Shijas Shaji v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 7[TH] DAY OF JUNE 2023 / 17TH JYAISHTA, 1945 WP(CRL.) NO. 79 OF 2023** ## **PETITIONER:** **SHIJAS SHAJI, AGED 25 YEARS S/O.SHAJI, KAROTTPARAMBIL HOUSE, KANJIRAPPILLY.P.O., KOTTAYAM DISTRICT, PIN - 686507** **BY ADVS. DINESH MATHEW J.MURICKEN VINOD S. PILLAI MOHAMMED THAYIB N.M. NAYANA VARGHESE AHAMMAD SACHIN K. K.A.ABHILASH** ## **RESPONDENTS:** - **1 STATE OF KERALA REP. BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, STATUTE JUNCTION, THIRUVANANTHAPURAM GENERAL.P.O., THIRUVANANTHAPURAM DISTRICT, PIN - 695001** - **2 THE DEPUTY INSPECTOR GENERAL OF POLICE ERNAKULAM RANGE, SOUTH KALAMASSERY, KALAMASSERY.P.O., ERNAKULAM DISTRICT - 683104** - **3 THE SECRETARY ADVISORY BOARD OFFICE, KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT, PADAM ROAD, ELAMAKKARA.P.O., ERNAKULAM DISTRICT, PIN - 682026** W.P.(Crl) No.79 of 2023 2 - **4 THE DISTRICT POLICE CHIEF (KOTTAYAM) DISTRICT POLICE OFFICE, NEAR KOTTAYAM EAST POLICE STATION, KOTTAYAM - KUMILY ROAD, COLLECTORATE, KOTTAYAM DISTRICT, PIN - 686002** **BY ADVS.** **ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28)** ## **OTHER PRESENT:** **Sri.K.A.Anas, P.P.** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 07.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(Crl) No.79 of 2023 3 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------------** **W.P.(Crl) No.79 of 2023** **----------------------------------------------Dated this the 7[th] day of June, 2023** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This writ petition is instituted challenging Ext.P1 order issued under Section 15(1)(a) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (the Act) restraining the petitioner from entering the limits of Kottayam Revenue District for a period of one year. 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 last prejudicial activity referred to in Ext.P1 order is the involvement of the petitioner in Crime No.955 of 2022 of Thrissur East Police Station. The occurrence which is the W.P.(Crl) No.79 of 2023 4 subject matter of the said crime took place on 13.05.2022. The last prejudicial activity stated to have been committed by the petitioner in Kottayam District as referred to in Ext.P1 order is his involvement in Crime No.46 of 2022 of Changanassery Police Station. The occurrence which is the subject matter of the said crime took place on 14.11.2021. It is on 11.08.2022, the fourth respondent, the District Police Chief, Kottayam initiated proceedings for restricting the movement of the petitioner within the limits of Kottayam District by forwarding his recommendation for the said purpose to the competent authority under the Act. Ext.P1 order was passed based on the said recommendation on 18.09.2022. 4. The learned counsel for the petitioner contended that inasmuch as the externment of the petitioner is one preventing him from entering Kottayam Revenue District, what is to be seen is the prejudicial activities stated to have been committed by the petitioner in the said District and since the last prejudicial activity in relation to the said District as W.P.(Crl) No.79 of 2023 5 referred to in the order being one that took place on 14.11.2021, there is inordinate delay in initiating the proceedings and in the absence of any satisfactory explanation for the said delay, it can be presumed that there is no application of mind on the aspect of the live link required to be maintained between the prejudicial activities and the initiation of proceedings. 5. Per contra, the learned Government Pleader pointed out that the last prejudicial activity of the petitioner is his involvement in Crime No.955 of 2022 of Thrissur East Police Station and the occurrence which is the subject matter of the said crime is one that took place on 13.05.2022. According to the learned Government Pleader, in the circumstances, it cannot be contended that there is inordinate delay in initiating the proceedings and that the live link required to be maintained between the prejudicial activities and the proceedings is snapped. 6. We have considered the arguments advanced W.P.(Crl) No.79 of 2023 6 by the learned counsel for the parties on either side. 7. No doubt, there has to be a live link between the prejudicial activities and the decision of the competent authority. The petitioner is right in contending that if there is inordinate delay between the last prejudicial activity and the order of externment and if the said delay is not explained in the order, the order would be vitiated for want of due application of mind. But, the question in this case is whether the prejudicial activity stated to have been committed by the petitioner in Thrissur District can be the basis for an order preventing the petitioner from entering the limits of Kottayam District. As noted, while it was contended by the learned counsel for the petitioner that the prejudicial activity stated to have been committed in one district cannot be the basis for an externment order preventing the person from entering another district, the learned Government Pleader asserted that there cannot be any hard and fast rule that an order of externment cannot be passed on that basis at all under any circumstances. W.P.(Crl) No.79 of 2023 7 According to the learned Government Pleader, if situation demands, such an order could certainly be passed. 8. No doubt, there cannot be any hard and fast rule that a prejudicial activity stated to have been committed by a person in one district shall not be the basis for an externment order preventing him from entering the limits of another district. There would be certainly situations which would justify such orders. But, when an externment order is issued on that premise, according to us, it is obligatory for the competent authority to apply mind as to the need to have such an order. That apart, it is also obligatory for the competent authority to record its reasons for the same in the order. Reverting to the facts, as rightly pointed out by the learned counsel for the petitioner, the last prejudicial activity stated to have been committed by the petitioner in Kottayam District being one that took place on 14.11.2021 and the proceedings being one initiated almost nine months after the said activity, on 11.08.2022, inasmuch as the Statute provides for W.P.(Crl) No.79 of 2023 8 externment only for a maximum period of one year, it cannot be contended that there is a live link between the prejudicial activities in Kottayam District and the externment order preventing the petitioner from entering the limits of the said District. There is also no explanation in the externment order for the said long delay. The impugned order, in the circumstances, is liable to be set aside on that ground. 9. On a perusal of the materials on record, we find that there is yet another ground also for us to hold that the impugned order is bad. Section 15(1)(a) of the Act is an extraordinary power to be exercised under extra ordinary circumstances. In the context of a similar provision contained in Section 58 of the Maharashtra Police Act, 1951, the Apex Court has held in **Deepak v. State of Maharashtra** , 2022 SCC OnLine SC 99 that there has to be due application of mind on the part of the competent authority for deciding the duration of the externment and the subjective satisfaction of the competent authority on that aspect shall also be recorded in W.P.(Crl) No.79 of 2023 9 ## the order. Paragraph 13 of the said judgment reads thus: “13. Section 58 of the 1951 Act reads thus: “58. Period of operation of orders under section 55, 56, 57 and 57A - A direction made under section 55, 56,57 and 57A not to enter any particular area or such area and any District or Districts, or any part thereof, contiguous thereto, or any specified area or areas as the case maybe, shall be for such period as may be specified therein and shall in no case exceed a period of two years from the date on which the person removes himself or is removed from the area, District or Districts or part aforesaid or from the specified area or areas as the case may be". On a plain reading of Section 58, it is apparent that while passing an order under Section 56, the competent authority must mention the area or District or Districts in respect of which the order has been made. Moreover, the competent authority is required to specify the period for which the restriction will remain in force. The maximum period provided for is of two years. Therefore, an application of mind on the part of the competent authority is required for deciding the duration of the restraint order under Section 56. On the basis of objective assessment of the material on record, the authority has to record its subjective satisfaction that the restriction should be imposed for 16 a specific period. When the competent authority passes an order for the maximum permissible period of two years, the order of externment must disclose an application of mind by the competent authority and W.P.(Crl) No.79 of 2023 10 the order must record its subjective satisfaction about the necessity of passing an order of externment for the maximum period of two years which is based on material on record. Careful perusal of the impugned order of externment dated 15th December 2020 shows that it does not disclose any application of mind on this aspect. It does not record the subjective satisfaction of the respondent no.2 on the basis of material on record that the order of externment should be for the maximum period of two years. If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under clause (d) of Article 19(1) of the Constitution of India”. 10. As noted, Section 15 of the Act, insofar as it relates to externment, is similar to Section 58 of the Maharashtra Police Act, 1951. The relevant portion of Section 15 of the Act reads thus: ## **“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 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 W.P.(Crl) No.79 of 2023 11 acting at any place within the jurisdiction of such Magistrate or officer, may make an order,- - (a) directing that, except insofar 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.” As evident from the extracted provision, the statute confers power on the competent authority to pass an externment order for a period not exceeding one year. In other words, having regard to the facts and circumstances of each case, the competent authority is empowered to pass an order of externment for an appropriate period and the only restriction on the power, as regards the period, is that the same shall not exceed one year. Inasmuch as the Statute confers power on the competent authority to pass an order of externment for an appropriate period not exceeding one year, as held by the Apex W.P.(Crl) No.79 of 2023 12 Court in the decision referred to above, in a given case, when an order of externment is passed by the competent authority for the maximum period provided for under the provision, the reasons for passing such an order shall certainly be stated in the order. It is conceded that Ext.P1 order does not disclose any reason for passing an order of externment for the maximum period of one year. In other words, as rightly argued by the learned counsel for the petitioner, the order is vitiated for want of application of mind on that aspect, especially when the same has to be done on an objective assessment of the materials on record. Needless to say, the impugned order is bad. In the result, the writ petition (Crl) is allowed and Ext.P1 order is quashed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 02.06.2023 W.P.(Crl) No.79 of 2023 13 ## **APPENDIX OF WP(CRL.) 79/2023** ## **PETITIONER EXHIBITS** - **Exhibit P1 TRUE COPY OF THE ORDER NO KAAPA14824/2022/ER DATED 18/09/2022 ISSUED BY THE 2ND RESPONDENT** - **Exhibit P2 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.11/2020 OF KANJIRAPPALLY POLICE STATION DATED 03.01.2020** - **Exhibit P3 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.1081/2020 OF KANJIRAPPALLY POLICE STATION DATED 28.08.2020** - **Exhibit P4 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.424/2021 OF KANJIRAPPALLY POLICE STATION DATED 28.04.2021** - **Exhibit P5** - **TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.46/2022 OF CHANGANACHERRY POLICE STATION DATED 10.01.2022** - **Exhibit P6 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.955/2022 OF THRISSUR EAST POLICE STATION DATED 14.05.2022** - **Exhibit P7 TRUE COPY OF THE PETITION SUBMITTED BEFORE THE ADVISORY BOARD BY THE PETITIONER DATED 11.10.2022** - **Exhibit P8 TRUE COPY OF THE ORDER IN O.P.NO.47/2022 PASSED BY THE 3RD RESPONDENT**