Kerala High Court
Akhil Krishna vs State Of Kerala on 5 November, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
WP (Crl) No.1076 of 2024 1 2024:KER:81627
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
WP(CRL.) NO. 1076 OF 2024
PETITIONER:
AKHIL KRISHNA
AGED 28 YEARS
S/O RADHAKRISHNAN,
RESIDING AT KRISHNA
NIVAS, PATHIYOOR
VILLAGE,
KARTHIKAPILLY
TALUK, ALAPPUZHA,
PIN - 690508
BY ADVS.
RAMEEZ NOOH
FATHIMA K.
DANIC ANTONY
AMIN ALI ASHRAF
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED SECRETARY, HOME DEPARTMENT,
GOVERNMENT SECRETARIAT, TRIVANDRUM,
PIN - 695001
2 DEPUTY INSPECTOR GENERAL OF POLICE
WP (Crl) No.1076 of 2024 2 2024:KER:81627
RANGE OFFICE, ERNAKULAM, PIN - 683104
3 THE DISTRICT POLICE CHIEF
MUKHAM PURAYIDOM, CIVIL STATION WARD,
ALAPPUZHA, KERALA, PIN - 688012
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 05.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP (Crl) No.1076 of 2024 3 2024:KER:81627
JUDGMENT
Raja Vijayaraghavan, J.
In this Writ Petition filed under Article 226 of the Constitution of India, the
petitioner mounts a challenge against the order of externment issued by the 2nd
respondent on 25.07.2024. From the records made available before this Court, it
is discernible that the petitioner has been categorized as a "known rowdy" on
account of his involvement in 4 crimes registered within various police stations
within the limits of Alappuzha District. The details of the cases are as under:
Sl. Crime No. Offences Date of Present
No. occurrence Status
1 1052/2019 of u/s. 450, 436, 120B, 201 29.06.2019 Pending trial
Kareekulangara Police r/w Sec.34 of the IPC
Station
2 512/2021 of u/s 342, 324, 326, 395, 27.04.2021 Pending trial
Kayamkulam Police 397 and 427 of IPC
Station
3 142/2022 of u/s. 143, 147, 148, 149, 17.02.2022 Pending trial
Kayamkulam Police 323, 324 and 326 of IPC
Station
4 197/2024 of u/s. 341, 294(b), 323, 26.03.2024 Pending trial
Kareelakulangara Police 506 r/w. Section 34 of
Station IPC.
2. It appears that the last prejudicial activity committed by the
petitioner is Crime No.197 of 2024. Though the incident was on 26.03.2024, the
FIR was registered only on 28.03.2024, arraying the petitioner as the 2nd
accused. The final report was laid in the said case on 26.06.2024. On the basis
of the preliminary report submitted by the Station House Officer, the District
WP (Crl) No.1076 of 2024 4 2024:KER:81627
Police Chief forwarded the recommendation report on 15.06.2024 to the
jurisdictional authority. A show cause notice was issued to the petitioner on
27.06.2024, which was received by the petitioner on 03.07.2024. He submitted a
reply on 10.07.2024 and a personal hearing was granted to him on 13.07.2024.
The petitioner appeared on 18.07.2024 and submitted Ext.P2 objection.
Externment order was finally issued on 25.07.2024.
3. The learned counsel appearing for the petitioner advanced the
following contentions:
a) There has been an inordinate delay of approximately four months from the
date of the last alleged prejudicial activity to the issuance of the
externment order. This would snap the live link. To substantiate his
contentions, reliance is placed on the observations made by this Hon'ble
Court in Shameer v. State of Kerala and Others1, wherein it was held
that undue delay in passing an externment order would vitiate the order.
b) Though Ext.P2 objection was submitted to the show cause notice, the
authority failed to consider the same, before passing the order.
c) Referring to the chronology of registered crimes, it was pointed out that
the significant time gaps between the four crimes. This points to the fact
that the acts merely violate law and order and do not involve the
infringement of public order.
[2024:KER:69903]
WP (Crl) No.1076 of 2024 5 2024:KER:81627
d) In respect of Crime No. 1052/2019, the petitioner was acquitted of all
charges under Section 232 of the Cr.P.C. However, the said crime was also
taken into account by the authority while passing the externment order.
e) This court has stayed the proceeding in Crime No. 512/2021 in a
proceeding under Section 482 of the Cr.P.C. on the basis of the settlement
arrived at with the de facto complainant. However, this aspect of the
matter was not considered.
f) Relying on the observations in Jayaprakash @ Criminal Jayan v. State
of Kerala2, it is urged that the authority while forming its objective and
subjective satisfaction, is obligated to ponder the likelihood of the
petitioner engaging in future offences, the severity of the offences, and the
surrounding facts and circumstances.
g) Insofar as the last prejudicial activity is concerned, the learned counsel
urged that the allegations pertain solely to a physical altercation involving
no weapons, which, according to counsel, would not amount to a public
order violation.
4. In response, the learned Public Prosecutor submitted that the criminal
history of the petitioner consists of 7 crimes, out of which, he was acquitted in
two cases. One crime was not reckoned as it was committed beyond the period of
7 years. After the commission of the last prejudicial activity, the petitioner
absconded and his arrest was recorded only after the passing of the order of
[2024 (6) KHC 150 (DB)]
WP (Crl) No.1076 of 2024 6 2024:KER:81627
externment. Relying on the principles of law laid down in Stalin C.V. v. State
of Kerala & Others3, it is submitted that some delay is inevitable as the
principles of natural justice are required to be complied with in terms of the
provisions of the statute. He would urge that delay in passing the order in the
instant case cannot be said to be inordinate. Insofar as the settlement of cases
with the informant is concerned, the learned counsel would point out that in view
of the law laid down in Vijayamma and Another v State of Kerala and
Others4, the contentions cannot be accepted. Insofar as the contention of the
petitioner that Ext.P2 has not been reckoned at the time of passing of the order, it
is submitted that those aspects were also considered before passing the order of
externment.
5. We have considered the submissions advanced and have perused
the records.
6. We find that the petitioner has been classified as a 'known rowdy'
on account of his involvement in seven crimes. It appears that the final report
has been laid in almost all cases. In that view of the matter, the objective
satisfaction arrived at by the authority to classify the petitioner as a 'known
rowdy' is clearly based on the qualification acquired by the petitioner on account
of his involvement in anti-social activities. It would not be possible for the
authority or for the court to ascertain at this stage whether the petitioner is
[2011 (1) KHC 852]
[2014 (4) KLT 563]
WP (Crl) No.1076 of 2024 7 2024:KER:81627
innocent of all crimes or whether the cases have been falsely instituted. As to
whether the cases registered against the petitioner will end in acquittal based on
the evaluation of the materials is an exercise that cannot be carried out by the
authority while passing the order. As held by this Court in Binoy @ Gillappi v.
State of Kerala and Ors.5, the initiation of proceedings under Section 15 of the
KAAP Act is an anticipatory action to prevent apprehended objectionable activities
and conduct injurious to society. The object is not to punish a person after
evaluating legal evidence, but it is only a precautionary measure for the
protection of society by the authority concerned. The objective satisfaction arrived
at by the authority cannot therefore be faulted.
7. The next contention of the petitioner is that there is a long and
inordinate delay between the last prejudicial act and the order of externment.
In Stalin C.V. (supra), a Division Bench of this Court had occasion to consider
the delay on the part of the competent authority in initiating proceedings under
Section 15 of the Act and its impact on the live link required for the purpose of
initiating action. This Court, while comparing the provisions under Section 3
which enables the authority to pass an order of detention, and Section 15 which
deals with externment held that the order under Section 15 of the Act though
visits the person with deprivation of liberty, is of a lesser magnitude when
compared to Section 3 of the Act. It was observed that before passing an order
of restriction under Section 15, it is mandatory for the authority concerned to
2018 (1) KHC 348
WP (Crl) No.1076 of 2024 8 2024:KER:81627
observe the principles of natural justice. The officer is required to issue a
show-cause notice and afford an opportunity to be heard to the person against
whom the order is proposed to be issued. This obviously would consume time.
It was held that Section 15, apart from allowing the officer to delve into the
past, permits him to hypothesize about what the 'known goonda' or the 'known
rowdy' is likely to do in the immediate future, having regard to the words 'about
to indulge'. This Court also observed that an order of restriction cannot be
passed under Section 15 of the Act if the act/acts which are complained of have
completely lost their relevance by the passage of time, giving rise to a total
absence of any nexus. However, an order of restriction under Section 15 is
lighter in its impact on the personal liberty of the person concerned and its
effect is only in the nature of a condition attached to a bail order. In the case on
hand, the last prejudicial activity was on 26.3.2024. The petitioner had
absconded. It was while so, that the preliminary report was submitted on
20.05.24, and based on the same the report of the District Police Chief was
submitted on 15.06.2024. A show cause notice was issued to the petitioner on
27.6.2024, which was received on 03.07.2024. A personal hearing was granted
to the petitioner and he was heard on 18.07.2024. Finally, the externment order
was passed on 25.07.2024. We also find that in the order, the authority has
clearly mentioned the reasons for the delay and has reiterated that there exists
a live link with the last prejudicial act. In the facts and circumstances, we
cannot agree with the learned counsel that the live link between the last
WP (Crl) No.1076 of 2024 9 2024:KER:81627
prejudicial act and the order of restriction has snapped owing to the delay as
projected in the petition.
8. The next contention concerns the petitioner's acquittal in Crime
No. 1052 of 2019. Admittedly, the order of acquittal was passed much after the
issuance of the order of externment. It is for this reason that such a contention
has not been taken into account in his representation submitted before the
authority.
9. The next contention raised by the petitioner concerns Crime No.
512/21, which has also been reckoned for the purpose of classifying the
externee as a 'known rowdy'. The petitioner contends that the proceedings
have been stayed by this Court on the strength of an affidavit filed by the de
facto complainant. We are unable to accept the contention forcefully advanced
by the learned counsel. In Vijayamma (supra), it was held that the mere
quashing of a charge, except on the ground that no offence is disclosed, would
not result in purging the accused of the allegations against him. Therefore,
even though a criminal trial case would not go through its further due process in
the aforenoted procedure of termination of prosecution before the conclusion of
trial and verdict, materials would sufficiently be available even in such cases, for
the detaining authority or the sponsoring authority to act and consider such
facts and materials for the purpose of formulating an opinion, as may be
necessary, in relation to preventive detention laws. It was held that this Court
WP (Crl) No.1076 of 2024 10 2024:KER:81627
cannot be persuaded to hold that such orders as are noted above, which
terminate prosecutions in the exercise of authority under Section 482 of the
Code, should be permitted to be pressed into service to torpedo any proposal
for preventive detention order in cases which really fall under its cover to the
satisfaction of the competent authority and which would withstand the test on
judicial scrutiny as to statutory sustainability and appropriateness, apart from
constitutionality.
10. The next contention is that the crimes registered against the
petitioner involve only law and order issues and hence the initiation of
proceedings under the KAAPA is unwarranted. The true distinction between the
areas of "public order" and "law and order" lies not in the nature or quality of
the act, but in the degree and extent of its reach upon society. The distinction
between the two concepts of "law and order" and "public order" is a fine one
but this does not mean that there can be no overlapping. Acts similar in nature
but committed in different contexts and circumstances might cause different
reactions. In one case it might affect specific individuals only and therefore,
touch the problem of law and order, while in another it might affect public order.
The act by itself therefore is not determinant of its own gravity. It is the
potentiality of the act to disturb the even tempo of the life of the community
which makes it prejudicial to the maintenance of public order. The prejudicial
activities of the petitioner leading to public disorder, as revealed in the grounds
WP (Crl) No.1076 of 2024 11 2024:KER:81627
of detention, consist of a consistent course of criminal conduct. Some offences
primarily injure specific individuals and only secondarily the public interest, while
others directly injure the public interest and affect individuals only remotely. The
particular acts enumerated in the grounds of detention clearly show that the
activities of the petitioner cover a wide field and fall within the contours of the
concept of public order.
11. The next contention raised by the learned counsel concerns the
non-consideration of Ext.P2 representation. A perusal of Ext.P1 order reveals
that the contentions raised by the petitioner in Ext.P2 were all adverted to and
considered before passing the order.
12. In view of the discussion above, we are of the view that none of
the contentions raised by the petitioner merits acceptance.
This Writ Petition is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
PS/03/11/2024
WP (Crl) No.1076 of 2024 12 2024:KER:81627
APPENDIX OF WP(CRL.) 1076/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE SHOW CAUSE NOTICE
VIDE ORDER NO. KAAPA-11151/2024/ER DATED
27.06.2024 ISSUED BY THE 2ND RESPONDENT
Exhibit P2 THE TRUE COPY OF THE REPRESENTATION DATED
NIL SUBMITTED BY THE PETITIONER BEFORE THE
2ND RESPONDENT
Exhibit P3 THE TRUE COPY OF THE NOTICE BEARING ORDER
NO. KAAPA-11151/2024/ER DATED 13.07.2024
Exhibit P4 THE TRUE COPY OF THE ORDER NO.
KAAPA-11151/2024/ER DATED 25.07.2024
ISSUED BY THE 2ND RESPONDENT
Exhibit P5 THE TRUE COPY OF THE FIR DATED 28.03.2024
IN CRIME NO. 197 OF 2024 OF
KAREELAKULANGARA POLICE STATION
