W.P. (Crl.) No. 355 of 2010 (S). Case: George, S/o. Yesudasan Vs The State of Kerala and Ors.. High Court of Kerala (India)
| Case Number | W.P. (Crl.) No. 355 of 2010 (S) |
| Counsel | For Appellant: C. Rajendran, Adv. and For Respondents: Government Pleader |
| Judges | R. Basant and M.L. Joseph Francis, JJ. |
| Issue | Kerala Anti-Social Activities (Prevention) Act, 2007 - Sections 2, 3, 3(1), 3(2), 3(3), 7(2), 10(4) and 15; Indian Penal Code - Sections 143, 147, 148, 149, 323, 326, 332, 354, 427, 452 and 506; Constitution of India - Articles 22(5) and 226 |
| Judgement Date | October 15, 2010 |
| Court | High Court of Kerala (India) |
Judgment:
R. Basant, J., (At Ernakulam)
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Can the activities of a person prior to his acquisition of status as a 'known rowdy' under Section 2(p) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the KAAPA') be taken into consideration by the detaining authority for entertaining the latter subjective satisfaction under Section 3 of the KAAPA? Inter alia, this interesting question comes up for our decision in this Writ Petition.
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The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to direct the production of his brother, Shinto, S/o. Yesudasan (hereinafter referred to as 'the detenu'), who stands detained as per Ext.P1 order of detention dated 19.3.2010 passed by the second respondent, District Magistrate, Kollam, under Section 3 of the KAAPA.
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Proceedings were initiated against the detenu on the basis of Ext.P3 report dated 15.3.2010 submitted by the third respondent to the second respondent under Section 3(1) of KAAPA. In execution of the said order (Ext.P1), the detenu was arrested/taken into custody on 3.6.2010. The order of detention was approved by the Government by order dated 16.6.2010 under Section 3(3) of KAAPA. Later, the order of detention was confirmed by the Government under Section 10(4) of KAAPA by order dated 3.8.2010.
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The alleged detenu is classified as a 'known rowdy'. Reliance is placed on the following cases by the sponsoring and detaining authorities to classify the detenu as 'known rowdy':
Sl. No. Crime No. & Date of Offences alleged State of Investigation
Police Station occurrence1 2 3 4 51. Sections 143, 147, 148, 323, Investigation105/09, of Kundara 31/1/09 326, 427, 452 r/w. completed. ChargePolice Station Section 149 IPC sheet submittedbefore the JFMC-I,Kollam.2. Investigation529/09 of Kundara completed.Police Station Pending as CC28/5/09 Sections 332, 323 IPC No. 672/09 beforethe JFMC-II,Kollam.3. Investigation1325/09 of Kundara 05/12/09 Sections 452, 506(ii), 354 completed.Police Station IPC Submitted finalreport before theJFMC-I, Kollam.As per the order passed under Section 10(4) of the KAAPA, the detenu will have to continue in custody till 3/12/10.
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We have heard Sri. C. Rajendran, the learned Counsel for the petitioner and Sri. K.J. Mohammed Anzar, the learned Senior Government Pleader. The learned Counsel for the petitioner assails the impugned order of detention and the continued detention of the detenu on the following grounds:
(i) There was no allegation even that the detenu had indulged in any anti-social activities after the incident in the last of the three cases which brought him within the sweep of the definition of 'known rowdy' in Section 2(p) of the KAAPA.
(ii) The live link and the nexus between the need to detain and the actual arrest was snapped because of the long gap of time from 19/3/10 to 3/6/10 and the impugned order of detention is hence bad for that reason.
(iii) The right of the detenu under Article 22(5) of the Constitution to have his representation Ext.P13 considered properly and expeditiously is infringed and frustrated because of the delay and the improper consideration of the said representation.
(iv) At any rate, an order under Section 15 of the KAAPA would have served the purpose and it was not necessary to pass any order of detention under Section 3 of the KAAPA.
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Ground No. (i): The learned Counsel for the petitioner Sri. C. Rajendran raises an ingenious contention that to attract an order of detention under Section 3 of the KAAPA, it must be shown that the detenu, after he acquires the status as a 'known rowdy' under Section 2(p) of the KAAPA, must have committed some contumacious act thereafter. In the absence of a specific allegation of any such contumacious conduct, after the date on which he became a known rowdy under Section 2(p) of the KAAPA, the order of detention is not justified, contends Counsel.
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To appreciate this contention, we extract below Section 3(1) of the KAAPA:
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Power to make orders for detaining Known Goondas and Known Rowdies.- (1) The Government or an officer authorised under Sub-section (2) may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy that with a view to preventing such person from committing any anti-social...
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