S.2(p)(iii) KAAPA | Complaint By Police Can Be Counted Towards Declaring Accused 'Known Rowdy' If No Personal Grievance Involved: High Court

For context, under Section 2(p)(iii) of Act, one of the circumstances under which a person can be classified as a 'known goonda' is that the person must be investigated in three separate crimes on complaints not initiated by police officer.

One of the cases on the basis of which the detenu in this case was classified as a “known rowdy” was that he allegedly along with other accused drove a car into the police jeep of officers engaged in night patrolling with the intent to kill the officers and damaged the jeep and caused a loss of Rs. 20,000.

The petitioner argued that this case cannot be a basis as the complaint was registered by a police officer. The Court noticed that the bar would not apply in this case.

“...if the crime is in respect of the obstruction caused to the discharge of official duty of the Police Officer or assault committed upon a Police Officer or assault committed upon a Police Officer with the intention to deter him from discharging his official duty, as envisaged under Section 353 or 332 of the Indian Penal Code, it cannot be classified as a case where the Police Officer concerned is having a personal grievance against the personal grievance against the accused. Such cases will not come under the exclusion of complaints initiated by Police Officers, envisaged under Section 2(p)(iii) of KAAP Act.”

The Court further added that if the case is that a police officer was assaulted due to personal enmity of the accused and it has no relation to discharge of official duty, the bar under Section 2(p)(iii) of the Act may apply.

Background of the Case

The petitioner is the sister of the detenu put under preventive custody under Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA). He was earlier put under preventive custody for 6 months from August 2023 – February 2024. After his release, a crime was registered against him for allegedly possessing 400 mg of brown sugar. After this, the district police chief submitted a proposal for initiating KAAPA proceedings against the detenu. The district collector ordered the detention which was later approved and subsequently confirmed by the Government.

'Preventive Detention' Can Be Based On Cases Pending Investigation

The Court held that a detaining authority need not wait till completion of final report to detain a person under preventive detention. The Court further held that mere registration of FIR might not be enough reason to put a person in preventive custody. However, the Court added that the detaining authority need not wait for competition of investigation and submission of final report. The Court said that the detaining authority should be satisfied with regard to the requirement of the statute based on the information available before it before ordering for preventive detention.

“The detaining authority, who is mulcted with the duty in this regard, cannot wait for the competition of the investigation and submission of the final report under Section 173(2) to invoke this jurisdiction, keeping its eyes shut till such time; which otherwise will only be an instance of dereliction of duty. The only requirement is that he should be in a position to record the 'satisfaction' with regard to the requirements under the Statute, based on the information made available, whether it be a final report or other materials. It was held that mere registration of FIR is not enough under such circumstances.”

The Court added that the Court cannot sit and decide over the subjective satisfaction entered by the detaining authority. The Court can only look into whether the subjective satisfaction is entered properly on the basis of materials placed before the detaining authority. The Court can intervene if it sees that the satisfaction is vitiated by malafides or by total absence of material or by reliance on materials which cannot be legally taken note of.

Later Activities Maintain A 'Live Link' With Prior Crimes

The petitioner argued that after his release from the prior 'preventive custody', the detenu should be again found to be a 'known goonda' as mentioned under Section 2(o) of KAAPA. The petitioner argued that mere involvement in one crime is not enough for such classification.

The Court held that even after the expiry or revocation of an earlier detention order, the later action create a continuous “live link” with previous activities.

“..when subsequent prejudicial conduct follows earlier actions, the combined pattern of behavior forms a sequence of potent acts that support a continuous live link, justifying another detention order. If the competent authority is satisfied that another detention order is necessary, taking into account any or all of the previous and recent prejudicial activities, such an order cannot be held objectionable.”

The Court held that the detenu has already been classified as a” known rowdy.” The Court held that it is enough that he involves in at least one instance of offence in the nature described under Section 2(o) or Section 2(p) of the Act.

The Court held that there is no reason to interfere with the detention order. Accordingly, the petition was dismissed.

Case Number: WP (Crl.) 961 of 2024

Case Title: Aaliya Ashraf v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 756