Najuma Vs. State of Kerala and ors. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. section 100-a [as substituted by c.p.c. amendment act, 2002]: [v.k. bali, cj, kurian joseph & k. balakrishnan nair, jj] applicability held, section is not retrospective. all appeals filed prior to 1.7.2002 are competent. but subsequent to 1.7.2002 intro court appeals against judgment of single judge is not maintainable. provisions of section 100-a, c.p.c., will prevail over the provisions contained in the kerala high court act, 1959. - -(1) 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 prevent 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 be detained. the authority has to be satisfied objectively that the detenu answers the requirements of the definition of a known goonda or known rowdy. the latter satisfaction may be a subjective satisfaction, while many other pieces of preventive detention laws like the misa, cofeposa etc. 24 and 26 of 2006 separate instances not forming part, of the same transaction 12. under criminal procedural law, the expression 'part, of the same transaction' has a well entrenched meaning. 16. we have no hesitation to agree that going by the well known tests of unity of purpose, unity of the venue, unity of the culpable acts allegedly indulged in by the offenders or by any known test to identify whether two incidents are separate or the same and whether they are part, of to same transaction or not. not satisfied with these stipulations, the legislature prescribed that even the finding by a police officer on investigation that the detenu has committed an offence may be sufficient. , he contends, is sufficient to reveal an attempt to vex the detenu with proceedings under the kaapa, sufficient, materials to sail to a safe conclusion on that aspect are definitely not available.r. basant, j.1. what is the ambit of the expression 'three separate instances not forming part of the same transaction' in section 2(p)(iii) of the kerala anti-social activities (prevention) act, 2007 (hereinafter referred to as the 'kaapa')? this is the only question which has to be considered in this writ petition.2. this writ petition is filed by the petitioner, who is sister of the detenu, by name mujeeb - who is detained under an order passed under section 3(1) of the kaapa by the 2nd respondent, ext.p1 order is dated 12.05.09. the detenu was arrested on 02.06.09, his detention has been approved by the government under section 3(3) of the kaapa by order dt. 11.06.09. the decision of the advisory board is not rendered yet. no order of confirmation under section 10(4) of the kaapa is passed.3. the 2nd respondent, the district magistrate, has passed the order of detention under section 3(1) of the kaapa on the basis of a report submitted to him by the 3rd respondent, the district superintendent of police under section 3(1) of the kaapa. the detenu is alleged to be a known rowdy. it is alleged that 3 cases are pending against him. the details of the cases are given below:-----------------------------------------------------------------------------sl crime no. date of sections of offence stageoffence-----------------------------------------------------------------------------1. 24/2006 of 12.01.06 143, 147, 148, 452, pendingkollam west 427 r/w 149 i.p.c. trialpolice station2. 26/2006 of 12.01.06 143, 147, 148/323, pendingkollam west 326, 308 and 294(b) trialpolice station r/w 149 i.p.c.3. 65/2008 of 02.03.08 506(1) & 427 r/w 34 pendingkollam west i.p.c. trialpolice station-----------------------------------------------------------------------------accepting this report, the 2nd respondent had passed the order of detention under section 3(1) of the kaapa.4. counter affidavits have been filed by the respondents. we have perused the same. we have heard the learned counsel for the petitioner and the learned additional director general of prosecutions. the learned counsel for the petitioner assails the impugned order of detention on various grounds. in the view which we nronose to take it. is not. necessary to advert to the various other grounds which have also been raised. we need consider only the following ground.5. crime nos. 24 and 26 of 2006 cannot be said to be 'separate instances not forming part of the same transaction'.6. detailed arguments have been heard. it will be only proper first of all to look at the scheme of the kaapa. to us kaapa represents an attempt by the kerala legislature to enact a piece of law relating to preventive detention eliminating subjectivity to the extent possible. the scheme of the statute reveals that an order of detention can be passed only against, a rowdy or a goonda defined under section 2(j) and 2(t) of the kaapa, they must further satisfy the definition of known goonda and known rowdy in section 2(o) and section 2(p) of the kaapa, the government or the delegated authority passing an order of detention under section 3(1) of the kaapa must entertain the twin satisfactions insisted by section 3 of the kaapa, we extract section 3(1) below:section 3, power to make orders detaining known goondas and known rowdies: - (1) 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 prevent 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 be detained.7. the detaining authority must entertain the satisfaction first of ail that the detenu is a known goonda or a known rowdy. this satisfaction is an objective satisfaction, there is no element of subjectivity at ail on this first initial requirement, a known goonda and a known rowdy are defined. the authority has to be satisfied objectively that the detenu answers the requirements of the definition of a known goonda or known rowdy. only when that threshold satisfaction is objectively entertained can they proceed to the next aspect - as to whether the detention of such person is necessary for preventing such person from indulging in objectionable activities. the latter satisfaction may be a subjective satisfaction, while many other pieces of preventive detention laws like the misa, cofeposa etc. do not insist on such threshold objective satisfaction, we find that the kaapa insists on the former objective satisfaction on entertainment of which alone the question of entertaining the latter subjective satisfaction would arise,8. the contention before us is that the former objective satisfaction has been incorrectly exercised. undoubtedly this objective satisfaction is justiciable unlike the latter subjective satisfaction. it is open at any time for a detenu to contend that he does not fall within the definition of a known goonda or a known rowdy. if that contention, is acceptable, there can never be a valid order of detention passed against him under section 3(1) of the kaapa.9. at this juncture it will be proper to advert, to the definition of a known rowdy, the detenu is sought to be detained on the assertion that he is a known rowdy, section 2(p) of the kaapa defines a known rowdy. it is unnecessary to extract the entire definition. we extract the relevant part, of section 2(p) alone,section 2(p): known rowdy means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this act;(i) ...(ii) ...(iii) 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 section 2.[provisos omitted as not crucially relevant](emphasis supplied)10. in this case the detenu is detained on the assertion that he is a known rowdy under section 2(p)(iii) of the kaapa, there is no contention that he satisfies any other limb of section 2(p). in order to fall within the sweep of section 2(p)'(iii). it must be shown that the detenu was 'found on investigation by a competent police officer ... in 3 separate instances not forming part of the same, to have committed the specified offences under section 2(t)'11. the short contention raised in this case is that crime nos. 24 and 26 of 2006, both of the kollam west police station, are not separate instances not forming part of the same transaction. the dispute hence boils down to this short question - i.e., are crime nos. 24 and 26 of 2006 separate instances not forming part, of the same transaction 12. under criminal procedural law, the expression 'part, of the same transaction' has a well entrenched meaning. the question whether two instances are separate and are not forming part of the same transaction, is relevant under the provisions relating to joinder of charges in chapter xvii cr.p.c. we have to ascertain whether these 2 instances are separate or do form part of the same transaction.13. both incidents relating to crime nos. 24 and 26 of 2006 admittedly took place on 12.01.2006, the allegations in the firs and final reports reveal that they took place within a span of 30 minutes. even going by the non specific assertions about the time of the offences, the 2 crimes are registered relating to incidents that allegedly took place between 2 p.m. and 2,30 p.m. on the same day. admittedly the 2 incidents took place at the same venue. one cannot pin point a geographical point or place and say that 2 incidents did take place at the same spot-even a place removed by one centimeter from the other can be called a different place in law. but the question is whether the 2 incidents are separate, unconnected ones or are part of the same transaction, the mere fact that there is a short distance between the venue of incidents 1 and 2 cannot obviously and evidently make them separate incidents not part of the same transaction for the purpose of section 2(p)(iii) of the kaapa. our attention has been drawn to the scene mahazars in the 2 cases which are produced as exts.p20 and p23, a careful reading of these two scene mahazars make it clear that the conclusion is inevitable that the two incidents took place at about the same geographic venue. the building of sony recreation centre is the place where the first incident took place. the second incident took place evidently outside the said building but in close and immediate proximity of the building of the sony recreation centre, there can be not a semblance of doubt on this aspect when we read exts.p20 and p23. the precise distance in inches or centimeters cannot be ascertained from either scene mahazars. but the fact remains that both these places are at the same venue close to each other, going by the test of unity of venue of the crime the two incidents are not separate and are part of the same transaction,14. we now come to the next test, of unity of purpose which can help us to decide whether the two incidents are separate incidents and are part of the same transaction. the learned counsel for the petitioner relies on the counter affidavit, filed by the 3rd respondent, in para.6, which reads as follows;it is submitted that sony recreation club at kankathumukku is a registered club and police conducted raid is (in?) that, on receiving complaint and stopped the illegal activities.15. it is the case of the detenu that he has been falsely implicated in these 2 cases because of his objection against these illegal activities. it. is not. necessary to us to delve deeper into that controversy. but the allegation in both the crimes is that a group of persons including the detenu reached the scene of occurrence in a zen car and thereafter indulged in culpable overt acts both inside the recreation club and outside it. it is the very specific allegation that the miscreants indulged in such activities because the defacto complainant in the first case (i.e. secretary of the sony recreation club) did not oblige the miscreants' request to pay an amount of rs. 300/- to them. in the incident that took place inside the sony recreation club and in the incident that took place outside the sony recreation club, the same is the alleged motive as is evident from the f.i statement, in crime no. 26 of 2006, while the victim in the first case is the secretary of the sony recreation club, the victim in the incident which took place outside is an office boy of the sony recreation club, the brother of the secretary, who admittedly has a shop close to the sony recreation club, had gone to the rescue of the office boy and then he was also attacked in the second incident, this is the allegation.16. we have no hesitation to agree that going by the well known tests of unity of purpose, unity of the venue, unity of the culpable acts allegedly indulged in by the offenders or by any known test to identify whether two incidents are separate or the same and whether they are part, of to same transaction or not., it has got. to be held that the incidents alleged in crime nos. 24 and 26 of 2006 are not separate incidents and are both part of the same transaction.17. while understanding the sweep of the expression separate instances not forming part of the same transaction' appearing in section 2(p)(iii) of the kaapa, this court, cannot afford to ignore or overlook the salutary motivation behind such stipulation, a person must be really a known rowdy posing threat to the public order, it is only then that the powers of detention on the kaapa can be invoked against him, to prevent abuse of the powers under the kaapa, threshold requirements are stipulated as to the persons against whom the powers of detention under the kaapa can be invoked, the threshold requirements stipulated insist, as earlier extracted, that either the detenu must have been convicted in one case under section 2(t)(i) or must have been convicted twice for offences falling under section 2(t)(ii) of the kaapa. not satisfied with these stipulations, the legislature prescribed that even the finding by a police officer on investigation that the detenu has committed an offence may be sufficient. but there must at least be 3 such instances. it is while imposing that restriction that the law mandates that such instances must be separate instances and should not be dart of the same transaction, we need only observe that going by the salutary purpose of section 2(p)(iii) which insists and mandates that there must at least be 3 instances to come within the sweep of section 2(p)(iii), such instances must, be separate and distinct ones and should not be part of the same transaction. merely because the police choose to file separate charge sheets in such cases which could have been tried jointly for the reason that the alleged culpable acts are not separate instances and are part of the same transaction, the definition of section 2(p)(iii) cannot be said to be attracted against a detenu.18. it is the very definite case of the detenu that separate crimes have been registered by the police only to facilitate invocation of the powers under the kaapa against him. the learned counsel for the petitioner submits that before the doctor, very specious allegations have been raised that the victims were attacked by goondas, which alone., he contends, is sufficient to reveal an attempt to vex the detenu with proceedings under the kaapa, sufficient, materials to sail to a safe conclusion on that aspect are definitely not available. but all the same the conclusion appears to be inevitable that crime nos. 24 and 26 of 2006 of kollam west police station cannot, be reckoned as separate instances not forming part, of the same transaction falling within the sweep of section 2(p)(iii) of the kaapa.19. it follows that crime nos. 24 and 26 of 2006 can be reckoned only as one instance and so reckoned there is allegation of only two instances against the detenu. he would therefore not fall under the definition of section 2(p)(iii) of the kaapa, powers under section 3 of the kaapa cannot hence be invoked against him.20. the above discussions lead us to the conclusion that the detention of the detenu under section 3(1) of the kaapa is not justified and has got to be invalidated, the hallenge in this writ petition succeeds,21. in the result:a) this writ petition is allowed;b) the impugned order of detention ext.p1 is set aside;c) if the detention of the detenu is not necessary in connection with any other case, he shall forthwith be released from the central prison, trivandram, where he is detained;d) the registry shall forthwith communicate this direction to the orison authorities.