Jino v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 WP(CRL.) NO. 469 OF 2023** ## **PETITIONER:** ## **JINO** **AGED 28 YEARS, MALIYEKKAL (H), KURICHIKKARA P.O, MATTAMPURAM DESOM, KILLANOOR VIILAGE, THRISSUR, KERALA, PIN - 680028** **BY ADVS. SARATH BABU KOTTAKKAL GAYATHRI MURALEEDHARAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, HOME DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695001** - **2 THE DEPUTY INSPECTOR GENERAL OF POLICE THRISSUR RANGE, THRISSUR, PIN - 680001** - **3 SUPERINTENDENT OF POLICE THRISSUR CITY, THRISSUR, PIN - 680003** - **4 STATION HOUSE OFFICER VIYYUR POLICE STATION, THRISSUR, PIN - 680001 SRI.K.A.ANAS PP** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 21.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -: 2 :- W.P.(Crl) No.469 of 2023 ## **P.B.SURESH KUMAR & SHOBA ANNAMMA EAPEN, JJ.** ## **-----------------------------------------------** ## **W.P.(Crl) No.469 of 2023** ## **-----------------------------------------------** ## **Dated this the 21[st] day of June, 2023.** ## **J U D G M E N T** ## **P.B.Suresh Kumar, J.** This writ petition is instituted challenging Ext.P1 order issued under Section 15(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (the Act) restraining the petitioner from entering the limits of Thrissur District for a period of one year, which was later modified to 9 months by the Advisory Board constituted under the Act. 2. Heard the learned counsel for the petitioner as also the learned Government Pleader. 3. Ext.P1 order refers to various prejudicial activities stated to have been committed by the petitioner. The W.P.(Crl) No.469 of 2023 -: 3 :- last prejudicial activity referred to in Ext.P1 order is the involvement of the petitioner in Crime No.720 of 2022 in Viyyur Police Station. The occurrence which is subject matter of the said crime took place on 25.09.2022. The petitioner was arrested in connection with the said crime and he was enlarged on bail in the said case on 15.10.2022. The materials indicate that later on 12.11.2022, the concerned Station House Officer requested the sponsoring authority to initiate the proceedings for externment of the petitioner under the Act, and acting upon the said request, the sponsoring authority under the Act recommended the competent authority for action on 28.11.2022. After completing the procedural requirement of affording the petitioner an opportunity of hearing, the competent authority issued Ext.P1 order on 28.12.2022 and the same was communicated to the petitioner on 29.12.2022. 4. The learned counsel for the petitioner contended that inasmuch as the last prejudicial activity stated to have been committed by the petitioner was the occurrence W.P.(Crl) No.469 of 2023 -: 4 :- which took place on 25.09.2022, the externment order issued on 28.12.2022 is belated, and in the absence of any explanation for the delay, it has to be presumed that there is no application of mind on the aspect of the live link between the last prejudicial activity and the initiation of proceedings. According to the learned counsel for the petitioner, the impugned order is liable to be set aside on that sole ground. 5. Per contra, the learned Government Pleader submitted that there is absolutely no reason justifying an interference by this court with the impugned order on the ground of non-application of mind in the aspect of the live link between the last prejudicial activity and the initiation of the proceedings. 6. We have examined the arguments advanced by the learned counsel for the petitioner as also the learned Government Pleader. 7. There has to be a live link between the prejudicial activities and the decision of the competent W.P.(Crl) No.469 of 2023 -: 5 :- authority to initiate proceedings under Section 15 of the Act. If there is a long delay between the last prejudicial activity and the initiation of the proceedings, in the absence of a satisfactory explanation for the delay, it can certainly be presumed that the live link between the last prejudicial activity and the initiation of proceedings is snapped, justifying interference with the order of externment by this Court, in exercise of the power under Articel 226 of the Constitution of India. 8. As noticed, the last prejudicial activity stated to have been committed by the petitioner is his involvement in Crime No.720 of 2022. The occurrence in respect of the said crime took place on 25.09.2022. There is no dispute to the fact that the petitioner was arrested and he was enlarged on bail only on 15.10.2022. The Station House Officer has forwarded the request for initiation of proceedings on 12.11.2022. Of course, it is almost after 28 days of the enlargement of the petitioner on bail in Crime No.720 of 2022 that the request has W.P.(Crl) No.469 of 2023 -: 6 :- been made by the Station House Officer. But, the materials on record indicate that the sponsoring authority promptly acted on the request and within almost two weeks, he forwarded his recommendation to the competent authority, and after affording an opportunity of hearing to the petitioner, the competent authority issued the impugned order on 28.12.2022 itself. The pointed question therefore, is as to whether the said delay on the facts of this case is unreasonably long, so as to vitiate the application of mind of the competent authority on the aspect of the live link between the last prejudicial activity and the initiation of proceedings. 9. In **Stalin C.V. v. State of Kerala and Others** , 2011 (1) KHC 852, even though this Court observed that an order of restriction cannot be passed under Section 15 of the Act, if the act/acts which are complained of have completely lost their relevance by the passage of time, it was held that an order of restriction under Section 15 is lighter in its impact on the personal liberty of the person concerned and that W.P.(Crl) No.469 of 2023 -: 7 :- its effect is only in the nature of a bail condition. When we examine the facts of the case on hand, in the light of the aforesaid decision, we find absolutely no reason to interfere with the impugned order on the ground of delay, for the passage of time in the case on hand is not sufficient to infer total absence of any nexus between the last prejudicial activity and the initiation of proceedings. 10. The learned counsel for the petitioner argued that even in a case where the competent authority finds that the live link required between the last prejudicial activity and the initiation of proceedings is not snapped, if there is delay, the order should reflect the reason for the delay. It was argued by the learned counsel that the order impugned is vague as regards the delay occasioned at the hands of the Station House Officer, the sponsoring authority as also the competent authority, especially in a case where the order is issued after about three and half months. In order to bring home the said point, the learned counsel has brought to our notice the W.P.(Crl) No.469 of 2023 -: 8 :- relevant paragraph of Ext.P1 order dealing with delay, which reads thus; "ജ�ന��യക�ത�ക��ന��ള�സ�മ�ഹ��വ���ദപ�വർത�ങൾ (തടയൽ) ��യമത�ക��വ��പ 15(1)(a) പ����!��ട�ട� സ"#�����നത���യ�� ജ�ന��� ഉൾകപട� ന�സ��ള�കട വ�വ�ങള�!� ന�ഖ�ള�!� ന(ഖ��ച പ��ഥമ��� റ�നപ�ർട� തയ�റ����സമർപ���നത�ൽ�ത-ശ�ർ�സ�റ��ന���#സ ജ�ല� നമധ�വ�യ�കട� ഭ�ഗത ��ന�!� ��ത#�������വ�ത ���ത�മസ!�ഉണ�യ�ട�കലന ന5�ധ�കപട�ട�ളത�ണ�.” We do not find any merit in this argument. What is to be seen by the competent authority in a case of this nature, while passing an order under Section 15(1)(a) is whether there is a live link between the last prejudicial activity and the proposed action for, if considerable time is passed by the time the order is issued from the date of the last prejudicial activity, invocation of the provisions of Act would be an abuse of the power. It is in this context, the courts have held that in cases where there is delay creating a doubt as to the existence of the live link between the prejudicial activity and the initiation of proceedings, reasons for the delay should be indicated so as to -: 9 :- W.P.(Crl) No.469 of 2023 ensure that there is due application of mind as to the live link. Needless to say that in a given case where there is no considerable delay giving rise to a doubt as to the due application of mind by the competent authority on the live link between the last prejudicial activity and the initiation of proceedings, merely for the reason that the order does not explain the insignificant delay, it cannot be held to be illegal. In the said view of the matter, we do not find any merit in the writ petition(Crl) and the same is accordingly, dismissed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** Sd/- **SHOBA ANNAMMA EAPEN, JUDGE.** YKB W.P.(Crl) No.469 of 2023 -: 10 :- ## **APPENDIX OF WP(CRL.) 469/2023** ## **PETITIONER EXHIBITS** **Exhibit P1 THE TRUE PHOTOCOPY OF THE EXTERNMENT ORDER PASSED BY THE DEPUTY INSPECTOR GENERAL OF POLICE, THRISSUR RANGE, THRISSUR DATED 28.12.2022** **Exhibit P2 THE TRUE PHOTOCOPY OF THE ORDER OF THE ADVISORY BOARD DATED 31.01.2023**