that representation and in point Nos. 5 and 6 the present contention in its crux or soul is raised by the detenu. Under point No. 5 the only contention raised is that the disputes are personal and private. Under point No. 6 it is of course contended that cases, Sl. Nos. 2 and 4 are between the detenu and his neighbours. It is significant to note that a specific assertion that the defacto complainants/victims in cases Sl. Nos. 2 and 4 are in any way closely related specifically to the detenu or that they are his neighbours/immediate neighbours is not raised. At any rate, it must be seen that the said contention has not been specifically raised in this representation before Government filed by the petitioner. There is also no material whatsoever produced even to remotely indicate that the victims in cases, Sl. Nos. 2, 4 and 5 and the detenu are close relatives or neighbours. The challenge raised on this ground must, in these circumstances, fail.

Ground No. (iv): Lastly the learned Counsel for the petitioner contends that all the five cases even if relied upon do reveal only a threat to law and order at worst and the incidents in those cases cannot at all be said to be acts of threat to public order. In the absence of a threat to public order the power u/s 3 cannot be invoked, argues the learned Counsel for the petitioner.

For a proper consideration of this issue, we shall refer to the cases enumerated in the tabular column given above. As already observed, under ground (2) we are not adverting to case, Sl. No. 1, which has already ended in acquittal. We shall now proceed to consider the nature of the allegations raised in cases, Sl. Nos. 2, 3, 4 and 5 for a resolution of the question as to whether they pose a threat only to law and order and not to public order.

In case, Sl. No. 2 the specific allegation is that the detenu along with others trespassed into the tea shop of the defacto complainant, Arifa, which was being run by her with the assistance of her daughter-in-law. They indulged in wanton acts of violence when money was demanded for the edible articles consumed by the detenu and the co-accused at the said shop. The detenu and others indulged in wanton acts of violence, it is alleged. A customer of the tea shop - one Bhaskaran, who intervened to prevent the crime and deter the detenu and others was also assaulted. This is the precise allegation in case Sl. No. 2.

So far as case Sl. No. 3 is concerned, the allegation is that the detenu, along with his co-accused, attacked one Ravindran, salesman of a toddy shop. The provocation is also the demand by the salesman for payment of the price of the articles consumed and the failure/refusal of the detenu and others to pay the amount due to the toddy shop.

So far as the 4th crime is concerned, a similar allegation is raised that the detenu had, armed with a dangerous weapon, indulged in acts of violence and destruction in the shop of the defacto complainant, Abdul Azeez. He had allegedly taken some edible articles kept in the shop and when objection was raised against such conduct, he had allegedly indulged in wanton acts of violence and destruction.

So far as case Sl. No. 5 is concerned, the defacto complainant, Shiju, had alleged that while he was proceeding on his motor cycle with his wife as pillion, the detenu had overtaken him in a vehicle, had blocked the further progress of the defacto complainant and had indulged in wanton acts of mischief and violence against the said Shiju and his wife. According to the defacto complainant, he did not even know who the detenu was and he was unable to explain why he had indulged in such wanton acts of violence and mischief.

The contention raised is that the above allegations which are confirmed in investigation and followed by the filing of charge sheets do not amount to any threat to public order. At worst they amount only to threat to law and order.

In Shruthi Vs. State of Kerala, this Court had occasion to consider the various binding precedents to highlight the distinction between a mere threat to law and order and a threat to maintenance of public order. In paragraph 25 the position of law is summed up in the following words:

To sum up, the test is only whether the act is confined to an individual without directly or indirectly affecting the tempo of life of the community. If it affects only the victim or victims, it can be reckoned as a threat to law and order only; whereas if the nature and gravity of the act is such that it is likely to endanger public tranquility affecting the tempo of life of the community, it would fall within the ambit of public order.

Having anxiously considered the nature of the allegations raised in the four cases referred above, we have not a semblance of doubt that the test is answered positively against the detenu in the instant case. The wanton acts of mischief and violence allegedly indulged in by the detenu in the four cases referred above can by no stretch of imagination be said to a mere threat to law and order and not a threat to maintenance of public order. Anti-social activity is defined in Section 2(a) of KAAPA and the nature of the acts complained of in the four cases fall squarely within the sweep of the expression anti-social activity defined in Section 2(a) of the KAAPA. The challenge raised on this ground must also, in these circumstances, fail.

No other contentions are raised. We are satisfied that this Writ petition cannot, in these circumstances, succeed.

In the result, this Writ petition is dismissed.