High Court of KeralaDivision Bench2014-09-26Writ petition allowed in part; Ext.P1 supersede...

Muhammed Naseem v. Inspector General of Police, Kannur Range

Case / Petition Number:WP(C).No. 17854 of 2014 (F)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thottathil B. Radhakrishnan
Babu Mathew P. Joseph
Judgment Date: 2014-09-26
Court Decision / Holding: Ext.P1 externment order is superseded. The petitioner shall report to the Station House Officer, Valapattanam Police Station, on every Wednesday between 12 noon and 1 p.m., starting from 1 October 2014 and continuing until 28 January 2015. This reporting obligation is in addition to any applicable bail conditions, and the officer may arrange surveillance if deemed necessary. The four criminal cases and their investigations shall proceed under the supervision of the prosecutor and the jurisdictional court.
Final Disposition: Writ petition allowed in part; Ext.P1 superseded, with conditional reporting and surveillance measures imposed on the petitioner.

Parties to the Case

Appellants / Petitioners

Muhammed Naseem, aged 21 years, S/o Naseer, Mootheth House, Chungam Pappinisseri AMSOM Desom, Kannur District

Respondents

Inspector General of Police, Kannur Range, Kannur-670001

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Rajesh Sukumaran

Counsels for Respondents

• Sr. Govt. Pleader Kochumol Koduvath

Case Synopsis & Summary

This writ petition under Article 226 of the Constitution challenges an externment order issued under Section 15(1) KAAPA (2007) and served on the petitioner on 29 April 2014. The petitioner, Muhammad Naseem, aged 21, is described as a known rowdy under KAAPA’s definition in Section 2(p)(iii) after investigation in four offences listed under Section 2(t). Reports under Section 173 Cr.P.C. have been laid before the jurisdictional criminal court in those cases, though bail orders in those matters are not produced here. The court notes that the externment order does not contain a finding on whether proceedings under Section 107 Cr.P.C. were sufficient to address the risk posed by the petitioner, and relies on Abidha Beevi v. State of Kerala to suggest that the lack of such a finding warrants scrutiny. While ensuring that the petitioner’s criminal cases proceed under the prosecutor’s supervision and judicial oversight, the court endorses a limited restraint within the Kannur district for up to one year under Section 51A KAAPA, balancing liberty with public safety. Citing Ashraf v. IGP, the court emphasises the constitutional competence to mould relief under Article 226 to achieve situational justice and public order, rather than absolute exclusion. Accordingly Ext.P1 externment is superseded and the petitioner is directed to report to the Station House Officer, Valapattanam Police Station, on Wednesdays between 12 noon and 1 p.m., commencing 1 October 2014 and continuing till 28 January 2015, with surveillance as needed.

Provisions of Law Cited

Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 15(1)Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 2(t)Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 2(p)(iii)Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 51ACr.P.C. - Section 107Cr.P.C. - Section 173Constitution of India - Article 226

Legal Doctrines & Maxims

Constitutional power of High Court under Article 226 to mould reliefs as situation demands
Balancing liberty with public order/public safety
Situational justice as a judicial approach

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the externment order under KAAPA 2007 was issued without adequate consideration of the pending Section 107 Cr.P.C. proceedings and without a sound basis to restrict his liberty, particularly as he is only 21 and has dependents. He asserts that the four lodged reports under Section 173 Cr.P.C. do not justify such sweeping restraint and that the court should allow the criminal proceedings to continue under judicial oversight. He seeks setting aside Ext.P1 or, in the alternative, a limited relief that preserves liberty while protecting public safety.

Contentions of Respondents

The State, represented by the Public Prosecutor, argues that the petitioner is a known rowdy under KAAPA and has four criminal cases in which 173 Cr.P.C. reports have been filed. It contends that an externment order is warranted to prevent public disorder and ensure safety, and that the Court should permit a controlled restraint, at least within Kannur district, with possible monitoring under Section 51A KAAPA and existing bail conditions.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Abidha Beevi v. State of Kerala	2013 (1) KLT 286	Positive	The ratio in Abidha Beevi was invoked to highlight that the status of Section 107 Cr.P.C proceedings and related findings must be considered; failure to address sufficiency can justify judicial interference.
Ashraf v. Inspector General of Police	2014 (3) KLT 722	Positive	Used to justify that Article 226 power can mould reliefs for situational justice and balance liberty against public order; supports the nature of the relief fashioned by the High Court.
Ashraf v. Inspector General of Police	2014 (3) KHC 695 (DB)	Positive	Same doctrine in a Division Bench decision reinforcing the approach to balancing liberty and public order under Article 226.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 26TH DAY OF SEPTEMBER 2014/4TH ASWINA, 1936 WP(C).No. 17854 of 2014 (F) --------------------------------- PETITIONER: --------------- MUHAMMED NASEEM, AGED 21 YEARS S/O NASEER, MOOTHETH HOUSE, CHUNGAM PAPPINISSERRI AMSOM DESOM, KANNUR DISTRICT. BY ADV. SRI.K.RAJESH SUKUMARAN RESPONDENT: ---------------- INSPECTOR GENERAL OF POLICE KANNUR RANGE, KANNUR-670001. SR. GOVT. PLEADER SMT.KOCHUMOL KODUVATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17854 of 2014 (F) --------------------------------- ## APPENDIX PETITIONER'S EXHIBITS ---------------------------- EXHIBIT P1: TRUE COPY OF THE ORDER DATED 22.4.2014 IN A3/18852/2013 K.R PASSED BY THE RESPONDENT. EXHIBIT P2: COPY OF THE REPRESENTATION/PETITION IN OP 47/2014 FILED BEFORE THE ADVISORY BOARD. EXHIBIT P3: TRUE COPY OF THE ORDER DATED 24.6.2014 IN OP 47/2014 OF THE ADVISORY BOARD UNDER THE KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT 2007. ................ ## **THOTTATHIL B. RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ.** -----------------------------------------------W. P. (C) No.17854 of 2014 -----------------------------------------------Dated this the 26[th] day of September, 2014 ## **JUDGMENT** ## **Thottathil B. Radhakrishnan, J.** This writ petition under Article 226 of the Constitution of India is instituted seeking that an order issued under Section 15(1) of Kerala Anti-Social Activities (Prevention) Act, 2007, for short, “KAAPA”, be set aside. The impugned Ext.P1 externment order passed on 22/04/2014 served was on the petitioner on 29/04/2014. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. Going by the writ petition and the affidavit therewith, the petitioner is aged 21 years. Though he says that he has to take care of his mother and his younger sister as his father married another woman and is living elsewhere, the fact remains that he is found, on W. P. (C) No.17854 of 2014 -2- investigation by the competent police officer, of having committed offences enumerated in Section 2(t) of KAAPA in four separate instances. Obviously therefore, he falls within the definition of “known rowdy” in Section 2(p)(iii) of that Act. 4. Reports under Section 173 Cr.P.C have been laid before the jurisdictional criminal court in all the aforenoted four criminal cases. The petitioner stands enlarged by that court through different bail orders, it is submitted. However, we are unable to see those bail orders since they are not made available here. 5. But, the impugned order discloses that proceeding under Section 107 Cr.P.C was initiated against the petitioner and that it did not conclude either way. May be that, the authorities relevant for that provision are of the view that such proceeding may be futile, in its ultimate analysis. But, we see that Ext.P1 does not contain any finding that the proceeding under Section 107 Cr.P.C is insufficient to deal with the petitioner. On the face of the non-consideration of W. P. (C) No.17854 of 2014 -3- the question as to whether proceeding under Section 107 Cr.P.C, which was already initiated, was sufficient or not, applying the ratio of the decision of this Court in **Abidha Beevi v. State of Kerala [2013 (1) KLT 286]** , the impugned Ext.P1 order may warrant interference. 6. At the same time, it has also to be ensured that the judicial process in the four criminal cases which have reached the stage of filing the report under Section 173 of Cr.P.C. has also to be permitted to be carried by the prosecutor and under the control of the jurisdictional judicial officer. 7. A control over the movements, whereabouts and availability of the petitioner is an absolute need in view of the public need to exclude him from indulging in anti-social activities and ensuring the safety of individuals and of properties - public and private. Hence, he can be subjected to controlled restrictions, rather than keep him exclusively out of the jurisdiction of the district of Kannur, that too, for the period of one year which is the maximum period for W. P. (C) No.17854 of 2014 -4- which such an order could have been issued under Section 51A of KAAPA. In view of what is aforesaid, we think that this is an appropriate case where the impugned Ext.P1 externment order calls for interference, though not in toto. We think it apposite to apply the ratio of **Ashraf v. Inspector General of Police [(2014 (3) KLT 722) & (2014 (3) KHC 695 (DB)]** which points out that the constitutional power of the High Court under Article 226 can be used to mould reliefs as situation demands and extension of such situational justice would only be in furtherance of balancing the liberty issue projected by the petitioner and the public interest in such issues, including the need to maintain law, order and public tranquility by prevention of crimes, as are sought to be obtained by the restrictive covenants of KAAPA. In the result, Ext.P1 is superseded in exercise of authority under Article 226 of the Constitution of India and it is ordered that the petitioner shall report to the Station House Officer of Valapattanam Police Station on all W. P. (C) No.17854 of 2014 -5- Wednesdays between 12 noon and 1.00 p.m. commencing from 1[st] of October, 2014. Such requirement to appear, shall be till and including 28/01/2015. This would be in addition to conditions, if any, imposed by the criminal courts in any bail orders which govern the petitioner. This shall be monitored appropriately by the Station House Officer, Valapattanam Police Station and that officer will have necessary authority to issue instructions for surveillance of the petitioner, if needed. The writ petition is ordered accordingly. Sd/- **THOTTATHIL B. RADHAKRISHNAN JUDGE** Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE W. P. (C) No.17854 of 2014 -6-