S.2(p)(iii) KAAPA | A complaint made by the police may be counted towards an accused being considered a ‘known troublemaker’ if it does not involve a personal complaint: High 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 he must be investigated for three separate offenses on the basis of complaints not initiated by the officer police .

One of the cases on the basis of which the detainee in this case was classified as a “known troublemaker” was that he and other defendants allegedly drove a car into a police jeep of officers participating in night patrol with the intention of killing the officers, damaged the jeep and caused a loss of PLN 100,000. 20,000.

The petitioner argued that the present case could not be the basis because the complaint was registered by a police officer. The Court noted that the prohibition would not apply in this case.

“…if the offense concerns obstructing a Police officer in the performance of official duties or assaulting a Police officer or attacking a Police officer with the intention of stopping him from performing official duties, in accordance with Art. provided for in Article 353 or 332 of the Indian Penal Code, it cannot be classified as a case where a personal complaint is made by a police officer concerned in connection with a personal complaint against the accused. Such matters will not be covered by the exclusion of complaints initiated by Police Officers, provided for in Art. 2 letter p) point iii) of the KAAP Act.”

The Court further added that if the case concerns an attack on a police officer due to the personal hostility of the accused and it is not related to the performance of official duties, the limitation period provided for in Art. 2 (p) (iii) of the Act.

Background of the case

The petitioner is the detainee’s sister and has been placed under preventive detention under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA). He was previously placed in preventive detention for 6 months from August 2023 to February 2024. After his release, an offense was registered against him for allegedly possessing 400 mg of brown sugar. Then, the District Police Commander submitted an application to initiate KAAPA proceedings against the detainee. The District Bailiff ordered the arrest, which was later approved and subsequently confirmed by the Government.

“Preventive detention” may be based on matters under investigation

The Court held that the detaining authority does not have to wait until the final report is completed to detain a person placed under preventive detention. The Court further held that registration of an FIR alone may not be a sufficient reason to place a person in preventive detention. However, the Court added that the detaining authority does not have to wait for the investigation to be completed and the final report to be submitted. The Tribunal stated that the detaining authority should be satisfied with the requirement of the Act based on the information available to it before issuing a decision on pre-trial detention.

“The detaining authority, which has many responsibilities in this respect, cannot wait for the investigation to be resolved and the final report to be submitted in accordance with Art. 173 section 2, to invoke this jurisdiction, until then without opening his eyes; which will otherwise be merely an example of dereliction of duty. The only requirement is that it must be able to record “satisfaction” with respect to the requirements under the Statute, based on the information provided, whether in the final report or other materials. It was held that in such circumstances, mere registration of an FIR would not be enough.”

The Court added that the Court cannot deliberate and decide on the subjective relief entered by the detaining authority. The Tribunal can only examine whether the subjective damages have been entered correctly on the basis of the materials placed before the detaining authority. The Tribunal may intervene if it considers that the award is vitiated by errors, a complete lack of material or a reliance on material that cannot legally be included.

Subsequent actions maintain a “living link” to earlier crimes

The petitioner argued that after being released from previous ‘preventive detention’, the detainee should be re-deemed a ‘known goonda’ as mentioned in Section 2(a). o) KAAPA. The petitioner argued that mere participation in one crime was not sufficient for such a classification.

The Court found that even after the expiration or annulment of a prior detention order, the subsequent action creates a continuing “living link” with the prior activity.

“..when subsequent harmful behavior follows earlier actions, the cumulative pattern of behavior creates a sequence of powerful acts that support an ongoing living relationship that warrants another arrest warrant. If the competent authority considers that a further arrest warrant is necessary, taking into account some or all of the previous and recent activities giving rise to the damage, such order shall not be considered objectionable.”

The tribunal found that detenu had already been classified as a “known troublemaker”. The Tribunal found that it was enough for him to commit at least one offense of the nature specified in Art. 2 letter o or p) of the Act.

The Court found that there were no grounds to interfere with the provisional detention order. Accordingly, the lawsuit was dismissed.

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

Case Title: Aaliya Ashraf v. State of Kerala and others

Citation: 2024 LiveLaw (Ker) 756