S.2(p)(iii) KAAPA | A police complaint can be counted towards the recognition of the accused as a “known rowdy” if there are no personal complaints: Supreme Court

For context, under section 2(p)(iii) of the Act, one of the circumstances in which a person can be classified as a “known goonda” is that the person must be investigated for three separate offenses on complaints initiated by a non-police officer .

One of the facts on the basis of which the child in this case was qualified as a “known troublemaker” was the fact that he allegedly, along with other accused, drove a car into a police jeep of night patrol officers with the aim of killing the officers. and damaged the jeep and caused damage to the tune of Rs. 20,000.

The applicant claimed that this case cannot be a basis, since the complaint was registered by a police officer. The court noted that the ban will not apply in this case.

“…if the offense involves obstructing a police officer in the performance of his duties or assaulting a police officer or assaulting a police officer with intent to prevent him from performing his duties as provided in section 353 or 332 of the Indian Penal Code, it cannot be classified as a case where the police officer concerned is to have a personal grievance against the accused. Such cases do not fall under the exclusion of complaints initiated by police officers under section 2(p)(iii) of the KAAP Act.”

Further, the court added that if the case is that the police officer was assaulted because of the personal enmity of the accused and it is unrelated to the performance of official duties, the prohibition under Section 2(p)(iii) may apply. of the law

Background of the case

The petitioner is the sister of a child placed under preventive custody under the Kerala Prevention of Anti-Social Activities Act, 2007 (KAAPA). He was previously remanded in custody for 6 months from August 2023 to February 2024. After his release, a criminal case was opened against him for allegedly possessing 400 mg of brown sugar. After that, the district police chief filed a motion to open KAAPA proceedings against the child. The District Collector issued a detention order which was later approved and subsequently confirmed by the government.

“Preventive detention” can be based on cases pending investigation

The court held that the detaining authority need not wait until the final report is completed to detain a person in custody. The court also ruled that the mere registration of an FIR could not be sufficient grounds for taking a person into custody. However, the court added that the agency involved in the detention need not wait for the completion of the investigation and submission of the final report. The court noted that the detaining authority must be satisfied with the statute’s requirement based on the information available to it before issuing an order for preventive detention.

“The detaining authority entrusted with the duty in this regard cannot wait for the completion of the investigation and submission of the final report under section 173(2) to invoke that jurisdiction, turning a blind eye to that time; which would otherwise be merely a case of dereliction of duty. The only requirement is that he should be able to record “satisfaction” with respect to the requirements of the Charter on the basis of the information provided, whether the final report or other material. It has been held that mere registration of an FIR is not sufficient in such circumstances.”

The Court added that the Court cannot sit and decide on the subjective satisfaction made by the detaining authority. The court can only check whether the subjective satisfaction has been properly made on the basis of the materials provided to the detaining authority. The court may intervene if it sees that the satisfaction is vitiated by bad faith or the total absence of material or reliance on material which cannot be taken into account.

Further activity maintains a “living connection” with previous crimes

The applicant argued that upon his release from his previous “preventive detention” the detenu should be reclassified as a “known gunda” as referred to in section 2(o) of the KAAPA. The applicant argued that mere involvement in a single crime was not sufficient for such a qualification.

The court held that even after a prior detention order has expired or been revoked, the later actions create a continuous “living connection” with the earlier actions.

“..when subsequent prejudicial conduct follows the preceding acts, the combined pattern of conduct forms a sequence of strong acts that maintain a continuous living link justifying another detention order. If the competent authority is satisfied that a different order of detention is necessary, having regard to any or all of the previous and recent harmful acts, such order shall not be subject to appeal.’

The court ruled that the child had already been qualified as a “known hooligan.” The court held that it was sufficient that he was involved in at least one instance of an offense of the nature described in section 2(o) or section 2(p) of the Act.

The court concluded that there were no grounds for interference with detention. Accordingly, the petition was dismissed.

Case No.: WP (Crl.) 961 of 2024

Case Name: Aaliya Ashraf v. State of Kerala and another

Citation: 2024 LiveLaw (Ker) 756