MINIMOL Vs. STATE OF KERALA

JUDGEMENT

(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 Sec. 173(2) of the Criminal Procedure Code (Cr.P.C) is a sine qua non to fulfil the requirements of Sec. 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 Sec. 173(2) of Cr.P.C is not necessary to invoke the power to pass an order under Sec. 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 Sec. 173(2) Cr.P.C. Therefore, to pass an order under Sec. 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 Sec. 3(1) of KAA(P)A to detain such a person. Sec. 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 Sec. 2 of KAA(P)A. Though one can be classified as known goonda or known rowdy on other circumstances mentioned in Sec. 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 Sec. 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 Sec. 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.