Kerala High Court
Shameer vs State Of Kerala on 13 September, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
WP Crl No. 934 of 2024 2024:KER:69903
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE G.GIRISH
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
WP(CRL.) NO. 934 OF 2024
PETITIONER:
SHAMEER
AGED 35 YEARS
S/O IBRAHIM, MUKIL PARAMBU HOUSE,
MULLATHU VALAPPU WARD, ALAPPUZHA.,
PIN - 688012
BY ADVS.
V.VINAY
NISSAM NAZZAR
RESPONDENTS:
1 STATE OF KERALA
REP BY THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT OF KERALA(HOME DEPARTMENT),
SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001
2 THE ADVISORY BOARD
REP. BY ITS SECRETARY,
KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT,
VIVEKANANDANAGAR, ELAMAKKARA, ERNAKULAM,
PIN - 682026
3 DEPUTY INSPECTOR GENERAL
ERNAKULAM RANGE, SOUTH KALAMASSERY,
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2
KALAMASSERY, ERNAKULAM, PIN - 683104
4 DISTRICT POLICE CHIEF
OFFICE OF THE DISTRICT POLICE CHIEF,
CCSB RD, MUKHAM PURAYIDOM, CIVIL STATION WARD,
ALAPPUZHA., PIN - 688012
5 STATION HOUSE OFFICER
ALAPPUZHA SOUTH POLICE STATION,
CCSB RD, KODIVEEDU, ALAPPUZHA., PIN - 688012
SRI. K A ANAS, SENIOR PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 13.09.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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3
JUDGMENT
Raja Vijayaraghavan, J.
Under challenge in this Writ Petition is Ext.P4 order dated 27.06.2024, issued
by the Deputy Inspector General of Police, Ernakulam Range invoking Section
15 (1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short 'KAAP
Act'). As per the said order, the petitioner has been interdicted from entering into
the jurisdictional limits of the District Police Chief, Alappuzha for a period of one
year. The Advisory Board, before which the petitioner mounted a challenge against
Ext.P4 order, proceeded to reduce the period of externment to nine months by
Ext.P6 order. The said order is also under challenge in this petition.
2. Taking note of the involvement of the externee in three cases during
the period of seven years preceding the passing of the externment order within the
limits of Alappuzha South Police Station, the respondents arrived at the objective
satisfaction that the petitioner satisfied the parameters of being classified as a
'known rowdy' as defined under Section 2(p)(iii) of the KAAP Act. The last
prejudicial activity attributed to the petitioner is Crime No.1428/2023 registered at
the Alappuzha South Police Station on 27.11.2023 for offences inter alia under
Sections 143, 147, 148, 308, 324, 323, 294(b), 149 of the IPC and Section 27 of
the Arms Act, 1959. The petitioner was arrested in connection with the said crime
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on 30.11.2023, and he was released on bail on 02.02.2024. The final report in the
said case was submitted on 19.04.2024. The proposal for invoking Section 15 (1)
of the KAAP Act was submitted on 09.05.2024. On receipt of the proposal, the
authority concerned issued notice on 21.05.2024 in terms of Section 15(1) of the
Act, calling upon the proposed externee to show cause why proceedings shall not
be initiated against him. The petitioner was directed to appear before the authority
concerned on 20.06.2024. The explanation offered by him was rejected and the
impugned order was passed on 27.06.2024 restricting his entry into the
jurisdictional limits of the District Police Chief, Alappuzha District. Challenging the
said order, the externee submitted a representation before the Advisory Board. The
Board, after evaluating the contentions, came to the conclusion that the order
passed is in strict conformity with the relevant provisions of the Act. However,
considering the family background of the externee, the period of the externment
was reduced to nine months.
3. Sri. Vinay, the learned counsel for the petitioner, submitted that
undue delay in passing the externment order would undermine its validity,
particularly when no convincing or plausible explanation is offered for the delay. He
urged that if the delay is inordinate, it would cast serious doubt on the subjective
satisfaction of the authority in issuing the order. Referring to the chronology of
events in this case, the learned counsel pointed out that the externment order was
passed exactly seven months after the prejudicial act. According to the learned
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counsel, prompt action is insisted to maintain the live connection between the last
prejudicial act and the order of externment as otherwise, the individual concerned
shall continue to perpetrate his anti-social activities and pose a threat to public
safety. To support his contentions, profuse reliance was placed on the observations
and the law laid down in Ashraf Ali v. State of Kerala and Ors.1 The learned
counsel would then submit that when the order of externment is passed for a
maximum period of one year, the order should disclose the reason for doing so.
Finally, it is submitted that after the commission of the last prejudicial act and
before the submission of the proposal, proceedings under Section 107 of the Cr. P.C
was initiated against the detenu and he had executed a bond on 26.03.2024.
However, this aspect of the matter was not reckoned while issuing the order of
externment.
4. In response, Smt. Neema, the learned Public Prosecutor submitted
that an order of externment under Section 15 of the KAAP Act is lighter in its
impact on the personal liberty of a person and its effect is only in the nature of a
condition attached to a bail order. Reliance is placed on the observation in Stalin
alias Satalin Samuvel v. State, Represented by the Inspector Police2, and
it is urged that before passing an order under Section 15, the principle of natural
justice is to be observed, and therefore, some delay is inevitable. Reliance is also
[2023 KHC 408]
[2023 KHC 3199]
WP Crl No. 934 of 2024 2024:KER:69903
placed on the observation in Harikrishnan v. State of Kerala and Ors.3 to
bolster her submissions.
5. We have considered the submissions advanced and have perused the
records.
6. Section 15 of the KAAP Act confers authority upon the District
Magistrate or a police officer of the rank of Deputy Inspector General or above to
restrict a person from entering a particular area for up to one year. The person can
also be ordered to report his movements within the State, as outlined in Section
15(1)(b). This power is exercised when the authority, based on credible materials
arrives at the objective satisfaction that the proposed externee satisfies the criteria
of being categorized as a 'known goonda' or 'known rowdy' on account of his
continuous involvement in prejudicial activities and also the likelihood of him
continuing to involve in such anti-social activities. Before issuing such an order, the
proposed externee is entitled to notice so that he can raise his objections to the
issuance of such an order. It needs to be borne in mind that the purpose of issuing
an externment order is preventive and it aims to remove the individual from the
area where he is perpetrating his anti-social activities so that peace and order can
be maintained in the larger interest and welfare of the public. It is therefore crucial
that the live link between the individual's last harmful activity, the proposal for
[2023: KER:35595]
WP Crl No. 934 of 2024 2024:KER:69903
externment, and the final order is maintained to ensure that the process is justified
and timely and the ultimate objective is served.
7. In the context of an externment order passed invoking the provisions
of Section 56(1)(a) of the Maharashtra Police Act, 1951, the Apex Court in Deepak
v State of Maharashtra4 has observed as follows:
"10. There cannot be any manner of doubt that an order of
externment is an extraordinary measure. The effect of the order of
externment is of depriving a citizen of his fundamental right of free
movement throughout the territory of India. In practical terms, such
an order prevents the person even from staying in his own house
along with his family members during the period for which this order
is in subsistence. In a given case, such order may deprive the person
of his livelihood. It thus follows that recourse should be taken to
Section 56 very sparingly keeping in mind that it is an extraordinary
measure."
8. In Rahmat Khan alias Rammu Bismillah Vs. Deputy
Commissioner of Police5, the Hon'ble Supreme Court has held that in view of the
scheme of Maharashtra Police Act, 1951 the fundamental rights of the citizens
guaranteed under Article 19(1)(d) to move freely throughout the territory of India
and (e) to reside and settle in any part of the territory of India cannot be taken
away on frivolous grounds. In Pandharinath Shridhar Rangnekar v. Dy.
[2022 SCC online SC 99]
[(2021) 8 SCC 362]
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Commissioner of Police, State of Maharashtra6, it was held that though an
order of externment makes a serious inroad on personal liberty, such restraints
have to be suffered in the larger interests of society.
9. In view of the fact that an order of externment makes serious inroads
into personal liberty, the competent authority who initiates proceedings under
Section 15 of the KAAP Act and proceeds to pass an order under Section 15 must
indicate in the order that the objective and subjective satisfaction has been properly
arrived at. The authority is required to bear in mind the propensity of the
prospective offender to indulge in crimes, the gravity and magnitude of the crimes
in which the proposed externee may engage himself in the area or areas from
which he is required to be externed, and the instances of his past criminal activities.
Furthermore, the proposed externee is entitled to the observance of the principles
of natural justice and he ought to be given a reasonable opportunity to answer or
defend himself against the allegations made against him. The externment order
must also indicate the application of mind to the material made available to the
authority concerned that is empowered to pass the externment order.
10. In the case on hand, the last prejudicial activity was on 27.11.2023.
He was arrested on 30.11.2023 and was released on bail on 02.02.2024. The
proposal was however submitted by the District Police Chief only on 09.05.2024,
[1973 (1) SCC 372)]
WP Crl No. 934 of 2024 2024:KER:69903
about 4 months and 25 days from the last prejudicial activity. On the strength of
the sponsorship report, the externment order was issued only on 27.06.2024,
seven months from the last prejudicial activity. The only explanation offered is that
some delay had occurred in getting the details of the crimes in which the detenu
was involved. The records reveal that the crimes were registered at Peruvanthanam
and Alappuzha South Police Station, and the explanation that about five months
was required to collect the documents and to submit the proposal cannot be
countenanced. No explanation, let alone any justifiable explanation, has been
offered by the authorities concerned for the delay in taking appropriate steps in the
above regard, in connection with the proceedings initiated against the petitioner.
11. 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 activities and the order has
WP Crl No. 934 of 2024 2024:KER:69903
been broken in light of the circumstances of each case. The delay, unless
satisfactorily explained, would cast serious doubt on the genuineness of the
authority's subjective satisfaction. If the true objective was to prevent the externee
from engaging in prejudicial activities, the authority would have acted with greater
urgency in both submitting the proposal and issuing the externment order to quell
the antisocial activities. This aspect of the matter was not considered by the
Advisory Board while considering the representation submitted by the petitioner.
We are of the view that the order is liable to be interfered with on account of the
long, inordinate, and unexplained delay in submitting the proposal and in passing
the order of externment, and the consequent snapping of the live link.
In view of the discussion above, Exts.P4 and P6 orders are liable to be
interfered with on the ground of inordinate and unexplained delay in taking prompt
steps. This Writ Petition is allowed. Exts.P4 and P6 will stand quashed.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
G.GIRISH,
JUDGE
PS/12/9/2024
WP Crl No. 934 of 2024 2024:KER:69903
APPENDIX OF WP(CRL.) 934/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE REPORT DATED 09.05.2024
SUBMITTED BY THE 4TH RESPONDENT BEFORE THE
3RD RESPONDENT
Exhibit P2 THE TRUE COPY OF THE NOTICE DATED 21.05.2024
ISSUED TO THE PETITIONER BY 3RD RESPONDENT
Exhibit P3 THE TRUE COPY OF THE REPLY DATED 04.06.29024
SUBMITTED BY THE PETITIONER TO THE 3RD
RESPONDENT
Exhibit P4 THE TRUE COPY OF THE ORDER DATED 27.06.2024
OF THE 3RD RESPONDENT
Exhibit P5 THE TRUE COPY OF THE O.P NO.137/2024 FILED BY
THE PETITIONER BEFORE THE 2ND RESPONDENT
Exhibit P6 THE TRUE COPY OF THE ORDER DATED 31.07.2024
IN O.P NO.137/2024 OF THE 2ND RESPONDENT
Exhibit P7 THE TRUE COPY OF THE COMPLAINT DATED
06.12.2023 SUBMITTED BEFORE THE DISTRICT
COLLECTOR AND 4TH RESPONDENT ALONG WITH
RECEIPT DATED 20.12.2023
