Inshad v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 BAIL APPL. NO. 1285 OF 2023** **AGAINST THE ORDER/JUDGMENTCC 138/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS,NEYYATTINKARA (TEMPORARY) CRIME NO.2480/2020 OF VIZHINJAM POLICE STATION** ## **PETITIONER/S:** INSHAD AGED 23 YEARS S/O RASHEED, HOUSE NO.362, VADUVACHAL HOUSE, TOWNSHIP COLONY, VIZHINJAM, THIRUVANANTHAPURAM, PIN - 695042 BY ADV LATHEESH SEBASTIAN ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 SMT.T V NEEMA SENIOR PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22.02.2023, THE COURT ON 09.03.2023 DELIVERED THE FOLLOWING: “ _**C.R”**_ B.A.No.1285/2023 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _B.A.No.1285 of 2023_ _================================ Dated this the 9th day of March, 2023_ ## _**O R D E R**_ This petition for regular bail filed under Section 439 of the Code of Criminal Procedure is at the instance of the sole accused in Crime No.2480/2020 of Vizhinjam Police Station, where prosecution alleges commission of offence punishable under Sections 15(4) r/w 19 of the Kerala Antisocial Activities (Prevention) Act 2007 (hereinafter referred to as `KAAPA' for short). 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the report of the Investigating Officer. 3. The facts of the case is as follows: B.A.No.1285/2023 3 The petitioner is the sole accused in Crime No.2480/2020 of Vizhinjam Police Station, registered for the offences punishable under Section 15(4) r/w 19 of KAAPA, which is now pending as C.C No.138/2021 before the Judicial First Class Magistrate Court (Temporary), Neyyattinkara. The prosecution allegation against the petitioner is that the petitioner in violation of the direction of the District Police Chief, Thiruvananthapuram under Section 15 (4) r/w 19 of KAAPA not to commit any anti-social activities and report the movements before the Inspector of Vizhinjam Police Station for one year from 24.11.2020, involved in Crime No.2949/2020 of Balaramapuram Police Station and thereby committed the offence punishable under Sections 294(b), 341, 323, 324, 326, 307 & 34 of the Indian Penal Code (`IPC' for short hereinafter). 4. It is submitted by the learned counsel for the petitioner that the petitioner did not commit offence under Section 15(4) r/w B.A.No.1285/2023 4 19 of the KAAPA and therefore he is liable to be released on bail. It is submitted that as per Section 15(1) of the KAAPA, a sponsoring authority has power to direct the deportee to stay away from the limits of police district concerned for a period of one year or to report his movements to the police official concerned. But the direction to abstain from committing any offence or antisocial activities is not within the power of an authority under Section 15 of KAAPA. As such, the present crime is an abuse of the process of law. 5. Whereas it is submitted by the learned Public Prosecutor that the petitioner herein, now aged 23, is a `known rowdy' involved in 17 cases and accordingly a restriction order No.41/10(b)/Camp/KAAPA/CP/TC/2020 dated 23.11.2020, has been issued against him by the Inspector General and Commissioner of Police, Thiruvananthapuram city and the said order is a speaking order, whereby the petitioner should inform his B.A.No.1285/2023 5 movements before SHO, Vizhinjam Police Station on every Monday in between 10.00 a.m ad 11.00 a.m for a period of one year from 24.11.2020 (the date of receipt of the order by the petitioner) and the petitioner should not violate the conditions in the order and he shall not involve in any antisocial activities while the order is in force. After passing of the order, and receipt of the same by the petitioner on 24.11.2020, in gross violation of condition No.2 in the order, he had involved in Crime No.2949/2020 of Balaramapuram Police Station alleging commission of offences punishable under Sections 294(b), 341, 323, 324, 326, 307 & 34 of IP. Accordingly, the petitioner along with other three accused was arrested and detained in custody. It was thereafter the present crime alleging commission of offences punishable under Sections 15(4) r/w 19 of the KAAPA was registered and his arrest was recorded at 11.55 hour on 14.12.2020. Thereafter, he was released on bail by the learned Magistrate and B.A.No.1285/2023 6 subsequently he got involved in Crime No.1304/2021 of Kovalam Police Station, where the prosecution alleges commission of offences punishable under Sections 143, 144, 148, 149, 294(b), 506(ii), 341, 324 & 326 of IPC. 6. According to the learned Public Prosecutor, the petitioner is not liable to be released on bail in Crime No.2480/2020 since the allegations are specifically well made out and if he will be released on bail, the purpose of the Act itself will be defeated. 7. While allaying the dispute involved in this matter, to consider grant of bail to the petitioner in this crime, it is necessary to look into the offence alleged to be committed in this crime. In this connection, Section 15 and subsection 15(4) of the Kerala Anti-Social Activities (Prevention) Act, 2007 are relevant. As such the same are extracted hereunder: _“15. Power to make orders restricting the movements of certain persons:- (1) The District Magistrate or a Police Officer_ B.A.No.1285/2023 7 _of and above the rank of Deputy Inspector General having jurisdiction, if satisfied on information received in respect of a known goonda or known rowdy, after having given him an opportunity to be heard by notice served on him or pasted at his ordinary place of residence, if any in Kerala, that he is indulging in or about to indulge in or likely to indulge in anti-social activities and with a view to prevent him from so acting at any place within the jurisdiction of such Magistrate or officer, may make an order,--_ _(a) directing that, except insofar as he may be permitted by the conditions made in the order, he shall not visit any such area or place as may be specified in the order, for a period not exceeding one year;_ _(b) requiring him to report his movements within the State, in such manner, at such times, and to such authority or person as may be specified in the order, for a period not exceeding one year:_ _Provided that a copy of the order along with the grounds for issuing such order shall be communicated to the Government through the Director General of Police._ _(2) Any person aggrieved by an order issued under subsection (1) may represent before the Advisory Board within fifteen days of the date of service of the order and the Board on receipt of such representation, consider the same, and after_ ## B.A.No.1285/2023 8 _enquiring into the facts and circumstances in such manner as it may deem fit, shall within thirty days of the date of receipt of such representation, annul, amend or confirm the order, either_ _part or in full._ _(3) The Government or the authority which issued the order under sub-section (1) may, on its own motion, annul or amend the order at any time either in part or in full._ _(4) Any person violating an order under sub-section (1) shall be liable to be punished with imprisonment for a term which may extend to three years._ _(5) If an order issued under sub-section (1) above has ceased to have effect for any reason, a new order under the said sub-section may be issued against the same person if he continues to be a person falling within the definition of known rowdy or known goonda as given in Section 2(0) or Section 2(p) and if, after such cessation, he has again involved, in an offence of the nature described in Section 2(0) or Section 2(p) atleast in one instance.”_ Since it is argued by the learned counsel for the petitioner that as per Section 15(1) of the KAAPA, a sponsoring authority has power to direct the deportee to stay away from the limits of police district concerned for a period of one year or to report his movements to B.A.No.1285/2023 9 the police official concerned and the Authority has no power to issue the accused the direction to abstain from committing any offence or antisocial activities and the said direction is not within the power of an authority under Section 15 of KAAPA, it is necessary to address the said legal question. Indubitably Section 15(1) empowers the District Magistrate or police officers above the rank of Deputy Inspector General of Police having jurisdiction, if satisfied on information received in respect of a known goonda or known rowdy, after having given him an opportunity to be heard by notice served on him or pasted at his ordinary place of residence, if any in Kerala, that he is indulging in or about to indulge in or likely to indulge in anti-social activities and with a view to prevent him from so acting at any place within the jurisdiction of such Magistrate or officer, may make an order, (a) directing that, except insofar as he may be permitted by the conditions made in the order, he shall not visit any such area or place as may be specified in the B.A.No.1285/2023 10 order, for a period not exceeding one year; (b) requiring him to report his movements within the State, in such manner, at such times, and to such authority or person as may be specified in the order, for a period not exceeding one year. 8. It is relevant to note that sub sections (1)(a) and (b) of Section 15 stipulate only to impose conditions in the order and the said sub sections never restricts the condition as argued by the learned counsel for the petitioner. Therefore, it cannot be held that the condition imposed in the restriction order issued against the petitioner in this matter offends Section 15(1) of KAAPA. 9. Coming back, going by sub-section 4 of Section 15 of the KAAPA, any person violating an order under sub-section (1) shall be liable to be punished with imprisonment for a term which may extend to three years and Section 19 of the KAAPA specifically provides that the said offence is cognizable and non bailable. 10. In cases under the KAAPA, the legislative intention B.A.No.1285/2023 11 itself, is crystal clear. As early as in 1917 in _**R. v. Halliday, 1917 AC 260**_ it was held that **“Preventive detention is not punitive but a precautionary measure”** . Lord Macmillan in _**Liveridge v. Anderson, 1942 AC 206**_ observed that _**the object of Preventive Detention is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. The jurisdiction of such detention is suspicion or reasonable probability and not the criminal conviction which can only be warranted by legal evidence.**_ In fact, the said principles have been approved by the Apex Court in the decision reported in [1950 KHC 183 : AIR 1950 SC 27 – (6 Judges), _**A.K.Gopalan v. State of Madras**_ which was followed in the subsequent decisions of the Apex Court from 2008 onwards : [2008 KHC 4349 : 2008 (3) SCC 613 : AIR 2008 SC 1705] _**, State of Maharashtra v. Bhaurao Punjabrao Gawande**_ . On evaluating the intention of the legislature, what is intended is to detain persons with criminal B.A.No.1285/2023 12 antecedents in custody to prevent further involvement in crimes not as a punitive measure, but as a precautionary measure. In the case at hand, it could be noticed that after passing the restriction order under Section 15(1) of KAAPA, the petitioner involved in Crime No.2949/2020 of Balaramapuram Police Station. Thereafter, he got involved in Crime No.1304/2021 alleging commission of very serious offences punishable under Sections 143, 144, 148, 149, 294(b), 506(ii), 341, 324 & 326 of IPC. On noticing this fact, acting on the petition filed by the prosecutor, the learned Magistrate, Neyyattinkara, cancelled bail granted in Crime No.2949/2020 and he was arrested and detained in custody. In this case, the petitioner is a person, who suffered restriction order on the finding that he had involved in 17 crimes of serious nature and on finding violation of the restriction order and involvement in subsequent crime, another crime was registered alleging commission of offence punishable under Section 15(4) r/w 19 of B.A.No.1285/2023 13 KAAPA. The petitioner has been in custody not only in this crime, but for other crime also. Having noticed the history of the petitioner having involvement in 17 crimes, inclusive of two crimes registered subsequent to passing of the restriction order, in violation of the restriction order, _prima facie_ commission of offences punishable under Section 15(4) r/w 19 of KAAPA is well made out. Therefore, the petitioner, who has been detained in custody as a preventive measure noting his involvement in 17 crimes and commission of two crimes in blatant violation of the restriction order, is not liable to be released on bail since he has no respect to law and he willfully violated the restriction order passed under the KAAPA. Accordingly, the petition stands dismissed, with direction to the jurisdictional court to expedite the trial. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_