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2025 DIGILAW 1493 (KER)

Faisal S/o Moidutty v. State of Kerala

2025-05-28

JOBIN SEBASTIAN, P.B.SURESH KUMAR

body2025
JUDGMENT : JOBIN SEBASTIAN, J. 1. This is a writ petition filed under Article 226 of the Constitution of India, challenging Ext.P1 order dated 17.02.2025 passed against the petitioner under Section 15 (1)(b) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [KAA(P) Act for the sake of brevity]. By the said order, the petitioner was directed to appear before the Sub Divisional Police Officer, Shornur, on every Wednesday between 11.00 a.m. and 3.00 p.m. for six months from the date of receipt of the said 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, Palakkad submitted a proposal for the initiation of proceedings against the petitioner under the KAA(P) Act, 2007 before the authorised officer, the Deputy Inspector General of Police, Thrissur Range. For initiation of the said proceedings, the petitioner was classified as a “known rowdy” as defined under Section 2(p)(iii) of the KAA(P) Act, 2007. 3. The authority considered 8 cases in which the petitioner was involved for passing Ext. P1 order. The case registered with respect to the last prejudicial activity committed by the petitioner is Crime No. 723/2024 of Thrithala Police Station, alleging commission of offences punishable under Sections 118(1) and 351(2) of Bharatiya Nyaya Sanhita (for short “BNS”). 4. Heard Sri. M.H. Hanis, 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. P1 order was passed on improper consideration of facts and without proper application of mind. According to the counsel, there is an inordinate delay in mooting the proposal as well as in passing the impugned order, and hence, the live link between the last prejudicial activity and the purpose of the order is snapped. The learned counsel further urged that though the petitioner was released on bail in the case registered with respect to the last prejudicial activity as well as in the last but one case, the fact that the petitioner was released on bail on those cases were not taken into consideration by the jurisdictional authority and also did not consider the sufficiency of the bail conditions imposed on the petitioner at the time of granting bail. According to the counsel, the conditions clamped on the petitioner at the time of granting bail were sufficient to deter the petitioner from repeating criminal activities, and an order under KAA(P) Act was not at all necessitated. 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 no inordinate delay either in mooting the proposal for initiation of proceedings under KAA(P) Act or in passing the impugned order, and hence, the petitioner could not contend that the live link between the last prejudicial activity and the purpose of Ext. P1 order was snapped. It was further submitted that all the procedural safeguards were duly complied with while passing Ext.P1 order, and hence, no interference is warranted. 7. On perusal of the records, it is gatherable that the last prejudicial activity considered by the jurisdictional authority to pass Ext. P1 order is Crime No.723/2024 of Thrithala Police Station, alleging commission of offences punishable under Sections 118(1) and 351(2) of BNS. The last prejudicial activity was committed on 15.10.2024. Formal arrest of the petitioner was recorded in the said case on 25.10.2024, and he was granted bail in the said case on 25.10.2024. Thereafter, it was on 15.01.2025, the District Police Chief, Palakkad, forwarded the proposal for initiation of proceedings under KAA(P) Act against the petitioner. It was after complying the necessary procedural safeguards, the jurisdictional authority passed Ext. P1 order on 17.02.2025. 8. The sequence of events narrated above reveals that there is no inordinate delay in passing the impugned order. Admittedly, the last prejudicial activity was committed on 15.10.2024, and the petitioner was arrested on 25.10.2024. It is true that the proposal for initiation of proceedings under KAA(P) Act was mooted only on 15.01.2025, i.e., after two months and twenty days after the granting of bail to the petitioner. However, while considering the above delay, it is noteworthy that immediately prior to the commission of the last prejudicial activity, the petitioner got involved in another case, registered as Crime No. 1130/2024 of Pattambi Police Station, which is the last but one case registered against the petitioner. The date of occurrence of the said case is on 12.10.2024. However, while considering the above delay, it is noteworthy that immediately prior to the commission of the last prejudicial activity, the petitioner got involved in another case, registered as Crime No. 1130/2024 of Pattambi Police Station, which is the last but one case registered against the petitioner. The date of occurrence of the said case is on 12.10.2024. In the said case, the petitioner was arrested on 13.10.2024, and he was granted interim bail till 18.10.2024 by the Jurisdictional Magistrate. However, thereafter, the petitioner was remanded to judicial custody in the said case on 18.10.2024, and he got bail in that case only on 08.11.2024. Since the petitioner was in judicial custody till 08.11.2024, the delay occurred till that date, in mooting the proposal is justifiable, as there was no apprehension regarding the commission of criminal activities by the petitioner, as he was in jail. However, there occurred a delay of two months and seven days in mooting the proposal after the release of the petitioner on bail in the last but one case registered against him. However, as already mentioned, 8 cases registered against the petitioner formed the basis for passing the impugned order. Therefore, a reasonable time is required to collect the details of the said case and for verification of the records by the authorities concerned. Hence, some minimal delay is quite natural in forwarding the proposal. Moreover, after the date of the proposal, the impugned order is seen passed without any unreasonable delay. 9. At this juncture, it is apposite to note that an order under Section 15(1)(b) of the KAA(P) Act is not having much significant bearing on the personal as well as fundamental rights of an individual. Notably, unlike in the case of an order of detention passed under Section 3(1) of the KAA(P) Act, even if some delay has occurred in passing an order under Section 15(1)(b) of the KAA(P) Act, the same has no serious bearing as the consequences of both the orders are different. Because an order of detention is a grave deprivation of the personal liberty of the person detained. In the case at hand, the impugned order directs the petitioner only to appear before the Sub Divisional Police Officer on every Wednesday. It is obvious that the nature of proceedings under Sections 3(1) and 15(1)(b) of the KAA(P) Act is inherently different. Because an order of detention is a grave deprivation of the personal liberty of the person detained. In the case at hand, the impugned order directs the petitioner only to appear before the Sub Divisional Police Officer on every Wednesday. It is obvious that the nature of proceedings under Sections 3(1) and 15(1)(b) of the KAA(P) Act is inherently different. In this regard, we are fortified by the decision in Stalin C.V. v. State of Kerala and others , 2011 (1) KHC 852 . Moreover, an order under Section 15(1)(b) of KAA(P) Act can be treated only as equivalent to a condition imposed in a bail order, especially when the same only curtails the movement of the petitioner. Consequently, we have no hesitation in holding that the short delay in mooting the proposal and in passing Ext.P1 order after the date of the last prejudicial activity has no serious impact at all, and the same is only liable to be discarded. 10. The learned counsel further urged that though the petitioner was released on bail in the case registered with respect to the last prejudicial activity as well as in the last but one case, the fact that the petitioner was released on bail on those cases were not taken into consideration by the jurisdictional authority and the said authority did not consider the sufficiency of the bail conditions imposed on the petitioner at the time of granting bail. According to the counsel, the conditions clamped on the petitioner at the time of granting bail in the case registered with respect to the last prejudicial activity as well as in the last but one case were sufficient to deter the petitioner from repeating criminal activities and an order under KAA(P) Act was not at all necessitated. 11. While considering the contention of the counsel for the petitioner in the above regard, it is to be noted that there is no law that precludes the jurisdictional authority from passing an order under KAA(P) Act against a person who is already on bail. However, when an order is passed against a person who is on bail, it is incumbent upon the authority to take note of the said fact and to consider whether the bail conditions imposed on such a person while granting bail by the court are sufficient to prevent him from involving in criminal activities. However, when an order is passed against a person who is on bail, it is incumbent upon the authority to take note of the said fact and to consider whether the bail conditions imposed on such a person while granting bail by the court are sufficient to prevent him from involving in criminal activities. Keeping in mind the above, while reverting to the case at hand, it can be seen that it was after the release of the petitioner on bail in the case registered with respect to the last prejudicial activity, the proposal for initiation of proceedings under KAA(P) Act was forwarded by the District Police Chief. Apart from that, it was after the release of the petitioner on bail in the said case, he was released on bail in the last but one case registered against him. Records further reveal that it was after his release in both the said cases, the proposal was initiated. Therefore, the jurisdictional authority should have passed the order only after being cognizant of the fact that the petitioner was on bail in both the said cases. Similarly, the order should reflect that the sufficiency of the bail condition imposed by the court while granting bail to the petitioner in both the said cases were duly considered before passing Ext. P1 order. However, in the impugned order though it is mentioned that the petitioner got bail in both the said cases, it is nowhere mentioned that the conditions imposed by the court while granting bail to the petitioner in the said cases are not sufficient to deter the petitioner from repeating criminal activities. Moreover, at the time of hearing this petition, the learned Government Pleader, after verification of records, fairly conceded that copies of the bail orders passed in both the said cases did not find a place among the records of this case. Therefore, nobody could be blamed if it is found that there is non-consideration of the sufficiency of bail conditions on the part of the jurisdictional authority. Hence, it is liable to be held that the Ext.P1 order is vitiated and warrants interference. 12. In the result, this writ petition is allowed and Ext.P1 order stands set aside.