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

While examining the definition of 'rowdy' under the Kerala Anti-Social Activities Prevention Act (KAAPA), the Kerala High Court observed that the reference to the repealed IPC provisions in the definition, has to be construed as a reference to relevant provision in the BNS. It held that when such reference is to a chapter of IPC, the corresponding chapter of BNS shall be referred to and it would include even new offences in the chapter.Section 2(t) of KAAPA defines rowdy which 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 (Promoting enmity between different groups on grounds of religion, doing acts prejudicial to harmony) and 153B (Imputations, assertions prejudicial to national-integration) of Chapter VIII (Of Offences against the Public Tranquillity) and Chapters XV(Of Offences relating to Religion), XVI(Of Offences Affecting the Human Body), XVII(Of Offences against Property), & XXII (Of Criminal Intimidation, Insult and Annoyance) of the Indian Penal Code.The court was hearing a writ petition was filed by the mother of the detainee who was under preventive custody under Section 3(1) of KAAPA. The provision empowers the government to detain "Known Goondas and Rowdies". One of the grounds challenging the detention order was that offences punishable under BNS are not specifically brought under the definition of “rowdy” contained in Section 2(t) KAAPA. 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 Section 8(1) of the General Clauses Act says that if a law is repealed or re-enacted, then the reference to the repealed law shall be construed as a reference to re-enacted law.“ In the light of Section 8(1) of the General Clauses Act, in the absence of any different intention, the reference to the provisions contained in the repealed enactment namely, IPC in Section 2(t) of the Act shall be construed as reference to the provisions in BNS, the re-enactment...Inasmuch as Section 2(t) does not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.BackgroundAn 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 ActivitiesThe 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 BoardThe 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...

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

Manju Elsa Isac

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