Kerala High Court
Sharon Benjamin vs State Of Kerala on 8 August, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 8TH DAY OF AUGUST 2025 / 17TH SRAVANA, 1947
WP(CRL.) NO. 341 OF 2025
PETITIONER:
SHARON BENJAMIN, AGED 33 YEARS
S/O BENJAMIN, KOCHUPADI HOUSE, CHATHANADU WARD,
ALAPPUZHA MUNCIPALITY, ALAPPUZHA, PIN - 688001
BY ADVS.
SRI.V.VINAY
SHRI.NISSAM NAZZAR
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
2 THE DEPUTY INSPECTOR GENERAL
OFFICE OF THE DEPUTY INSPECTOR GENERAL, RANGE OFFICE, ERNAKULAM
PIN - 682018
3 THE DISTRICT POLICE CHIEF
OFFICE OF THE DISTRICT POLICE CHIEF, CCSB RD, MUKHAM PURAYIDOM,
CIVIL STATION WARD, ALAPPUZHA, PIN - 688012
4 STATION HOUSE OFFICER
ALAPPUZHA NORTH POLICE STATION, ALAPPUZHA, PIN - 688007
BY ADVS.
PUBLIC PROSECUTOR: SRI ANAS K A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 10.07.2025,
THE COURT ON 08.08.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
K. V. Jayakumar, J.
Under challenge in this Writ Petition is Ext.P2 order dated 19.12.2024, issued
by the Deputy Inspector General of Police, Ernakulam Range 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 ('externee') has been
interdicted from entering into the jurisdictional limits of the District Police Chief,
Alappuzha, for a period of six months. The petitioner submitted a representation
before the Advisory Board under Section 15(2) of the KAA(P) Act. The Board, as per
Ext.P3 order, modified and reduced the period to three months and directed to
appear and sign before the Dy.S.P, Alappuzha. The said order is also under
challenge in this petition.
2. The brief facts are as follows:
The District Police Chief, Alappuzha, the sponsoring authority, furnished a
report seeking initiation of proceedings under Section 15 of the KAA(P) Act on
account of the involvement of the petitioner in five crimes registered within the
limits of various police stations in Alappuzha and Thrissur districts. It was
mentioned that the petitioner has acquired the qualification for being classified as
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'known rowdy'. On the basis of the said report, a show cause notice was issued to
the petitioner on 23.11.2024, calling upon him to appear before the District Police
Chief, Alappuzha, 3rd respondent. The petitioner appeared before the 2nd
respondent and submitted his reply. Consequently, Ext.P2 order dated 19.12.2024
was issued.
3. Ext.P2 order reveals that the externee got involved in five crimes, the
details of which are as under:
1. Crime No.40 of 2019 of Irinjalakkuda Police Station registered for offences
under Sections 364, 386, 420, 34 IPC
2. Crime No.44 of 2022 of Cherthala Police Station for offences under Sections
406, 420, 468, 471 and 34 IPC.
3. Crime No.107 of 2022 of Cherthala Police Station for offences under Sections
406, 420, 468, 471 and 34 IPC.
4. Crime No.713 of 2023 of Alappuzha North Police Station for offences under
Sections 294(b), 341, 323, 506(i) and 34 IPC.
5. Crime No.972 of 2024 of Alappuzha North Police Station for offences under
Sections 296(b), 351(2), 3(5), 238 of BNS and 3 r/w 25(1B)(a) of Arms Act.
4. Sri. V. Vinay, the learned counsel for the petitioner submitted that
Ext.P2 externment order is vitiated by non-application of mind. It is further
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contended that Ext.P3 order passed by the KAA(P)A Advisory Board in O.P. No.
3/2025, modifying and reducing the period of externment to three months, was
rendered without addressing the specific plea of malafides and suppression of
material facts.
5. The learned counsel for the petitioner further contended that there
was an inordinate delay of more than five months in passing the externment order
from the date of the last alleged prejudicial act, thereby snapping the live link
between the act and the necessity of externment. It is also pointed out that there
was a delay of more than four months in initiating the proceedings by the 3rd
respondent. It is submitted that the 4th crime, i.e., FIR No. 713/2023 of Alappuzha
Police Station, which was taken into account while issuing the externment order, had
been amicably settled between the externee and the complainant. The petitioner
has filed a Crl.M.C. before this Court for quashing the proceedings. Furthermore, out
of the five crimes considered, three were registered under Section 420 of the IPC,
which do not relate to offences affecting public peace or public order.
6. The learned counsel for the petitioner further pointed out that in
Crime No.972/2024, he was falsely implicated at the instance of the 4th respondent,
Station House Officer, Alappuzha North Police Station. It is pointed out that,
although the alleged incident occurred on 07.07.2024, the complaint was
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lodged only on 10.07.2024, after an unexplained delay of three days. The petitioner
was allegedly subjected to custodial violence by the 4th respondent, and he filed
Ext.P4 complaint before the jurisdictional Magistrate on 11.07.2024, raising
allegations of custodial assault. Due to this malice, externment proceedings were
initiated against him. The petitioner was granted bail on 22.07.2024 with stringent
conditions and the petitioner has not violated any bail conditions at the time of
passing the impugned order. All these coercive steps were taken after the petitioner
had preferred the complaint against the 4th respondent and other police officials for
custodial violence. It is contended that the externment order was passed without
due consideration of the efficacy of the bail conditions and without proper
application of mind.
7. The learned counsel for the petitioner further submitted that the
counter affidavit filed by the 2nd respondent, Deputy Inspector General of Police,
Ernakulam range, is false, misleading, and contemptuous. It is stated in the counter
affidavit that the petitioner is involved in NDPS offences and attempt to murder
cases; such statements are false and made with a malicious intention.
8. It is further pointed out that the statement in the counter affidavit of
the 2nd respondent that Ext.P7 proceedings initiated under Section 126 BNSS against
the petitioner are pending before the Sub Divisional Magistrate Court, Alappuzha is
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wrong, as the said proceedings were already quashed by this Court by order dated
24.03.2022 in Crl. M. C. No. 2655/2025. The petitioner, along with his reply to the
counter affidavit, has produced Ext.P8, the order in Crl. M. C. No. 2655/2025.
9. In the last prejudicial act, i.e, Crime No.972/2024, Section 25(1B)(a) of
the Arms Act was purposefully incorporated to wreak vengeance against the
petitioner. It is pointed out that the final report was laid in that case without
obtaining a sanction for prosecution. The petitioner challenged Ext.P5, final report
before this Court and this Court has granted stay of all further proceedings on the
basis of Ext.P9 interim order dated 24.03.2025 in Crl. M. C. No. 2660/2025.
10. The learned counsel would further submit that the counter affidavit
filed by the 2nd respondent is conspicuously silent regarding the allegation of
custodial violence committed by the police officers. The proceedings are initiated
with malafides with a view to coercing the petitioner to withdraw the complaint of
custodial violence, which is pending before the Chief Judicial Magistrate Court,
Alappuzha. He has also produced Ext.P10 proceedings in C. M. P. No. 2936/2024.
11. Sri. K. A. Anas, the learned Public Prosecutor, submitted that grave
offences are alleged against the petitioner, including attempt to murder and robbery
and denied the contention that the externment order was passed with a malicious
intention. The impugned order is passed with proper application of mind. The
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learned Public Prosecutor submitted that the petitioner has been involved in nine
criminal cases since 2009. Out of these, he was acquitted in two cases, while seven
cases are presently pending trial. Five of these cases were taken into consideration
for initiating proceedings under the KAA(P)A. It is further submitted that, despite
being granted bail with stringent conditions by various courts in most of these cases,
the petitioner has continued to engage in anti-social activities, showing no signs of
remorse.
12. We have considered the rival submissions of the learned counsel for
the petitioner and the learned Public Prosecutor.
13. Section 15 of the KAA(P) 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 an 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
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issuance of such an order.
14. The first submission of the learned counsel for the petitioner that there
is a delay of more than five months in passing the externment order from the date
of the last prejudicial act. The records reveal that the last alleged prejudicial act
occurred on 07.07.2024, and Ext.P2 externment order was issued on 19.12.2024.
Some minimal delay in issuing an externment order is inevitable, as the externee
must be afforded an opportunity of being heard prior to the issuance of such an
order. In the present case, the petitioner received the show cause notice on
27.11.2024, directing him to appear before the 2nd respondent. On 03.12.2024, the
petitioner duly submitted his reply. Subsequently, he was personally heard by the 2nd
respondent on 13.12.2024. The delay of more than five months in passing the
externment order is not properly explained by the externment authority. The
externment authority must have acted with more alacrity and promptitude.
Therefore, we find merit in the contention advanced by the learned counsel for the
petitioner that the live link gets snapped in this case.
15. In Abdul Latif Abdul Wahab Sheikh v. B.K. Jha1, concerning a
detention order, the Apex Court noted that procedural requirements are the sole
safeguards available to a detainee, as the court is not expected to question the
(1987) 2 SCC 22
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subjective satisfaction of the detaining authority. Accordingly, procedural
requirements must be strictly adhered to in order to preserve the liberty of the
subject and the constitutional rights guaranteed in that regard.
16. As regards the second submission that the crimes registered against
the petitioner do not affect the public at large and that the alleged activities are
merely private disputes between individuals, it would be appropriate to refer to the
decisions of the Hon'ble Apex Court which have laid down the distinction between
'law and order' and 'public order' for the purpose of preventive action.
17. The Apex Court in Ashok Kumar v Delhi Administration and
others2 held that 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. Paragraph 13 of the said judgment is extracted hereunder:
"13. 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
AIR 1982 SC 1143
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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. That test is clearly fulfilled in the
facts and circumstances of the present case."
18. On perusal of the impugned order, it is seen that the detenu is
involved in as many as five crimes, including serious offences like kidnapping,
extortion, etc. In such circumstances, we are not persuaded by the argument
advanced by the learned counsel for the petitioner.
19. The next submission of the learned counsel for the petitioner is that
the externment order was passed without proper application of mind and without
arriving at the requisite satisfaction. The records reveal that proceedings were
initiated against the petitioner under Section 126 BNSS before the Sub Divisional
Magistrate Court, Alappuzha. On a perusal of the reply affidavit of the petitioner, it is
seen that the proceedings had already been quashed by this Court in
Crl.M.C.No.2655/2025 dated 24.03.2025.
20. The competent authority has taken into account the bail conditions
imposed by the Chief Judicial Magistrate while granting bail to the petitioner on
22.07.2025. However, notwithstanding the initiation of proceedings under Section
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126 of the BNSS and the imposition of stringent conditions, the petitioner is alleged
to have resumed involvement in anti-social activities, thereby disturbing public order
and the peace and tranquility of society.
21. We have gone through Ext.P4 copy of the complaint recorded by the
jurisdictional Magistrate. In Ext.P4, it is stated that the petitioner was subjected to
custodial torture. It is alleged that the police officials beat him on his back using a
paper weight and inflicted blows on his legs using a cane. The Magistrate who
recorded the complaint has noted visible injuries on his medial part of the leg. It is
also alleged that the police officials beat him on his face. Even though he requested
the police to take him to the hospital, they turned down the request.
22. We have gone through the counter affidavit submitted by the 2nd
respondent. The counter affidavit is silent with respect to the allegation of custodial
violence committed by the 4th respondent and other police officers. Moreover, it is
pertinent to note that it is stated in the counter affidavit filed by the 2nd respondent
that the detenu has been involved in NDPS cases and attempted murder cases. The
learned counsel for the petitioner submitted that the 2nd respondent has filed a false
affidavit before this Court with a malicious intention to persuade the Court to arrive
at a finding adverse to the petitioner. The learned counsel would further submit that
the proceedings initiated under Section 3(1) of the KAA(P) Act are instituted with
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malice, and is a deliberate attempt to compel the petitioner to withdraw the
complaint of custodial violence lodged against the concerned police officials.
23. The counter affidavit filed by the 2nd respondent is silent as to the
allegation of custodial violence. The records made available to this Court do not
indicate that the externee was involved in any drug-related offence or in an offence
of attempt to murder. The learned counsel strenuously argued that the externee has
never been involved in a drug offence or any offence related to the attempt to
commit murder.
24. If that be true, we are unable to fathom why the externment authority
stated so in the counter affidavit. Two conclusions are possible while analysing this
fact;
(1) Either the externment order was passed without application of mind, or
(2) The order is issued with malafides as submitted by the counsel for the
petitioner.
25. Upon hearing the submissions of the learned counsel for the petitioner
and the perusal of records, we find some force in the argument advanced by the
learned counsel for the petitioner that the proceedings were initiated against the
petitioner with some malafides, as an avenge for lodging a complaint against the
police.
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26. In Prem Chand v. Union of India (1981 (1) SCC 639), the Apex
Court, while interpreting the provisions of the Delhi Police Act, 1978. observed in
paragraph 9 as under:
"9. The provisions of the statute ostensibly have a benign purpose and
in the context of escalation of crime, may be restrictions which, in
normal times might appear unreasonable, may have to be clamped
down on individuals. We are conscious of the difficulties of detection
and proof and the strain on the police in tracking down criminals. But
fundamental rights are fundamental and personal liberty cannot be put
at the mercy of the police. Therefore, Sections 47 and 50 have to be
read strictly. Any police apprehension is not enough. Some ground or
other is not adequate. There must be a clear and present danger
based upon credible material which makes the movements and acts of
the person in question alarming or dangerous or fraught with violence.
Likewise, there must be sufficient reason to believe that the person
proceeded against is so desperate and dangerous that his mere
presence in Delhi or any part thereof is hazardous to the community
and its safety. We are clear that the easy possibility of abuse of this
power to the detriment of the fundamental freedoms of the citizen
persuades us to insist that a stringent test must be applied. We are
further clear that natural justice must be fairly complied with and
vague allegations and secret hearings are gross violations of Articles
14, 19 and 21 of the Constitution as expounded by this Court in
Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248).
We do not go deep into this question for two reasons: There is another
petition where the constitutionality of these identical provisions is in
issue. Secondly, the counsel for the State has fairly conceded that no
action will now be taken even by way of surveillance against the
petitioner. In an age when electronic surveillance and midnight
rappings at the door of ordinary citizens remind us of despotic omens,
we have to look at the problem as fraught with peril to constitutional
values and not with lexical laxity or literal liberality."
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27. At this juncture, it would be apposite to refer to the law laid down by
the Apex Court with respect to externment. The Apex Court in Deepak v State of
Maharashtra3 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."
Having regard to the above discussion, Exts. P2 and P3 are liable to be
interfered with on the ground of inordinate and unexplained delay in initiating
prompt action. Accordingly, this writ petition is allowed. Exts. P2 and P3 are hereby
quashed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
(2022 SCC OnLine SC 99)
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Sbna/
APPENDIX OF WP(CRL.) 341/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE REPORT DATED 08.11.202
SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 2N
RESPONDENT
Exhibit P2 THE TRUE COPY OF THE ORDER NO.KAAPA-21085/2024/E
DATED 19.12.2024 OF THE 2ND RESPONDENT
Exhibit P3 THE TRUE COPY OF THE ORDER DATED 30.01.2025 IN O.
NO.3/2025 OF THE ADVISORY BOARD, KAAPA
Exhibit P4 THE TRUE COPY OF THE STATEMENT DATED 11.07.202
GIVEN BY THE PETITIONER BEFORE THE CHIEF JUDICIA
MAGISTRATE, ALAPPUZHA ALONG WITH TYPE WRITTEN COPY
Exhibit P5 THE TRUE COPY OF THE FINAL REPORT IN CRIM
NO.972/2024 OF ALAPPUZHA NORTH POLICE STATION
Exhibit P6 THE TRUE COPY OF THE O.P NO.3/2025 FILED BY TH
PETITIONER BEFORE THE ADVISORY BOARD, KAAPA
Exhibit P7 THE TRUE COPY OF THE PROCEEDINGS NO.493/TDR/2024/A
DATED 19.07.2024 SUBMITTED BEFORE THE SDM, ALAPPUZH
FOR INITIATING S.130 BNSS AGAINST THE PETITIONER
Exhibit P8 The true copy of the order dated 24.03.2025 i
Exhibit P10 The true copy of the proceedings sheet in CM
No.2936/2024 of CJM, Court Alappuzha
Exhibit P9 The true copy of the interim order dated 24.03.202
Exhibit P11 The true copy of the complaint dated 28.04.202
filed by the father of the petitioner before th
State police chief
