Kerala High Court
Sarath.M.A vs State Of Kerala on 13 November, 2024
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2024:KER:84406
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024/22ND KARTHIKA, 1946
WP(CRL.) NO. 1172 OF 2024
PETITIONERS:
SARATH.M.A, AGED 35 YEARS, S/O. ARAVINDAKSHAN,
KORKINIPARAMB HOUSE, MANNAM (P.O), PARAPPURAM NORTH,
PARAVUR, ERNAKULAM DISTRICT., PIN - 683520
BY ADV VIVEK VENUGOPAL
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM., PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA
(HOME DEPARTMENT), GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM., PIN - 695001
3 THE DEPUTY INSPECTOR GENERAL OF POLICE
ERNAKULAM RANGE, ERNAKULAM RANGE DIG OFFICE, SOUTH
KALAMASSERY, ERNAKULAM DISTRICT., PIN - 683104
4 THE SUPERINTENDENT OF POLICE (RURAL)
POWER HOUSE JUNCTION, SUB JAIL ROAD, PERIYAR NAGAR,
ALUVA, ERNAKULAM DISTRICT., PIN - 683101
BY ADV. SRI. ANAS K.A., PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 13.11.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(Crl.) No.1172/2024 2024:KER:84406
:2:
JUDGMENT
Jobin Sebastian, J.
This writ petition is filed under Article 226 of the Constitution of
India challenging Ext.P2 order of restriction passed against the petitioner
under Section 15(1)(a) of the Kerala Anti-Social Activities (Prevention) Act,
2007 [KAA(P) Act for the sake of brevity].
2. The records available before us reveal that the District Police
Chief, Ernakulam Rural, submitted a proposal for initiation of proceedings
against the petitioner under Section 15(1)(a) of the KAA(P) Act, 2007
before the authorised officer, Deputy Inspector General of Police,
Ernakulam Range. For initiation of proceedings, the petitioner has been
classified as a "known rowdy" as defined under Section 2(p)iii of KAA(P)
Act, 2007. A show cause notice dated 16.03.2024 was issued to the
petitioner asking him to appear in his office within 7 days of receipt of the
said notice and to show cause why an order under Section 15(1) shall not
be issued against him. The show cause notice was received by the
petitioner on 21.03.2024. In response to the notice, he submitted a reply
on 28.03.2024. Thereafter, another notice was issued to the petitioner on
WP(Crl.) No.1172/2024 2024:KER:84406
03.04.2024 in order to afford an opportunity for personal hearing.
Thereupon, the petitioner appeared before the authority on 12.04.2024
and raised his objections. After considering the objections and hearing the
petitioner, an externment order under Section 15(1)(a) of the KAA(P) Act
was passed on 16.04.2024. As per the said order, the petitioner was
restrained from entering the limits of Ernakulam Rural Police District for a
period of one year from the date of receipt of the order.
3. Sri. Vivek Venugopal, the learned counsel appearing for the
petitioner submitted that there is an inordinate delay in mooting the
proposal and in passing the externment order after the last prejudicial
activity. It is pointed out that, the long delay in the submission of the
proposal and in the issuance of the externment order will snap the live link
between the last prejudicial act and the purpose of the externment order
and hence the impugned order is liable to be set aside. The learned
counsel further contended that there was no need to initiate proceedings
under the KAA(P) Act particularly when proceeding under Section 107 of
the Code of Criminal Procedure had already been initiated against the
petitioner.
4. In response, Sri. K. Anas, the learned Public Prosecutor
WP(Crl.) No.1172/2024 2024:KER:84406
asserted that there is no unreasonable delay in passing the order of
externment. According to him, some minimal delay is inevitable while
passing an order especially when it is the duty of the authority to ensure
adherence to the natural justice principles while passing such an order.
According to him, the authority's need to gather details of prejudicial acts
leads to minimal delay in proposal submission. It is further contended that
proceedings under Section 107 Cr.P.C. and under Section 15(1) of
KAA(P)Act operate in different spheres and initiation of proceedings under
107 Cr.P.C. will no way preclude the power of the competent authority to
pass an order under Section 15(1) of the KAA(P) Act.
5. We have considered the rival contentions and perused the
records. From the records, it is discernible that the petitioner was
classified as a "known rowdy" due to his involvement in three cases. The
details of said cases are as below:
Sl. Crime Police Date of Sections
Status of case
No. No. Station occurrence involved
341, 323, 294(b),
1 728/2018 Eloor 13.07.2018 Pending trial
506(i) r/w34 IPC
143, 147, 148,
2 155/82020 Aluva East 13.02.2020 450, 120B, 323, Pending trial
395, 307, 506(ii),
WP(Crl.) No.1172/2024 2024:KER:84406
Sl. Crime Police Date of Sections
Status of case
No. No. Station occurrence involved
341, 201 r/w149
IPC
120B, 450, 341,
342, 307, 395,
3 1095/23 Meenangadi 11/10/23 397 r/w 34 IPC & Under
Section 7 r/w investigation
27(2) of Arms
Act.
6. While considering the contention of the petitioner, regarding
the delay that occurred in submitting the proposal for externment and in
passing of the order, it cannot be ignored that an order under Section
15(1) of KAA(P)Act is having a significant impact on the personal right of
an individual. So such an order could not be passed in a casual manner
and the same can be passed only on credible materials and after arriving
at the requisite objective and subjective satisfaction. Furthermore, there
exists no inflexible rule requiring an externment order to be issued within
a specific time frame following the last prejudicial act. It depends upon
the facts and circumstances of each case.
7. In Stalin C.V. v. State of Kerala & Others1, this Court has
[2011 (1) KHC 852]
WP(Crl.) No.1172/2024 2024:KER:84406
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 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.
8. Keeping in mind the above principles, while coming to the
facts in the present case it can be seen that the last prejudicial activity
was on 13.10.2023. The records reveal that the petitioner who is the
accused in the said case was arrested on 18.10.2024 and released on bail
on 18.01.2024. However, the recommendation for externment was made
by the District Police Chief to the jurisdictional authority on 08.03.2024.
WP(Crl.) No.1172/2024 2024:KER:84406
Therefore, it is decipherable that there is a long delay of around 5 months
in submitting the proposal after the commission of the last prejudicial
activity. The said delay cannot be justified as necessary for observing
natural justice principles. Similarly, there is a delay of six months in
passing the externment order. If the Superintendent of Police who mooted
the proposal was having bonafide apprehension regarding the repetition of
anti-social activities by the externee definitely she would have acted swiftly
after the last prejudicial activity. In the case at hand, as already stated,
there is a delay of more than 5 months in making the proposal for the
externment order. Moreover, no criminal act is reported between the last
prejudicial activity and the date of the proposal. Therefore, we are of the
considered view that nobody could be blamed if it is alleged that the live
link between the last prejudicial activity and the purpose of externment is
snapped.
9. Moreover, the petitioner was released on bail in the crime
registered in connection with the last prejudicial activity on 18.01.2024 by
the Judicial First Class Magistrate Court-I, Sulthan Bathery vide order in
CMP No.526/2024. In the said order itself a condition that the accused
shall not involve in any similar offence is seen clamped. As no crime is
WP(Crl.) No.1172/2024 2024:KER:84406
reported after the said bail order we are at a loss to understand why the
said condition imposed by the learned Magistrate is found to be insufficient
to restrain the accused from repetition of anti-social activities, by the
authority. The 5 months delay in mooting the proposal itself shows that
the proposed officer did not have any genuine apprehension regarding the
immediate repetition of criminal activities by the accused. The
unexplained delay between the last prejudicial activity and the date of
proposal requires scrutiny by the constitutional court which is entrusted
with the task of conducting a judicial review of the order. The court has to
determine whether the authority has satisfactorily explained the delay and
whether the causal connection between the last prejudicial activity and the
order of the externment remains intact. Unless satisfactorily explained
such delay casts doubt on the authority's subjective satisfaction.
10. The assertion that additional time was needed to gather the
details of the crimes before forwarding the proposal lacks credibility. In
the case at hand, only three cases formed the basis for proposing and
issuing the externment order. The details of those cases were readily
available and could have been obtained without delay, given the
technological upgradation attained by the law enforcement authority.
WP(Crl.) No.1172/2024 2024:KER:84406
Therefore, we are of the considered view that the delay in mooting the
proposal is unreasonable and unjustifiable. If the true objective was to
prevent the externee from engaging in anti-social activities, the authority
ought to have acted with greater alacrity in submitting the proposal and
issuing the consequent order. Therefore, the only conclusion that can be
arrived at is that the authority failed to arrive at the requisite objective and
subjective satisfaction before passing the externment order which is under
challenge in this petition.
Resultantly, Ext.P2 order is set aside and the petition stands
allowed.
Sd/-
RAJA VIJAYARAGHAVAN V.
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
WP(Crl.) No.1172/2024 2024:KER:84406
APPENDIX OF WP(CRL.) 1172/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE PHOTO COPY OF THE SHOW CAUSE NOTICE
DATED 16.03.2024 ISSUED BY THE 3RD RESPONDENT
Exhibit P2 TRUE COPY OF THE ORDER DATED 16.04.2024
PASSED BY THE 3RD RESPONDENT
Exhibit P3 TRUE PHOTOCOPY OF THE ORDER DATED 18.01.2024
IN C.M.P NO. 526/2024 PASSED BY THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-I, SULTHAN
BATHERY
Exhibit P4 TRUE PHOTOCOPY OF THE TREATMENT SUMMARY OF
THE PETITIONER'S WIFE BY NAME GEETU RAJAN
DATED 25.02.2023 ISSUED FROM THE RAJAGIRI
HOSPITAL, ALUVA
