Shaiju @ Pallan vs State Of Kerala
2022 Latest Caselaw 8129 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
          THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                    &
          THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
     FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                     WP(CRL.) NO. 297 OF 2022
PETITIONER/S:
          SHAIJU @ PALLAN, AGED 43 YEARS
          S/O. VARGHESE, MACHINGAL HOUSE, PANTHALLOOR DESAM,
          NELLAYI VILLAGE, KODAKARA POLICE STATION LIMIT,
          THRISSUR RURAL, THRISSUR DISTRICT - 680684.
          BY ADVS.
          P.K.VARGHESE
          K.R.ARUN KRISHNAN
          DEEPA K.RADHAKRISHNAN
RESPONDENT/S:
    1     STATE OF KERALA
          REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO
          GOVERNMENT, HOME DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM - 695001.
    2     THE DEPUTY INSPECTOR GENERAL POLICE,
          THRISSUR RANGE, OFFICE OF THE DEPUTY INSPECTOR
          GENERAL, THRISSUR RANGE, THRISSUR DISTRICT -
          680001.
    3     DISTRICT POLICE CHIEF
          THRISSUR, RURAL, HAVING OFFICE AT KALYAN NAGAR,
          AYYANTHOLE, THRISSUR - 680003.
    4     DEPUTY SUPERINTENDENT OF POLICE, CHALAKKUDY,
          HAVING OFFICE AT NIRMALA COLLEGE ROAD, JYOTHI
          NAGAR HOUSING COLONY, CHALAKKUDY P.O, THRISSUR
          DISTRICT - 680307.
    5     INSPECTOR OF POLICE, KODAKARA POLICE STATION,
          HAVING OFFICE AT KODAKARA POLICE STATION,
          KODAKARA, THRISSUR - 680684.
          BY ADVS.
          ADVOCATE GENERAL OFFICE KERALA
          ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
OTHER PRESENT:
          SRI.K.A.ANAS -GP
      THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD
ON   01.07.2022,   THE   COURT    ON    THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(Crl.)297/2022
                                        2


          K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
     ----------------------------------------------
                 W.P.(Crl.)No.297 of 2022
      ---------------------------------------------
           Dated this the 1st day of July, 2022


                              J U D G M E N T

Jayachandran, J.

1. Ext.P1 externment order dated 17.1.2022 issued

under S.15(1)(a) of the Kerala Antisocial Activities

(Prevention) Act, 2007 [for short, 'KAA(P)A'] is under

challenge in this writ petition. As per the order

impugned, the petitioner was restrained from entering

the limits of Thrissur Revenue District and from

engaging in any activity therein for a period of one

year.

2. Heard Sri.P.K.Varghese, learned counsel for the

petitioner and Sri.K.A.Anas, learned Government

Pleader (attached to the Advocate General), on behalf

of the respondents. Perused the records.

3. Petitioner's challenge to Ext.P1 order is

premised on the following grounds:-

(i) The sufficiency of the bond executed under

S.107, Cr.P.C, was not considered by the W.P.(Crl.)297/2022

detaining authority, while passing Ext.P1 order.

(ii) No reason has been specified by the detaining

authority to impose the maximum punishment of one

year of externment.

4. Learned counsel would elaborate that five crimes,

alleged to have been committed during the period from

2016 to 2021, have been reckoned for the purpose of

passing Ext.P1 order, the last of which is crime

No.512/2021 of Kodakara Police Station, for offences

under Ss.308, 427, 506(i), 294(b), 324 etc. According

to the learned counsel, the incident occurred on

8.10.2021 and the petitioner was arrested on the same

day. He was remanded to judicial custody until he was

enlarged on bail on 9.11.2021 as per orders passed by

this Court in B.A.No.8357/2021. On 17.11.2021, the

petitioner was made to execute Ext.P9 bond under

S.107, Cr.P.C, for a period of 30 days. Ext.P1 order

is vitiated, since the detaining authority has not

considered the sufficiency of Ext.P9 bond under S.107,

Cr.P.C, and Ext.P11 rowdy history sheet, opened in the

petitioner's name. As regards the second ground,

learned counsel pointed out that the maximum period of

punishment by way of externment under S.15(1) of the W.P.(Crl.)297/2022

KAA(P)A is one year. Ext.P1 order does not disclose

any reason as to why the maximum punishment has been

imposed.

5. Per contra, these contentions were refuted by

Sri.K.A.Anas, learned Government Pleader (attached to

the Advocate General). He pointed out that the

sufficiency of the bond executed under S.107, Cr.P.C,

as also, the rowdy history sheet of Kodakara Police

Station were specifically considered at page nos.8, 9,

10 & 11 of Ext.P1 order and a finding was entered into

to the effect that the various steps, including the

one under S.107, Cr.P.C, and rowdy history sheet, were

found to be insufficient and ineffective to curb the

criminal propensity of the petitioner. As regards the

maximum period of punishment, learned Government

Pleader submitted that as many as five crimes have

been reckoned for the purpose of Ext.P1 order, all of

which were grievous in nature. It has been

specifically found that various steps initiated to

prevent the petitioner from indulging in further

crimes failed miserably, wherefore only, the period of

one year of externment is fully justified. W.P.(Crl.)297/2022

6. Having heard the learned counsel appearing on

both sides, we find considerable force in the

submissions made by the learned Government Pleader.

The five crimes, which were reckoned during the

stipulated period for the purpose of Ext.P1 order, are

narrated in the tabular statement shown herein below:

Sl. Police Station Date Offence(s) Stage Court No. and Crime No. 1 Sulthan 24/02/16 Under Pending Addl.Session Batheri PS, Ss.120(b), trial as SC s Court, Crime 365, 395 No.74/2018 Kalpetta No.177/2016 and 201 IPC 2 Thirunelli 18/11/18 Under Pending JFCM Court, PS, Crime Ss.109, committal Mananthavady No.385/2018 120(b), proceedings 395 and as CP

3 Irinjalakku 09/03/20 Under Pending Sessions da Excise S.20(b) trial as SC Court, Station, (ii)(b) of No.405/2020 Thrissur.

      Crime                the NDPS
      No.6/2020            Act
4     Kodakara    06/09/21 Under      Pending                     JFCM Court,
      PS, Crime            Ss.447,    trial as CC                 Irinjalakkud
      No.451/2021          294(b),    No.2174/2021                a
                           506(ii)
                           and 34 IPC
5     Kodakara    08/10/21 Under      Pending                     JFCM Court,
      PS,                  Ss.143,    committal                   Irinjalakkud
      Crime                147, 148, proceedings                  a
      No.512/2021          341, 323, as CP No.
                           324,       8/2021
                           294(b),
                           506(i),
                           427, 308,
                           201 & 149
                           IPC

It could be seen from the above that the petitioner

was involved in five crimes, during the immediately W.P.(Crl.)297/2022

preceding periods of six years, thus satisfying the

definition of a 'known rowdy' as per S.2(p)(iii) of

the Act, apart from the fact that the offences

involved were relatively serious in nature.

7. We will first deal with the two specific

contentions of the learned counsel for the petitioner.

The first is pertaining to the sufficiency of the

proceedings initiated under S.107, Cr.P.C, as also,

inclusion of petitioner's name in the rowdy history

sheet of Kodakara Police Station. As pointed out by

the learned Government Pleader, these aspects are

elaborately discussed in Ext.P1 impugned order at page

nos.8, 9, 10 & 11. In paragraph no.7 (page no.9), it

is specifically found that even after execution of the

bond under S.107, Cr.P.C, the petitioner had indulged

in two crimes, i.e. crime nos.451/2021 and 512/2021,

both of Kodakara Police Station. In this context, we

notice that execution of the bond made mention of by

the learned counsel for the petitioner on 17.11.2021

for a period of one month was, as a matter of fact, in

continuation of an earlier bond executed on 27.11.2020

for a period of one year. It was while such bond was

holding sway that the above crimes were committed. We W.P.(Crl.)297/2022

also notice that a rowdy history sheet was started in

respect of the petitioner on 6.2.2019, as could be

seen from paragraph no.6 of the impugned order and it

was thereafter that the first bond under S.107,

Cr.P.C, was executed for a period of one year. The

satisfaction of the authority is writ large in its

discussion contained in paragraph nos.8, 10 & 12 of

the impugned order. We are fully convinced of the

satisfaction of the authority that the steps initiated

against the petitioner by opening a rowdy history

sheet at Kodakara Police Station, followed by

execution of the bond under S.107, Cr.P.C, were

thoroughly insufficient and ineffective to curb the

criminal propensity of the petitioner, which is

explicit from the fact that the petitioner had

indulged in two further crimes after execution of the

bond. We, therefore, reject the first contention.

8. As regards the second contention that the

authority has not stated any reason for awarding the

maximum punishment, we find the same also untenable.

As we have already noticed, the petitioner had

indulged in as many as five crimes during the

stipulated period of six years. The impugned order W.P.(Crl.)297/2022

specifically finds that the steps taken against the

petitioner were not effective in preventing the

petitioner from indulging in further criminal

activities. The satisfaction of the authority is

stated in so many words in the impugned order,

supported by facts and circumstances. We further take

note that in all the above crimes, the petitioner

stood enlarged on bail, obviously with a condition

that he shall not indulge in any other crime while on

bail. This condition in every bail order is openly

flouted, as could be seen from the further crimes

registered against the petitioner. We have already

found that the opening of rowdy history sheet in the

police station concerned and initiation of proceedings

under S.107, Cr.P.C, did precious little to check

petitioner's criminal activities. In such

circumstances, we cannot, but find that the punishment

of externment for a period of one year under S.15(1)

(a) of the KAA(P)A is quite justified.

9. We also do not find any technical flaw or delay

in the proceedings, which culminated in Ext.P1

externment order. The last prejudicial activity (Crime

No.512/2021) was allegedly committed on 8.10.2021. The W.P.(Crl.)297/2022

petitioner was arrested on 25.10.2021, according to

the authority, whereas the petitioner would contend

that he was arrested on the same day, which

controversy is not germane for consideration in the

present context. Similarly, according to the

petitioner, he was granted bail by the High Court in

B.A No.8357/2021 on 9.11.2021, whereas the learned

Government Pleader would contend that the petitioner

stood enlarged by virtue of the orders passed by the

Sessions Court, Thrissur in Crl.M.C No.1664/2021 on

18.11.2021. Even if the date of release is 9.11.2021,

Ext.P2 request by the fifth respondent/Inspector to

the third respondent/District Police Chief was made on

16.12.2021, based upon which the third respondent gave

recommendation for initiating action against the

petitioner under the KAA(P)A to the second

respondent/DIG on 20.12.2021. On 30.12.2021, Ext.P4

show cause notice was issued to the petitioner and on

5.1.2022, Ext.P5 objection was preferred by the

petitioner. It is thereafter that Ext.P1 impugned

order was passed on 17.1.2022. We find no delay as

between the dates of the last prejudicial activity and

the externment order; rather the delay stands properly

explained, by virtue of the events, which we have W.P.(Crl.)297/2022

taken note of above.

10. Finally, we are also apprised of yet another

relevant fact having a bearing on Ext.P1 order.

Learned Government Pleader submitted that the

petitioner was arrested on the allegation that he had

flouted Ext.P1 order. With that reason as well, we

reject this writ petition, confirming Ext.P1 order.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

C.JAYACHANDRAN JUDGE jg W.P.(Crl.)297/2022

APPENDIX OF WP(CRL.) 297/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER NO. B3-20972/TSR/2021 DATED 17.01.2022 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 15(1) (A) OF KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT 2007.

Exhibit P2 TRUE COPY OF THE REPORT NO. 496/TDR/D4/21 DATED 16.12.2021 SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT.

Exhibit P3 TRUE COPY OF REPORT NO. 30/KAA(P)A/SB-

TSR/2021 DATED 20.12.2021.

Exhibit P4 TRUE COPY OF ORDER NO. B3-20972/TSR/2021 DATED 30.12.2021 OF 2ND RESPONDENT. Exhibit P5 TRUE COPY OF OBJECTION DATED 05.01.2022 SUBMITTED BY THE PETITIONER TO EXHIBIT P4. Exhibit P6 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE ADVISORY BOARD, KAAPA. Exhibit P7 TRUE COPY OF THE ARGUMENT NOTE ALONG WITH REPORTABLE JUDGMENT IN CRL.A 139/2022 SUBMITTED BY THE PETITIONER TO THE ADVISORY BOARD, Exhibit P8 TRUE COPY OF REPORT SUBMITTED BY THE 5TH RESPONDENT TO THE SUB DIVISIONAL MAGISTRATE, IRINJALAKKUDA DATED 13.09.2021.

Exhibit P9 TRUE COPY OF THE BOND FOR PEACE EXECUTED BY THE PETITIONER DATED 17.11.2021 BEFORE THE SUB DIVISIONAL MAGISTRATE, IRINAJAKKUDA. Exhibit P10 TRUE COPY OF ORDER NO.35/GL/CSD/2019 DATED 06.02.2019 OF DEPUTY SUPERINTENDENT, CHALAKKUDY AS SUPPLIED TO THE PETITIONER. Exhibit P11 TRUE COPY OF ROWDY SHEET OF THE PETITIONER SUBMITTED BY THE STATION HOUSE OFFICER, KODAKARA POLICE STATION TO THE DEPUTY SUPERINTENDENT OF POLICE, PERUMBAVOOR AS SUPPLIED TO THE PETITIONER.

Exhibit P12 TRUE COPY OF THE ORDER DATED 03.03.2022 IN OP.NO.2/2022 OF KAAPA ADVISORY BOARD.