Kerala High Court
Kiran D' Cruz vs State Of Kerala on 3 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:38639
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 3RD DAY OF JUNE 2025 / 13TH JYAISHTA, 1947
WP(CRL.) NO. 328 OF 2025
PETITIONER:
KIRAN D' CRUZ
AGED 32 YEARS
S/O JOLLY D'CRUZ, THAIKKATTUCHIRA HOUSE, POONTHOPPU
WARD, ALAPPUZHA MUNCIPALITY, ALAPPUZHA - 688006
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- 695001
2 THE DEPUTY INSPECTOR GENERAL
OFFICE OF THE DEPUTY INSPECTOR GENERAL,
ERNAKULAM RANGE, ERNAKULAM - 682018
3 THE DISTRICT POLICE CHIEF
OFFICE OF DISTRICT POLICE CHIEF, CCSB RD, MUKHAM
PURAYIDOM, CIVIL STATION WARD, ALAPPUZHA- 688012
4 STATION HOUSE OFFICER
ALAPPUZHA NORTH POLICE STATION, ALAPPUZHA - 688001
BY ADV.
SRI. K.A. ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN COME UP FOR HEARING ON
02.06.2025, THE COURT ON 03.06.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This is a writ petition filed under Article 226 of the Constitution of India,
challenging Ext.P2 order of externment dated 06.11.2024 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]. By the said order,
the petitioner was interdicted from entering the limits of the District Police
Chief, Alappuzha, for a period of one year from the date of the receipt of the
order.
2. The records available before us reveal that, it was after
considering the recurrent involvement of the petitioner in criminal activities,
the District Police Chief, Alappuzha submitted a proposal for the initiation of
proceedings against the petitioner under Section 15(1)(a) of the KAA(P) Act,
2007 before the authorised officer, the Deputy Inspector General of Police,
Ernakulam Range. For initiation of the said proceedings, the petitioner was
classified as a "known goonda" as defined under Section 2(o)(ii) of the KAA(P)
Act, 2007.
3. The authority considered three cases in which the petitioner was
involved for passing the order of externment. The case registered with respect
to the last prejudicial activity committed by the petitioner is crime
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No.972/2024 of Alappuzha North Police Station, alleging commission of
offences punishable under Sections 296(b), 351(2), 238 r/w Section 3(5) of
Bharatiya Nyaya Sanhita (for short "BNS") and Section 3 r/w 25(1B)(a) of the
Arms Act and the petitioner is arrayed as the 2nd accused in the said case.
4. Heard Sri. V.Vinay, the learned counsel appearing for the
petitioner, and Sri. K.A. Anas, the learned Government Pleader.
5. The learned counsel for the petitioner would submit that the
Ext.P2 order was passed on improper consideration of facts and without
proper application of mind. According to the counsel, Ext.P2 order of
externment was passed in a casual manner, and it was without assigning any
reason, the jurisdictional authority passed an order of externment for a
maximum period of one year. The learned counsel urged that when the
maximum period of externment is ordered, it is incumbent upon the authority
to show the reasons for the same.
6. Per contra, the learned Government Pleader submitted that the
impugned order was passed by the jurisdictional authority after proper
application of mind and upon arriving at the requisite objective as well as
subjective satisfaction. According to the learned Government Pleader, there is
nothing wrong in passing an order of externment for one year if the
circumstances warrant it, and therefore, no interference is warranted in the
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impugned order.
7. From the rival contentions raised, it is gatherable that the main
dispute that revolves around this writ petition is with respect to the period of
externment ordered by the jurisdictional authority. As already stated, the main
grievance of the petitioner is that, without assigning any reason, the maximum
period of externment was ordered. While considering the said contention, it is
to be noted that the scope of interference by a court in the subjective as well
as objective satisfaction arrived on by the jurisdictional authority which passed
an order of externment is too limited. However, an order of externment is
having heavy bearing on the personal as well as fundamental rights of an
individual. Such an order would certainly deprive a citizen concerned of his
fundamental right of free movement throughout the territory of India. By such
an order, he is prevented from entering his house and from residing with his
family members during the subsistence of the order as well. Therefore, while
prescribing the maximum period of externment, there must be proper
application of mind on the part of the jurisdictional authority. The
jurisdictional authority shall exercise its power cautiously, though the authority
is clothed with the power to order a maximum period of externment, subject
to a restriction that it shall not be more than one year.
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8. The Hon'ble Supreme Court in Deepak S/o Laxman Dongre v.
State of Maharashtra and Others, [(2023) 14 SCC 707], while dealing with
a preventive detention order passed under the Maharashtra Police Act, 1951
held that:
"On a plain reading of Section 58, it is apparent that while passing an
order under Section 56, the competent authority must mention the area or
District or Districts, in respect of which the order has been made. Moreover,
the competent authority is required to specify the period for which the
restriction will remain in force. The maximum period provided for is of two
years. Therefore, an application of mind on the part of the competent
authority is required for deciding the the duration of the restraint order under
Section 56. On the basis of the objective assessment of the material on
record, the authority has to record it subjective satisfaction that the restriction
should be imposed for a specific period. When the competent authority
passes an order for the maximum permissible period of two years, the order
of externment must disclose an application of mind by the competent
authority and the order must record its subjective satisfaction about the
necessity of passing an order of externment for the maximum period of two
years which is based on material on record. Careful perusal of the impugned
order of externment dated 15th December, 2020 shows that it does not
disclose any application of mind on this aspect. It does not record the
subjective satisfaction of respondent No.2 on the basis of material on record
that the order of externment should be for the maximum period of two years.
If the order of externment for the maximum permissible period of two years is
passed without recording subjective satisfaction regarding the necessity
extending the order of externment to the maximum permissible period, it will
amount to imposing unreasonable restrictions on the fundamental right
guaranteed under clause (d) of Article 19(1) of the Constitution of India."
9. Similarly, this Court in Dinchu Mohanan v. State of Kerala
and another [2015 (2) KHC 101] held that the court is also empowered to
annul, amend, or confirm the order of externment passed under Section 15(1)
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of the KAA(P) Act by the jurisdictional authority. Keeping in mind the above
propositions of law, while coming to the impugned order, it can be seen that
nowhere in the said order, the reasons for imposing the maximum period of
externment are adverted to. A bare perusal of the impugned order reveals
that it does not disclose any application of mind on this aspect. Therefore, we
are of the view that the impugned order requires modification regarding the
duration of the period of externment.
In the result, the writ petition is allowed in part and Ext. P2 order is
modified to the extent that the writ petitioner shall be interdicted from
entering the limits of the District Police Chief, Alappuzha, for six months from
the date of receipt of Ext.P2 order.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 328/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE REPORT DATED 19.09.2024
SUBMITTED BY THE 3RD RESPONDENT BEFORE THE
2ND RESPONDENT
Exhibit P2 THE TRUE COPY OF THE ORDER
NO.KAAPA-17830/2024/ER DATED 06.11.2024 OF
THE 2ND RESPONDENT
Exhibit P3 THE TRUE COPY OF THE ORDER DATED 28.01.2025
IN O.P NO.4/2025 OF THE ADVISORY BOARD, KAAPA
Exhibit P4 THE TRUE COPY OF THE STATEMENT DATED
11.07.2024 GIVEN BY SHARON BENJAMIN BEFORE
THE CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA
ALONG WITH TYPE WRITTEN COPY
Exhibit P5 THE TRUE COPY OF THE FINAL REPORT IN CRIME
NO.972/2024 OF ALAPPUZHA NORTH POLICE STATION
PROVIDED TO THE PETITIONER
Exhibit P6 THE TRUE COPY OF THE BAIL ORDER DATED
02.08.2024 IN CR.M.P NO.3246/2024 IN CRIME
NO.972/2024 OF ALAPPUZHA NORTH POLICE STATION
Exhibit P7 TRUE COPY OF THE OP CARD OF ORTHOPAEDIC
CONSULTATION DATED 26.08.2024 OF THE MOTHER
OF THE PETITIONER
