Sabinool @ Babu v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944** **WP(CRL.) NO.701 OF 2022** ## **PETITIONER:** **SABINOOL @ BABU AGED 38 YEARS S/O SAITHALAVI, ALUKKAL HOUSE, OTTUPURAM, ALATHIYOOR (P.O), TIRUR, MALAPPURAM DT. PIN: 676102.** **BY ADVS. T.K.AJITH KUMAR AISWARYA RAMESAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. PIN: 695001.** - **2 THE DEPUTY INSPECTOR GENERAL OF POLICE, THRISSUR RANGE, AYYANTHOL (PO), THRISSUR DISTRICT. PIN: 680003.** - **3 THE DISTRICT POLICE CHIEF, MALAPPURAM, UP HILL (PO), MALAPPURAM DT. PIN: 676505.** - **4 ADVISORY COMMITTEE, KERALA ANTISOCIAL ACTIVITIES (PREVENTION) ACT, 2007, VIVEKANANDA NAGAR, ELAMAKKARA (PO), KOCHI-6. REPRESENTED BY ITS SECRETARY.** ## **SRI.K.A ANAS - GOVERNMENT PLEADER** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON** **14.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(Crl.) No.701 of 2022 2 ## **ALEXANDER THOMAS & SOPHY THOMAS, JJ. ================================= W.P(Crl.) No.701 of 2022** **=================================** Dated this the 14[th] day of November, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** The prayers in the instant Writ Petition (Crl.) are as follows : - _“1. Call for the records leading up to Ext.P2order and quash the same by invoking powers of this Hon'ble Court under Article 226 of the Constitution of India holding that the petitioner is not a person coming within the term 'known goonda' or 'known rowdy' defined in the Kerala Antisocial Activities (Prevention) Act, 2007._ _2. Issue any other appropriate Writ, Order, or Direction as the case may be as this Hon'ble Court may deem fit and necessary in the interest of justice.”_ 2. Heard Sri.T.K.Ajithkumar, learned counsel appearing for the petitioner and Sri.K.A.Anas, learned Public Prosecutor appearing for the respondents. 3. The petitioner has instituted the above Writ Petition (Crl.), seeking for quashment of the impugned Ext.P-2 externment order dated 16.03.2022, issued by the Deputy Inspector General of Police, Thrissur Range, under Sec.15(1)(a) of the Kerala Anti-Social Activities (Prevention) Act [KAAPA], 2007, whereby he has been ordered not to enter the limits of Malappuram District, for a period of one year. W.P(Crl.) No.701 of 2022 3 4. In the instant case, Ext.P-1 show cause notice dated 04.03.2022 was issued by the 2[nd] respondent-Dy. Inspector General of Police, under Sec.15(1)(a) of the Act, directing the petitioner to show cause as to why an order of externment, as envisaged in Sec.15(2), shall not be passed, so as to direct that he shall not enter into Malappuram district for a period of one year. The petitioner was also invited for a personal hearing, as envisaged in Sec.15(1) of the Act. The 2[nd] respondent-DIG of Police has given opportunity of personal hearing to the petitioner on 15.03.2022. Thereafter, the 2[nd] respondent has passed the impugned Ext.P-2 order dated 16.03.2022, holding that the petitioner would satisfy the parameters of ' _known rowdy_ ', as per Sec.2(p)(iii) read with Sec.2(t) of the KAAP Act and that the 2[nd] respondent is satisfied that the petitioner is very likely to engage in further prejudicial anti-social activities. Therefore, it is necessary that an order of externment be passed, so as to direct him not to enter the territorial limits of Malappuram District, for a period of one year from the date of service of the said order. Ext.P-2 order dated 16.03.2022 was duly served on the petitioner on 22.03.2022. Thereafter, the petitioner has filed Ext.P-3 representation dated 30.05.2022, before the 4[th] respondent-Statutory Advisory Committee, claiming that the W.P(Crl.) No.701 of 2022 4 representation is be treated as a statutory appeal, in terms of Sec.15 (2) of the Act, etc. The said Ext.P-3 representation dated 30.05.2022 was received by the 4[th] respondent-Advisory Committee on 01.06.2022. The 4[th] respondent-Advisory Committee has passed the impugned Ext.P-4 order dated 20.06.2022, holding that the said appeal under Sec.15(2) is time barred, inasmuch as the said provision mandates that the appeal has to be filed before the 4[th] respondent as against the externment order, within 15 days from the date of service of the impugned order. Accordingly, the 4[th] respondent-Advisory Committee has rejected Ext.P-3 representation as time barred, in view of the delay of 55 days in preferring the said appeal. It is thereafter, that the petitioner has filed the instant Writ Petition (Crl.) before this Court on 04.08.2022, seeking for quashment of the impugned Ext.P-2 externment order & Ext.P-4 appellate order. It is common ground that Ext.P-2 order has been served on the petitioner on 22.03.2022 and so, the said period of externment, as per Ext.P-2, will be in operation till 21.03.2023, by virtue of the mandate contained in Sec.15(1). ## 5. Sec.15 of the Act provides as follows : > _**“Sec.15. Power to make orders restricting the movements of certain persons.** - (1) The District Magistrate or a police officer 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_ W.P(Crl.) No.701 of 2022 5 _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 in so far 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 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 in 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 (o) or section 2 (p) and if, after such cessation, he has again involved, in an offence of the nature described in section 2 (o) or section 2 (p) at least in one instance.”_ 6. We have heard both sides _in extenso_ . It is common ground that Ext.P-1 show cause notice and the impugned Ext.P-2 order, have taken into account six criminal cases, in which the petitioner has been arrayed as an accused. The details of the said six criminal cases are as follows : W.P(Crl.) No.701 of 2022 6 - 1 Crime No.426/2016 of Tirur Police Station u/s 143, 147, 148, 324 r.w.s 149 IPC - 2 Crime No.618/2017 of Tirur Police Station u/s 120(B), 109, 118, 143, 147, 148, 341, 326, 302, 201, 212 IPC & Sec.27(A) of Arms Act - 3 Crime No.1007/2019 of Tirur Police Station u/s 143, 147, 148, 188, 283, 353, 332 r.w.s 149 IPC - 4 Crime No.637/2021 of Tirur Police Station u/s 143, 147, 341, 323, 363, 395, 506 r.w.s 149 IPC - 5 Crime No.1183/2021 of Tirur Police Station u/s 120(B), 143, 147, 148, 341, 323, 324, 326, 307 r.w.s 149 IPC - 6 Crime No.108/2019 of Kuttippuram Police Station u/s 143, 147, 148, 341, 323, 324, 326, 427, 452 r.w.s 149 IPC. 7. It is the specific case of the respondents that there does not appear to be any serious dispute that the investigation in the first four crimes have been duly completed and final report/charge sheet have been filed before the respective jurisdictional courts concerned, even as on the date of issuance of Ext.P-1 show cause notice, whereas the 5[th] & 6[th] crimes are pending investigation. ## 8. Sec.2(t) defines " _rowdy_ " as follows : - _**“Sec.2. Definitions.** - In this Act, unless the context otherwise requires,-_ .............. .............. ................ ................ ............... .................. - _(t) "rowdy" means and includes a person who either by himself or_ W.P(Crl.) No.701 of 2022 7 _as a member of a gang commits or attempts to commit, or abets the commission of any offences under sections 153A and 153B of Chapter VIII and Chapters XV, XVI, XVII, & XXII of the Indian Penal Code, 1860 (Central Act 45 of 1860), or any offences under the provisions of the Arms Act, 1959 (Central Act 54 of 1959), or the Explosives Substances Act, 1908 (Central Act 6 of 1908), -_ - _(i) punishable with five or more years of imprisonment of any type, or;_ - _(ii) with less than five years of imprisonment of any type, except those punishable with less than one year of imprisonment; or_ - _(iii) such offences under any other law for the time being in force, coming under item (i) or (ii), as may be notified by the Government, from time to time._ ## 9. Sec.2(p) defines " _known rowdy_ " as follows : _**“Sec.2. Definitions.** - In this Act, unless the context otherwise requires,-_ .............. .............. ................ ................ ............... .................. _(p) "known rowdy" means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,-_ - _(i) made guilty, by a competent court at least once for an offence of the nature under item (i) of clause (t) of section 2 or any offence notified as such under the said clause; or_ - _(ii) made guilty, by a competent court at least twice for any offence of the nature mentioned under item (ii) of clause (t) of section 2 or any offence notified as such under the said clause; or_ - _(iii) 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 section 2:_ _Provided that any offence committed by a person,-_ - _(i) by virtue of his involvement as a member of the family or a close relative of the family in an incident which took place by reason of a family dispute or quarrel involving family members of close relatives on either side; or_ W.P(Crl.) No.701 of 2022 8 - _(ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours; or_ - _(iii) by virtue of his involvement as an employee of any establishment in an incident which occurred in connection with a dispute between himself and the establishment with regard to the conditions of service; or_ - _(iv) as a member of the student community in a recognised educational institution, by virtue of his involvement, merely by his presence but without any overt act constituting the offence mentioned in clause (t) of section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of students of the institution in that particular incident; or_ - _(v) as a member of a recognised political party, by virtue of his involvement merely by his presence, but without any overt act constituting the offence mentioned in clause (t) of section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of the workers of that party in an agitation or protest or programme organised by the party with prior information given to the police officer or magistrate having jurisdiction; or_ - _(vi) by virtue of his involvement in a criminal act committed by him before he had attained the age of eighteen years,shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy;”_ 10. In view of the abovesaid factual aspects mentioned hereinabove regarding the pendency of the six criminal cases, there cannot be any serious dispute that the petitioner, being an accused in the abovesaid cases, would satisfy the definitional parameters of " _known rowdy_ ", as per Sec.2(p) (iii) r.w.Sec.2(t) of the Act. 11. The main contentions urged by Sri.T.K.Ajithkumar, learned counsel appearing for the petitioner are as follows : W.P(Crl.) No.701 of 2022 9 (i) The first contention raised by the petitioner is that the livelink between the last prejudicial activity and the purposes of such externment order, as per Ext.P-2, has been vitally snapped, inasmuch as the last prejudicial activity in this case is on 07.10.2021 and externment order, as per Ext.P-2 has been issued only on 16.03.2022, etc. (ii) The second ground is that the 4[th] respondent-Advisory Committee/Appellate Authority has gone wrong in rejecting Ext.P-3 appeal dated 30.05.2022, as per Ext.P-4 order dated 20.06.2022, on the ground that the same is time barred, as there is a delay of 55 days in preferring the same. That, an order of externment is an extreme measure affecting the personal liberty of the affected person, like the petitioner and that therefore, there has been an alternate statutory efficacious remedy to challenge the same. Further that, the 4[th] respondent-statutory Advisory Committee, is headed by a former Judge of this Court and the said body should be deemed to have the power to condone the delay, even if it is assumed that Ext.P-3 appeal was filed beyond the prescribed period of 15 days, etc. (iii) The third ground urged by the petitioner is that the police authorities, including R-2 & R-3, have falsely implicated the petitioner in the aforesaid six cases and that, it is without any independent W.P(Crl.) No.701 of 2022 10 application of mind that the 2[nd] respondent has issued Ext.P-1 show cause notice and Ext.P-2 externment order, etc. Further that, the petitioner has not been convicted in any of these six cases and in two cases, the final report is not even filed, etc. 12. The abovesaid contentions of the petitioner have been strongly opposed by the learned Prosecutor. The learned Prosecutor has pointed out that the last prejudicial activity in this case (date of registration of the sixth crime), is on 07.10.2021, the petitioner was arrested in the said last case on 20.10.2021. Thereafter, he was released on bail in that case on 07.01.2022. After his release on bail, the sponsoring authority had submitted a report dated 26.02.2022, pointing out to the 2[nd] respondent-competent authority that, action in terms of Sec.15(1) could be contemplated. Thereafter, the 2[nd] respondent had issued Ext.P-1 show cause notice to the petitioner on 04.03.2022. Personal hearing was conducted on 15.03.2022 and that thereafter, Ext.P-2 externment order has been passed on 16.03.2022. Hence, it is pointed out by the learned Prosecutor that, though the last prejudicial activity was on 07.10.2021, the petitioner was released on bail in that case only on 07.01.2022 and thereafter, the sponsoring authority has given the report on 04.03.2022 and immediate action has been taken, in W.P(Crl.) No.701 of 2022 11 terms of Ext.P-1 show cause notice dated 04.03.2022 and Ext.P-2 externment order on 16.03.2022, etc. Hence, it is contented by the learned Prosecutor that, in the facts of the case, there is livelink between the last prejudicial activity and the purposes of externment order. 13. As regards the first ground, we have bestowed our anxious consideration on the rival pleas. As regards the first contention, it is to be noted that the impugned Ext.P-2 externment order has been issued on 16.03.2022 and the same has been duly served on the petitioner on 22.03.2022. After hearing both sides, it is true that the last prejudicial activity in this case is on 07.10.2021 and the petitioner was arrested in that case on 20.10.2021 and was released on bail only on 07.01.2022. Thereafter, on being aware that the petitioner has been released on bail in that case, the sponsoring authority has issued the report on 26.02.2022, calling upon the 2[nd] respondent, to consider action, in terms of Sec.15 (1). After due consideration, the 2[nd] respondent has issued Ext.P-1 show cause notice on 04.03.2022, which has led to the impugned Ext.P-2 externment order on 16.03.2022. Hence, taking into consideration these factual aspects, especially the time gap between 07.01.2022 (date of release on bail) and the subsequent developments, we are of the view that the contention of the petitioner, that the livelink W.P(Crl.) No.701 of 2022 12 between the last prejudicial activity and the purpose of externment order has been snapped, etc., is not legally tenable. 14. Sec.15(2) of the Act specifically mandates that a person aggrieved by an order issued under sub-section (1) may represent before the Advisory Board within 15 days of the date of service of the order and the Board, on receipt of such representation, shall consider the same, and after enquiring into the facts and circumstances, in such manner as it may deem fit, shall, within thirty days from the date of receipt of the said representation, annul, amend or confirm the order, either in part or in full. In other words, the Legislature has placed an embargo that such representation should necessarily be filed by the aggrieved person, within 15 days from the date of service of the impugned order of externment. The Legislature has not thought it fit to make any provision in the said Act, for empowering the Advisory Board, to condone the delay in filing the representation, in terms of Sec.15(2). Since the said appellate provision is created by the Statute and explicitly mandates that the same will have to be preferred within 15 days from the date of service of the order and as the said statutory provision does not provide for any provision for condoning the delay, it is trite that the general provision to condone the delay, in terms of Sec.5 of the W.P(Crl.) No.701 of 2022 13 Limitation Act, will not apply. So, the 4[th] respondent-Advisory Board has no jurisdiction to condone the delay. The matter in issue is no longer _res integra_ and is covered by various decisions of a Division Bench of this Court as in _**Biju Aduppukallingal** v._ _**Advisory Board, KAPPA, Kochi & Ors.**_ [2014 KHC 378] = [2014 (3) KLT 69] = [ILR 2014 (4) Ker. 363], wherein it has been held, in para 15 thereof, that the Advisory Board has no power to condone the delay in filing the representation beyond the prescribed period of 15 days from the date of service of the order. Further that, even if the representation under Sec.15(2) is rejected as time barred, the same will not preclude the aggrieved party from approaching this Court, by filing a petition under Article 226 of the Constitution of India, to challenge the externment order passed under Sec.15(1). In other words, the stand taken by the 4[th] respondent-Advisory Board, in Ext.P-4 order dated 20.06.2022, rejecting Ext.P-3 representation as belated, is not amenable for interdiction at the hands of this Court. So, the second contention of the petitioner stands thus repelled. 15. As regards the third contention, it has to be noted that in terms of the mandatory provisions contained in Sec.15(1) as well as the case law on the subject, a person can be proceeded under Sec.15(1), only if he satisfies the definitional parameters of either “ _known rowdy_ ”, as W.P(Crl.) No.701 of 2022 14 per Sec.2(t) of the Act or alternatively satisfies the definition of “ _known goonda_ ”, as per Sec.2(o) of the KAAP Act. In the instant case, there is no serious dispute that, in view of the abovesaid six criminal cases, the petitioner would satisfy the definition of “known rowdy”, as per Sec.2(p)(iii) read with Sec.2(t) of the Act. Further, it is also well-settled by the decision of this Court, including the one rendered by the Full Bench of this Court, in cases as in _**Stenny Aleyamma Saju** v._ _**State of Kerala**_ [2017 (3) KLT 676 (FB)], in para 23 thereof, that submission of final report/charge sheet, in terms of Sec.173(2) of the Cr.P.C, is not a mandatory pre-requisite to invoke the power under Sec.3 of the KAAP Act. The Full Bench overruled the contra views taken in that regard by certain other Bench decisions. In other words, to hold as to whether the party concerned will fulfill the definition of ' _known rowdy_ ' or ' _known goonda_ ', as per the abovesaid provisions of the Act, submission of final report/charge sheet in terms of Sec.173(2) of the Cr.P.C, is not a mandatory pre-requisite. Even in the case of investigation, the same can be duly taken into account. In the instant case, it is common ground that the investigation has been duly completed and finalized in the case of the first four out of the six cases, as on the date of issuance of Ext.P-1 show cause notice dated W.P(Crl.) No.701 of 2022 15 04.03.2022. Only in the last two cases, i.e. the fifth and the sixth case; the investigation is still pending. The specific case of the petitioner is that, he has been falsely implicated in the above six cases and that therefore, the invocation of the power under Sec.15(3), is vitiated, etc. In the instant case, the crimes have been instituted, after registration of the FIR, in terms of Sec.154 of the Cr.P.C and thereafter, investigation has been completed in four out of the six cases. Minimum three cases may suffice to bring a party within the definitional parameters of Sec.2(p)(iii) of the KAAP Act, for fulfilling the definition of ' _known rowdy_ '. The allegation that the petitioner has been falsely arrayed as an accused in these cases, cannot be a ground for interference in judicial review by itself. 16. Moreover, from the pleadings and materials, it appears that some of the offences alleged in the second case are those punishable under Secs.302, 326 of the IPC, etc. Offences as per Secs.363 & 395, etc., are some of the offences included in the fourth case. Offences as per Secs.324, 326 & 307 of the IPC, are some of the offences mentioned in the fifth case. Offences as per Secs.324, 326, 452, etc., of the IPC are some of the offences covered by the sixth case. Offence as per Sec.324 of the IPC is one of the offences covered by the first case, etc. Going by the W.P(Crl.) No.701 of 2022 16 allegations in these cases, we are not in a position to say that the allegations are merely trivial or of no significance or to an extent that the Court can hold that there has been arbitrary and total non-application of mind on the part of the 2[nd] respondent in taking into account those cases, as the material basis for Ext.P-1 show cause notice and Ext.P-2 externment order. In the light of these aspects, the second contention of the petitioner would also fail. 17. The last plea made by the learned counsel for the petitioner is that the period of one year, contemplated in Sec.15(1), is not the minimum period, but only the maximum period of externment and further that, both the Government and the 2[nd] respondent are empowered under Sec.15(3), to annul, amend or confirm the order, either in part or in full. Further that, this is the first proceedings initiated by the petitioner under the KAAP Act and further that, the respondents have no case that the petitioner has indulged in any anti-social activities, as per Sec.2(a), after he has been served with the externment order, as per Ext.P-2 dated 16.03.2022 and that therefore, this Court may direct the respondents to prematurely cancel Ext.P-2 order, as more than eight months have already elapsed. 18. The said plea is opposed by the learned Prosecutor. After W.P(Crl.) No.701 of 2022 17 hearing both sides, we are of the view that since one year externment is legally permissible, this Court is not in a position to order reduction of the one year period ordered as per Ext.P-2. 19. We make it clear that nothing in this judgment, by itself, will preclude the competent authorities concerned, be it the Government or the 2[nd] respondent, to consider any action, in accordance with Sec.15(3), if they would deem fit and proper. 20. The upshot of the above discussion is that no valid grounds have been made out by the petitioner for interfering with Ext.P-2 externment order. No other orders and directions are called for. With these observations and directions, the above W.P(Crl.) will stand dismissed. **Sd/-** **ALEXANDER THOMAS** **JUDGE** **Sd/-** **SOPHY THOMAS JUDGE** vgd W.P(Crl.) No.701 of 2022 18 ## **APPENDIX OF WP(CRL.) 701/2022** ## **PETITIONER'S EXHIBITS** |**EXHIBIT P1**|**TRUE COPY OF THE SHAW CAUSE NOTICE DATED**| |---|---| ||**04.03.2022.**| |**EXHIBIT P2**|**TRUE COPY OF THE ORDER DATED 16.03.2022**| ||**PASSED BY THE 2ND RESPONDENT.**| |**EXHIBIT P3**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**30.5.2022 SUBMITTED BEFORE THE 4TH**| ||**RESPONDENT.**| |**EXHIBIT P4**|**TRUE COPY OF THE ORDER DATED 20.06.2022**| ||**PASSED BY THE 4TH RESPONDENT.**|