Kerala High Court
Soumyaraj @ Ajith vs State Of Kerala on 30 October, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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WP (Crl.) No. 1137 of 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
WP(CRL.) NO. 1137 OF 2024
PETITIONER:
SOUMYARAJ @ AJITH,
AGED 37 YEARS
S/O SIVAN, PUTHUVAL VEEDU,
AARYAD PANCHAYATH, WARD NO.16, ALAPPUZHA,
PIN - 688521
BY ADVS.
V.VINAY
NISSAM NAZZAR
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE ADVISORY BOARD
REP. BY ITS SECRETARY, KERALA ANTI-SOCIAL
ACTIVITIES (PREVENTION) ACT,
VIVEKANANDA NAGAR, ELAMAKKARA, ERNAKULAM,
PIN - 682026
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3 THE DEPUTY INSPECTOR GENERAL
RANGE OFFICE, ERNAKULAM, PIN - 683104
4 DISTRICT POLICE CHIEF
REP. BY ITS SECRETARY, KERALA ANTI-SOCIAL
ACTIVITIES (PREVENTION) ACT, VIVEKANANDA
NAGAR, ELAMAKKARA, ERNAKULAM, PIN - 688012
SRI. K A ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 30.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Raja Vijayaraghavan, J
This Writ Petition is filed under Article 226 of the Constitution of India
challenging Ext.P2 order of restriction passed against the petitioner under
Section 15(1)(b) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAAP
Act’ for the sake of brevity). A challenge has also been mounted against Ext.P3
order, as per which the Advisory Board has modified Ext. P2 order by reducing
the period of externment.
2. The records available before us disclose that a proposal was
submitted by the Station House Officer, Alappuzha North Police Station before
the District Police Chief, Alappuzha, seeking initiation of proceedings against the
petitioner under Section 15(1)(b) of the KAAP Act. For initiation of proceedings,
the petitioner has been classified as a “known rowdy” as defined under Section
2(p)(iii) of the KAAP Act. A show cause notice was issued to the petitioner on
12.05.2024, asking to show cause as to why an externment order shall not be
passed against him. It appears that the petitioner appeared before the authority
on 06.06.2024 and raised his objection. After considering the objections, the
externment order under Section 15(1) of the KAAP Act was passed on
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11.06.2024 and the same was served to the petitioner on 26.06.2024.
3. Challenging the said order, the petitioner approached the Advisory
Board, which authority, after considering his grievances, modified the order, and
reduced the period of externment to 9 months by Ext.P3 order dated 12.07.2024.
4. Sri. V. Vinay, the learned counsel appearing for the petitioner,
submitted that the last prejudicial act of the petitioner is Crime No. 1449 of 2023
of the Alappuzha South Police Station, which was registered inter alia under
Section 307 of the IPC on 01.12.2023. In the aforesaid case, the petitioner was
arrested on 05.12.2023 and he was released on bail on 03.02.2024. The learned
counsel points out that the proposal was however submitted only on 02.05.2024,
about 5 months after the commission of the last prejudicial activity. It is pointed
out by the learned counsel that the externment order was finally passed after six
months and ten days from the last prejudical activity. It is pointed out that there
exists no live link between the prejudical act and the externment order, because
of the long delay, and on that sole ground, the order be held as vitiated. The
learned counsel would then point out that, as against the petitioner, proceeding
under Section 107 of the Cr.P.C. was initiated based on a report dated
26.12.2023 submitted by the Station House Officer, Alappuzha North Police
Station. The petitioner was ordered to execute a bond by order dated
26.03.2024 and the same was executed. However, the authority concerned has
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proceeded to pass the order by holding that neither the initiation of proceedings
under Section 107 of the Cr.P.C. nor the imposition of stringent bail conditions
has managed to curb the anti-social activities of the petitioner. In order to
substantiate that the delay in passing the externment order would snap the live
link, the petitioner has placed reliance on the observations made by this court in
Shameer v. State of Kerala and Others1. The learned counsel would also
refer to the observations in Ashraf Ali V. State of Kerala & Ors.2 and it is
pointed out that there is no justification on the part of the jurisdictional authority
in imposing the maximum period of one year.
5. In response, Sri. K.A. Anas, the learned Public Prosecutor pointed
out that some minimal delay has occurred in submitting the proposal as the
authority had to collect the details regarding the prejudical activities. It is urged
that unlike an order of detention under Section 3 of the Act, in a proceeding
under Section 15 of the KAAP Act, the principles of natural justice will have to be
complied with and therefore, some delay is inevitable. To substantiate the said
contention, reliance is placed on the observations in Stalin C.V v. State of
Kerala & Others3. Referring to the observations in Thejas v. Inspector
General of Police, Kannur Range4, it is urged that the initiation of
1
[2024:KER:69903]
2
[2023 KHC 408]
3
[2011 (1) KHC 852]
4
[2015 (3) KHC 656]
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proceedings under Section 107 of the Cr. P.C. operates on a different plane and
therefore the registration of a fresh crime after such proceedings is not a
requirement.
6. We have carefully considered the submissions advanced and have
perused the records.
7. The records made available before us reveal that the petitioner was
categorized as a “known rowdy” due to his involvement in four cases, the details
of which are below:
Sl. Crime No. Offences Date of Present
No. occurrence Status
1 03/2020 of Alappuzha u/s. 323, 324, 326, 427, 01.01.2020 Pending trial
North Police Station 506(ii) r/w. Section 34
IPC
2 237/2020 of u/s 143, 147, 148, 15.03.2020 Pending trial
Alappuzha North 294(b), 506(ii), 341,
Police Station 323, 324, 427, 447, 308
r/w. Section 149 of IPC
3 840/2021 of u/s. 294(b), 324, 325 07.11.2021 Pending trial
Alappuzha North r/w. Section 34 of IPC
Police Station
4 1449/2023 of u/s. 143, 147, 148, 324, 01.12.2023 Pending trial
Alappuzha South 307 r/w. Section 149 of
Police Station IPC.
8. The first contention of the petitioner is that the order is vitiated on
account of the long delay in passing the order. 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
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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 externment,
and the final order is maintained to ensure that the process is justified and
timely and the ultimate objective is served.
9. 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 Maharashtra5 has observed as follows:
5
[2022 SCC online SC 99]
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“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.”
10. In Rahmat Khan alias Rammu Bismillah Vs. Deputy
Commissioner of Police6, the Apex 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. Commissioner of Police, State of Maharashtra7, 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.
11. In Abdul Latif Abdul Wahab Sheikh v. B.K. Jha8, concerning
a detention order, the Apex Court noted that procedural requirements are the
6
[(2021) 8 SCC 362]
7
[1973 (1) SCC 372)]
8
[(1987) 2 SCC 22]
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sole safeguards available to a detainee, as the court is not expected to question
the 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.
12. In view of the fact that an order of externment makes serious
inroads into the personal liberty of a citizen, the authority initiating proceedings
under Section 15 of the KAAP Act must clearly demonstrate that the order is
passed after proper satisfaction. The authority must assess the propensity of
the individual to engage in criminal activity, the gravity of past offenses, and
the likelihood of future offences in the area(s) from which the person is to be
externed. Furthermore, the principles of natural justice are to be complied with
and the externee must be afforded a reasonable opportunity to respond to the
allegations. The externment order should reflect the authority’s careful
consideration of the evidence and material available to them.
13. In the present case, the petitioner’s last alleged prejudicial act
occurred on 01.12.2023. He was arrested on 05.12.2023, and released on bail
on 03.02.2024. Proceedings under Section 107 of the CrPC were initiated, and
the petitioner executed a bond on 26.03.2024, undertaking to maintain peace
for one year. It was only thereafter that, on 02.05.2024, the District Police Chief
submitted a report to the 1st respondent, recommending the initiation of
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proceedings under Section 15 of the Act, five months and one day from the last
prejudicial act. On the basis of this report, the externment order was issued on
11.06.2024, six months and ten days after the last prejudicial act. No
explanation, let alone a justifiable one, has been offered by the authorities
concerning the delay in pursuing these proceedings.
14. Whether a person’s prejudicial activities justify an externment
order, and whether these activities are sufficiently proximate in time to support
such an order, depends on the facts of each case. There is no universal rule for
determining proximity based solely on the months elapsed between the
offending acts, the submission of the proposal, and the issuance of the
externment order. However, undue or unexplained delay between the
prejudicial activities and the issuance of the order requires scrutiny by the
constitutional court which is entrusted with the task of conducting a judicial
review of the order. The court must determine whether the authority has
satisfactorily explained the delay and whether the causal connection between
the activities and the order remains intact. Unless satisfactorily explained, such
delay casts doubt on the authority’s subjective satisfaction. If the true objective
was to prevent the externee from engaging in antisocial activities, the authority
would have acted with greater alacrity in both submitting the proposal and
issuing the order.
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15. We note that proceedings under Section 107 of the Cr.P.C. were
initiated against the petitioner, resulting in his execution of a bond on
26.03.2024. As noted above, the last prejudicial act attributed to the petitioner
occurred on 01.12.2023. While initiating proceedings under the KAAP Act, the
authority concluded that neither the proceedings under Section 107 of the
Cr.P.C. nor the bail conditions imposed had proven sufficient to curb the
antisocial activities. However, it is evident that the petitioner’s criminal record
remained unblemished following the last prejudicial activity. Therefore, the
assertion in the order that the petitioner continued to engage in criminal acts in
violation of bail conditions and despite executing a bond under Section 107 of
the Code, is unfounded. Consequently, the subjective satisfaction reached by
the authority is, in our view, questionable as contended by the learned counsel.
In view of the discussion above, interference is warranted. Exts.P2 and
P3 orders are set aside This writ petition is allowed.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
JOBIN SEBASTIAN,
JUDGE
APM/PS
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APPENDIX OF WP(CRL.) 1137/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE REPORT DATED
02.05.2024 SUBMITTED BY THE 4TH
RESPONDENT BEFORE THE 3RD RESPONDENT
Exhibit P2 THE TRUE COPY OF THE ORDER DATED
11.06.2024 OF THE 3RD RESPONDENT
Exhibit P3 THE TRUE COPY OF THE ORDER DATED
12.07.2024 IN O.P NO.122/2024 OF THE 2ND
RESPONDENT