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2014 DIGILAW 507 (KER)

Sathyavathi v. State of Kerala

2014-07-02

P.B.SURESH KUMAR, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT : Mr. Thottathil B. Radhakrishnan, J. This writ petition is filed invoking Article 226 of the Constitution of India, seeking issuance of a writ of habeas corpus in relation to the petitioner's husband Ramesh who is covered by Ext.P1 detention order dated 31.1.2014 which was executed on 3.2.2014. 2. The primary ground on which the detention order is challenged is that it has been passed without due application of mind inasmuch as irrelevant materials are considered and allegations which do not exist as against the petitioner in relation to criminal cases are treated as attributes against him. It is argued that such approach of the detaining authority and the sponsoring authority results in infraction of right to liberty and violation of the provisions of the statute under which the detention order is passed, namely, the Kerala Anti-Social Activities (Prevention) Act, 2007, for short, "KAAPA". Learned counsel for the petitioner relied on the decision of this Court in W.P.(Crl) No.41 of 2012, which according to him, deals with a similar case. 3. Per contra, learned Additional Director General of Prosecution, on behalf of the State, pointed out that the allegations made against the petitioner in the criminal cases, when taken together, clearly fall within the terms 'known rowdy' and 'rowdy' defined respectively in Clauses (p) and (t) of Section 2 of KAAPA and by virtue of Section 7(4), the order of detention shall not be deemed to be invalid merely because one or more facts of the facts and circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised Officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a 'known goonda' or 'known rowdy' are satisfied. To buttress his argument, he cited the decision of the Honourable Supreme Court of India in Subramanian v. State of Tamilnadu and another [2012 KHC 4122]. 4. The fact of the matter remains that three out of the four cases taken into consideration to form the foundation of the impugned detention order squarely fall within those which are enumerated in the definition clause of the term 'rowdy' in KAAPA. The other, which is the first among the four cases considered, is one against three persons. 4. The fact of the matter remains that three out of the four cases taken into consideration to form the foundation of the impugned detention order squarely fall within those which are enumerated in the definition clause of the term 'rowdy' in KAAPA. The other, which is the first among the four cases considered, is one against three persons. Accused persons 1 and 2 are alleged of having enticed and gang raped a woman belonging to a Scheduled Tribe and of having thereupon killed her. Later, the detenu, who was the 3rd accused, figures in that case as one who assisted the other two accused persons in causing disappearance of the dead body of the victim of that case. It is in this context that the learned counsel for the petitioner argued that the sponsoring authority and the detaining authority groundlessly recorded that the detenu is also accused of offences punishable under Sections 302 and 376(2)(g) of the Indian Penal Code as well as the provisions of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 5. What actually inspires the sponsoring authority and the detaining authority to make an order under KAAPA are not merely the enumerated sections under which a person stands convicted or is found on investigation to have committed certain offences. The entire transactions reflected in the case diary and the gist of the allegations against the offender are relevant for the sponsoring authority and the detaining authority to look into the conduct of a person to determine whether he is liable to be brought under the cover of the detention order in terms of KAAPA. The purpose and object of KAAPA clearly points out that this is the approach to be adopted by the statutory authorities under KAAPA. Section 7 (4) of KAAPA and the law laid in Subramanian (supra) also lead to this view. 6. With the afore noted legal position in view, we cannot but take it that allegations in the three cases apart from the first among the enumerated cases clearly disclose sufficient materials and those cases stood with offences being alleged as punishable under the different provisions of the Indian Penal Code enumerated in those cases; all of them being sufficient together to form the foundation of an order of detention under KAAPA. This means that even if there is the likelihood of certain grounds which dis-entitled the counting of the first among the cases as also available to lead to the detention order, that would be insufficient to invalidate the detention order in view of Section 7(4) of KAAPA, as argued by the learned Additional Director General of Prosecution. The judgment in W.P.(Crl.).No.41 of 2012 cited on behalf of the petitioner does not lay down any principle contrary to this, either. 7. Now, even if we were to segregate the ground of gang rape, murder and commission of any act under the special statute for protection of Scheduled Castes/Scheduled Tribes, the other factors embedded in that case where the detenu is alleged to have caused disappearance of evidence along with accused persons 1 and 2 cannot be looked at in a lighter way. We say this because, the allegation is that the evidence in relation to the body of the victim of that case was caused to be disappeared after a lapse of time, following the commission of offences attributed to accused persons 1 and 2. If that were so, the detenu would necessarily be attributed with knowledge of the quality of offences attributable to accused persons 1 and 2 and thereby, the detenu also joining them in causing disappearance of evidence even though knowledge of such an incident obliged the detenu to bring such incident to the notice of the competent authority rather than act in complicity with the other two accused persons. 8. For the aforesaid reasons, we do not find that any ground is made out demonstrating that Ext.P1 is invalid for any reason in terms of KAAPA. This writ petition hence fails. In the result, this writ petition is dismissed.