Kerala High Court

Ajith vs State Of Kerala on 21 November, 2024

Author: V Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

                               &

           THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN

THURSDAY, THE 21ST DAY OF NOVEMBER 2024 30TH KARTHIKA, 1946

                   WP(CRL.) NO. 1141 OF 2024

PETITIONER:

            AJITH, AGED 25 YEARS, S/O DAVIS, SWAMIVILAYIL HOUSE,
            KURUDI, KURICHIKKARA POST, THRISSUR, PIN - 680028

            BY ADVS.
            S.R.SREEJITH
            BINU PAUL

RESPONDENTS:

    1       STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF
            SECRETARY HOME DEPARTMENT, SECRETARIATE,
            THIRUVANANTHAPURAM, PIN - 695001

    2       DISTRICT COLLECTOR, CIVIL STATION, AYYANTHOLE,
            THRISSUR, PIN - 680003

    3       INSPECTOR GENERAL & COMMISSIONER OF POLICE, RANGE
            OFFICE THRISSUR, CHEMBUKAVU, THRISSUR, PIN - 680020

    4       DISTRICT POLICE CHIEF
            PATTALAM ROAD, VELIYANNUR, THRISSUR, PIN - 680001

            BY ADVS.
            SMT. NEEMA T.V., SENIOR PUBLIC PROSECUTOR


THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 21.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(Crl.) No.1141/2024                     :2                    2024:KER:87163:




                                     JUDGMENT

Jobin Sebastian, J.

Under challenge in this writ petition is Ext.P1 order dated

19.04.2024 passed by the 3rd respondent invoking Section 15(1)(a) of

the Kerala Anti-Social Activities (Prevention) Act, 2007 [KAA(P) Act for the

sake of brevity]. As per the said order, the petitioner has been interdicted

from entering the limits of Revenue District, Thrissur for a period of one

year.

2. For passing the order of externment the authorities reckoned

5 cases in which the detenu got involved. The details of the said cases are

as follows:

Sl.                  Police      Date of             Sections
        Crime No.                                                   Status of case
No.                  Station   occurrence            involved
                                               341, 323, 324
 1      899/2019    Viyyur     10/11/2019                          Pending trial
                                               IPC
                                               143, 147, 148,
                                               452, 294(b), 341,
 2 11234/2020       Viyyur     22/10/2020      323, 354 (A),       Pending trial
                                               427, 506(ii)
                                               r/w149 IPC

                                               143, 147, 148,
 3      1235/2020   Viyyur     11/10/23        448, 294(b), 341,
                                                                 Pending trial
                                               323, 308, 427,
                                               506(ii) r/w149
 WP(Crl.) No.1141/2024                   :3                     2024:KER:87163:




Sl.                  Police      Date of            Sections
      Crime No.                                                   Status of case
No.                  Station   occurrence           involved
                                             IPC.
                                             143, 147, 341,
 4    192/2021     Mannuthy    14/04/2021    323, 325, r/w      Pending trial
                                             149 IPC

 5    860/2023     Viyyur      07/10/2023    454, 380 r/w 34
                                                                Pending trial
                                             IPC

3. The records submitted before us reveal that the District Police

Chief, Thrissur City, on 02.04.2024, 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,

Thrissur 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. Upon receipt of the proposal, the 3rd respondent issued a

show cause notice dated 07.08.2024 to the petitioner asking him to appear

on 16.04.2024 and to show cause why an order under Section 15(1) shall

not be issued against him. In response to the notice, the petitioner

appeared before the 3rd respondent on 16.04.2024 and raised his

objections. Considering the objections and hearing the petitioner, an

externment order under Section 15(1)(a) of the KAA(P) Act was passed on

19.04.2024. As per the said order, the petitioner was restrained from WP(Crl.) No.1141/2024 :4 2024:KER:87163:

entering the limits of Revenue District, Thrissur for a period of one year

from the date of receipt of the order.

4. Sri. S.R. Sreejith, the learned counsel appearing for the

petitioner submitted that Ext.P1 order was issued without proper

application of mind and the same cannot be sustained. According to the

counsel, there is 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

the petitioner is on bail in all the 5 cases registered against him.

Furthermore, there was no need to initiate proceedings under the KAA(P)

Act particularly when proceeding under Section 110 of the Code of

Criminal Procedure had been initiated against the petitioner.

5. In response, Sri. K. Anas, the learned Public Prosecutor

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.

WP(Crl.) No.1141/2024 :5 2024:KER:87163:

According to him, the authority's need to gather details of prejudicial acts

leads to minimal delay in the submission of the proposal. It is further

contended that proceedings under Section 110 Cr.P.C. and under Section

15(1) of KAA(P)Act operate in different spheres and initiation of

proceedings under 110 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.

6. We have considered the rival contentions and perused the

records. The records show that the petitioner was classified as a "known

rowdy", considering his involvement in five cases. While considering the

contention of the petitioner, regarding the delay that occurred in

submitting the proposal for externment and in passing the order, it cannot

be ignored that an order under Section 15(1) of KAA(P)Act is having

significant impact on the personal as well as fundamental right of an

individual. So such an order could not be passed in a casual manner

instead it can only be passed 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. However, when there

is undue delay in making the proposal and passing the externment order, WP(Crl.) No.1141/2024 :6 2024:KER:87163:

the same would undermine its validity particularly when no convincing or

plausible explanation is offered for the delay.

7. In Stalin C.V. v. State of Kerala & Others1, 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 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 07.10.2023. The records reveal that the petitioner who is the

[2011 (1) KHC 852] WP(Crl.) No.1141/2024 :7 2024:KER:87163:

accused in the said case was arrested on 09.10.2023 and released on bail

on 07.11.2023. However, the recommendation for externment was made

by the District Police Chief to the jurisdictional authority only on

02.04.2024. Therefore, it is decipherable that there is a long delay of

around 6 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 seven

months in passing the externment order when computed from the date of

last prejudicial activity. If the Superintendent of Police who mooted the

proposal was having bonafide apprehension regarding the repetition of

anti-social activities by the externee definitely he would have acted swiftly

after the last prejudicial activity. In the case at hand, as already stated,

there is a delay of around six months in mooting the proposal for the

externment order. Therefore, we are of the considered view that nobody

could be blamed if it is found 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 07.11.2023 by

the Judicial First Class Magistrate Court, Thrissur vide order in Crl.M.P.

No.9773/2023. In the said order itself a condition that the accused shall WP(Crl.) No.1141/2024 :8 2024:KER:87163:

not involve in any similar offence is seen clamped. As no crime is 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 delay of around six months 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.

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 five 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.

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 live link between the last prejudicial activity and the