Research › Search › Judgment

Kerala High Court · body

2023 DIGILAW 162 (KER)

ABHILASH S/O CHANDRAN v. STATE OF KERALA

2023-02-14

ALEXANDER THOMAS, C.S.SUDHA

body2023
JUDGMENT : ALEXANDER THOMAS, J. 1. The prayers in the above captioned Writ Petition (Criminal) are as follows: “(I) Issue a writ of certiorari and therefore call for all records pertaining to exhibit P1 and exhibit P5 orders and quash the same as illegal. (II) Dispense with the filing of the translation of vernaclar documents produced along with this writ petition.” 2. Heard Smt. Saipooja, the learned counsel appearing for the petitioner and Sri. K.A. Anas, the learned Public Prosecutor appearing for the respondents. 3. Petitioner herein is mainly aggrieved by Ext.P1 externment order dated 28.10.2022 issued by R-2, the Deputy Inspector General of Police, under Sec. 15(1) of the Kerala Anti Social Activities (Prevention) Act, 2007, (for short, KAA(P)A) whereby it has been ordered that, in view of the factual aspects stated therein, the petitioner is restrained from entering into the territorial limits of the Thiruvananthapuram Rural Police Chief, R-3 herein, for a period of six months from the date of receipt of the order. 4. The brief facts, leading to Ext.P1 externment order are as follows: Three crimes have been taken into account by R-2, the Deputy Inspector General of Police, for the issuance of the impugned Ext.P1 externment order. The details of the said three crimes, which have occurred within the requisite seven years period, prior to the issuance of the externment order, have been stated in detail in Ext.P1 and the same has also been reiterated in Para 6 on pages 4 and 5 of the counter affidavit dated 24.1.2023 filed by R-2, Deputy Inspector General of Police. For the sake of easy reference, the above said contents of Para 6 of the above counter affidavit are extracted hereunder: (i) In Aruvikkara Police Station Crime 09/2019 U/s 143, 147, 148, 149, 323, 326, 427, 307, 120(b) IPC, the petitioner is figured as A2 in the FIR. The brief of the case is that on 04.01.2019 at about 9 PM A1 to A6 unlawfully assembled and brutally manhandled the defacto complainant Lijeesh and inflicted grievous injuries with the intention to kill him on the pretext that he will appear as the witness in a murder case where in the petitioner is the 1st accused (Aruvikkara PS Cr.63/2015 U/s 324, 307 and 302 IPC). The petitioner was absconding after committing the offence. Investigation of the case was completed and charge sheeted on 28.08.2021. The petitioner was absconding after committing the offence. Investigation of the case was completed and charge sheeted on 28.08.2021. The case is under trial as SC 418/2022 at Asst. Sessions Court, Nedumangadu. Next hearing is on n20.01.2023. (ii) In Aruvikkara police station Crime 1778/2020 u/s 450, 395, 294(b), 427, 506(ii) IPC and Sec. 27 of Arms Act, this petitioner along with other co-accused trespassed into the rented lodge room of the defacto complainant, vandalized his personal belongings and committed theft of currencies worth Rs. 4500/- kept in a purse. The petitioner is figured as A1, absconded after committing the offence. The case is charge sheeted before the JFMC II, Nedumangad and is under trial as CC. 3185/2021. Next hearing date is 14.02.2023. (iii). In Aruvikkara Police Station Crime 454/2022 U/s 341, 294(b), 506(i), 195(A), 34 IPC, due to the enmity that the complainant deposed witness statement in Cr.1644/2011 against him, this petitioner and 3 associates obstructed the complainant at Vettikonam junction and threatened to kill him and warned him from appearing as witness in the case against them. Delinquent is figured as A3 arrested on 29.04.2022 and remanded to judicial custody. The case is charge sheeted before the JFMC II on 30.06.2022. The case is under trial as CC 898/2022. The hearing date is not yet announced. 5. Going by the allegations projected in the above said three crimes, there may not be any serious dispute that the petitioner satisfies the definitional parameters of “Known Rowdy”, in terms of Section 2(p)(iii) r/w Section 2(t) of the Act. The above said third and last crime, Crime No. 454/2022 of Aruvikkara police station, was stated to have been committed on 18.4.2022 and the same was reported and registered by the police on 27.4.2022. The petitioner was arrested in regard to his involvement in the same crime on 29.4.2022 and he was released on bail by the order issued by the jurisdictional Magistrate Court concerned on 5.5.2022. The investigation thereon was completed by the submission of the final report by way of charge-sheet on 30.6.2022. Thereafter, R-3, District Police Chief, the sponsoring authority, has given report on 6.6.2022 to R-2, Deputy Inspector General of Police, recommending that externment proceedings in terms of Sec. 15(1) may be taken against the petitioner, in view of the factual aspects stated in the said report. Thereafter, R-3, District Police Chief, the sponsoring authority, has given report on 6.6.2022 to R-2, Deputy Inspector General of Police, recommending that externment proceedings in terms of Sec. 15(1) may be taken against the petitioner, in view of the factual aspects stated in the said report. Thereupon R-2 has issued requisite show cause notice, in terms of Sec. 15(1), on 7.7.2022 directing the petitioner to show cause as to why externment proceedings shall not be taken against him. The said show cause notice was received by the petitioner on 11.7.2022 and he sought two weeks' time for filing reply and the petitioner submitted reply on 22.7.2022. Despite three notices, calling him for personal appearance, he had not personally appeared before R-2. On the other hand, he filed Writ Petition (Crl.) No. 735 of 2022 before this Court on 16.8.2022 and the said case was disposed of by this Court on 11.10.2022, giving liberty to the petitioner to appear before R-2 within five days and with a further rider that R-2 will consider the representation of the petitioner and grant him personal hearing and then take a decision in the matter. It is thereafter that the petitioner has cared to appear on 15.10.2022 before R-2 and an opportunity of personal hearing was also granted to him. The versions of the petitioner as well as the Deputy Superintendent of Police were heard by R-2, the Deputy Inspector General of Police, on that day. After this process, R-2 has passed the impugned Ext.P1 externment order dated 28.10.2022, directing that the petitioner shall be restrained from entering into the territorial limits of Thiruvananthapuram Rural District Police Chief for a period of six months from the date of receipt of a copy of the said order. Ext.P1 order dated 28.10.2022 was received by the petitioner on 1.11.2022, the six months' period therefrom is upto 30.4.2023. 6. Thereafter, the petitioner has send statutory representation dated 9.11.2022 to the Advisory Board, in terms of Sec. 15(2). Since the said petition was filed within time, the Advisory Board has, on merits, passed Ext.P5 order dated 2.12.2022 confirming Ext.P1 order. It is these proceedings, at Exts.P1 and P5 that is under challenge in the present Writ Petition (Criminal). 7. The learned counsel appearing for the petitioner has raised three contentions, urging that the subjective satisfaction formed by R-2 in this case is vitiated. It is these proceedings, at Exts.P1 and P5 that is under challenge in the present Writ Petition (Criminal). 7. The learned counsel appearing for the petitioner has raised three contentions, urging that the subjective satisfaction formed by R-2 in this case is vitiated. The learned Prosecutor has strongly opposed each of these contentions. Instead of giving details of the rival contentions, we would proceed to deal with each of the above said contentions. Contention (a) - Non consideration of the sufficiency or otherwise of Sec. 107 Cr.P.C. proceedings initiated against the petitioner. 8. It is urged by Smt.Saipooja, the learned counsel appearing for the petitioner, that a reading of Para No. 8 of Ext.P1 externment order would indicate that there is only a bare reference regarding the issuance of Sec. 107 Cr.P.C. proceedings against the petitioner but there is no proper consideration as to whether the said Sec. 107 Cr.P.C. proceedings would be sufficient to prevent the petitioner from committing further prejudicial activities and as to whether resort to Sec. 15(1) externment proceedings would be really necessary and imperative. Para 8 on Page 3 of Ext.P1 Order reads thus: 9. However, the learned Public Prosecutor has pointed out that in Para 10 of Ext.P1 order, R-2 has considered the effect of Sec. 107 Cr.P.C. proceedings taken against the petitioner and has held that despite such preventive measures, taken in terms of Chapter VIII of the Cr.P.C. the same is not sufficient to prevent the petitioner from committing further prejudicial activities, in view of his proclivity in committing such anti-social activities. Para 10 on Page 4 of Ext.P1 Order reads as follows: 10. From a reading of Para 10 of Ext.P1, we are of the view that R-2 has dealt with the consideration of the preventive measures taken against the petitioner under Chapter VIII of Cr.P.C. and has held that such measures would not suffice. True that, there is no specific mention about Sec. 107 Cr.P.C. proceedings but a special mention therein is with regard to the proceedings taken under Chapter VIII of Cr.P.C. and the same can only refer to the proceedings taken in terms of Sec. 107, which was earlier referred to in Para 8 of Ext.P1. Hence, we are of the view that the first contention of the petitioner would fail. Hence, we are of the view that the first contention of the petitioner would fail. Contention - (b) - Non consideration of the efficacy of the bail conditions in the bail order granted on 5.5.2022 in the third and the last crime. 11. Smt. Saipooja, learned counsel appearing for the petitioner, would strongly urge that, nowhere in Ext.P1 order is it discernible that R-2 has considered at least the efficacy or otherwise of the bail conditions imposed on 5.5.2022 by the learned Magistrate while granting bail to the petitioner in the third and last crime. The learned Prosecutor has placed reliance on the decisions of the Division Bench of this Court in Kiran Shaji vs. State of Kerala and Others, 2018 (4) KHC 465 . Para 13 as well as in Anita Antony vs. State of Kerala and Others, 2022 (4) KLT 271 . Para 12. It may be profitable to refer to Para 12 of Anita Antony's case (supra) which reads as follows: “12. The second contention is a claim that the detenu had scrupulously followed the bail conditions in the last crime (Crime No. 460 of 2021 of Alappuzha North Police Station) and therefore, the subjective satisfaction to initiate proceedings under the KAA(P)A is vitiated. We cannot endorse the said submission of the learned counsel. As rightly pointed out by the learned Government Pleader, the last prejudicial activity reckoned by the detaining authority is the fourth crime and in all previous crimes, while being enlarged on bail, the detenu was put on similar condition that he shall not indulge in any criminal activity while on bail. This condition has been contemptuously violated by the detenu, as is established by the subsequent crimes, including the last one of the year 2021. Therefore, we are of the opinion that the compliance with the bail condition in the last crime cannot be gainsaid by the detenu, to assail the subjective satisfaction of the detaining authority, which is otherwise established by materials on record.” 12. Therefore, we are of the opinion that the compliance with the bail condition in the last crime cannot be gainsaid by the detenu, to assail the subjective satisfaction of the detaining authority, which is otherwise established by materials on record.” 12. The learned Prosecutor would submit that, in the instant case, it has been pleaded in the counter affidavit that, apart from the present three cases, which occurred in the requisite seven years prior period, the petitioner was also involved in about eight other crimes, which has occurred beyond the said prescribed seven year period and that, even in the three crimes, the allegations therein are quite grave and further that, he could secure bail in all these three cases and despite grant of bail in the first case, he has got himself involved in the second crime, which itself would be in violation of the bail conditions in the first crime and later he has also got involved in the third crime which itself would be in violation of the bail conditions in the second crime and that therefore, the dictum laid down by the Division Bench of this Court in Anita Antony's case (supra) would befittingly apply. Further, we also note that the first among the three crimes was regarding unlawful assembly and brutal manhandling of the de facto complainant therein, who sustained grievous injuries and the de facto complainant in the first crime is none other than the main witness in a previous crime, Crime No. 63 of 2015, in which the petitioner herein has been arrayed as an accused for the offence punishable under Sec. 302 IPC. The details of the factual allegations in the above said three crimes have been stated in Ext.P1 order as well as in page Nos.4 and 5 of the counter affidavit of this case. An overall reading of the factual allegations would indicate that the above said contention of the learned Public Prosecutor would be fortified. Hence, we are not inclined to accept the second contention of the petitioner as well. Contention (c) - Non application of mind on the part of R-2 on certain aspects. 13. An overall reading of the factual allegations would indicate that the above said contention of the learned Public Prosecutor would be fortified. Hence, we are not inclined to accept the second contention of the petitioner as well. Contention (c) - Non application of mind on the part of R-2 on certain aspects. 13. It is urged by the learned counsel for the petitioner that it has been inter-alia stated, in the concluding part of Para 9 on page 4 of the impugned Ext.P1 order, that the petitioner has been involved in sand mafia and that there is a chance for him being in conflict with another rival gang and that therefore, the externment order would be necessary to prevent him from committing such prejudicial activities etc. The concluding part of Para No. 9 on page 4 of Ext.P1 order reads as follows: 14. The learned Public Prosecutor has opposed the above said contention of the petitioner. It may be true that the allegations referred to above, may not be reflected in the specific materials collected prior to the personal hearing conducted in this case. The specific averment in the afore quoted portion of Para 9 of Ext.P1 is that, in the course of the personal hearing granted by R-2, the Deputy Inspector General of Police, has heard not only the petitioner but also heard the versions of the Dy. SP concerned and the SHO concerned and the said Police Officers pointed out to R-2 that the petitioner is involved in sand mafia and that he is likely to get in conflict with a rival gang and that therefore, measures in terms of Sec. 15(1) would be justified etc. The above said information appears to have been collected in the course of personal hearing conducted in the presence of the petitioner. No serious dispute is made regarding the correctness of the said factual submission referred to in the concluding portion of Para 9 of Ext.P1 order that the information was conveyed in the personal hearing. But the contention of the petitioner is that he was not in a position to controvert the said allegations and the said allegations have been made by the said Police Officers without any material basis. But the contention of the petitioner is that he was not in a position to controvert the said allegations and the said allegations have been made by the said Police Officers without any material basis. In this context, we have to remember that the jurisdiction of adverse orders passed either in terms of Sec. 3(1) or Sec. 15(1) of the KAA(P)A is essentially those related to jurisdiction based on suspicion. Once the objective criteria, as to whether the affected party concerned would fulfil the definition of “known goonda” or “known rowdy”, is satisfied, what remains is the subjective satisfaction of the authority concerned, as to whether the materials would disclose that the impugned order is really necessary and imperative so as to prevent him from committing further prejudicial anti-social activities. The sufficiency or otherwise of the subjective satisfaction is not amenable for judicial review. Prima facie, there may be some force in the contention of the petitioner that the perspective taken by R-2, in holding that the above said allegations raised by the Police officers, would sufficiently justify the externment order, may be a little bit flawed. It appears that the above said information has been made by the Police officers in the course of the personal hearing. Even if it is assumed that there are some flaws on the part of R-2 in arriving at a conclusion as stated in Para 9 of Ext.P1, quoted herein above, the materials on record otherwise referred to in Ext.P1, would show that there is at least some minimal amount of subjective satisfaction or more. We say so only with a view to ascertain as to whether there is some minimal justification for the subjective satisfaction. The sufficiency or otherwise of the subjective satisfaction cannot be challenged in a judicial review. Looking at the gravity of the allegations disclosed from the three crimes,, there cannot be any serious dispute that there is some minimal justification for the subjective satisfaction in this case, that the petitioner is likely to commit further prejudicial activity, taking note of his past proclivity to commit such crimes and therefore, it is necessary to pass an order in the nature of Ext.P1 to restrain him from entering into the limits of the Thiruvananthapuram Rural Police Chief, with a view to prevent him from committing such activities etc. We are now to proceed on the premise that the allegations in the above said crimes are to be taken in its face value and then ascertain as to whether there is at least some material to form subjective satisfaction. Viewed from that perspective, we are constrained to take the view that, certainly, there is some material for R-2 based on the afore three crimes to arrive at the subjective satisfaction, as above, in terms of Sec. 15(1). Hence, we are not in a position to accept the third and the last contention of the petitioner. 15. Lastly, faced with such situation, the learned counsel for the petitioner would submit that this Court may at least direct that the currency of the externment order may be reduced from the present six months' period. We are afraid, we may not be justified to interdict in such a manner in the facts and circumstances of this case. However, we note that Sec. 15(3) of the KAA(P)A gives power to the competent authority of the Government or the externment authority, which issued the proceedings under Sec. 15(1), on its own motion, to annul or amend the order at any time either in part or in full. If the petitioner is advised that he can make out a case to convince either the State Government or the externment authority to exercise their discretion in terms of Sec. 15(3), then it is ordered that nothing in this judgment by itself would preclude the petitioner from approaching such authorities to consider the exercise of discretion, in terms of Sec. 15(3). In case the petitioner makes any such request, in terms of Sec. 15(3), it is for the said competent statutory authority to deal with the same, in accordance with law and without much delay from the date of receipt of such request. No other orders and directions are called for in this case. 16. With the above observations and directions, the Writ Petition(Criminal) will stand dismissed.