SAMUEL GEORGE Vs. STATE OF KERALA

JUDGEMENT

(1.) The question of law involved in this Bail Application is whether anticipating an order to be passed under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the Act') and consequent arrest in execution of the same, a person is entitled to approach the High Court for anticipatory bail under Section 438 of the Code of Criminal Procedure.

(2.) The petitioners State that four cases were registered by the police against the first petitioner on accusation of having committed non-bailable offence. Similarly, two cases were registered against the second petitioner, where similar offences are alleged. Learned counsel for the petitioners submits that these circumstances may be a ground for passing an order under Section 3 of the Act, in execution of which, there is every likelihood of the petitioners being arrested and incarcerated.

(3.) For a proper appreciation of the contentions raised by the learned counsel for the petitioners, reference to certain provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007 may be necessary. The Act is intended to provide for the effective prevention and control of certain kind of anti-social activities in the State of Kerala. Section 2(a) defines "Anti Social Activity", Section 2 (j) defines 'Goonda', Section 2(o) defines 'Known Goonda', Section 2(t) defines 'Rowdy' and Section 2(p) defines 'Known Rowdy'. Section 3 of the Act provides that the Government or an officer authorised under sub-section (2) may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that with a view to preventing such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person to be detained. Sub-section (3) of Section 3 provides that when an order is made under sub-section (2) by an authorised officer, he shall forthwith report the fact to the Government and the Director General of Police together with a copy of the order and supporting records. Sub-section (3) also provides that no order of detention shall remain in force for more than twelve days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the mean time, it has been approved by the Government or by the Secretary, Home Department. After an order is passed under Section 3, the Government shall, within three weeks from the date of detention of a person, place before the Advisory Board, the grounds on which the order has been made, as provided under Section 9 of the Act. Section 10 provides for the procedure to be followed by the Advisory Board and further action thereon. The Advisory Board shall give its opinion within nine weeks from the date of detention of the person concerned. Based on the report of the Advisory Board, the Government shall either confirm the order of detention or revoke the order as provided in sub- section (4) of Section 10 of the Act. The Government shall have the power under Section 13 of the Act to revoke or modify an order of detention at any time.