Kiran Shaji v. State of Kerala & Others

'C.R.' # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY ,THE 03RD DAY OF SEPTEMBER 2018 / 12TH BHADRA, 1940** ## **WP(C).No. 10194 of 2018** ## **PETITIONER/S:** **KIRAN SHAJI AGED 21 YEARS S/O.SHAJI,NEDUVELY HOUSE, THOTTAKAM KARA,MATTOOR, KALADY, ERNAKULAM BY ADV. SRI. M.H. HANIS** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**HOME AND VIGILANCE DEPARTMENT,GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM, PIN: 695 001.**| |**2**|**INSPECTOR GENERAL OF POLICE**| ||**KOCHI RANGE, ERNAKULAM.**| |**3**|**THE CHAIRMAN**| ||**ADVISORY BOARD,KAAPA, SREENIVAS,**| ||**PADAM ROAD,VIVEKANANDA NAGAR, ELAMAKKARA,**| ||**PIN: 682 026.**| ||**BY ADVS.SRI.SURESH BABU THOMAS,**| ||**ADDL.DIRECTOR GENERAL OF PROSECUTION**| ## **OTHER PRESENT:** **SRI.K.A.ANAS, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.7.2018, THE COURT ON 3.9.2018 DELIVERED THE FOLLOWING:** WPC 10194/2018 -2- ## J U D G M E N T Ashok Menon, J. The petitioner is before us seeking to set aside Ext.P2 modified order of restriction made against him by the Advisory Board, under Section 15 of the Kerala Anti-Social Activities (Prevention) Act, 2007 ('Act' for short) and also to strike down Section 15 of the Act as unconstitutional and command the respondents not to enforce the provisions of the Act against the petitioner, and for such other reliefs. 2. The petitioner contends that, without affording an opportunity of a personal hearing, and without considering his detailed objection to the notice, order No.2(AA)/Camp/17-KOR dated 8.11.2017 was made under Section 15 of the Act restricting the petitioner's entry into Ernakulam District for a period of one year from the date of the said order, which was reduced by the Advisory Board to six months, vide Ext.P2. 3. The order was produced directly before the third respondent Advisory Board, without even serving a copy of the said order on the petitioner. Annexures of WPC 10194/2018 -3- the said order were received by the petitioner, which is produced at Ext.P1, which contains the recommendation of the District Police Chief and the other documents pertaining to the crimes registered against the petitioner. On 11.12.2017, the third respondent Advisory Board modified the order of the second respondent by limiting it to a period of six months vide Ext.P2. 4. The petitioner states that the order of restriction passed against him was in a mechanical manner without any application of mind. It is also pointed out that the cases against the petitioner which have been the basis for making such an order of restriction could not have been relied upon under the provisions of the Act. The petitioner was implicated in five crimes. Crime No.1403/2013 was registered against him at Kalady Police Station while he was still a minor, his date of birth being 11.5.1996. In 2014, proceedings were initiated against the petitioner under Section 107 of the Code of Criminal Procedure by registering Crime No.2275/2014 at Kalady Police Station, which was dropped on acceptance of a detailed reply filed by the Petitioner to the show cause notice. WPC 10194/2018 -4- In Crime No.1060/2017 of Angamaly Police Station, the final report is yet to be filed. Crime No.1807/2014 of Kalady Police Station, was quashed by this Court. On 2.12.2013, most of the crimes could not have been taken into consideration for issuing restriction order under the Act. The petitioner was granted bail in Crime No.1060/2017 of Angamaly Police Station. As per the bail conditions, the petitioner was directed not to enter into the limits of Ernakulam Sessions Division for a period of two months from the date of release. It was also directed that he shall not get involved in identical crimes and if he got involved so, prosecution could move for cancellation of the bail. Before initiating the proceedings against the petitioner under Section 15 of the Act, the respondents failed to consider the fact that the condition imposing restriction of his movement was already imposed by this Court while granting bail and that would have been sufficient. He has not violated any condition imposed in that bail order and therefore, a further restriction could not have been imposed by the respondents. Moreover, it is also pointed out that the last prejudicial activity allegedly committed by the WPC 10194/2018 -5- petitioner was on 14.4.2017 and the order of restriction is made on 8.11.2017. This delay has not been considered by the respondents. It is submitted that the petitioner is a daily wage earner and a labourer and that is his only means for livelihood. Imposition of restriction from entering the locality, where he has been residing and earning his livelihood, would amount to depriving him of his livelihood. The Act does not provide for livelihood, food or shelter to the petitioner, in case of imposing restriction. Without such provision being made, while imposing restriction depriving the petitioner of his livelihood, there is a gross violation of the Constitutional provisions and his valuable rights, and therefore, the impugned order of restriction is to be set aside. There is also a contention raised that the petitioner, on the basis of the offences alleged cannot be brought under the definition of 'rowdy'. It is the submission of the learned Counsel that without Section 34 of the Indian Penal Code none of the charges levelled can be sustained since there is no overt act alleged against the petitioner. Section 34 is not specifically included WPC 10194/2018 -6- in the definition clause Section 2(t) of KAAPA, is the argument. 5. We would first consider the objection raised on the exclusion from the definition clause of 'rowdy'. Section 34 of the I.P.C. speaks of 'Acts done by several persons in furtherance of common intention”. A person who commits an offence in furtherance of common intention of all, is liable for that act in the same manner as if it were done by him alone. Likewise, if an offence is committed by a member of an unlawful assembly in prosecution of common object of that assembly, every person who, at the time of committing that offence, is a member of the said assembly, is guilty of that offence, by virtue of Section 149 of the I.P.C. Section 2(t) of the KAAPA starts with the words: 'Rowdy' means and includes a person who by himself or as a member of a gang commits or attempts to commit or abets the commission of any offences under...”. The specific ingredients of Sections 34 and 149 is available under the definition clause of KAAPA and the offences alleged having been committed as a member of a gang, the petitioner cannot seek to be excluded from the definition of rowdy on that ground alone. WPC 10194/2018 -7- 6. The next ground to be dealt with is the challenge raised to the constitutionality of Section 15. It is argued that the petitioner has his ordinary place of residence within the District of Ernakulam and not being permanently employed takes up odd jobs for his livelihood, which often is obtained only on acquaintance. The petitioner being removed from his natural environs where he resides and works for his livelihood, is deprived of the right to life guaranteed under Article 21; which right has been held time and again to extend to a decent life comprising the basic human rights known to any civilized human society implying the right at least to food, water and shelter. The deprivation of such rights by an order under Section 15 vitiates the provision itself as unreasonable and arbitrary. The learned Counsel relies on AIR 1967 SC 1170 [State of M.P. Vs. Thakur Bharat Singh] a Constitution Bench decision and 2002 KHC 2261 [Devendra Jain Vs. State of Rajasthan] a decision of a Division Bench of the Rajasthan High Court. 7. We have to keep in mind that the right under Article 21 provides for its deprivation according to the procedure established by law. Likewise, the freedom WPC 10194/2018 -8- guaranteed under Article 19(1)(d) & (e) can be fettered by sub-clause (5) in the interest of the general public. The Honourable Supreme Court in 1982 KHC 395 [A.K.Roy v. Union of India and Another] while considering the constitutional validity of the preventive detention laws, held thus: “It is evident that the power of preventive detention was conferred by the Constitution in order to ensure that the security and safety of the country and the welfare of its people are not put in peril. SO long as a law of preventive detention operates within the general scope of the affirmative words used in the respective entries of the union and concurrent lists which give that power and so long as it does not violate any condition or restriction placed upon that power by the Constitution, the Court cannot invalidate that law on the specious ground that it is calculated to interfere with the liberties of the people. Khanna J., in his judgment in the Habeas Corpus case, 1976 Supp SCR 172 at pp.291-292, 294-296 : (AIR 1976 SC 1207 at pp. 1268, 1269, 1270, 1271 and 1272), has dwelt upon the need for preventive detention in public interest.” 8. Here the order has been passed under a valid enactment and it was necessitated due to the criminal antecedents of the petitioner, who carried on his activities as a member of a gang within the District; from which jurisdiction he was directed to be, so to say banished, for a specified period, in the interest WPC 10194/2018 -9- of maintaining public order and peace. We should now examine the decisions cited. 9. Thakur Bharat Singh examined the provisions of a Public Security Act which provided for,- (i) directing a person not to be seen within an area or place within the State (clause (a) of Section 3), (ii) requiring him to reside or remain in such place or area as may be specified (clause (b) of Section 3), and (iii) directing him to notify his movements or report himself in such manner and at such times before such authority or person (clause (c) of Section 3). An order was passed directing the respondent not to be seen in any place within Raipur District, reside within the municipal limits of Jabua, as also notify his movements to the Station Officer of Jabua. On a challenge made to the order, a learned Single Judge of that court found Clauses (b) and (c) of Section 3 and those portions of the order directing residence in a particular area and notification of movements to be unreasonable. The Division Bench on appeal found Clauses (a) and (c) to be valid but found the direction to notify movements in the impugned order, being inextricably connected to the order under clause (b); WPC 10194/2018 -10- of residence in a particular area, and hence refused to interfere with the impugned judgment. The appeal was by the State to the Supreme Court. 10. We have to immediately notice that the provision enabling a person to be kept away from a particular jurisdiction was upheld by the High Court and the Constitution Bench decision does not apply to that portion. Here there is no power conferred under the KAAPA to direct residence at a specified place and the order too restricted only the entry of the petitioner into the District of Ernakulam, wherein he was ordinarily residing and indulging in criminal activities as a member of a gang resulting in disruption of public order and peace. Devendra Jain also considered a similar provision and held: “In the circumstances we are of the view that subsection (3) of Section 3 of the Act authorises the imposition of unreasonable restrictions insofar as it requires any person to reside or remain in such places selected by the District Magistrate.” The decisions do not aid the petitioner to challenge the provision and we reject the contention. WPC 10194/2018 -11- 11. As to the procedural irregularities, the first objection raised by the petitioner is that there was no application of mind in the order passed by the Inspector General. A reading of the order indicates that all the records were produced before the Inspector General and only after considering each one of the crimes filed against the petitioner that the order directing restriction of his entry into Ernakulam District was passed. Hence, this objection would not lie. The next contention raised is that he was not supplied with the materials relied upon by the detaining authority while passing the impugned order. From the records produced by the prosecutor, it is clear that copies of all the records were furnished to the petitioner and his signatures are seen obtained on them. There is endorsement made by the petitioner to the effect that he has read and understood the contents of the documents. The petitioner himself has produced copies of most of the records that he has received along with the order. There is a feeble attempt made to argue that the bail order was not placed before the detaining authority and that it was not served in its entirety to the petitioner as seen from Ext.P9 (page WPC 10194/2018 -12- 29) and that many documents served were illegible. The bail order is seen to have been considered by the detaining authority. The bail order is one obtained by the petitioner and he cannot say that he should be served with the same. In any event, the operative portion of that order is produced along with Ext.P1, which is the copy served on the petitioner and produced by him in the writ petition. We also do not see any illegible document in Ext.P1. We garner support from ( 2006) 3 SCC 321 [Sunila Jain Vs. Union of India] to find that the petitioner has not at all been prejudiced by reason only of the entire order of bail obtained by the petitioner having not been served on him. Hence, the said contentions are without any basis and would not lie. 12. It is argued by the petitioner that one of the crimes, i.e. Crime No.1403/2013, was registered on 2.12.2013 while he was still a minor, and hence that crime could not be taken into consideration. Yet another contention taken up is that in Crime No.1807/2014 of the Kalady Police Station, this Court had on petition filed by the petitioner and the other co-accused, quashed the proceedings under Section 482 WPC 10194/2018 -13- of the Cr.P.C. Hence, that crime also should not be taken into consideration. Even if these contentions are accepted, there are still more than three crimes against the petitioner, which would be sufficient to attract the provisions of declaring him as a 'known rowdy' and these facts are all discussed in the detention order passed by the authority. Hence, this objection would not hold good. 13. Yet another contention taken up by the petitioner is that while granting bail in Crime No.1060/2017 of Angamali Police Station, this Court had imposed certain conditions, one of which was restricting his entry into Ernakulam District for a period of two months. It is contended that the detaining authority while passing the order did not consider this condition imposed in the bail order. It is true that the detaining authority has not discussed the sufficiency of the restriction imposed in the bail order but the fact regarding grant of bail was noticed and necessarily the order was passed subsequent to the consideration of these facts. The authority was of the opinion that despite the restriction issued by the Court to keep the accused outside the jurisdiction of WPC 10194/2018 -14- Ernakulam, the time for which such order was effective was not sufficient. The impugned order also reserves the right of the petitioner to approach the rural police chief with a written request for permission to enter the district in case of any contingencies, like attending marriage or death of near relatives or in case he requires medical treatment for himself. It is to be understood that this is not a case where a detention order has been passed under KAAPA. It is only an order restricting the petitioner's entry into Ernakulam Sessions Division where he is involved in six crimes. Even this Court while sitting on bail jurisdiction, had deemed it appropriate to impose restrictions on the petitioner entering Ernakulam District for two months, looking at the one crime he was involved in. In the impugned order, the period of the restriction was for a longer period of one year considering the gravity of the fact regarding the number of crimes that the petitioner is involved in. That period too has been reduced to six months by Ext.P2 order. We are, therefore, of the considered opinion that non-consideration of the condition imposed WPC 10194/2018 -15- in granting bail by the authority is not fatal to the impugned restrain order. 14. It is also contended for the petitioner that most of the crimes are settled between the parties and therefore, those should not have been considered. It is the registration of crime against the subject which is pertinent. The fact that he has settled the cases will not in any way weigh in his favour. A Full Bench of this Court in 2017 (3) KHC 517 [Stenny Aleyamma Saju v. State of Kerala and Others] held as thus: “So the realm occupied by the order of 'preventive detention' is much on different pedestal than the field occupied by the 'punitive detention'. This being the position, it cannot be said that unless the investigation is completed and the charge sheet is submitted by the Police / Investigating Officer, the power and procedure under S.3 of the KAAPA cannot be pressed into service. This otherwise will frustrate the purpose of the legislation, which definitely is not the intention of the law makers.” 15. A Division Bench of this Court in 2015(4) KLT 942 [Jayalekshmi v. State of Kerala] has in para 10 of the judgment, held thus: “10. ‘Known rowdy’ is defined under S.2(p) of the KAAPA. A person can be classified as ‘known rowdy’ if any of the three requirements in sub-clauses (i), (ii) or (iii) is satisfied. Sub-clause (iii) would be attracted if the person concerned is WPC 10194/2018 -16- found, on investigation or enquiry by a competent Police Officer or other authority, on complaints initiated by persons other than Police Officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in Clause (t) of S.2. Even cases where final reports were not filed could be taken note of for the purpose of considering the applicability of sub-clause (iii) of Clause (p) of S.2. If so, the documents available for consideration would be the First Information Statement, First Information Report and the statements recorded under S.161 CrPC. In arriving at the subjective satisfaction, the detaining authority is expected to consider whether the person concerned had indulged in an activity which attracts sub-clause (iii) of Clause (p) of S.2. For that purpose, there is no impediment in perusing the statements of witnesses recorded under S.161 CrPC. The statements recorded under S.161 CrPC could be perused to find out whether the person concerned was found, on investigation or enquiry by a competent Police Officer, to have committed any offence mentioned in sub-clause (iii) of Clause (p) of S.2 of KAAPA. In other words, the statement under S.161 CrPC can be perused by the detaining authority to ensure that the ingredients of the definition of ‘known rowdy’ under Clause (p) of S.2 are available on record. S.7(2) of the KAAPA provides what all documents should be furnished to the detenu after his arrest.” 16. We do not find any breach of right of the petitioner under the Constitution in imposing such restriction which is only for a period of six months. Nor is there a procedural violation vitiating the order passed. Hence, the writ petition is not sustainable. WPC 10194/2018 -17- The intention behind such restriction is to prevent the petitioner from getting involved in such criminal activities. We do not find any reason to interfere with the restriction imposed on the petitioner and the Writ Petition is only to be dismissed and we do so. No order as to costs. Sd/K.VINOD CHANDRAN JUDGE Sd/ASHOK MENON JUDGE ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1 COPY OF THE ANNEXURES OF ORDER UNDER SECTION 15 OF KAAPA. EXT.P2 COPY OF ORDER NO.22/2017/KAAPA DATED 11.12.2017.** ## **//TRUE COPY//** jg **PS TO JUDGE.**