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2024 DIGILAW 132 (KER)

Minimol W/o Kunjumon v. State of Kerala

2024-01-31

A.MUHAMED MUSTAQUE, SATHISH NINAN, SHOBA ANNAMMA EAPEN

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ORDER : A. Muhamed Mustaque, J. 1. This matter is placed before the Full Bench on reference by a Division Bench doubting the proposition of law laid down by this Court in Stenny Aleyamma Saju v. State of Kerala and Others , 2017 (3) KHC 517 (FB) . The Division Bench considered the question whether a final report in terms of Section 173(2) of the Criminal Procedure Code (Cr.P.C) is a sine qua non to fulfil the requirements of Section 2(p)(iii) of the Kerala Anti-Social Activities (Prevention) Act, 2007( for short “KAA(P)A”). The Full Bench in Stenny Aleyamma Saju (supra) was of the view that filing of charge sheet under Section 173(2) of Cr.P.C is not necessary to invoke the power to pass an order under Section 3(1) of KAA(P)A. The Full Bench was of the opinion that there may be delay in obtaining the report of postmortem examination, lab report on chemical analysis, expert report from finger print bureau, narco analysis etc. to submit a final report under Section 173(2) Cr.P.C. Therefore, to pass an order under Section 3(1) of KAA(P)A, if the final report is awaited, the very legislative purpose under the KAA(P)A would be defeated. 2. This question arose in the context of treating a person as ‘known goonda’ or ‘known rowdy’ to invoke the power under Section 3(1) of KAA(P)A to detain such a person. Section 2(p)(iii) is relevant in this context as it states that to treat a person as known rowdy, he must be found on investigation or enquiry by competent police officer or other authority, on complaints initiated by persons other than police officers in three separate instances not forming part of same transaction, to have committed any offence mentioned in clause (t) of Section 2 of KAA(P)A. Though one can be classified as known goonda or known rowdy on other circumstances mentioned in Section 2(p)(i) and (ii), that is, in a matter where a person is found guilty by competent court, that does not call for any interpretation in this matter, as detention of such person is on finding guilty by a competent court. In a matter invoking power under Section 2(p)(iii) of KAA(P)A, the law states that known rowdy is any person, found to have been involved in a crime based on investigation or enquiry by competent police officer or other authority; this calls for interpretation of exercise as the Division Bench was of the view that mere registration of the cases would not be sufficient to incriminate a person unless such person is found to have taken part in such crime through an investigation under Section 173(2) of Cr.P.C by filing final report or through an enquiry by a competent authority. 3 . The purpose of investigation and the purpose of charge sheet against a person under criminal law is distinct from the purpose for which he is being proceeded under detention law. The object of criminal law is to punish the transgressors and criminals while the object of detention law is to prevent commission of offence. Keeping this distinction in mind, the Full Bench was of the view that preventive detention is an anticipatory measure that does not relate to an offence, and criminal proceedings and detention proceedings are not parallel proceedings. The Full Bench had considered the issue elaborately. 4. As Seen from Section 2(p)(iii) of KAA(P)A, mere registration of criminal offence may not be sufficient to initiate proceedings under KAA(P)A. Section 2(p)(iii) of KAA(P)A reads thus: (p) "known rowdy" means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,- (iii) 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. 5 . On a reading of the provisions as above, a person to be classified as known goonda must be found on investigation or on enquiry by a competent police officer or other authority that the person against whom detention order is passed has committed offence in three separate instances, not forming part of the same transaction. 5 . On a reading of the provisions as above, a person to be classified as known goonda must be found on investigation or on enquiry by a competent police officer or other authority that the person against whom detention order is passed has committed offence in three separate instances, not forming part of the same transaction. It does not indicate that such a finding should be based on the final report submitted under Section 173(2) of Cr.P.C. That means, either based on the investigation in a criminal offence or based on registration of such crime, on independent enquiry conducted by competent police officer or authority, a conclusion must be arrived at regarding the involvement of that person in a criminal offence. In other words, it means that the sponsoring authority can either rely on the final investigation report or through an independent enquiry by a competent police officer or other authority, to initiate proceedings. If law does not cast an obligation to have the final investigation report under Section 173(2) Cr.P.C., the Court cannot insist to have such procedure in law. However, satisfaction by the detention authority must be on relevant materials submitted by the sponsoring authority regarding involvement of such person in the crime. The requirement of law is, the satisfaction of involvement of such a person, based on the report of the sponsoring authority. That means, mere registration of the crime itself will not lead to a situation to invoke proceedings under KAA(P)A. 6. A division bench of this court in Anithakumari v. State of Kerala, 2015 (4) KLT 632 opined as follows: 7. The submission of the learned counsel for the petitioner is that the detaining authority should satisfy himself that there were materials to arrive at the conclusion that it was the detenu who committed the offence. In other words, the submission is that apart from the investigation conducted by the investigating officer the detaining authority also should have arrived at the conclusion whether the detenu had committed the crime. To consider this contention, it is necessary to advert to the scheme of the KAAPA in the matter of issuing an order of preventive detention under Section 3. An order under Section 3 can be issued either by the Government or by an officer authorised under sub-section (2) of Section 3. To consider this contention, it is necessary to advert to the scheme of the KAAPA in the matter of issuing an order of preventive detention under Section 3. An order under Section 3 can be issued either by the Government or by an officer authorised under sub-section (2) of Section 3. The government or the officer authorised must arrive at the satisfaction on information received from a police officer not below the rank of Superintendent of Police. That information should be with regard to the activities of any ‘known goonda’ or ‘known rowdy’. ‘Known goonda’ and ‘known rowdy’ are defined respectively under clauses (o) and (p) of Section 2 of the KAAPA. The requirement to satisfy the definition of ‘known goonda’ or ‘known rowdy’ is either finding of guilt of the detenu by a competent Court or finding in any investigation or enquiry by a competent police officer or other authority that the detenu had committed any offence within the meaning of ‘goonda’ as defined in clause (j) of Section 2 or the particular sub-clause in clause (t) of Section 2. When a person is made guilty by a competent Court, no other authority can look into the case to find out whether the person concerned is guilty or not. Likewise, where it is found, on investigation or enquiry by a competent police officer or authority, that the detenu has committed any offence mentioned in the respective clauses, a further scrutiny by the detaining authority under Section 3 as to the complicity of the detenu in the offence is not contemplated. The detaining authority has to arrive at the objective satisfaction that the person concerned was convicted or found, on investigation or enquiry, to have committed the offence alleged. In other words, the satisfaction in this regard is only with respect to just verifying that the person sought to be detained is the person who is reported to be involved in the offence. The objective satisfaction further requires that the detaining authority must be satisfied that the offence alleged comes within the purview of clause (j) of Section 2 in the case of ‘known goonda’ and clause (t) of Section 2 in respect of a ‘known rowdy’. The objective satisfaction further requires that the detaining authority must be satisfied that the offence alleged comes within the purview of clause (j) of Section 2 in the case of ‘known goonda’ and clause (t) of Section 2 in respect of a ‘known rowdy’. The detaining authority has also to satisfy that any of the provisos to clause (p) of Section 2 applies so that if the proviso applies in respect of a particular case, that case shall be omitted from the computation of the number of offences to be taken into account for deciding whether a person is a ‘known rowdy’. In the case of a ‘known goonda’, the detaining authority has also to satisfy whether the proviso to clause (o) of Section 2 is satisfied and that the offence in respect of which a report was filed by a police officer before a lawful authority was consequent to the seizure of any of the items mentioned in the proviso. When the aforesaid tests are applied and requirements are satisfied, it can be said that the detaining authority has arrived at the objective satisfaction. Then comes the question of subjective satisfaction under Section 3(1) of the KAAPA as to whether with a view to prevent the person concerned from committing any anti-social activity within the State of Kerala in any manner, it is necessary to make an order directing that the person concerned be detained. Though it is the duty of the detaining authority, namely, the Government or the officer authorised, to arrive at the objective as well as subjective satisfaction, it is not within the domain of the detaining authority to make an enquiry as to whether the person concerned has really committed the offence, whether there is sufficient evidence to arrive at a conclusion that he is guilty of the offence or whether any plausible defence is available to the accused in the particular case. Those are all matters beyond the jurisdiction of the detaining authority. 7. The detaining authority must have relevant information as to the nature of involvement of the person concerned. The detaining authority cannot pass an order merely based on registration of the crime. Having satisfaction by the detaining authority on relevant factors, and insisting on a final report envisaged under Section 173(2) Cr.P.C are distinct and cannot be understood as synonymous for initiating action. The detaining authority cannot pass an order merely based on registration of the crime. Having satisfaction by the detaining authority on relevant factors, and insisting on a final report envisaged under Section 173(2) Cr.P.C are distinct and cannot be understood as synonymous for initiating action. The sponsoring authority can either rely on the final report or any other material through an enquiry to enable the detaining authority to pass such an order. But the Court cannot insist that the sponsoring authority will have to act only on the final report which may be a far fetched proposition of law keeping in mind immediate action required under law to prevent repetition of commission of offence. We find the law laid down by the Stenny Aleyamma Saju (supra) is correct proposition of law and does not warrant any reconsideration. The reference is answered accordingly.