Sojan vs State Of Kerala
2023 Latest Caselaw 13334 Ker

Kerala High Court

Sojan vs State Of Kerala on 21 December, 2023

Author: Anil K.Narendran

Bench: Anil K.Narendran

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                               &
              THE HONOURABLE MR. JUSTICE G.GIRISH
 THURSDAY, THE 21ST DAY OF DECEMBER   2023 / 30TH AGRAHAYANA,
                             1945
                   WP(CRL.) NO. 831 OF 2023
PETITIONER:
         SOJAN AGED 46 YEARS, S/O. JOHNY, CHETHALAN HOUSE,
         CHOWKA DESOM, KIZHAKKE CHALAKUDY VILLAGE, ELINJIPRA
         P.O, CHALAKUDY TALUK, THRISSUR DISTRICT.,
         PIN - 680721
         BY ADV. I.SHEELA DEVI
         ADV.BINESH.K.N.
         REJI RAMACHANDRAN

RESPONDENTS:
    1     STATE OF KERALA REPRESENTED BY SECRETARY TO
          GOVERNMENT, DEPARTMENT OF HOME, GOVERNMENT
          SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001
    2    THE DEPUTY INSPECTOR GENERAL OF POLICE,
         RAMAVARMAPURAM, THRISSUR, THRISSUR DISTRICT.,
         PIN - 680010
    3    THE DISTRICT POLICE CHIEF THRISSUR RURAL,
         KATTUNGACHIRA, IRINJALAKUDA NORTH, PORATHISSERY,
         THRISSUR DISTRICT., PIN - 680125
    4    THE DEPUTY SUPERINTENDENT OF POLICE, NIRMALA COLLEGE
         ROAD, JYOTHI NAGAR HOUSING COLONY, CHALAKUDY,
         THRISSUR DISTRICT., PIN - 680307
    5    THE STATION HOUSE OFFICER CHALAKUDY POLICE STATION,
         CHALAKUDY THRISSUR DISTRICT., PIN - 680309
         SRI.GRACIOUS KURIAKOSE, ADGP
         SRI.C.K.SURESH, SR.P.P
         SRI K.A. ANAS - GOVERNMENT PLEADER


     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 04.12.2023, THE COURT ON 21.12.2023 DELIVERED THE FOLLOWING:
                                      2
W.P.(Crl) No.831 of 2023

                               JUDGMENT

G.Girish, J.

The petitioner has filed this writ petition under Article 226 of

the Constitution of India for a writ of certiorari to quash Ext.P1 order

dated 01.08.2022 of the Advisory Board under the Kerala Anti Social

Activities (Prevention) Act, 2007 which upheld Ext.P2 order of

externment dated 16.06.2023 passed by the 2nd respondent Deputy

Inspector General of Police, Thrissur Range, and to declare the said

externment order as illegal and unsustainable.

2. The petitioner is alleged to have been involved in about

38 crimes registered in various police stations of Thrissur District

from the year 1997 onwards. The proceedings under challenge in

this writ petition were initiated in respect of four crimes committed

by the petitioner during the period from 10.07.2016 to 29.01.2023.

The 5th respondent Station House Officer, Chalakkudy Police Station

submitted Ext.P4 report to the 3rd respondent District Police Chief,

Thrissur Rural with regard to the anti-social activities allegedly

committed by the petitioner. Based on the above report, the 3rd

respondent submitted Ext.P6 report to the 2nd respondent for

initiating proceedings under the Kerala Anti Social Activities

(Prevention) Act, 2007 (for brevity 'KAA(P) Act'). On the basis of

the above report of the Sponsoring Authority, the 2nd respondent,

who is the Authorised Officer, issued show cause notice to the

petitioner on 27.05.2023, requiring him to show cause why an order

under Section 15(1) of the KAA(P) Act shall not be passed against

him. After considering the explanation offered by the petitioner and

personally hearing him, the Sponsoring Authority issued Ext.P2

order under Section 15(1)(a) of the KAA(P) Act restraining the entry

of the petitioner in the Thrissur Revenue District for a period of six

months from the date of receipt of that order. Though the petitioner

challenged the above order before the Advisory Board constituted

under KAA(P) Act, the said authority declined to interfere, and

accordingly dismissed the petition filed by the petitioner vide Ext.P1

order.

3. In the present petition, the petitioner challenges Ext.P1

order passed by the Advisory Board, as well as Ext.P2 order passed

by the Authorised Officer. According to the petitioner, the above

authorities went wrong in arriving at the conclusion that he would

come under the definition of 'known rowdy' envisaged under Section

2(p) of the KAA(P) Act. It is further contended that there is no nexus

between the four incidents reckoned for initiation of proceedings,

and that there is inordinate delay in taking steps under KAA(P) Act,

which would snap the requirement of live link for invoking the

relevant provisions.

4. On 21.08.2023, when this writ petition came up for

admission, the learned Government Pleader took notice for the

respondents and sought time for filing counter affidavit.

5. The 2nd respondent Deputy Inspector General of Police,

Thrissur Range has filed a counter affidavit dated 16.09.2023

opposing the reliefs sought for in this writ petition, wherein it has

been contended that the petitioner is a hard core criminal involved

in 38 crimes including attempt to murder, and that he has been

causing public threat and nuisance. Further, the impugned order

was passed to prevent his anti-social activities and to protect the

general public from his threat and to maintain public tranquillity

prevailing in the area.

6. Heard the learned counsel for the petitioner and the

learned Government Pleader for the respondents.

7. It is argued by the learned counsel for the petitioner that,

to classify the petitioner as 'known rowdy' the Sponsoring Authority

has to show that the requirements of Section 2(p)(iii) of the KAA(P)

Act are fulfilled. It is thus pointed out that there should be materials

on record to show that on investigation or enquiry by a competent

police officer or other authority, on complaints initiated by persons

other than police officers, in three separate instances not forming

part of the same transaction, the petitioner has been found to have

committed any offence mentioned in clause (t) of Section 2 of the

KAA(P) Act. According to the learned counsel for the petitioner, the

above requirement of law is not fulfilled in the present case since

the first offence attributed to the petitioner as the one committed on

10.07.2016 within the limits of Irinjalakkuda Police Station, is in

respect of offences under the Abkari Act, which has not been notified

under Section 2(p)(iii) of the KAA(P) Act, and the other two offences

alleged to have taken place on 15.05.2020 and 29.01.2023

respectively, within the limits of Chalakkudy and Koratty Police

Stations, have been initiated on complaints by police officers. It is

further pointed out that the remaining one case registered at

Chalakkudy Police Station, in respect of an incident which took place

on 23.11.2020, is a trivial matter which would not affect public

order.

8. As regards the first challenge against the inclusion of a

crime registered under the Abkari Act, against the petitioner, for

reckoning the necessity of invoking KAA(P) Act, it has to be stated

that the contention of the petitioner in that regard is sustainable.

However, the other challenges against the three remaining cases

considered by the Authorised Officer for proceeding against the

petitioner under the KAA(P) Act, are bereft of merit.

9. It is true that Section 2(p)(iii) of KAA(P) Act are worded

in such a manner which would give the impression that the three

separate cases under investigation or enquiry, attributed to the

petitioner for reckoning the necessity of classifying him as a 'known

rowdy', shall not be on complaints initiated by persons who are

police officers. However, it is well settled by the decision of this

Court in Joicy v. State of Kerala and others [2018 (1) KHC 37]

that when police officers are attacked and complaints registered

against assailants, it cannot be said that those cases shall not be

reckoned for passing an order of detention against persons who are

repeatedly indulging in criminal activities. This Court has observed

in paragraph 12 of the aforesaid decision as follows:

"12. Of-course, in these two crimes, the defacto complainants are the Assistant Sub Inspectors of Police. The complaints were preferred by them as they sustained injuries in the attack by the detenu and the co-accused and they had given statements while undergoing treatment in the hospital. It is significant to note that the injured though police officers are the two victims in the attack by the detenu. They are two individuals/ human beings. Just because of the fact that they are police officers, they do not cease to be human beings. The provisions of this Act will no way curtail the rights of the Police Officers. At no stretch of imagination it could be construed that the words employed in S.2(p) (iii) that "complaints initiated by

persons other than police officers" would mean that when police officers are attacked and complaints are registered against the assailants those cases shall not be reckoned for passing an order under S. 3 of KAAPA for issuing detention order against the persons who are repeatedly indulging in criminal activities causing threat, fear, nuisance and disturbance to the society at large. In fact, the police officers are in a better position than ordinary citizen as they were prevented from discharging their official duty. In the course of that they sustained injuries. The argument advanced by the learned counsel for the petitioner, if accepted, would mean that even if police officers are assaulted any number of times, the assailants could not be brought to book under the KAAPA. The intention of legislature could never be so. Clause (iii) of S.2 (p) of KAAPA would only indicate misuse of powers by police officers and to safeguard the interest of detenu . It appears that in both these incidents while the detenue along with the co-assailants were creating threat and fear in the public, the duty bound police personnel attempted to prevent them and avert causing terror and threats to public at large by them and tried to maintain law and order at the respective places, but they were wrongfully attacked with deadly weapons and attempted to murder them. In fact, the records would indicate that the detenu is a dangerous person, who is involved in prejudicial activities and will not spare even police officials who are supposed to protect law and order situation for the welfare and security of the general public, which is of prime importance and that the detenu is a person who has no respect towards law and

order. The embargo in S.2(p)(iii) of KAAPA does not mean to say that complaints lodged by police officers who sustained injuries in an attack by the detenu, which resulted in launching of prosecution against the assailants cannot be reckoned to pass a detention order to bring them under the definition of known rowdy or Known goonda. The intention of legislation could only be to avoid or prevent misuse or exploitation of the powers of Police personnel and it could never be to discard the complaints of Police Officers when they themselves become victims in the attack by such miscreants which is quite often now a days. So, it is not correct to conclude that these two crimes could not be reckoned so as to bring the detenu within the sweep of S.2(p)(iii) of KAAPA and consequently to pass an order under S.3 of KAAPA. So at any cost, it cannot be construed that the detaining authority with non- application of mind disregarded the provisions of the Act and passed the order of detention against the detenu. A hyper technical approach is not possible, though preventive detention is preventive and not punitive."

10. In the light of the aforesaid decision of this Court, if the

crimes attributed to the offenders are in respect of violence or attack

perpetrated upon police officers, and the proceedings in those

crimes are initiated on the basis of the reports or complaints of those

police officers who suffered the assault, it is not possible to conclude

that those crimes could not be reckoned so as to bring the offenders

within the sweep of the definition of 'known rowdy' envisaged under

Section 2(p)(iii) of the KAA(P) Act.

11. As far as the present case is concerned, Crime

No.745/2020 of Chalakkudy Police Station has been registered

against the petitioner for the commission of offence under Sections

294(b), 506 and 353 I.P.C for the verbal abuse, criminal intimidation

and assault perpetrated upon a Home Guard engaged in traffic duty.

The facts of the said case would clearly reveal the criminal assault

of the petitioner, though the above Home Guard did not suffer any

injury at the hands of the petitioner.

12. The other case registered at Koratty Police Station as

Crime No.86/2023 against the petitioner is in respect of offence

under Sections 341, 332 and 294 (b) I.P.C, for inflicting voluntary

hurt upon a Civil Police Officer on duty at Koratty Police Station and

deterring him from discharging his official duties, in addition to

wrongfully restraining him and subjecting him to verbal abuses. The

facts of the said case would also reveal the blatant attempt on the

part of the petitioner to perpetrate violence in Police Station and to

subject the law enforcing officers to criminal intimidation and terror.

It is true that the petitioner has come up with a contention that the

above case has been foisted against him as a counter-blast to the

complaint of custodial torture preferred by him against the police

officers of Koratty Police Station. However, it is seen from the

contention of the petitioner in this petition itself that the petitioner

has already preferred a complaint in that regard before the

Magistrate Court. The truth or falsity of the allegation of custodial

torture raised by the petitioner cannot be adjudicated in a writ

proceedings like this. Nor could it be said that the crime registered

against the petitioner at Koratty Police Station for the alleged

criminal assault upon a Civil Police Officer, has to be eschewed for

the reason that the petitioner has preferred a complaint of custodial

torture against the Police Officers of that Police Station. Therefore,

the challenge of the petitioner against reckoning the above crime

towards initiating the proceedings under KAA(P) Act, is devoid of

merit.

13. As regards the remaining crime registered against the

petitioner at Chalakkudy Police Station for the commission of offence

under Sections 341, 324, 294 (b) and Section 506 I.P.C on

23.11.2020, the contention of the petitioner is that it is one of trivial

nature, and hence, not liable to be reckoned for initiating

proceedings under KAA(P) Act. It is not possible to accept the above

argument of the learned counsel for the petitioner, since the facts of

the said case would clearly reveal the blatant criminal assault

perpetrated upon a couple, who were travelling in a motor bike,

resulting in injuries to both of them. By no stretch of imagination it

could be termed that the offence under Section 324 I.P.C, which is

punishable with imprisonment upto three years, is a trivial offence.

Thus, the challenge raised by the petitioner on that score, is also

totally unsustainable.

14. In the light of the discussions aforesaid in paragraph

Nos.7 to 13, it has to be held that there was absolutely no illegality

in the conclusion arrived by the Authorized Officer that the petitioner

could be classified as a 'known rowdy', as envisaged under Section

2(p)(iii) of the KAA(P) Act.

15. The other contentions raised by the petitioner with regard

to the absence of live link between the incidents and the delay in

taking steps under the KAA(P) Act, are also found totally untenable

in the facts and circumstances of this case. It is seen from the

records that the petitioner is alleged to have committed Crime

No.1282/2020 of Chalakkudy Police Station, within a period of 6

months and 8 days from the date of commission of Crime

No.745/2020 of the same Police Station. So also, the petitioner is

alleged to have committed Crime No.86/2023 of Koratty Police

Station, within a period of two years and two months from the date

of commission of Crime No.1282/2020 of Chalakkudy Police Station.

Thus, it is not possible to conclude that there was any long gap in

the commission of the aforesaid three crimes by the petitioner.

16. The contention of the petitioner regarding absence of live

link and the delay in initiating proceedings under the KAA(P) Act are

totally unacceptable in view of the sequence of events disclosed from

the materials placed on record. The records of the case would reveal

that the last prejudicial anti-social activity committed by the

petitioner was on 29.01.2023 in connection with Crime No.86/2023

of Koratty Police Station. The petitioner was arrested in connection

with the above case on 16.02.2023. The Investigating Officer filed

final report in the said case on 07.03.2023. The 3rd respondent sent

a proposal to the Authorized Officer on 16.05.2023 towards initiating

proceedings under the KAA(P) Act against the petitioner. The

Authorized Officer issued show cause notice to the petitioner on

27.05.2023, to which he submitted an explanation followed by

personal hearing on 03.06.2023. Thereafter, on 16.06.2023, the

Authorized Officer is seen to have passed Ext.P2 order. It could be

seen from the chronology of the events mentioned above that there

is absolutely no delay in initiating the proceedings under the KAA(P)

Act against the petitioner, and that the challenge against live link, is

also totally unsustainable.

17. It has been held by the Hon'ble Supreme Court in Golam

Hussain Alias Gama v. The Commissioner of Police [(1974) 4

SCC 530] in paragraph 5 of that judgment as follows:

".......... It is true that there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, namely, inhibition of prejudicial activity of the species specified in the statute. This credible chain is snapped if there is too long and unexplained an interval between the Offending acts and the order of detention. Such is the ratio of proximity in Lakshman Khatik. No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. ............."

18. Following the above dictum of the Apex Court, a Division

Bench of this Court, in Rahila Nazeer v. State of Kerala [2016

(3) KHC 189] held in paragraph 12 of the said judgment as follows:

"12. It is not the delay alone that matters. If the delay in passing the order of detention is unexplained and inordinate, it could be said that the live link between the prejudicial activity and the order of detention is snapped. It is not a mechanical test that can be applied in the matter of ascertaining whether the live link is snapped. If the delay is satisfactorily explained, it cannot be held that the live link is snapped. The KAA(P) Act does not provide that if the period of six months from the last prejudicial activity

expires, no order of detention can be passed. The Legislature in its wisdom did not think that an order of detention cannot be passed after the expiry of the period for which a person can be detained under S.3, reckoning the period from the date of the last prejudicial activity to the order of detention. The period of detention under S.3 as such cannot be a determining factor to assess whether there is inordinate and unexplained delay. The facts and circumstances of the case are relevant in each case. Reasons may be varied as to why the order of detention is passed after several months of the date of the last prejudicial activity. If the person concerned is in judicial custody and there is no likelihood of his being released shortly, the detaining authority may stay its hands for a short while and think of passing an order of detention subsequent to the release of the person concerned. It is not necessary that the person concerned should commit another crime after the expiry of his judicial custody (in the crimes already registered and pending investigation) in order to enable the detaining authority to pass an order of detention. In short, the facts situation in each case makes it relevant the question whether the delay is inordinate so as to vitiate the order of detention on the ground of lack of live nexus between the prejudicial activity and the order of detention."

19. As far as the present case is concerned, the time gap

between the last prejudicial activity of the petitioner and the date of

Ext.P2 order is 4 months and 18 days. As already stated, the

chronology of events mentioned in paragraph 16 above would reveal

that proceedings related to Ext.P2 order were initiated by the

authorities concerned without inordinate delay and that the above

period of four months and eighteen days can only be termed as the

normal time which had elapsed in between the relevant steps taken

in this matter. Therefore, in view of the law laid down in the

aforesaid decisions of the Apex Court and this Court, it is not possible

to conclude that there was unexplained delay leading to snaping of

live link between the last prejudicial activity of the petitioner and the

order of externment passed against him.

20. In the present case, the order passed by the Authorized

Officer against the petitioner is one under Section 15(1)(a) of the

KAA(P) Act, restraining his entry in Thrissur revenue district, for a

period of six months from the date of receipt of Ext.P2 order. The

records of the case would reveal that the said order has been passed,

on the basis of the objective as well as subjective satisfaction of the

said authority by placing reliance upon the materials placed by the

Sponsoring Authority. It is to be noted here that an order of

restriction under Section 15 of the KAA(P) Act, is lighter in its impact

on the personal liberty of the person concerned, when compared

with the detention orders passed under Section 3(1) of the said Act.

Having regard to the nature of the crimes attributed to the petitioner

for reckoning the necessity to initiate proceedings under the KAA(P)

Act, as well as the criminal background of the petitioner, borne out

of the records, it is not possible to conclude that the Authorized

Officer exceeded his authority in preventing the entry of the

petitioner into Thrissur revenue district, for a period of six months.

Thus, it has to be held that the Advisory Board under the Kerala

Anti-Social Activities (Prevention) Act, 2007 has rightly declined to

interfere with the order of the Authorized Officer. Accordingly, we

find that the present petition deserves no consideration on merit.

In the result, the petition is hereby dismissed.

(sd/-)

ANIL K. NARENDRAN, JUDGE

(sd/-)

G. GIRISH, JUDGE jsr/vgd