Kerala High Court
Thankachan K.V vs Kerala State Election Commission on 18 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942
WP(C).No.3525 OF 2021(M)
PETITIONERS:
1 THANKACHAN K.V.,
AGED 55 YEARS
S/O. VARKEY, KALLIYADICKEL HOUSE, CHARAL P.O. KANNUR,
KERALA 670 706.
2 JAYEESH SEBASTIAN,
AGED 39 YEARS
S/O. SEBASTIAN, KUDAKASSERY HOUSE, KOOMANTHODE P.O.
KARIKOTTAKARY, KANNUR DISTRICT, KERALA, 670 704.
3 SHIBIN JOSE,
AGED 44 YEARS
S/O. JOSE THOMAS, AMBALATHURUTHEL HOUSE, KALLERIMALA,
MANATHANA P.O. MELMURINGODI, PERAVOOR, KANNUR
DISTRICT , KERALA 670 673.
4 P.M. MATHEW,
AGED 65 YEARS
S/O. MATHAI, PAMBACKAL HOUSE, CHARAL P.O. KANNUR
DISTRICT, KERALA 670 706.
5 THURUTHEL AUGUSTHY.
AGED 66 YEARS
S/O. AUGUSTHY , THURUTHEL HOSUE, VANIYAPPARA, CHARAL
P.O. KANNUR DISTRICT, KERALA 670 706.
BY ADVS.
SRI.SAJI KURIACHAN
SRI.M.R.NANDAKUMAR
RESPONDENTS:
1 KERALA STATE ELECTION COMMISSION
REPRESENTED BY SECRETARY, VIKAS BHAVAN NEAR
LEGISLATURE COMPLEX, THIRUVANANTHAPURAM , KERALA 695
033.
2 THE CHIEF ELECTORAL OFFICER,
VIKAS BHAVAN, LEGISLATIVE COMPLEX, THIRUVANANTHAPURAM
DISTRICT, KERALA 695 033.
WP(C).Nos.3525 & 3727 OF 2021
2
3 THE DISTRICT COLLECTOR,
KANNUR P.O. KANNUR 670 001.
4 THE SUPERINTENDENT OF POLICE (RURAL),
KANNUR P.O. KANNUR 670 001.
5 THE STATION HOSUE OFFICER,
KARIKOTTAKARI P.O. KANNUR 670 704.
6 THE STATION HOUSE OFFICER,
PERAVOOR P.O. KANNUR 670 673.
ADV.SMT.PRINCY XAVIER, GP
ADV.SRI.MURALI PURUSHOTHAMAN,SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ALONG WITH W.P.(C)NO.3727/2021 ON 18.02.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos.3525 & 3727 OF 2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942
WP(C).No.3727 OF 2021(M)
PETITIONERS:
1 BIJU M. PAUL
AGED 50 YEARS
S/O. PAULOSE, MUNDAKAL HOUSE, CHEMPANTHOTTY P.O.,
THALIPARAMBU, KANNUR, KERALA-670631.
2 K.H.KUNHABDULLA,
AGED 66 YEARS
S/O. USSANKUTTY, KUNDERI VALAPPIL HOUSE,
CHEMPANTHOTTY P.O., THALIPARAMBU, KANNUR DISTRICT,
KERALA-670631.
3 JACOB J.,
AGED 62 YEARS
S/O. JOSEPH P., AYLOOKUNNEL HOUSE, KOLAKKAD P.O.,
PERAVOOR (VIA), IRITTY, KANNUR DISTRICT, KERALA-
670673.
4 JOSEPH V.D.,
AGED 67 YEARS
S/O. DEVASYA, VADAKKE MULANJANAL HOUSE, PEUMPUNNA
P.O., KANNUR DISTRICT, KERALA-670673.
BY ADVS.
SRI.SAJI KURIACHAN
SRI.M.R.NANDAKUMAR
RESPONDENTS:
1 KERALA STATE ELECTION COMMISSION
REPRESENTED BY SECRETARY, VIKAS BHAVAN, NEAR
LEGISLATURE COMPLEX, THIRUVANANTHAPURAM, KERALA-
695033.
2 THE CHIEF ELECTORAL OFFICER,
VIKAS BHAVAN, LEGISLATIVE COMPLEX,
WP(C).Nos.3525 & 3727 OF 2021
4
THIRUVANANTHAPURAM DISTRICT, KERALA-695033.
3 THE DISTRICT COLLECTOR,
KANNUR P.O., KANNUR-670001.
4 THE SUPERINTENDENT OF POLICE (RURAL),
KANNUR P.O., KANNUR-670001.
5 THE STATION HOUSE OFFICER,
SREEKANDAPURAM POLICE STATION, KANNUR-670631.
6 THE STATION HOUSE OFFICER,
KELAKOM POLICE STATION, KANNUR-670674.
7 THE STATION HOUSE OFFICER,
PERAVOOR POLICE STATION, KANNUR-670673.
R1 BY SHRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
ADV.SMT.PRINCY XAVIER, GP
ADV.SRI.MURALI PURUSHOTHAMAN,SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ALONG WITH W.P.(C)NO.3525/2021 ON 18.02.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos.3525 & 3727 OF 2021
5
JUDGMENT
Dated this the 18th day of February 2021
The petitioners in both these cases are
aggrieved by the action of the respective Station
House Officers who compelled them to deposit
their licensed fire arms with the Police Station.
2. In W.P.(C) No.3525/2021, the respondents
5 and 6 are the Station House officers, who have
directed the petitioners to deposit the licensed
arms. The petitioners have produced the deposit
receipts, Exts.P2 to P6 out of which Ext.P6 was
as early as on 18.11.2020, even before the
election to the local body was conducted and it
was not returned.
3. In W.P.(C)No.3727/2021, the respondents
5 to 7 are the Station House Officers, who have
directed the petitioners to deposit the licensed
arms. Exts.P2 to P5 are the receipts given to
the petitioners towards the deposit of their
WP(C).Nos.3525 & 3727 OF 2021
licensed arms. They have deposited the licensed
arms in January and February 2021.
4. The petitioners have approached this
Court complaining the illegal action of the
respondents contrary to the provisions in the
circular issued by the Election Commission as
well as the judgments of this court.
5. The learned Government Pleader on
instructions submits that the Station House
Officers directed them to deposit the licensed
arms in order to ensure the law and order
situations.
6. I have already considered similar cases.
This court has time and again cautioned that the
police officers do not have any authority to
require deposit of licensed arms and that a
decision regarding the requirement of deposit of
licensed arms in view of upcoming elections can
only be taken by the screening committee
constituted as per the provisions contained in
WP(C).Nos.3525 & 3727 OF 2021
the circular issued by the Election Commission on
01.09.2009. As per the said circular a screening
committee has to be constituted for review and
assessment of all licenseholders. Clause 3.10 and
3.11. of the circular reads as follows:
"Deposit of Licensed Arms
3.10. Immediately after the announcement of elections, District
Magistrates shall make a detailed and individual review and
assessment (in accordance with the prevalent State laws) of all
licence holders so that licensed arms in those cases where they
consider it essential are impounded in order to ensure maintenance
of law and order so essential for ensuring free and fair elections.
These arms should be deposited with the district authorities. Among
cases which may need to be reviewed are the following:
(a) Arms licenses of persons released on bail,
(b) Arms licenses of persons having a history of criminal offences,
and
(c) Arms licenses of persons previously involved in rioting at any
time but especially during the election period. The above categories
are only illustrative and not exhaustive.
3.11. As per the above referred guidelines laid down by the Bombay
High Court, for such review and assessment of all licence holders;
(a) There shall be a Screening Committee in every District and in
every Commissionerate area. In the District, the Screening
Committee shall consist of the District Magistrate and the
Superintendent of Police. In the Commissionerate area, it shall
consist of the Commissioner of Police (Admn.) and Joint/Additional
Commissioner of Police(Admn.).
(b) The Screening Committee shall commence the work of
screening from the day of announcement of election by the
Election Commission and it shall complete the exercise of
screening in respect of licences placed before it as far as possible
before the date of issue of notification of elections.
(c) Cases of all licence holders as mentioned in para 3.10 above
shall be placed before the Screening Committee.
WP(C).Nos.3525 & 3727 OF 2021
(d) On receipt of report from the Screening Committee, the
licensing authority shall issue notice before the last date fixed for
withdrawal of candidature to the individual licence holder for
depositing his arms and inform the licence holder that failure to
deposit the arms as directed would result in prosecution under
Section 188 of the I.P.C. as stated in clause 3.11(g).
(e) The licence holder thereafter shall deposit his arms forthwith
and in any case within a period of seven days from the date of
receipt of the notice. The Licensing Authority shall give proper
receipt to the licence holder.
(f) The decision taken by the Screening Committee shall be final.
(g) Any licence holder who fails to deposit arms within the period
specified above shall be liable for prosecution under Section 188 of
the Indian Penal Code."
7. From the circular it is clear that the
screening committee is expected to commence its
screening work from the date on which election is
announced; screening work is to be completed
before the issuance of notification for election.
On receipt of a report of the said screening
committee that the impounding of the licensed arm
of a particular licenseholder is essential for
ensuring the maintenance of law and order and for
ensuring a free and fair election, the licensing
authority can issue a notice to the licenseholder
directing him to deposit the licensed arm within
one week.
WP(C).Nos.3525 & 3727 OF 2021
8. In the present case the respondents do
not have a case that petitioners are involved in
any of the parameters coming under clause (a) to
(c) of Clause 3.10. Date of election is so far
not notified. There is no report from the
screening committee. No notice is issued to the
petitioners by the licensing authority.
9. The only reason stated for directing
deposit of the licensed arms is that the
respondents want to ensure a serene atmosphere
for the election.
10. When the Government has laid down a
specific procedure which should precede the
direction for deposit of licensed arms, there is
no reason for deviating from the said procedure
and collect the licensed arms well before
election without authority and also to retain the
guns even months after the election. It is
unfortunate that the authorities concerned
continue to adopt such illegal procedure even
after a series of judgments from this court
WP(C).Nos.3525 & 3727 OF 2021
starting from Saji Kuriachan v. District
Collector, Ernakulam: 2011 (1) KLT 484 and
reiterated in Binesh G. Vadath v. District
Collector [2011 (1) KHC 214], Joseph v. District
Collector [2019 (1) KLT 1034] etc.
Therefore, there shall be a direction to the
respondents 3 and 4 to see that the Police
officers under them are not resorting to such
short cut methods. There will be a further
direction to the respondents 5 and 6 in W.P.(C)
No.3525/2021 and respondents 5 to 7 in W.P.
(C)No.3727/2021, to return the licensed guns
deposited by the petitioners within 2 days from
the date of receipt of a copy of the judgment.
Sd/-
P.V.ASHA
JUDGE
DM
WP(C).Nos.3525 & 3727 OF 2021
APPENDIXOF W.P.(C)NO.3525/2021
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE CIRCULAR DATE 01.09.2009
FROM THE ELECTION COMMISSION.
EXHIBIT P2 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 5TH RESPONDENT DATED 23.01.2021.
EXHIBIT P3 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 5TH RESPONDENT DATED 24.01.2021.
EXHIBIT P4 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 6TH RESPONDENT DATED 04.02.2021.
EXHIBIT P5 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 5TH RESPONDENT DATED 23.01.2021.
EXHIBIT P6 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 5TH RESPONDENT DATED 18.11.2020.
WP(C).Nos.3525 & 3727 OF 2021
APPENDIX OF W.P.(C)NO.3727/2021
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE CIRCULAR DATED 1.9.2009
FROM THE ELECTION COMMISSION.
EXHIBIT P2 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 5TH RESPONDENT DATED 18.1.2021.
EXHIBIT P3 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 5TH RESPONDENT DATED 8.2.2021.
EXHIBIT P4 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 6TH RESPONDENT DATED 15.1.2021.
EXHIBIT P5 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY
THE 7TH RESPONDENT DATED 4.2.2021.
RESPONDENTS EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
