Kerala High Court
Shambu Parameswaran vs State Of Kerala on 16 January, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:3218
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946
WP(C) NO. 40878 OF 2024
PETITIONER:
SHAMBU PARAMESWARAN
AGED 30 YEARS
S/O PARAMESWARAN, CHENGATT VEEDU,
SEBIYOOR KARA, MALAYATTOOR VILLAGE,
ERNAKULAM DISTRICT.,
PIN - 683587
BY ADVS.
M.H.HANIS
T.N.LEKSHMI SHANKAR
NANCY MOL P.
ANANDHU P.C.
NEETHU.G.NADH
RIA ELIZABETH T.J.
ANN MARY ANSEL
SINISHA JOSHY
SAHAD M. HANIS
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RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
2 DEPUTY INSPECTOR GENERAL OF POLICE,
RANGE OFFICE, ERNAKULAM,ERNAKULAM DIST,
PIN - 682018
3 THE CHAIRMAN,
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARAADVISORY BOARD,
KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA,ERNAKULAM DIST,
PIN - 682026
BY SRI. K.A. ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 13.01.2025, THE COURT ON 16.01.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
An order dated 19.08.2024 of the Deputy Inspector General of
Police, Ernakulam Range, 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] is under challenge in this writ petition. As per
the said order, the petitioner has been interdicted from entering the limits
of the District Police Chief, Ernakulam Rural, for a period of nine months
from the date of receipt of the order.
2. For passing the order of externment, the authorities reckoned
3 cases in which the petitioner got involved. The details of the said cases
are as follows:
Sl. Crime Date of Status of
Police Station Sections involved
No. No. occurrence case
341, 323, 324, 506(ii),
1 1188/2020 Kalady 08/06/2020 Pending
294(b), 308 r/w 34 IPC trial
323, 324, 325 r/w 34
2 211/2022 Kalady 22/02/2022 Pending
IPC trial
3 1199/2024 Kodanad 05/04/2024 294(b), 506(ii), 323, Pending
trial
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Sl. Crime Date of Status of
Police Station Sections involved
No. No. occurrence case
324, 326 r/w 34 IPC
3. Sri. M.H. Hanis, the learned counsel appearing for the
petitioner submitted that the impugned 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 date of 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. The learned
counsel further contended that there are lot of procedural lapses on the
side of the authorities and it is apparent that the procedure mentioned in
the proviso to Section 15 of the KAA(P) Act has not been complied with.
The learned counsel further submitted that already proceedings were
initiated against the petitioner under Section 107 of the Cr.P.C. and
undermining the same, the authorities initiated the proceedings under the
KAA(P) Act and issued the impugned order. According to the counsel, the
authorities also did not consider the fact that, the accused was on bail in
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connection with the case registered with respect to the last prejudicial
activity, and the conditions imposed on him while granting bail would have
been sufficient to restrain the petitioner from repeating criminal activities.
4. In response, Sri. K.A. Anas, the learned Public Prosecutor
asserted that there is no unreasonable delay in passing the order of
externment. The Public Prosecutor further submitted that the proceedings
under Section 107 of the Cr.P.C. and Section 15(1) of the KAA(P) Act
operate in different spheres and initiation of proceedings under Section
107 of the Cr.P.C., will in no way preclude the power of the jurisdictional
authority to pass an order under Section 15(1) of the KAA(P) Act. It was
further submitted that the authority passed the impugned order after
taking note of the proceedings initiated under Section 107 of the Cr.P.C.
and also the conditions imposed while granting bail to the petitioner, in the
last case registered against him. According to the learned Public
Prosecutor, it was after getting convinced that the proceedings under
Section 107 of the Cr. P.C. and the conditions imposed in the bail order are
insufficient to restrict the criminal activities of the petitioner, the present
order of externment has been passed.
5. We have considered the rival contentions and perused the
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records. The records show that, for the purpose of initiation of
proceedings under the KAA(P) Act, the petitioner was classified as a
"known rowdy", considering his involvement in three cases. While
considering the contention of the petitioner that there is delay in passing
the impugned order, it cannot be ignored that an order under Section
15(1) of the KAA(P)Act has a significant impact on the personal as well as
fundamental right of an individual. So such an order should 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, the same would undermine its validity particularly
when no convincing or plausible explanation is offered for the delay.
6. In Stalin C.V. v. State of Kerala & Others [2011 (1) KHC
852] 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
WP(C.) No.40878/2024 :7: 2025:KER:3218
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.
7. 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 05.04.2024. The records reveal that the petitioner who is the
second accused in the said case was arrested on 09.04.2024 and released
on bail on 11.06.2024. The proposal for initiation of proceedings under
Section 15 of the KAA(P) Act was made by the District Police Chief to the
jurisdictional authority on 28.06.2024. The jurisdictional authority then
issued a notice on 10.07.2024 to the petitioner calling upon him to show
cause as to why an order under Section 15(1) of the KAA(P) Act, should
not be passed against him. However, the petitioner did not respond to the
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said notice and hence, the jurisdictional authority again sent a notice on
06.08.2024. Even after the receipt of the said notice also, the petitioner
remained silent and did not appear before the jurisdictional authority.
Hence another notice was issued to the petitioner on 09.08.2024 and in
order to afford him an opportunity to be heard he was required to appear
before the jurisdictional authority on 16.08.2024. But the petitioner neither
replied to the said notice nor appeared for a personal hearing. It was
thereafter, on 19.08.2024, the impugned order was passed.
8. The sequence of events narrated above clearly reveals that
there is no laxity on the part of the authorities in mooting the proposal for
the initiation of proceedings under the KAA(P) Act or in passing the
impugned order. It is apparent that the petitioner was in jail in connection
with the last prejudicial activity till 11.06.2024. Without much delay from
the date of his release from jail, the Superintendent of Police has mooted
the proposal for externment on 28.06.2024. Furthermore, it is apparent
that three notices were issued to the petitioner to show cause as to why
an order should not be passed against him and in order to afford him an
opportunity to be heard. But he did not respond to the said notices. Due
to the non-appearance of the petitioner after receiving the notice, the
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authority was constrained to issue notices one after another. Therefore,
some delay occurred in sending the notices and waiting for the date
scheduled for the appearance of the petitioner. The said delay is the direct
result of the inaction and laxity on the part of the petitioner. Therefore,
nobody else but the petitioner can be blamed for the said delay. As we
have already mentioned the sequence of events clearly establishes that
the minimal delay occurred in passing the impugned order is justifiable as
the same was necessary for complying the procedural formalities
necessary to be complied before passing the order. Hence it could not be
said that there is any undue or unjustifiable delay sufficient to snap the
live link between the last prejudicial activity and the purpose of
externment. Therefore, the case of the petitioner sticking on the delay
cannot be sustained.
9. The contention of the petitioner that the jurisdictional
authority failed to comply with the procedure mentioned in proviso to
Section 15 of the KAA(P) Act also appears to be without any basis. We do
agree that in view of the said proviso it is obligatory on the part of the
jurisdictional authority to communicate the grounds for issuing an order
under Section 15 of the KAA(P) Act to the Government through the
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Director General of Police along with a copy of the order. From a bare
perusal of impugned order itself, it is apparent that a copy of the order is
marked to the Additional Chief Secretary to the Government as well as to
the Additional Director General of Police. Therefore, the contention of the
petitioner that the jurisdictional authority failed to comply with the
requirement mentioned in proviso to Section 15 of the KAA(P) Act also will
not sustain.
10. The next contention of the petitioner is that proceeding under
Section 15(1) of the KAA(P)Act was not at all necessitated in this case as a
proceeding under 107 Cr.P.C. had already been initiated. This Court in
Anita Antony v. State of Kerala and Others1, has held that the
relative scope of the two proceedings is different and independent.
Proceedings under S.107 of the Cr. P.C, is in the nature of security for
keeping peace and public tranquility, and the free movement of such a
person is not curtailed at all. The power of externment under Section
15(1) of the KAA(P) Act on the other hand, allows an authorized officer to
restrain an individual, identified as a "known goonda" or "known-rowdy"
under the Act, from entering specified areas. This order can be issued if,
[2022 KHC OnLine 455]
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after affording an opportunity of being heard, the officer is satisfied that
the individual is engaging in, about to engage in, or likely to engage in
anti-social activities. The affected person must meet the criteria for a
Known goonda or Known rowdy, and the officer must satisfy himself,
objectively and subjectively, that restrictions are necessary to prevent
further anti-social activities as defined under section 2(a) of the KAAP Act.
In other words, Section 107 proceedings under the Cr.P.C. and the
provisions under the KAAP Act operate in different spheres. At the same
time, it has to be borne in mind that in a case where it is possible to
prevent the detenu from continuing his anti-social activity by methods
other than his preventive detention, the authorities are bound to adopt
those methods rather than depriving the detenu his rights under Article 21
of the Constitution of India. It was therefore that this court as well as the
Apex Court have held that in cases where proceedings such as those
under Section 107 of the Cr.P.C are initiated, the authorities should
consider whether, in spite of the initiation of such proceedings it is
necessary to preventively detain or extern the person concerned and that
on such examination if the authorities are satisfied that detention or
externment is necessary, it is open to the authorities to validly do so.
WP(C.) No.40878/2024 :12: 2025:KER:3218
11. In the case on hand, the records clearly reveal that the
jurisdictional authority adverted to the proceedings initiated under Section
107 of the Cr.P.C. There is specific mention in the impugned order that the
proceedings under Section 107 of the Cr.P.C. is not sufficient to prevent
the recurrent involvement of the petitioner in criminal activities. Likewise,
the impugned order is seen passed by the jurisdictional authority after
taking notice of the facts that the petitioner is on bail in connection with
the case registered with respect to the last prejudicial activity and certain
stringent conditions were imposed on the said bail order. However, in the
impugned order, it is specifically mentioned that the actions in the usual
legal course are not sufficient to restrain the petitioner from involving in
criminal activities and it is highly necessary to pass an order under Section
15(1) of the KAA(P) Act to curb the criminal activities of the petitioner.
Therefore, it is evident that the impugned order is passed after arriving on
the requisite objective and subjective satisfaction and after taking note of
the fact that proceedings under Section 107 of the Cr.P.C. alone is not
sufficient to restrict the criminal activities of the petitioner.
12. From a perusal of the records, we are satisfied that all the
necessary requirements before passing an order under Section 15(1) of
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the KAA(P) Act have been scrupulously complied with in this case. We are
further satisfied that the competent authority passed the externment order
after thoroughly verifying all the materials placed by the sponsoring
authority and after arriving at the requisite satisfaction. Therefore, it
cannot be said that the order passed under Section 15(1) of the KAA(P)
Act is vitiated in any manner.
13. In view of the discussion above, we hold that the petitioner
has not made out any case for interference.
Hence, the writ petition stands dismissed.
sd/-
P.B. SURESH KUMAR
JUDGE
sd/-
JOBIN SEBASTIAN
JUDGE
DCS
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APPENDIX OF WP(C) 40878/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE NOTICE DATED 10.07.2024
ISSUED BY THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE ORDER NO.
KAAPA-12561/2024/ER DATED 19.08.2024 OF THE
2ND RESPONDENT
Exhibit P3 A TRUE COPY OF THE ORDER DATED 30.09.2024 IN
O.P.NO.169/2024 OF THE 3RD RESPONDENT
