IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 3477 of 2009()
1. SAMUEL GEORGE, AGED 53 YEARS,
2. SAM JOHN, AGED 36 YEARS, S/O.JOY,
1. STATE OF KERALA,
2. SUPERINTENDENT OF POLICE, ALAPPUZHA.
3. CIRCLE INSPECTOR OF POLICE, MAVELIKKARA.
4. STATION HOUSE OFFICER, KURATHIKADU
For Petitioner :SRI.K.C.PETER
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
O R D E R
------------------------------------------------------ B.A. NO. 3477 OF 2009
------------------------------------------------------ Dated this the 29th day of June, 2009
O R D E R
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 B.A. NO. 3477 OF 2009
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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 B.A. NO. 3477 OF 2009
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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.
4. Sri.K.C.Peter, learned Counsel appearing for the petitioners, submitted that "Rowdy" and "Known Rowdy" are defined in the Act and going by Section 2(p)(iii), to enable an order to be passed under Section 3, there must be at least three instances of complaints having been filed against the persons concerned. He submitted that the expression "complaint" in Section 2(p)(iii) should B.A. NO. 3477 OF 2009
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be taken as having the meaning of "complaint" as defined in Section 2(d) of the Code of Criminal Procedure. In other words, the submission of Sri.K.C.Peter is that to initiate proceedings under Section 3 on the ground that a person is a known rowdy, it is not sufficient that there should be three or more than three criminal cases against him, but those cases should be cases initiated on complaint. It is submitted that cases initiated on police report or cases registered by the police on a First Information Statement would not constitute a complaint and, therefore, such cases should be excluded from the definition of Known Rowdy under Section 2(p) of the Act, in view of clause (iii) thereof. It is appropriate to extract the relevant portion of Section 2(p) and Section 2(t) of the Act and Section 2(d) of the Code of Criminal Procedure. "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) made guilty, by a competent Court at least once for an offence of the nature under item (i) of clause (t) of Section 2 or any offence notified as such under the said clause; or
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(ii) made guilty, by a competent Court at least twice for any offence of the nature under item (ii) of clause (t) of Section 2 or any offence notified as such under the said clause; or
(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." "2(t). 'Rowdy' means and includes a person who either by himself or as a member of a gang commits or attempts to commit, or abets the commission of any offences under Sections 153A and 153B of Chapter VIII and Chapters XV, XVI, XVII & XXII of the Indian Penal Code, 1860 (Central Act 45 of 1860), or any offences under the provisions of the Arms Act, 1959 (Central Act 54 of 1959), or the Explosives Substances Act, 1908 (Central Act 6 of 1908):-
(i) punishable with five or more years of imprisonment of any type; or
(ii) with less than five years of imprisonment of any type, excluding those punishable with less than one year of imprisonment; or
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such offences under any other law for the time being in force, coming under items (i) or (ii), as may be notified by the Government, from time to time."
"2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation:- A report made by a police
officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;"
5. The submission appears to be attractive. When an Act passed by the legislature is to be interpreted, an expression used in that Act should be normally considered in the light of the allied Acts, if that expression is not defined in the Statute concerned. The Code of Criminal Procedure is also referred to in Sections 4 and 19. B.A. NO. 3477 OF 2009
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Therefore, it is contended that the expression "complaint" occurring in Section 2(p)(iii) means a complaint as defined in Section 2(d) of the Code of Criminal Procedure. It is submitted that to found an order under Section 3, there must be the required number of cases as mentioned in Section 2(p)(iii) and those cases must be initiated on complaints.
6. On a consideration of the scheme and the various provisions of the Act, it would appear that what is intended is that the cases should be those initiated at the instance of persons other than the police officers. It could be either complaints filed before the Magistrate (and referred to the police under Section 156(3) of the Code of Criminal Procedure or dealt with otherwise) or cases registered by the police on information supplied by the de facto complainant. It is not meant that the cases referred to under Section 2(p)(iii) should be complaints filed before the Magistrate, which are popularly known as 'private complaints'. If it is interpreted that the complaints as defined in Section 2(d) of the Code of Criminal Procedure alone could be taken into consideration for the purpose of Section 2(p)(iii) of the Act, it would defeat the purpose for which provision has been made under the various provisions of the Act. B.A. NO. 3477 OF 2009
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The purpose and intent is clear that a police officer who has some interest in the matter should not be instrumental for initiating three or more cases against a person to facilitate initiation of proceedings under the Act by filing a report before the authorised officer. To avoid bias on the part of the police officer, provision has been made in Section 2(p)(iii) that the cases should be initiated at the instance of the persons aggrieved or on the basis of the information supplied by persons other than police officers for registration of crimes. The expression "complaint" is not used in Section 2(p)(iii) in a restrictive sense, to mean only a "complaint" as defined in Section 2(d) of the Code of Criminal Procedure.
7. The next question to be considered is whether apprehension of arrest of a person consequent to the passing of an order under Section 3 of the Act could be the basis for filing an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. Section 438 provides that where any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under the Section that in the event of such arrest he shall be released on bail. Sub-section (3) B.A. NO. 3477 OF 2009
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of Section 438 provides that if such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1). The provisions of Section 438 would make it clear that an order under sub-section (1) thereof could be made in a case where cognizance of an offence could be taken by a Magistrate. An order under Section (3) of the Kerala Anti- Social Activities (Prevention) Act would not come within the ambit of Section 438 of the Code of Criminal Procedure. To found an order under Section 3 of the Act, certain ingredients are to be satisfied. If an order is passed under Section 3, a person can be detained without there being any conviction or sentence. The detention contemplated therein is preventive detention. As in the case of preventive detention under any other Act, safeguards are also provided in the Act. The order of detention is liable to be reviewed by the Advisory Board; and the person concerned shall be detained further or released on revocation of the order, depending on the B.A. NO. 3477 OF 2009
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report submitted by the Advisory Board. An order under Section 3 does not by itself constitute an offence. Learned counsel for the petitioners referred to Section 19 of the Act which states that notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences and wilful violation of lawful orders made under the Act shall be cognizable and non-bailable. Necessarily, one has to look into the scheme of the Act and various provisions thereof to consider which are the offences referred to in the Act. As rightly submitted by the learned Public Prosecutor, only Sections 15 and 16 of the Act deal with offences. Section 15 provides for making certain orders restricting the movements of certain persons and for punishing the person who violates the order. Section 16 provides for punishment for concealing persons ordered to be detained. Section 19 would apply to offences and wilful violations of lawful orders made under the Act. It does not apply to offences committed or alleged to have been committed, which form the foundation for passing an order under Section 3. Previous conviction or allegations of having committed offence as mentioned in Section 2(p) are relevant for passing an order under Section 3. An application for anticipatory bail under Section 438 of the Code of Criminal Procedure in respect of such offence could be filed in those B.A. NO. 3477 OF 2009
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cases and not in a case where, as a consequence of such offences having committed, an order could be passed under Section 3 of the Act. The Act does not contemplate that an order under Section 3 would constitute an offence; nor does it contemplate cognizance of an offence in respect of the same, or conviction or acquittal in respect of the same. It is purely an order for preventive detention. An order under Section 3 cannot give rise to a cause of action for filing an application under Section 438 of the Code of Criminal Procedure.
8. The very purpose of passing an order under Section 3 is to detain a person under certain circumstances. The only ground on which a person can be released is revocation of the order by the Government under Section 13 or revocation of the order by the Government on the report of the Advisory Board. Section 14 of the Act provides for temporary release of persons detained. Except the instances where a person can be released either permanently or temporarily as provided in the Act, the Act does not contemplate release of a person on regular bail under Section 437 or 439 or on anticipatory bail under Section 438 of the Code of Criminal Procedure. Release of a person could only be as provided in the B.A. NO. 3477 OF 2009
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Act and not as provided under Section 437 or 438 or 439 of the Code of Criminal Procedure.
For the aforesaid reasons, I am of the view that the application is not maintainable in law and it is accordingly dismissed. (K.T.SANKARAN)