VIJAYAMMA Vs. STATE OF KERALA

JUDGEMENT

(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 1.9.2013. 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 S. 15 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.

(2.) 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 S. 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 S. 2, that person would fall within the definition of 'known-rowdy' under S. 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. 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 S. 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.

(3.) We have seen Exts. P4 and P5, the two orders passed by this Court under S. 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 S. 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.