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2022 DIGILAW 1027 (KER)

Asker Ali, S/o. Rasak v. State Of Kerala

2022-11-28

ALEXANDER THOMAS, SOPHY THOMAS

body2022
JUDGMENT : (Alexander Thomas, J.) 1. The prayers in the instant W.P.(Crl.), seeking for quashment in relation to an externment order passed against the petitioner herein, as to the provisions of Sec.15(1) of the Kerala Anti-Social (Activities) Prevention Act (KAAPA), 2007 (hereinafter referred as ‘the Act’ for short), are as follows:- "i) Issue a Writ of certiorari and therefore call for all records pertaining to exhibit P1 order and quash the same as illegal And ii) Grant such other reliefs that this Honourable Court deem fit and proper to grant in the interest of justice." 2. Heard Smt.Saipooja, learned counsel appearing for the petitioner and Sri.K.A. Anas, learned Public Prosecutor, appearing for the respondents. 3. The order under challenge in this writ petition (criminal) is the impugned Ext.P1 order dated 09.06.2022, issued by the 2nd respondent-Deputy Inspector General of Police, Kannur Range, under Sec.15(1) of the Act, by which it has been ordered that the petitioner, who is an ordinary resident of Wayanad District, shall not enter into the limits of the said district for a period of six months therefrom, in order to prevent him from further prejudicial antisocial activities, as understood in Sec.2(a) of the Act. 4. The brief facts, necessary for the disposal of this case, are as follows: The petitioner has been arrayed as an accused in three crimes, the details of which are given in Ext.P.1 order as well as in para No.6 on pages 2 & 3 of the counter affidavit dated 02.11.2022, filed by the 2nd respondent. 5. Since there are no factual disputes regarding the said case details, the abovesaid contents of para 6 of the abovesaid counter affidavit of the 2nd respondent are extracted hereunder, for easy perusal: “6. The following three cases were considered for action against the petitioner under section 15(1) of KAA(P)A-2007. (i) Crime No. 593/15 of Meenangadi Police station registered u/s 341, 294(b), 307 r/w 34 IPC : The petitioner is arrayed as A2 for attempting to murder the neighbour of the defacto complainant. On 27.12.15 at 23.00 O'clock at a place called Kaniyampata Village MeleKarani, neighbor Wahid of the complainant Abdul Gafur. 23/15 S/o Siddique, Elayidath House, MeleKarani with the help of accused Bijesh Kumar, Ashkar Ali and Praveen P.P entered the place and stabbed the complainant several times with a knife and tried to kill him etc. facts. On 27.12.15 at 23.00 O'clock at a place called Kaniyampata Village MeleKarani, neighbor Wahid of the complainant Abdul Gafur. 23/15 S/o Siddique, Elayidath House, MeleKarani with the help of accused Bijesh Kumar, Ashkar Ali and Praveen P.P entered the place and stabbed the complainant several times with a knife and tried to kill him etc. facts. A case was registered for the above matter as Crime No 593/15 U/s.341,294(b). 307 r/w 34 IPC in Meenangadi police Station. The investigating officer of this case, found he was guilty along with the other accused and submitted the charge sheet before the honorable court on 10.03.16 and the honorable Kalpetta Additional sessions Judge Court-II SC 283/16 on 08.02.19 and the accused was convicted. (ii) Crime No. 96/2019 of Karippur Police station registered u/s 365, 392, 506(i) r/w 34 IPC (Altered to 120 B, 365, 395, 411): The petitioner is arrayed as third accused in the above case for the offence of snatching the gold of 300 gms being carried by the defacto complainant who alighted from a flight landed at Karippur Airport from Sharjah on 04/07/2019. The case was charge sheeted on 03/11/2020 and pending before the Addl. District & Sessions Court-II, Manjeri as SC 629/2021. (iii) Crime No. 23/2022 of Padinjarathara Police station registered u/s 22(b), 29, 20(b)(ii)(A) of NDPS Act 1985: The petitioner is arrayed as A12 in the above case and on 10.01.2022, the accused were found in possession of MDMA, Ganja in a drug party conducted in a Resort. The fact can be discernible from the FIR of the case (Exhibit P3) and remand report (Exhibit P4).” 6. Going by the details of the abovesaid three crimes, there is no serious dispute that the petitioner would fulfill the definitional parameters of “known-rowdy”, as understood in Sec.2(p)(3) read with Sec.2(t) of the Act. 7. According to the respondents, the last case registered against the petitioner out of the three crimes mentioned above, is the one as per crime No.23/2022 of Padinjarathara police station, which is said to have occurred on 10.01.2022 and the same was registered on the same day itself. 7. According to the respondents, the last case registered against the petitioner out of the three crimes mentioned above, is the one as per crime No.23/2022 of Padinjarathara police station, which is said to have occurred on 10.01.2022 and the same was registered on the same day itself. The 3rd respondent-District Police Chief (Sponsoring Authority) has given report of the Sponsoring Authority on 21.03.2022, recommending to the 2nd respondent-Deputy Inspector General of Police, that, in view of the factual details stated therein, it is a fit case for the 2nd respondent to invoke the power under Sec.15 of the Act, so as to issue an order of externment, so that the petitioner is not permitted to enter into the limits of Wayanad District, in order to prevent him from committing further prejudicial activities in the said district. 8. It is common ground that Ext.P1 externment order dated 09.06.2022, was served on the petitioner on 17.06.2022 and the period of six months’ externment is upto 16.12.2022. 9. Two grounds are mainly urged by the learned counsel appearing for the petitioner, in support of her argument for interdiction against the impugned Ext.P1 order. The first ground is that the last prejudicial activity in this case was on 10.01.2022 and the impugned Ext.P1 detention order was passed only on 09.06.2022 and the delay of five months in passing the externment order, after the last prejudicial activity, is fatal, inordinate and unexplained and that therefore, the live link between the last prejudicial activity and the purposes of Ext.P1 detention order have been snapped, etc. The second ground urged by the petitioner is that Ext.P1 detention order speaks about Sec.107 Cr.P.C. proceedings, which was initiated against the petitioner at some point of time, and that the same is not an efficacious process for preventing the petitioner from committing further prejudicial activity and that nothing is stated in Ext.P1 order as to when the Sec.107 Cr.P.C. proceedings was taken and the mere fact that the Sub-Divisional Magistrate has not passed orders on the said Sec.107 Cr.P.C. proceedings, initiated by the police authorities, cannot be a ground for justifying the imperativeness and necessity of Ext.P1 detention order. In that regard, the learned counsel appearing for the petitioner places reliance on the dictum laid down by the Division Bench of this Court in Sheeja v. Inspector General of Police and Others [ 2016 (3) KHC 257 ], para No.4. 10. Both these contentions have been strongly opposed by Sri.K.A. Anas, learned Public Prosecutor, appearing for the respondents. 11. Now we will proceed to give our findings on each of these contentions: Contention A: In the instant case, the last prejudicial activity is said to be committed by the petitioner on 10.01.2022 and the crime/FIR was registered on 11.01.2022. Whereas, Ext.P1 externment order has been issued on 09.06.2022. Hence, ex-facie, there appears to be a delay of five months in passing the externment order, vis-a-vis, the last prejudicial activity. So, the issue is as to whether the live link between the last prejudicial activity and the purposes of externment order, under Sec.15(1) ,has been snapped in this case. In other words, the issue is as to whether there has been an inordinate and unexplained delay in passing the externment order only on 09.06.2022, eventhough the last prejudicial activity is said to have been committed by the petitioner on 10.01.2022 and it came to the knowledge of the police authorities on 11.01.2022, etc. 12. In this regard, learned Public Prosecutor would submit that it is true that the last crime was registered on 11.01.2022 and the petitioner/accused was then remanded to judicial custody in relation to that crime on 11.01.2022 itself. He was, later, released on bail in that case only on 10.02.2022. It is only thereafter, that the respondents need be alert about the necessity or otherwise of an externment order under Sec.15(1), as the petitioner was already on remanded custody, prior thereto, etc. That, after coming to know of the fact that the petitioner/accused will be released on bail in that case on 10.02.2022, the 3rd respondent-Sponsoring Authority has submitted report dated 21.03.2022 to the second respondent, recommending for Sec.15(1) externment proceedings. That, Sec.15(1) mandates giving of a show cause notice to the proposed externee and the show cause notice was issued to the petitioner by the 2nd respondent on 08.04.2022, and the same was received by him on 17.04.2022, thereby he was directed to appear for personal hearing on 26.04.2022, as personal hearing is mandatory under Sec.15. 13. That, Sec.15(1) mandates giving of a show cause notice to the proposed externee and the show cause notice was issued to the petitioner by the 2nd respondent on 08.04.2022, and the same was received by him on 17.04.2022, thereby he was directed to appear for personal hearing on 26.04.2022, as personal hearing is mandatory under Sec.15. 13. The petitioner did not personally appear but had deputed his brother, informing the 2nd respondent that the petitioner is not keeping well and sought for an adjournment. Accordingly, the 2nd respondent gave another notice on 10.05.2022, fixing the personal hearing on 21.05.2022. 14. The second notice was received by the petitioner on 18.05.2022 and he appeared for the personal hearing on 21.05.2022 and filed his written submissions and thereafter, the 2nd respondent has passed Ext.P1 externment order on 09.06.2022. Hence, it is contended that, the delay, which occurred on the part of the Sponsoring Authority, is unjustified and that the further time taken by the 2nd respondent in passing orders under Sec.15(1), after the receipt of the report of the Sponsoring Agency on 21.02.2022, is fully complying with the statutory formalities, etc. 15. These pleas are seriously opposed by the learned counsel appearing for the petitioner. 16. The learned counsel appearing for the petitioner would strongly urge that these aspects, justifying the delay, etc., have not, in any manner, been adverted to in the impugned Ext.P1 order and that these reasons or grounds cannot be supplanted by arguments or by averments in the counter affidavit, etc., as these factual aspects are conspicuously absent in Ext.P1 externment order. 17. After hearing both sides, it is seen that the main grounds for justifying the delay, as above, are contained in the latter part of para 2 and in para 3 on page 2, as well as in para 10 on page 5 of Ext.P1 order. The abovesaid portions of the relevant part of para 2, para 3 & para 10 of Ext.P1 order are as follows:- 18. A reading of the abovesaid paragraphs of the impugned Ext.P1 order would indicate that none of these factual aspects, justifying the delay and establishing as to why it is properly explained, etc., have not, in any manner, been explained or adverted to in Ext.P1 order. A reading of the abovesaid paragraphs of the impugned Ext.P1 order would indicate that none of these factual aspects, justifying the delay and establishing as to why it is properly explained, etc., have not, in any manner, been explained or adverted to in Ext.P1 order. Further, we see that, even if the time upto the release of the petitioner on bail in the third case, i.e., 10.02.2022, is excluded, the Sponsoring Agency has chosen to give its report in the matter only on 21.03.2022. There is five weeks’ delay on the part of the Sponsoring Authority to give that report. The said delay is unexplained and is inordinate. That apart, even if we assume that the further time taken by the 2nd respondent from 21.03.2022 onwards is explained as above, and is treated as reasonable for complying with the statutory formalities for issuance of show cause notice etc., it has to been seen that none of these factual aspects have been canvassed or adverted to in the impugned order. It is only blandly stated that the delay is justified. 19. Hence, we have no hesitation to hold that the time taken by the Sponsoring Agency to give the report only on 21.03.2022, eventhough the petitioner was released on bail on 10.02.2022, is rather inordinate and unexplained and would show that the necessity and imperativeness of the impugned externment order, as contended by the respondents, is not really made out. In other words, the live link between the last prejudicial activity and purposes of the externment order has been snapped in this case. Hence, we are of the view that the impugned Ext.P1 order is liable to be interdicted on this sole ground. Contention B: 20. The second aspect, which has to be borne in mind, is that, it is stated in Ext.P1 order as well as in the counter affidavit of the 2nd respondent that Sec.107 Cr.P.C. proceedings was earlier initiated against the petitioner, by the police authorities, and that no further action was taken by the Sub-Divisional Magistrate concerned, who is the competent authority, for passing orders requiring the petitioner to execute bond, etc. That, of course, is an omission on the part of the Sub-Divisional Magistrate, who is the competent authority under Sec.107 of the Cr.P.C. The said omission on the part of the Sub-Divisional Magistrate cannot be a ground for the respondents to justify Ext.P1 externment order passed under Sec.15(1), which would seriously curtail the fundamental right of the externee for free movement, as envisaged in Article 19(5) of the Constitution of India. 21. Further, no averments are made in Ext.P1 order as well as in the counter affidavit as to when the Sec.107 Cr.P.C. proceedings was set in motion by the police authorities against the petitioner and as to since when the same was pending before the Sub-Divisional Magistrate, etc. 22. Taking note of such aspects, the Division Bench of this Court has held, in para No.4 of the decision in Sheeja’s case supra [ 2016 (3) KHC 257 ], that since the pendency of the crimes have led to the exercise of jurisdictional power under Sec.107 Cr.P.C., those proceedings under Sec.107 Cr.P.C. should have been led to its logical end, requiring the writ petitioner to execute a bond and maintain good behaviour and, such procedure was not adopted. Hence, it was held that the decision making process, in relation to an externment order, in a similar case, was held to be vitiated and was thus, interdicted by this Court. It may be pertinent to refer to the contents of the relevant part of para No.4 of the decision of this Court in Sheeja v. Inspector General of Police and Others [ 2016 (3) KHC 257 ], which reads as follows:- “4. ……………….Taking into consideration, the substance of the four criminal cases noted above, which relate to registration of offences punishable under different penal provisions, we see that the exercise of jurisdiction under Section 107 of the Code has been made. If that were so, those proceedings should have been led to its logical end requiring the writ petitioner to execute bond and to maintain good behaviour. Such procedure was not adopted. That position notwithstanding, it also has not been recorded in the impugned order of restriction that proceedings under Section 107 of the Code, which has already been invoked, is insufficient to ensure good behaviour from the petitioner. Such procedure was not adopted. That position notwithstanding, it also has not been recorded in the impugned order of restriction that proceedings under Section 107 of the Code, which has already been invoked, is insufficient to ensure good behaviour from the petitioner. More over, there is also nothing to show that the authority, which issued Ext.P1 order, had adverted to or considered any of the materials in relation to Section 107 proceedings. With this, we have taken note of the fact that the petitioner, a woman, has been kept out of her home district for nearly four months from now. We see no ground to continue the externment order.” 23. So, it is only to be held that the petitioner will also succeed on the basis of the second ground. However, as ordered by the Division Bench of this Court in Sheeja’s case supra, [ 2016 (3) KHC 257 ], it is ordered that the petitioner shall report before the local Station House Officer, concerned, on every Saturday at 11 a.m. till the term of expiry of Ext.P1, i.e., till 16.12.2022. 24. The upshot of the above discussion is that Ext.P1 (externment order) is liable to be interdicted. In that view of the matter it is ordered that, the impugned Ext.P1 order No.A3-4099/2022 KR dated 09.06.2022, issued by the 2nd respondent-Deputy Inspector General of Police, Kannur Range, Kannur District, will stand quashed and set aside. As already ordered above, the petitioner will report before the local Station House Officer, concerned, on every Saturday at 11 a.m. till 16.12.2022. With these observations and directions, the above writ petition (criminal) will stand disposed of.