NIRMALA SOMAN Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) SHIJEEV alias Shee, the son of the petitioner was detained as per the order dated 05.03.2015 passed by the third respondent under Section 3(1) of the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the KAAPA'). The order of detention was executed on 13.03.2015. The Advisory Board opined that there are sufficient grounds for detaining Shijeev @ Shee. The Government confirmed the order of detention as per order dated 23.04.2015 and held that the period of detention would be six months from the date of detention. The order of detention is under challenge in this Writ Petition.

(2.) CERTAIN facts are not in dispute. The detenu is involved in five crimes registered at Aroor and Kuruppampadi Police Stations for offences of the nature mentioned in Section 2(t) of the KAAPA. Those crimes were registered in the years 2008, 2009, 2013 and 2014. The detention order was passed on the subjective satisfaction that with a view to prevent the detenu from committing any anti social activity within the State of Kerala in any manner, it was necessary to make an order directing him to be detained. Proceedings under Section 107 of the Code of Criminal Procedure (for short 'the Cr.P.C.') were taken against the detenu in 2004 and 2011. In the proceedings under Section 107 Cr.P.C. initiated in 2011, the detenu executed a bond. During the period of currency of the bond, the detenu was not involved in any crime. However, after the expiry of the period of the bond, he was involved in three crimes. The last of the crimes was allegedly committed on 8.9.2014. In that case, the final report was filed on 21.1.2015. As mentioned above, the order of detention was issued on 5.3.2015.

(3.) SHRI . Tom Jose Padinjarekkara, the learned Additional Director General of Prosecution submitted that the District Magistrate returned the file with a direction to the Police to submit a final report only on the ground that there were conflicting decisions on the question of the interpretation of Clause (iii) of Section 2(p) of the KAAPA. Two Division Benches of this Court took the view that the wording of Clause (iii) of Section 2(p) of the KAAPA would indicate that it is not necessary to submit a final report in a case in order to take into account that particular case for the purpose of passing the order of detention and that it would be sufficient, if on investigation or enquiry by a competent Police Officer or other authority, it is found that the person concerned has committed any offence. Another Division Bench took the view that only after the final report is filed in a particular case, that case could be counted for the objective satisfaction under Sub Clause (iii) of Clause (p) of Section (2) of the KAAPA. It is submitted that in view of the conflict, the question was referred to a Full Bench and it is pending consideration. It is submitted that in these circumstances, the detaining authority could not be faulted for issuing a direction to the Police to complete the investigation and to file a final report in the latest crime dated 8.9.2014.