Shihab K P. v. State of Kerala and others

``` 2025:KER:31020 ``` **==> picture [58 x 58] intentionally omitted <==** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN ``` ``` THURSDAY, THE 10[TH] DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 ``` ``` WP(CRL.) NO. 140 OF 2025 ``` ## **`PETITIONER:`** ``` SHIHAB K P., AGED 28 YEARS S/O SHAJAHAN, KANHIRAMPARA HOUSE, KOOLIKKAL, MAMPAD POST, MALAPPURAM DISTRICT., PIN - 676542 ``` ``` BY ADVS. P.SAMSUDIN JASNEED JAMAL LIRA A.B. DEVIKA E.D. ABIN RASHID ``` ## **`RESPONDENTS:`** ``` 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001 ``` ``` 2 THE STATION HOUSE OFFICER NILAMBUR NILAMBUR POLICE STATION, NILAMBUR P.O., MALAPPURAM DISTRICT., PIN - 679329 ``` ``` 3 THE DEPUTY INSPECTOR GENERAL OF POLICE THRISSUR RANGE. THRISSUR DISTRICT., PIN - 680001 ``` - **`4 THE DISTRICT POLICE CHIEF MALAPPURAM, POLICE HEAD QUARTERS, MALAPPURAM DISTRICT., PIN - 676505 BY ADVS.`** ``` SRI. K.A. ANAS, GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 27.03.2025, THE COURT ON 10.04.2025 DELIVERED THE FOLLOWING: ``` :2: WP(C) No.140/2025 ``` 2025:KER:31020 ``` **==> picture [58 x 58] intentionally omitted <==** ## **JUDGMENT** ## **Jobin Sebastian, J.** This is a writ petition filed under Article 226 of the Constitution of India challenging Ext.P2 order of externment dated 26.11.2024 passed against the petitioner under Section 15(1)(a) r/w 15(5) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [KAA(P) Act for the sake of brevity]. 2. By the said order, the petitioner was interdicted from entering the jurisdictional limits of Malappuram District, for one year from the date of the receipt of the order. However, after considering the representation submitted by the externee, the Advisory Board modified the said order, and the period of externment was reduced to six months from the date of the service of the impugned order and it is further directed that after the expiry of the period of six months of externment, the petitioner shall appear before the Deputy Superintendent of Police, Nilambur, on every Sundays, between 10 a.m. and 1.00 p.m. for the remaining period of three months. 3. The records available before us reveal that it was after considering the recurrent involvement of the petitioner in criminal cases, the District Police Chief, Malappuram submitted a proposal for the initiation :3: WP(C) No.140/2025 ``` 2025:KER:31020 ``` **==> picture [58 x 58] intentionally omitted <==** of proceedings against the petitioner, under Section 15(1) (a) r/w 15(5) of the KAA(P) Act, 2007 before the authorised officer, the Deputy Inspector General of Police, Thrissur Range. For initiation of proceedings, the petitioner has been classified as a “known goonda” as defined under Section 2(o)(i) r/w 2(j) of the KAA(P) Act, 2007. 4. For passing the order of externment, the authorities reckoned 4 cases in which the petitioner was involved. The details of the said cases are as follows: |**Sl.**<br>**No.**|**Crime No.**|<br>**Police Station**|**Sections involved**|**Date of**<br>**occurrence**|**Status of**<br>**case**| |---|---|---|---|---|---| |1|934/2022|Nilambur|379 IPC and 20 r/w 23 of<br>KPRB and RRS Act.|9.12.2022|Convicted| |2|111/2022|Nilambur|379 IPC and 20r/w 23 of<br>KPRB and RRS Act.|16.02.2022|Pending<br>trial| |3|1431/2023|Nilambur|379 IPC and 20 r/w 23,12<br>of KPRB and RRS Act.|10.12.2023|Pending<br>trial| |4|1100/2024|Nilambur|303(2) BNS and section<br>20,23 ofKPRB andRRS<br>Act and section 56,196<br>r/w 146 of MV Act.|29.8.2024|Pending<br>trial| 5. Heard Sri.Jasneed Jamal, the learned counsel appearing for the petitioner and Sri. K.A. Anas, the learned Government Pleader. 6. On perusal of the records it is gatherable that the last prejudicial activity considered by the Superintendent of Police, Malappuram :4: WP(C) No.140/2025 ``` 2025:KER:31020 ``` **==> picture [58 x 58] intentionally omitted <==** to moot the proposal for initiation of proceedings under the KAA(P) Act is crime No.1100/2024 of Nilambur Police Station registered against the petitioner alleging commission of offences punishable under Sections 303(2) BNS and 20 and 23 of Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The last prejudicial activity was committed on 29.08.2024. The petitioner was arrested in this case on 02.09.2024 and released on bail on 04.09.2024. Records further reveal that, after his release from jail, it was on 24.10.2024, the District Police Chief had submitted a proposal for initiation of proceedings under the KAA(P)Act against the petitioner. Thereafter, the jurisdictional authority issued a notice on 05.11.2024 calling upon the petitioner to show cause why an order of externment shall not be passed against him. He was also directed to appear in person for a personal hearing on 19.11.2024. Accordingly, the petitioner appeared before the jurisdictional authority on 19.11.2024. It was after considering his written objection and submissions, the impugned order of externment was passed on 26.11.2024. 7. The sequence of events narrated above reveals that there is no inordinate delay in passing the impugned order. Moreover, an externment order under the KAA(P) Act is having a significant bearing on the personal as well as fundamental rights of an individual. Therefore, :5: WP(C) No.140/2025 ``` 2025:KER:31020 ``` **==> picture [58 x 58] intentionally omitted <==** some minimum time is required to collect the details of the cases in which the petitioner is involved and to comply with the procedural formalities. Therefore, we are of the view that it could not be said that the live link between the last prejudicial activity and the purpose of the impugned order is snapped. Moreover, unlike in the case of an order of detention passed under Section 3 of KAA(P) Act, even if some delay has been occured in passing an order of externment, the same has no serious bearing, as the consequences of both the orders are different. Because an order of detention is a grave deprivation of the personal liberty of the person detained. We are cognizant that Section 15 also visits the person concerned with an intrusion to his personal liberty within the limit of Article 21 especially when the said order restrains a citizen from his right to travel in any part of India. However, when a detention order under Section 3 is compared with an order of externment passed under Section 15(1) of KAA(P) Act, the latter visits a person with lesser deprivation of liberty. Therefore, the nature of proceedings under Section 3 and Section 15 are inherently different. In this regard, we are fortified by the decision in **Stalin C.V. v. State of Kerala and others** [2011 (1) KHC 852]. 8. One of the main contentions raised by the learned counsel for the petitioner is that the order of externment impugned by way of this writ petition was passed by the jurisdictional authority while another order :6: WP(C) No.140/2025 ``` 2025:KER:31020 ``` **==> picture [58 x 58] intentionally omitted <==** under Section 15(1) of KAA(P) Act requiring him to appear before the Sub Divisional Police Officer, Nilambur on every Saturday between 11 a.m. and 3 p.m. for six months was subsisting against the petitioner. According to the counsel, an order of externment under section 15(5) of KAA(P) Act can be passed against a person only if the earlier order passed under Section 15 (1) is seized to have an effect and after such cessation, he has again involved in an offence of the nature described in Section 2(o) or 2(p) at least in one instance. The learned counsel would submit that the earlier order restricting the movement of the petitioner was passed against the petitioner on 21.03.2024 and the said order ceases to have effect only on 26.09.2024. Therefore, the subsequent order of externment passed with respect to an offence allegedly committed on 29.08.2024, that too before the cessation of the earlier order will not sustain. While considering the said contention it is necessary to refer the provision contained under Section 15(5) of the KAA(P) Act. 15(5); if an order issued under sub section 1 above has seized 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 given under Section 2(o) or 2(p) and if after such cessation, he has again involved in an offence of the nature described in Section 2(o) or 2(p) at least in one instance. :7: WP(C) No.140/2025 ``` 2025:KER:31020 ``` **==> picture [58 x 58] intentionally omitted <==** 9. In the case at hand, it is an admitted fact that an order restricting the movement of the petitioner has been passed earlier against the petitioner and the order which is under challenge in this writ petition is passed subsequently. The earlier order under Section 15(1) of KAA(P) Act was passed on 21.03.2024 and in terms of the said order, the same will cease to have effect only on 26.09.2024. Anyhow, the subsequent order of externment was passed on 26.11.2024. Therefore, it cannot be said that the said order of externment was passed before the earlier order had ceased to have effect. Anyhow, it is apparent that the offence which led to the passing of the externment order was committed by the petitioner on 29.08.2024, when the earlier order restricting the movement of the petitioner has not seized to have an effect. A plain reading of Section 15(5) of KAA(P) Act which we have extracted above clearly shows that a new order under Section 15(1) can be passed against the same person if he continues to be a person falling within the definition of ‘known rowdy’ or ‘known goonda’ as defined under Section 2(p) or 2(o) and if the order issued earlier under Section 15(1) has seized to have effect. Moreover, after the cessation, he should involve in an offence of the nature described under Section 2(o) or 2(p) of the KAA(P) Act at least in one instance. Therefore, the scheme of the act is that, in order to pass an order under Section 15(1) against a person who is already slapped with an order of :8: WP(C) No.140/2025 ``` 2025:KER:31020 ``` **==> picture [58 x 58] intentionally omitted <==** similar nature, he should commit an offence of the nature described in Section 2(o) or section 2(p) at least in one instance after the earlier order seized to have effect. In the case at hand, we have already found that the last prejudicial activity was not committed by the petitioner after the cessation of the effect of the earlier order, but while the earlier order was subsisting. In such circumstances, the subsequent order passed under Section 15(1) again against the same person will not be sustained. If at all, the respondents have any grievance regarding the repetition of the offence during the currency of the earlier order passed under Section 15(1), the respondent could have very well proceeded against the petitioner for violation of the order and the remedy was not to pass another order again. Resultantly, Ext.P2 order is set aside and the petition stands allowed. Sd/- ## **P.B. SURESH KUMAR** **JUDGE** Sd/- **JOBIN SEBASTIAN JUDGE** ncd WP(C) No.140/2025 :9: ``` 2025:KER:31020 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`APPENDIX OF WP(CRL.) 140/2025`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 TRUE COPY OF ORDER NO. B3-4011/2024/TSR DATED 21-03-2024 OF THE 3RD RESPONDENT ``` ``` Exhibit P2 TRUE COPY OF ORDER PASSED BY THE 3RD RESPONDENT U/S 15 (5) OF THE ACT VIDE ORDER NO. B3-19876/2024/TSR DATED 26-11-2024 ``` ``` Exhibit P3 TRUE COPY OF ORDER BY KAAPA ADVISORY BOARD IN OP229/2024 VIDE ORDER DATED 07/01/2025 ```