Radha vs State of Kerala

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 of her son Sunny, S/o. Babu, (hereinafter referred to as ''the detenu''), who stands preventively detained with effect from 23/4/10 as per an order of detention (Ext.P1) dated 1/3/10 passed by the 2nd respondent under the provisions of Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as ''the KAAPA'').

The 3rd respondent submitted report dated 28/12/09 (Ext.P3) u/s 3(1) of the KAAPA to the 2nd respondent. It was on the basis of the said report Ext.P3 that the 2nd respondent proceeded to pass Ext.P1 order of detention. Along with Ext.P1 order of detention, Ext.P2 grounds of detention was also issued by the 2nd respondent. After the arrest of the detenu in execution of Ext.P1 order on 23/4/10, copies of relevant documents were furnished to the detenu u/s 7(2) of the KAAPA. It is submitted that order of approval u/s 3(3) of the KAAPA and confirmation u/s 10(4) of the KAAPA have already been passed; orders issued and served on the detenu.

The detenu is classified as a ''known rowdy'' by the 2nd respondent in Ext.P1 order. There were as many as 7 cases against the detenu. The relevant details are given below:

-------------------------------------------------------------------------------------------------------------- Sl. Police Crime No. & Date/time Place of Details of Date of arrayed Details of (as per charge) No. Station Section of of Crime, Crime accused filing of No. accused law Date of arrayed the charge of SC/CC in Gist of report in FIR and the case the case position of and Section the charge the person of law sheet and position of the person -------------------------------------------------------------------------------------------------------------- 1 2 3 4 5 6 7 8 9 10 -------------------------------------------------------------------------------------------------------------- 1 Chirayin Cr.47/07 D/O. 2.2.07 Pandaravila 1. 10.3.07 CC 1. Shibu @ On 2.2.07 keezhu u/s 14.00 Hrs. Laksham Kochukuttan Under 518/07 Kochukuttan evening the 452, 427, D/R. 2.2.07 veedu 2. Sunny Section in JFMC 2. Sunny accused 323, 34 IPC 18.00 Hrs. 452, I, criminally and 27 of 427, 323 Attingal trespassed into Arms Act and 34 the house of IPC and one Usha D/o. 27 of Kamalakshi Arms Act. manhandled her and destroyed the door of the house and other house hold articles by using sword and other weapons and thereby caused a lose of Rs. 1000/- to the compt. -------------------------------------------------------------------------------------------------------------- 2 Chirayin Crime 69/07 D/O. Near 1. 14.6.07 CC A1 The accused un- keezhu Under 17.2.07 Azhoor Kochukuttan Section 276/09 Kochukuttan assembled Section 143, 4 AM D/R Podiyante 2. Sajeev 143, in @ Shibu Podiyantemukku 147, 148, 18.2.07 9 mukku 3. Rajeev 147, 148, JFMC-I, A2 Shaiju restrained the 342, 323, AM and 12 342, 323, Attingal @ Pokkam compt. a 324, 362 others who 324, 362, Shaiju friends there and 149 residing at 387 and A3 Rajeev assaulted them IPC Pandaravila 149 IPC. A4 Binu @ and taken into Colony Karumban a lonely Binu and contacted A5 Sajeev the 5th c A6 through mobile Sobhakumar phone an A7 Sunny demanded Rs. 5000/ ransom for releasi compt. and others. receiving the amount fr 5th compt. they release. -------------------------------------------------------------------------------------------------------------- 3 Chirayin Cr. 278/08 D/O. Kolichira 1. Sajeev 27.4.09 CC A1 Sajeev The accused keezhu Under 1.12.08 2. Kochukuttan Under 563/09 A2 Shibu forcefully t Section PM D/R 3. Sunny Section in @ the compt. in 143, 147, 3.12.08 4. Shyju 143, 147, JFMC-I, Kochukut- a car and 148, 149, 10.30 AM 5. Karumban 148, 149, Attingal tan brought him int 365, 323, Binu 323, 324, A3 Sunny unoccupied land 324 and 326, 365 A4 Pokkam inflicted 326 IPC and 109 Shiju injuries to h IPC A5 Karumban to previous Binu enmity. A6 Serin A7 Baiju A8 Ambu @ Shijilal -------------------------------------------------------------------------------------------------------------- 4 Chirayin Cr. 265/09 D/O. In front of 1. Sunny 27.9.09 JFMC-I, A1 Sunny The accused keezhu Under 30.7.09 Ganapathy 2. Shiju @ Under Attingal A2 Shaiju after assaul Section 17.20 Hrs. temple, Pokkam Section CC No. @ Pokkam one 341, 323, 30.7.09 Azhoor Shaiju 341, 323, not Shaiju Ramachandran 294(b), 20.00 Hrs. 3. Motta 294(b), assigned A3 Vinod @ Azhoor, 506(ii) and Binu 506(ii) Motta Binu trespassed 34 IPC and 34 into a IPC Tata Sumo car which was parked there, threatened t driver by showing a kni forced him to took the vehicle for escaping fr scene of occurrence. accused did not allow t driver to stop the vehi even when the demanded to stop. Ramachandran died. -------------------------------------------------------------------------------------------------------------- 5 Chirayin Cr.266/09 D/O. Kadakom 1. Sunny 25.9.09 JFMC-I, A1 Sunny The accused keezhu Under 30.7.09 Toddy 2. Shaiju Under Aggingal Shiju snatched away Section 3 PM Shop 3. An Section CC.No. A3 Vinod a mobile phone 393 IPC 1.8.09 identifiable 393 not and a purse 1 PM person IPC assigned from the pocket of the compt. and threatened him. Later on the intervention of one Shiju, who is well known to both the accused and compt., the accused thrown the mobile phone and purse towards the compt. -------------------------------------------------------------------------------------------------------------- Sl. Station Crime No. & Date/time Place of Details of Whether the No. Section of law of Crime, Crime accused involvem of this Date of arrayed in the Gist of the case person has report FIR and ascertained. position of the If yes, person -------------------------------------------------------------------------------------------------------------- 1 2 3 4 5 6 7 8 -------------------------------------------------------------------------------------------------------------- 6 Chirayin 281/08 D/O. Near Sunny, The accused with Yes. While examine keezhu u/s 4.12.08 Perunguzhy Kochukuttan, an intention to witnesses the 120(b), 201, 5.30 PM Anupama Karumpan kill the victim involve of the 143, 147, D/R. Jn. Binu, Konjumon, put accused has be 148, 149, 302 4.12.08 Pokkam Shaiju him down by ascertained and IPC and 8 PM An hitting with repor been sent Section 3 identifiable a car while to the cour and 5 of person he was walking effect. Explosive through the Substances public road Act and the accused created a terrible atmosphere there by exploding country bombs and inflicted severe injuries to the victim with choppers. The victim was succumbed to the injuries while undergoing treatment at MCH, Thiruvananthapuram. -------------------------------------------------------------------------------------------------------------- 7 Chirayin 264/09 D/O. In front of 1. Sunny On 30.7.09 at 5.15 Yes. From the keezhu u/s 30.7.09 Ganapathy 2. Shaiju Hrs. the accused stateme 294(b), 452 17.15 Hrs. Temple An and his associates the witnesses. and 302 D/R. Azhoor identifiable trespassed into a read with 30.7.09 person bakery shop run 34 IPC 19.00 Hrs. by one Ramachandran and bought a polythene carry bag. The demand of the shopkeeper for payment provoked the accused and they abused and assaualted him with a wooden log with an intention to kill. Being a heart patient Ramachandran died on the spot. --------------------------------------------------------------------------------------------------------------

The detenu having been arrested in execution of Ext.P1 on 23/4/10 shall have to continue in custody till 23/10/10.

Before us the learned Counsel for the petitioner and the learned Government Pleader have advanced their arguments. The learned Counsel for the petitioner assails the impugned order on the following grounds:

(i) The detaining authority did not apply its mind pointedly to the question whether the 7 cases can be taken into reckoning to decide whether the alleged detenu is a known rowdy.

(ii) The detaining authority did not apply its mind to all relevant circumstances to decide whether preventive detention of the detenu is necessary to prevent him from committing anti- social activities.

(iii) At any rate, the detaining authority ought to have noted that the alleged incidents do not cause any threat at all to public order and at worst, they can only be said to affect law and order.

(iv) There is inordinate delay and excessive gap of time between Ext.P3 dated 28/12/09 and Ext.P1 dated 1/3/10 as also Ext.P1 dated 1/3/10 and 23/4/10 - the date of its execution and consequently it must be held that there is no live link or proximate nexus between the alleged past incidents and the decision to preventively detain the detenu.

(v) Vital documents were not referred to in the order of detention; nor were copies thereof furnished to the detenu.

We shall now proceed to consider the challenge raised on the 5 grounds referred above.

Ground Nos.(1) and (ii): It is by now well settled and trite that an order of detention can be passed by the detaining authority only if the detaining authority is in a position to entertain both the former objective satisfaction as well as the latter subjective satisfaction referred to in Section 3 of the KAAPA. The learned Counsel for the petitioner argues that even though there are 7 cases referred above against the petitioner, cases - Sl. Nos. 1, 6 and 7 should not have been taken into reckoning at all to decide whether the detenu is a known rowdy or not.

According to the learned Counsel cases - Sl. Nos. 6 and 7 have not been relied upon by the detaining authority and hence it is unnecessary to advert to them in detail. Both, as indicated above, are cases where the offences alleged include the offences punishable u/s 302 IPC. The detaining authority appears to have entertained the impression that cases in which final reports have not been filed cannot be taken into reckoning to decide whether the detenu is a known rowdy or not. The learned Government Pleader argues that this impression entertained by the detaining authority is incorrect and not supported by law. We find merit in that submission. The decision in Elizebath George v. State of Kerala 2008 (4) KLT 425 which is binding upon us now clearly shows that it is not permissible to insist that final report must invariably be filed before a case is taken into reckoning to decide whether the proposed detenu is a known rowdy/known goonda. It is true that doubts have been expressed on the correctness of the said proposition in the decisions in Sathi v. State of Kerala 2009 (2) KLD 377 [DB] and Ranjini v. State of Kerala 2009 (3) KLT 500; but no contra proposition has been laid down by any larger Bench. For the moment, Elizebath George (supra) hence holds the field. The fact that the dictum therein has been doubted in some subsequent decisions of other Division Benches cannot detract against the validity and binding nature of the proposition of law declared in Elizebath George (supra). The detaining authority could certainly have considered cases - Sl. Nos. 6 and 7 referred above in which the culpable involvement of the detenu is confirmed and report already filed.

Be that as it may, inasmuch as the detaining authority has not chosen to place reliance on cases - Sl. Nos. 6 and 7, we do not propose to look into those cases while considering the acceptability of the initial/threshold/objective satisfaction entertained by the detaining authority.

That leaves us with the 5 cases i.e., Sl. Nos. 1 to 5. There can be no doubt that cases - Sl. Nos. 2 to 4 can be taken into consideration for the purpose of considering the inclusion of the detenu as a known rowdy. On that aspect, there can be no doubt whatsoever. On the basis of cases - Sl. Nos. 2 to 5 referred above, it appears to us to be easy to conclude that the detenu was rightly classified as a known rowdy.

The learned Counsel for the petitioner argues that case No. 1 must have been eschewed as that would fall within proviso (ii) to Section 2(p) of the KAAPA which defines a ''known rowdy''. The learned Government Pleader contends that the dispute in case No. 1 cannot be held to be a dispute between neighbours or a dispute between immediate neighbours. The nature of the dispute is totally alien to the status of parties as neighbours and therefore proviso (ii) can have no application, contends the learned Government Pleader. The learned Counsel for the petitioner, in turn, places reliance on the decision in Anoop Vs. State of Kerala, and contends that such a dispute would certainly attract proviso (ii) to Section 2(p) of the KAAPA.

Be that as it may, we do not intend to delve deeper into that controversy. For the sake of arguments, we eschew case No. 1 completely while considering the question whether the detenu is a known rowdy or not. Even eschewing Cases - Sl. Nos. 1, 6 and 7, the four remaining cases i.e., Cases Sl. Nos. 2 to 5 do bring the detenu squarely within the four walls of the definition of ''known rowdy'' u/s 2(p) of the KAAPA. Section 7(4) of the KAAPA obliges the courts to consider the validity of the detention eschewing some of the grounds which have been wrongly taken into consideration. Thus, even assuming that Case - Sl. No. 1 has wrongly been taken into consideration, Cases - Sl. Nos. 2 to 5 completely and perfectly justifies the initial threshold objective satisfaction entertained by the detaining authority that the detenu is a known rowdy answering the definition in Section 2(p) of the KAAPA. The first contention raised must therefore fail.

The learned Counsel for the petitioner contends that the latter subjective satisfaction has not been validly entertained. It is trite that this latter subjective satisfaction is not justiciable. If the materials relied on by the detaining authority are legally cognizable, courts, in judicial review, cannot sit in appeal over the satisfaction entertained. The learned Counsel for the petitioner contends that there has been a long gap of time between the incidents referred to in Cases - Sl. Nos. 2 to 5 and the order of detention. Hence, at any rate, they could not have been made use of to entertain the latter subjective satisfaction. For the reason that the nexus between the incidents referred to in Cases - Sl. Nos. 2 to 5 and the order of detention dated 1/3/10 is snapped, the latter subjective satisfaction is vitiated and deserves to be interfered with, argues the learned Counsel.

We are unable to accept this contention. Cases - Sl. Nos. 2, 3, 4 and 5 had taken place on 17/2/07, 1/12/08, 30/7/09 and 30/7/09. The gap of time between these incidents and the order of detention (Ext.P1 dated 1/3/10) cannot be held to be so wide and yearning as to conclude that the live link or proximate nexus is snapped. Moreover, it is relevant to note that in Ext.P1 order the detaining authority had relied on Cases - Sl. Nos. 6 and 7 while considering whether the nexus stands snapped or not. After referring to Cases - Sl. Nos. 1 to 5, the detaining authority has taken note of Cases - Sl. Nos. 6 and 7 to come to the conclusion that the criminal activities of the detenu was continuing. In this view of the matter, we take the view that Cases - Sl. Nos. 2 to 5 by themselves and read along with Cases - Sl. Nos. 6 and 7 are sufficient to validly induce the latter subjective satisfaction in the mind of the detaining authority. The challenge raised on the second ground must also, in these circumstances, fall to the ground.

Ground No. (iii): The learned Counsel for the petitioner argues that even if Cases - Sl. Nos. 2 to 5 were taken into reckoning, it has to be seen that the alleged contumacious acts, at worst, threaten only law and order and they do not pose any threat to public order and tranquility. As to what can threaten public order as distinguished from a mere threat to law and order has been considered in many earlier precedents. We may advantageously refer to the statement of law in paragraph-24 of Shruthi Vs. State of Kerala, . 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 will fall within the ambit of threat to public order. We are in complete agreement with the said statement of the law. We have looked into the facts of Cases - Sl. Nos. 2 to 5 in particular and Cases - Sl. Nos. 6 and 7 later to decide whether the acts alleged do threaten public order or do merely threaten law and order. We do not think it necessary to extract the facts in each case afresh. In Col. No. 10 in the tabular column referred above in respect of Cases - Sl. Nos. 1 to 5 and in Col. No. 7 relating to Cases - Sl. Nos. 6 and 7 we have narrated the facts in a nutshell. By no stretch of imagination can it be held that Cases - Sl. Nos. 2 to 5 and Cases - Sl. Nos. 6 and 7 do pose a threat only to law and order and not public order at all. We have no hesitation to agree that the nature and gravity of the acts alleged are such that they do threaten and endanger public tranquility affecting the tempo of life of the community. The challenge raised on Ground No. (iii) also does therefore fail.

Ground No. (iv): It is next contended that there is a gap of time between Ext.P3 report (dated 28/12/09) submitted by the 3rd respondent to the 2nd respondent and Ext.P1 order of detention dated 1/3/10. There is also a long gap of time between the date of Ext.P1 and 23/4/10 - the date of its execution. These, in turn, must lead the court to the conclusion that the proximate nexus/live link have been snapped, contends the learned Counsel for the petitioner. We are unable to accept this contention. Ext.P1 is dated 1/3/10 and the order of detention has been executed on 23/4/10. Similarly, Ext.P3 report dated 28/12/09 was received by the 2nd respondent on 15/1/10 and Ext.P1 order was passed on 1/3/10. In the counter statement filed by the 3rd respondent, the circumstances, under which this gap of time happened to intervene have been explained. It has often been repeated that the exercise is not one merely of counting the number of days between the two events. The totality of circumstances will have to be taken into consideration. We find it impossible to accept the contention that the gaps of time between Ext.P3 and Ext.P1 and between Ext.P1 and the date of execution are such as to vitiate or nullify the latter subjective satisfaction entertained by the detaining authority. The challenge on this ground also hence fails.

Ground No. (v): Lastly it is contended that the relevant documents have not been adverted to by the detaining authority and that copies thereof have not been furnished to the detenu. What are these documents? The counsel argues, first of all, that bail orders in several cases have not been referred to by the detaining authority; nor have copies thereof been furnished to the detenu. It is further submitted that though in the counter statement filed by the 3rd respondent, there is reference to initiation of proceedings u/s 107 Cr.P.C. the order passed was not referred to; nor was copy thereof furnished to the detenu. This amounts to infraction of the mandate of Section 7(2) of the KAAPA, contends counsel.

We do not find much substance in this contention also. All the crimes have been committed by the detenu after the commission of offences in the earlier crimes and he was released on bail in such crimes. There is no contention that there was any such condition imposed on any order granting bail that it was unnecessary to resort to the course of preventive detention later. Non-reference to the earlier bail orders is not, in these circumstances, found to be of crucial relevance. So far as the proceedings u/s 107 Cr.P.C. is concerned, it is very evident that such proceedings were initiated after the last of the incidents and after the passing of Ext.P1 order. Even subsequent to the passing of Ext.P1 order, the detenu allegedly involved himself in criminal offences. It is thereafter, the counter statement clearly reveals, that proceedings were initiated u/s 107 Cr.P.C. The detaining authority, while passing Ext.P1 order dated 1/3/10, could not obviously have referred to the subsequent event of initiation of proceedings u/s 107 Cr.P.C. The challenge raised on this ground also fails.

No other contentions are raised. We are satisfied, in these circumstances, that the impugned order of detention and the continued detention of the detenu in execution of the impugned order of detention do not, in any way, warrant interference. The challenge raised in this writ petition therefore fails.

In the result, this writ petition is dismissed.