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2024 DIGILAW 1151 (KER)

Jayaprakash @ Criminal Jayan, S/o Kochu Nanu v. State Of Kerala

2024-09-09

G.GIRISH, RAJA VIJAYARAGHAVAN V.

body2024
JUDGMENT : Raja Vijayaraghavan, J. Under challenge in this Writ Petition is Ext.P1 order dated 22.04.2024, issued by the Deputy Inspector General of Police, Ernakulam Range invoking Section 15 (1)(a) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short ‘KAAP Act’). As per the said order, the petitioner has been interdicted from entering into the jurisdictional limits of the District Police Chief, Kottayam for a period of nine months. The Advisory Board, before which the petitioner mounted a challenge against Ext.P1 order, proceeded to reduce the period of externment to seven months by Ext.P2 order. The said order is also under challenge in this petition. 2. On account of the involvement of the petitioner in four crimes registered within the limits of various Police Stations of Kottayam District, the respondents arrived at the objective satisfaction that the petitioner satisfied the parameters of being classified as a ‘known rowdy’ as defined under Section 2(p)(iii) of the KAAP Act. The last prejudicial activity committed by the petitioner was Crime No.1530 of 2023, registered at the Mundakayam Police Station on 20.11.2023 for offences inter alia under Sections 294(b), 341, 308 r/w. Section 34 of the IPC. The petitioner was arrested in connection with the said crime on 21.11.2023, and he was released on bail on 06.01.2024. After his release, a proposal was submitted by the District Police Chief on 14.03.2024 seeking initiation of proceedings under Section 15(1) of the KAAP Act. On receipt of the proposal, the authority concerned issued notice on 21.03.2024 in terms of Section 15(1) of the Act, calling upon the proposed externee to show cause why proceedings shall not be initiated against him. On receipt of the reply dated 08.04.2024 submitted by the petitioner, he was granted an opportunity to raise his objections for which he was directed to appear before the authority concerned on 18.04.2024. The explanation offered by him was rejected and the impugned order was passed restricting his entry into Kottayam District. Challenging the said order, the externee submitted a representation before the Advisory Board. The Board, after evaluating the contentions, came to the conclusion that the order passed is in strict conformity with the relevant provisions of the Act. However, considering the family background of the externee, the period of the externment was reduced to seven months. 3. Ms. Challenging the said order, the externee submitted a representation before the Advisory Board. The Board, after evaluating the contentions, came to the conclusion that the order passed is in strict conformity with the relevant provisions of the Act. However, considering the family background of the externee, the period of the externment was reduced to seven months. 3. Ms. Anakha Babu, the learned counsel for the petitioner, submitted that undue delay in passing the externment order would undermine its validity, particularly when no convincing or plausible explanation is offered for the delay. She urged that if the delay is inordinate, it would cast serious doubt on the subjective satisfaction of the authority in issuing the order. Referring to the chronology of events in this case, the learned counsel pointed out that the last prejudicial act was committed on 20.11.2023, the proposal for externment was only submitted on 14.03.2024—nearly three months and twenty days later—and the order itself was passed even later, on 22.04.2024, approximately five months after the prejudicial act. According to the learned counsel, prompt action is insisted to maintain the live connection between the last prejudicial act and the order of externment as otherwise, the individual concerned shall continue to perpetrate his anti-social activities and pose a threat to public safety. To support her contentions, profuse reliance was placed on the observations and the law laid down in Aji V. Nair v. State of Kerala and Ors., [2023: KER: 36761] 4. In response, Smt. Neema, the learned Public Prosecutor submitted that an order of externment under Section 15 of the KAAP Act is lighter in its impact on the personal liberty of a person and its effect is only in the nature of a condition attached to a bail order. Reliance is placed on the observation in Stalin alias Satalin Samuvel v. State, Represented by the Inspector Police, [2023 KHC 3199], and it is urged that before passing an order under Section 15, the principle of natural justice is to be observed, and therefore, some delay is inevitable. Reliance is also placed on the observation in Harikrishnan v. State of Kerala and Ors., 2023: KER:35595 to bolster her submissions. 5. We have considered the submissions advanced and have perused the records. 6. Reliance is also placed on the observation in Harikrishnan v. State of Kerala and Ors., 2023: KER:35595 to bolster her submissions. 5. We have considered the submissions advanced and have perused the records. 6. 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 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 the process is justified and timely and the ultimate objective is served. 7. 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 Maharashtra, 2022 SCC online SC 99 has observed as follows: “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. 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.” 8. In Rahmat Khan alias Rammu Bismillah Vs. Deputy Commissioner of Police, (2021) 8 SCC 362 , the Hon’ble Supreme 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 Maharashtra, 1973 (1) SCC 372 , 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. 9. In view of the fact that an order of externment makes serious inroads on personal liberty, the competent authority who initiates proceedings under Section 15 of the KAAP Act and proceeds to pass an order under Section 15 must indicate in the order that the objective and subjective satisfaction has been properly arrived at. The authority is required to bear in mind the propensity of the prospective offender to indulge in crimes, the gravity and magnitude of the crimes in which the proposed externee may engage himself in the area or areas from which he is required to be externed, and the instances of his past criminal activities. Furthermore, the proposed externee is entitled to the observance of the principles of natural justice and he ought to be given a reasonable opportunity to answer or defend himself against the allegations made against him. The externment order must also indicate the application of mind to the material made available to the authority concerned that is empowered to pass the externment order. 10. In the case on hand, the last prejudicial activity was on 20.11.2023. He was arrested on 21.11.2023 and was released on bail on 06.01.2024. The externment order must also indicate the application of mind to the material made available to the authority concerned that is empowered to pass the externment order. 10. In the case on hand, the last prejudicial activity was on 20.11.2023. He was arrested on 21.11.2023 and was released on bail on 06.01.2024. The proposal was however submitted by the District Police Chief only on 14.03.2024, about three months and twenty-two days from the last prejudicial activity. Even if the date of release of the petitioner on bail is reckoned, the proposal was submitted only after two months and eight days. On the strength of his sponsorship report, the externment order was issued only on 22.04.2024, five months from the last prejudicial activity. The only explanation is that the delay had occurred in collecting the documents relating to the four crimes in which the detenu was involved. The records reveal that the crimes were registered at Peruvanthanam and Mundakayam Police Stations, and the explanation that about three months and twenty-two days was required to collect the documents and to submit the proposal cannot be countenanced. No explanation, let alone any justifiable explanation, has been offered by the authorities concerned for the delay in taking appropriate steps in the above regard, in connection with the proceedings initiated against the petitioner. 11. The question of whether a person's prejudicial activities warrant the passing of an externment order, and whether such activities are proximate to the time the order is made, depends on the specific 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. This Court is also required to determine whether the causal connection between the activities and the order has been broken in light of the circumstances of each case. The delay, unless satisfactorily explained, would cast serious doubt on the genuineness of the authority's subjective satisfaction. This Court is also required to determine whether the causal connection between the activities and the order has been broken in light of the circumstances of each case. The delay, unless satisfactorily explained, would cast serious doubt on the genuineness of the authority's subjective satisfaction. If the true objective was to prevent the externee from engaging in prejudicial activities, the authority would have acted with greater urgency in both submitting the proposal and issuing the externment order to quell the antisocial activities. This aspect of the matter was not considered by the Advisory Board while considering the representation submitted by the petitioner. We are of the view that the order is liable to be interfered with on account of the long, inordinate, and unexplained delay in submitting the proposal and in passing the order of externment, and the consequent snapping of the live link. In view of the discussion above, Ext.P1 order passed by the Authorized Officer is liable to be interfered with upon the ground of inordinate and unexplained delay in taking prompt steps. We set aside Ext.P1 order, accordingly.