GOPALAN ACHARI Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a petition filed by one Subbayyan Achari Gopalan Achari, who is now in judicial custody and is facing proceedings under S.110(a) of the Code of Criminal Procedure, 1973 (for short the 'Code'). The petitioner was heard in person at one stage. Subsequently a member of this bar has been appointed as the State Counsel to address arguments on his behalf. The learned Advocate General also has been heard.

(2.) On 21-12-1980, the Sub Inspector of Police, Punalur submitted a report to the Second Class Judicial Magistrate, Punalur stating that in the early hours of the morning on 21-12-1980 the petitioner was found suspiciously hiding in a varandah of a Hardware Shop near Punalur market and he was trying to escape when he was found by the police and he gave evasive and misleading answers when he was questioned by the police regarding his identity and address, that he could not satisfactorily account for his presence there and that the police officer was satisfied that he was present there to commit an offence. A bunch of keys and other articles were found in his custody and they were seized under a mahazar. After investigation it was found that he was D. C. No. 20 of Konni Police Station and has convictions for several offences to his credit. Report under S.110(a) of the Code was laid against him before the Executive Sub Divisional Magistrate, Adoor, who thereupon passed a preliminary order under S.111 of the Code on 7-2-1981. The accused denied the substance of the information read out to him and the enquiry commenced on 21-3-1981. Meanwhile, the petitioner went on submitting petitions to the Second Class Judicial Magistrate, Punalur, Executive Magistrate, Adoor, the District Collector and the Chief Judicial Magistrate. Initially he sent a petition to this Court, which is numbered as Crl MC No. 90 of 1981. He again sent another petition to this Court reminding about his earlier petition. In the present petition he alleges that he is being harassed by police officers of one police station after the other and he was implicated in a series of security proceedings, that he was in judicial custody in a prior security proceedings, that he sent a petition to the Supreme Court of India and the Supreme Court by its order reported in Gopalan Achari v. State of Kerala ( 1981 KLT 108 ) directed those proceedings to be dropped on 12-11-1980, that he was released from the jail a few days thereafter and within a month thereof, he has been arrested again in connection with the present case, that the present proceedings initiated against him are mala fide and that he is not liable to be proceeded against under Chap.8 of the Code.

(3.) The final report submitted by the Sub Inspector of Police specifically refers to five prior convictions against the present petitioner for property offences, including theft, house breaking, etc. and also a conviction in another security proceeding. The learned Advocate General submitted before me that besides those cases, the petitioner was involved as accused in over two dozen criminal cases, which, however, are not mentioned in the final report. In order that a Magistrate should be enabled to pass either a preliminary order or a final order as contemplated under Chap.8 of the Code, the first prerequisite is that the petitioner must be a person, who is by habit, thief, housebreaker, etc. The scope of the proceedings which 'could be taken against a person under S.110 of the Code has been explained by the Supreme Court in the decision reported in Gopalan Achari's case (1981 KLT 108). The Court has to bear in mind two fundamental aspects, viz., (i) that every citizen of this country has certain liberties guaranteed to him under the Constitution and those liberties cannot be tampered with by any unreasonable action on the part of any police officer, and (ii) that when the liberty enjoyed by an individual is enjoyed in such a fashion that it becomes hazardous to the community at large, that liberty could be curtailed as contemplated in Chap.8 of the Code. These provisions are intended to control persons who are habitual criminals, i. e. persons so hardened and incorrigible that ordinary provisions of the penal law and the normal fear of punishment are not sufficient deterrents or adequate safeguard for the public. The provisions are intended to curb dangerous activities of such criminals and to secure the interests of the community from injury at their hands. Yet, at the same time, it must be realised that these provisions constitute a harsh law which can be used for oppressive purposes. Therefore, these provisions must be used with caution and discretion so as to avoid the same becoming a machinery for oppression. Magistrates who are put incharge of enforcement of these provisions have to bear these principles in mind and exercise their discretion in a judicious manner. The expression "by habit" must also be carefully understood by the Magistrates. "Habit" implies a tendency or capacity resulting from frequent repetition of the same or similar acts. It indicates depravity of or criminality in character, evidenced by frequent commissions of offences. "Habit" has to be established by aggregate of facts. The mere fact of previous conviction is not sufficient to justify application of these provisions. There must be a number of convictions regarding previous acts. There must be proof of such convictions or course of conduct by evidence of general reputation or prior acts. There must be some additional facts or circumstances to show that the person concerned has done some act that indicates on his part an intention to return to his former course of life and to pursue a career which prejudicially affects the community interests. At the same time, it has to be remembered that even a thief or a burglar is entitled to locus poenitentiae when he has served out his punishment. It is only when he violates this grace which law extends to him and thereby shows that he is unreformed that these provisions should be put into operation in order to secure guarantee to the society that he will not once again endanger the life of the community. It should be bearing in mind these salutary principles that police or the magistracy should approach their duties in so far as security proceedings are concerned.