Kerala High Court
Arshad K @ Kunjootty vs Deputy Inspector General Of Police on 5 November, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
W.P.(Crl.)No. 645 of 2024 2024:KER:82276
1
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. 645 OF 2024
PETITIONER:
ARSHAD K @ KUNJOOTTY
AGED 30 YEARS
SON OF MOYDU, KUNDANIYIL, MOOCHIKKAL,
VALANCHERRY P.O., TIRUR TALUK,
MALAPPURAM DISTRICT,
PIN - 676552
BY ADVS.
P.M.ZIRAJ
IRFAN ZIRAJ
RESPONDENTS:
1 DEPUTY INSPECTOR GENERAL OF POLICE
RANGE OFFICE, THRISSUR, PIN - 680001
2 DISTRICT POLICE CHIEF
DISTRICT POLICE OFFICE,
UP HILL MALAPPURAM DISTRICT, PIN - 676505
3 THE INSPECTOR OF POLICE
VALANCHERRY POLICE STATION,
MALAPPURAM DISTRICT, PIN - 676552
W.P.(Crl.)No. 645 of 2024 2024:KER:82276
2
4 THE INSPECTOR OF POLICE
TIRUR POLICE STATION, MALAPPURAM DISTRICT,
PIN - 676101
5 THE INSPECTOR OF POLICE
KUTTIPURAM POLICE STATION, MALAPPURAM DISTRICT,
PIN - 676571
6 ADVISORY BOARD
CONSTITUTED UNDER SECTION 8 OF THE KERALA ANTI SOCIAL
ACTIVITIES (PREVENTION) ACT 2007,
REPRESENTED BY ITS SECRETARY, 'SREENIVAS',
VIVEKANANDA ROAD, PADAM ROAD, ELAMAKKARA,
KOCHI, PIN - 682724
SMT.NEEMA.T.V., SENIOR PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 05.11.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(Crl.)No. 645 of 2024 2024:KER:82276
3
JUDGMENT
Raja Vijayaraghavan, J.
The challenge in this Writ Petition is mounted against Ext.P2 order of
externment dated 21.02.2024, issued by the 1st respondent restricting the entry
of the petitioner into the limits of Malappuram Revenue District.
2. The records made available before this Court reveal that a
preliminary report was submitted by the District Police Chief, Malappuram, on
29.01.2024 reporting the petitioner's involvement in six crimes registered within
the limits of Valancherry Police Station, Kuttippuram Police Station, and Tirur
Police Station involving offences under Section 379 of the IPC and the penal
provisions of the Kerala Protection of River Banks and Regulation of Removal of
Sand Act 2001. Out of the six cases, the petitioner had pleaded guilty in four of
the cases and was convicted by the jurisdictional court. It was stated therein that
the petitioner was required to be classified as a "known goonda" and sought for
initiation of proceedings under Section 15 of the KAAP Act with a view to curb the
anti-social activities. The details of the crimes in which the petitioner is involved
are as under:
W.P.(Crl.)No. 645 of 2024 2024:KER:82276
Sl. Status of
Crime No. Police Station Crime Date Sections involved
No. case
U/S.379 iPC & 20,
1 242/2017 Valancherry 11/08/2017 23 OF KPRB & RRS Convicted
Act
U/s. 379 IPC & 20,
2 Valancherry 02/09/2017 23 of KPRB & RRS Convicted
Act
U/s. 379 IPC & 20,
3 Valancherry 03/03/2018 23 of KPRB & RRS Convicted
Act
U/s. 379 IPC & 20,
40/2019 23 of KPRB & RRS Convicted
4 Kuttippuram 16/02/2019
Act
U/s. 379 r/w 34 IPC
& 20,23 of KPRB &
Pending trial
RRS Act, 192A(1) of
5 1234/2023 Tirur 16/09/2023
KMV Act & 15 of
Taxation Act
U/s. 379 r/w 34 IPC
& 20,23 of KPRB &
RRS Act, 192A(1), Pending trial
6 1351/2023 Tirur 12/10/2023
196 of KMV Act & 15
of Taxation Act
3. On the basis of the preliminary report, a show cause notice was
issued to the petitioner on 31.01.2024. He appeared on 08.02.2024 and after
hearing him, the order of externment was passed on 21.02.2024.
4. Challenging the said order, the petitioner approached the Advisory
Board. The Advisory Board, after evaluating the facts and circumstances and
taking note of the contentions advanced by the petitioner and his counsel, held
that restricting the entry of the petitioner into Malappuram District was not
W.P.(Crl.)No. 645 of 2024 2024:KER:82276
warranted. On the basis of the undertaking given by the detenu that he intends
to live in peace, the Advisory Board modified the order and directed the petitioner
to report before the Station House Officer, Valanchery Police Station every Sunday
between 9:00 a.m. to 11:00 a.m., until the period stipulated in the impugned
order was over. The impugned order was passed on 21.02.2024 and the period of
externment was six months from the date of service of the order. The said period
expired on 26.08.2024. The petitioner states that he has faithfully and diligently
complied with the conditions.
5. Though the order has worked itself out, when the Writ Petition was
taken up for consideration, the learned counsel insisted that the matter be heard
so that the valid contentions raised by the petitioner to assail the order of
externment could be considered.
6. Sri. Irfan Ziraj, the learned counsel appearing for the petitioner
submitted that there has been a long delay in passing the order of externment
and the same would vitiate the order. The learned counsel points out that the
last prejudicial act committed by the petitioner was on 12.10.2023 and the order
of externment was passed only on 31.01.2024. This would snap the live link and
the need for restricting the entry of the petitioner into the Revenu District of
Malappuram. The learned counsel contends that absolutely no explanation, let
alone any worthwhile explanation has been furnished for the long delay in
initiating the proposal for passing the order of externment.
W.P.(Crl.)No. 645 of 2024 2024:KER:82276
7. In response, it is submitted by the learned Public Prosecutor that
the petitioner is a depredator of the environment, which activity is included with
the definition of an anti-social activity as defined under Section 2(a) of the Act. It
is pointed out that a proceeding under Section 107 of the Code was initiated and
it is in spite of the same that the petitioner had continued to indulge in crimes
thus necessitating the issuance of the impugned order. It is pointed out that the
order passed by the Advisory Board was on 26.03.2024 and it was only on
14.06.2024 that the writ petition was filed. Insofar as the delay in passing the
order is concerned, the learned Public Prosecutor referred to Ext.P2 order and it is
submitted that various crimes committed by the externee is within the
jurisdictional limits of Valanchery, Kuttippuram, and Tirur Police Station and in four
of the cases he had pleaded guilty. It has been stated in the order that some
delay was occasioned in securing the records from the jurisdictional courts and
the various stations. Referring to the observations made by this Court in Stalin
C.V v. State of Kerala & Others1, it is submitted that insofar as the proceeding
under Section 15 of the KAAP Act is concerned, the rigor is not akin to an order
passed under Section 3 of the KAAP Act and as the principles of natural justice
are required to be complied with, some delay is inevitable.
8. We have carefully considered the submissions advanced and have
perused the entire records.
[2011 (1) KHC 852]
W.P.(Crl.)No. 645 of 2024 2024:KER:82276
9. We find that the order of externment passed by the jurisdictional
authority was interfered with by the advisory board and instead of restricting his
entry into Malappuram Revenue District, he was ordered to appear before the
Station House Officer on all Sundays. Though the order passed by the advisory
board was on 26.3.2024, the petitioner challenged the order before this Court
only on 14.6.2024.
10. The only contention advanced before us concerns the delay in
passing the order from the last prejudicial activity. The contention is that the live
link has snapped. In Stalin C.V (supra), this Court has held that before passing
an order under Section 15, the principle of natural justice is to be observed, and
therefore, some delay is inevitable. The question of whether a person's prejudicial
activities warrant the passing of an externment order and whether such activities
are proximate to the time the order is made depends on the specific facts and
circumstances of each case. There is no universal rule or exhaustive guideline
that applies to all situations. The test of proximity is not a rigid one based solely
on the number of months between the offending acts, the submission of the
proposal, and the externment order. However, if there is an undue or significant
delay between the prejudicial activities and the issuance of the externment order,
the constitutional court before which the matter is brought up for review will have
to examine whether the authority has satisfactorily explained the delay. This Court
is also required to determine whether the causal connection between the
W.P.(Crl.)No. 645 of 2024 2024:KER:82276
activities and the order has been broken in light of the circumstances of each
case. Of course, it has been repeatedly pointed out by the Apex Court as well as
this Court that there is no hard and fast rule, and merely because there is a time
lag between the offending act and the date of order of detention, the causal link
cannot be taken to be snapped. It all depends upon the facts and circumstances
of each case and the nature of the explanation offered by the detaining authority
for the delay that had occurred in passing the order. As noted earlier the crimes
are all registered at various stations and in four of the cases proceedings have
been terminated as the petitioner has pleaded guilty. The objective of the
respondents was only to ensure that the petitioner refrains from committing
further prejudicial activities. We are of the view that there is no inordinate delay
in passing the order of externment.
This Writ Petition is dismissed.
sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
sd/-
JOBIN SEBASTIAN,
JUDGE
DCS
W.P.(Crl.)No. 645 of 2024 2024:KER:82276
APPENDIX OF WP(CRL.) 645/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTICE DATED 31.01.2024
NO.B3-1929/2024/TSR
Exhibit P2 TRUE COPY OF THE ORDER DATED 21.02.2024
ISSUED BY THE FIRST RESPONDENT
Exhibit P3 TRUE COPY OF THE ORDER DATED 26.3.2024 IN
O.P.NO.29 OF 2024 ISSUED BY THE SIXTH
RESPONDENT
