Reference To IPC Provisions In Definition Of 'Rowdy' Under Anti-Social Activities Law Is A Reference To Relevant BNS Provisions: Kerala HC

A division bench of Justice P. B. Suresh Kumar and Justice Jobin Sebastian held that by application of Section 8(1) of the General Clauses Act, references to IPC in the Section 2(t) KAAPA can be construed as corresponding provision in BNS. Section 8(1) of the General Clauses Act says that if a law is repealed or re-enacted, then the reference to the repealed law shall be construed as a reference to re-enacted law.

“ In the light of Section 8(1) of the General Clauses Act, in the absence of any different intention, the reference to the provisions contained in the repealed enactment namely, IPC in Section 2(t) of the Act shall be construed as reference to the provisions in BNS, the re-enactment...Inasmuch as Section 2(t) does not refer to any offence in particular, after the coming into force of the re-enactment namely, BNS, Section 2(t) has to be construed as referring to all the offences in Chapter XVII (Of Offences Against Property) of BNS including new offences if any, included.”

Under Section 2(t), Chapter XVII of IPC dealing with Offences Against Property is specified for classifying a person as rowdy. The Court observed that the corresponding Chapter XVII in BNS dealing with offences against property shall be read in its place. The Court further held that this will also include all the new offences, if any, in the chapter in BNS.

Background

An earlier order of detention against the detenu was revoked by the Government on the basis of the report of the Advisory Board. He is currently undergoing detention based on 2 cases which was registered against him after revocation of the earlier order. For one of the cases, he was arrested and was later released on bail after almost 2 months. While he was in custody, the proposal for his preventive detention was made and he was detained under KAAPA, 10 days after he was released on bail.

Person Classified As 'Rowdy' Is Presumed To Indulge In Anti-Social Activities

The detenu submitted that one of the allegations against him is that he failed to return a vehicle entrusted to him by his friend. He argued that this cannot be considered as an anti-social activity. The Court rejected this argument and said that the said activity comes within the definition of 'anti-social activity' under Section 2(a) of KAAPA. Further, the Court observed that the allegation against him would be sufficient to classify him as a 'rowdy' under the Act.

The Court noted that as per Section 3 KAAPA, known rowdies are put under preventive custody to prevent them from committing any anti-social activity. The Court held that this would mean that the persons who would satisfy the definition of 'rowdy' are presumed to be persons indulging in anti-social activities.

No Duty On Government To Consider Detenu's Representation Before Matter Is Placed Before Advisory Board

The petitioner pointed out that the Government without considering the detenu's representation, placed the matter before the Advisory Board. The High Court referred to the Supreme Court decision in K. M. Abdulla Kunhi v Union of India (1991) which held that when there is no time to dispose the representation before referring the case to Advisory Board, the representation shall be forwarded to the Advisory Board. The Supreme Court had further held that in such case, the representation cannot be considered before the receipt of report of Advisory Board.

In the instant case, the Court noted that the Government received the representation on the same day on which the matter was placed before Advisory Board. The Court also said that the Government could not delay placing the case before Advisory as the time limit for referring the case to the Advisory Board would have gotten over in 10 more days. Thereby, the Court rejected the contention that the Government should have considered the representation before placing the case before the Advisory Board.

Delay In Submitting Detention Proposal While Accused Was In Custody Isn't Fatal

The petitioners argued that there was a long duration between the last prejudicial activity and submission of proposal of detention. The petitioner urged that therefore, the live link between order of detention and grounds of detention was snapped. The proposal was submitted more than a month after the last prejudicial activity. The last prejudicial activity took place on August 11 and the proposal was submitted on September 27. 

The Court however noted that the detenu was arrested in connection with the last prejudicial activity on August 22 and was released on bail on October 15. The Court held that if the detenu was in custody for a period between the last prejudicial activity and submission of the proposal, it cannot be straight away inferred that the live and proximate link has been snapped. The Court held that if the period of custody is excluded, it cannot be held that a long period lapsed between the last prejudicial activity and submission of the proposal.

On these consideration, the petition was dismissed

Case Title: Ayishabi Thcharakkunnummal v State of Kerala and Others

Counsel for the Petitioner: Advocates M. H. Hanis, T. N. Lekshmi Shankar, Nancy Mol P., Anadhu P. C., Neethu G. Nadh, Sinisha Joshy, Ann Mary Ansel, Sahad M. Hanis, Ria Elizabeth T. J.

Counsel for the Respondents: Adv. K. A. Anas (GP)

Case No: WP(Crl.) 1312 of 2024

Citation: 2025 LiveLaw (Ker) 109

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