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2014 DIGILAW 759 (KER)

Vijayamma v. State Of Kerala

2014-09-29

BABU MATHEW P.JOSEPH, THOTTATHIL B.RADHAKRISHNAN

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Judgment Thottathil B.Radhakrishnan, J. 1. This original petition is filed seeking interference with a detention order under the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007, 'KAAPA', for short. The detention order has not been executed, though it is stated to have been passed on 01.09.201 3. 2. The learned counsel for the petitioners argued that challenge to preventive detention order under KAAPA can be done even at pre-execution stage, going by the judgments of the Apex Court. He further argued that out of the four cases enumerated for consideration by the detaining authority, by now, two cases have been quashed by single Judges because the parties had resolved the disputes out of court. The next plea is that on the face of the availability of jurisdiction under Section 1 5 of KAAPA to keep the second petitioner out of the limits of the district to which he belongs, the more drastic step of a preventive detention measure ought not to have been resorted to. He also points out that after the two criminal cases were quashed, petitioners have filed representation before the State Government to recall the preventive detention order. 3. The detention order is not served on the second petitioner, who is the proposed detenu. The first petitioner is his mother. Notwithstanding that the detention order is not served, the writ petition itself enumerates four criminal cases, which the detaining authority has made the basis of the detention order. We have seen the counter affidavit as well. Those four cases would fall under clause (t) of Section 2 of KAAPA. Therefore, if a person has been found, on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction, to have committed any offence mentioned in clause (t) of Section 2, that person would fall within the definition of 'known-rowdy' under Section 2(p) of KAAPA. All the four enumerated instances as against the second petitioner are different transactions and different instances, complaints of which have been made by the victim or other person to the jurisdictional police authority. All the four enumerated instances as against the second petitioner are different transactions and different instances, complaints of which have been made by the victim or other person to the jurisdictional police authority. Therefore, the offences having been found on investigation by the competent police officer, there is no way of escaping from the fact that the second petitioner has been found by the detaining authority to be a 'known-rowdy' for the purpose of Section 2(p)(iii) of KAAPA. We say this, notwithstanding the fact that we have not seen the detention order. The factors noted above are from the pleadings and materials placed by the petitioners themselves. They show, by themselves, that the detention order cannot be treated as groundless. 4. We have seen Exts.P4 and P5, the two orders passed by this Court under Section 482 of the Code of Criminal Procedure, 'Code', for short, in relation to two of the four criminal cases noted above. The respective learned single Judges noted that the parties have arrived at a settlement and no useful purpose would be served in permitting the prosecution to continue. It was only on that ground that in both cases, the prosecution in the respective cases stood terminated by exercise of power under Section 482 of the Code. In doing so, this Court had never found that the final reports submitted on conclusion of investigations did not disclose any offence punishable under the enumerated provisions of the Indian Penal Code. Nor did it find that the prosecution in those cases were groundless. It was merely a case where this Court would have been satisfied that, in stark realities, the ultimate outcome in those cases would be nothing but end of useless exercise by carrying forward those prosecutions. 5. We think that it is not inappropriate for us to sound a word of caution, here and now. If a person is shown to be repeatedly indulging in different offences and if the prosecutions are, ultimately, permitted to be terminated by the procedure noticed above, we are afraid that we may pave way to an unholy, irregular, improper, illegal, oppressive, submissible and unconstitutional modus operandi by those who would be committing such acts or activities, subverting and deflecting the course of justice. We say this because, this Court is not oblivious to the fact that witnesses could be influenced by economic might; by political clout; by muscle power and by threat to life and limb of one or more and their dear and near ones, apart from valuable property of any or all of them. 6. In the aforenoted inescapable scenario of societal existence, this Court cannot be persuaded to hold that such orders as are noted above, which terminate prosecutions in exercise of authority under Section 482 of the Code, should be permitted to be pressed into service to torpedo any proposal for preventive detention order in cases which really fall under its cover to the satisfaction of the competent authority and which would withstand the test on judicial scrutiny as to statutory sustainability and appropriateness, apart from constitutionality. 7. We may also say that when a prosecution gets terminated by the modes, procedures or processes noted above, that does not go to immediately discharge a person from the conclusions arrived at by the investigating officer leading to that prosecution. That finding by the competent police officer, on inquiry or on investigation would still be a material available in the domain of police and executive. Such material would, therefore, be available for the purpose of Section 2(p) (iii) of KAAPA. We say this, more particularly, because the fact of the matter remains that the mere quashing of a charge, except on a ground by holding that no offence is disclosed, would not result in purging the accused of the allegations against him and the facts and factors which constitute the ingredients of the offence charged against him. This is in contradistinction to the situation that an offence with which a person is charged may not be looked into, if in the ultimate trial, he is not found guilty of the charge. Therefore, eventhough a criminal trial case would not go through its further due process in the aforenoted procedure of termination of prosecution before conclusion of trial and verdict, materials would sufficiently be available even in such cases, for the detaining authority or the sponsoring authority to act and consider such facts and materials for the purpose of formulating an opinion, as may be necessary, in relation to preventive detention laws. 8. 8. The plea on behalf of the petitioners that, at the best, it would have been sufficient to impose an order under Section 15 of KAAPA and thereby keep the second petitioner out of the limits of the area concerned, does not appeal to us. For one thing, the question whether by merely keeping him out of a particular area, the object sought to be achieved by the detention order would, somehow or not, be achieved, is a matter for the satisfaction of the detaining authority. More importantly, in the case in hand, the definite plea is that the second petitioner is mentally ill. It would be unreasonable to keep him out without even providing him medical help, if he needs treatment in that regard. This is all the more so because, if the second petitioner is shown to be one who cannot be tried owing to any disability in that regard, he has to be presented for treatment by the competent authority and could be put to trial only on being satisfied, on due certification by such authority that he is fit for trial. We see no ground to interfere with, on that issue either. 9. The only plea that is left is that the petitioners made a representation to the State Government. The learned public prosecutor points out that the so-called representation is shown to have been made after the two orders of this Court terminating the prosecutions, on the basis of the so-called 'settlement out of court', though those orders were obtained after the issuance of the detention order under KAAPA. We are unable to see that there is any statutory or public duty in any of the functionaries under KAAPA to consider such a representation, though the Government being the ultimate authority may, in its wisdom, if it desires so, consider that representation and act on it, particularly because under Section 13 of KAAPA, the Government has fairly wide powers in relation to such matters. But, let the Government remember that the Constitution and the laws are the supreme because they form the base cream for governance in terms of the collective will and declaration by "We, the People of India". In the result, subject to what is stated in the penultimate paragraph regarding the representation stated to be pending before the Government, this writ petition is dismissed.