Shyam Kumar @ Unni v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941** ## **WP(C).No.27969 OF 2019(U)** ## **PETITIONER:** **SHYAM KUMAR @ UNNI, AGED 27 YEARS S/O. AJAYAKUAMR, RESIDING AT MUDEKKARAPPILLY, MANJUMMEL, ELOOR VILLAGE, PARAVOOR TALUK, ERNAKULAM 682 024.** **BY ADVS. SRI.A.MOHAMMED SRI.SERGI JOSEPH THOMAS** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DEPUTY INSPECTOR GENERAL, CITY POLICE COMMISSIONER, KOCHI CITY - 682 011. 3 THE ADVISORY BOARD, KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION ACT), PADAM ROAD, ELAMAKKARA , KOCHI 682 026. R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION R2 BY PUBLIC PROSECUTOR SRI.K.A.ANAS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.27969 OF 2019(U)** **2** **“C.R.”** ## **JUDGMENT** ## **Nagaresh,J** The petitioner seeks to quash Ext.P3 order of restrainment passed by the second respondent and Ext.P6 order of confirmation by the third respondent. 2. The petitioner was served with a notice dated 07.05.2019 of the second respondent requiring the petitioner to show cause as to why he should not be restrained by order under Section 15(1) of the Kerala Anti-Social Activities(Prevention) Act, 2007 (for brevity the 'KAAPA') from entering into the limits of Kochi City Police District. The notice alleged that the petitioner is engaged in various offences within the limits of the Eloor Police Station and that he is a Known Rowdy as defined under KAAPA. On receipt of Ext.P1 notice the petitioner submitted a detailed reply denying the allegations and pleading his innocence in the alleged offences. The second respondent, however, passed Ext.P3 externment order dated 01.06.2019 under Section 15(1) of KAAPA restraining the petitioner from entering the city limits of Kochi and **WP(C).No.27969 OF 2019(U)** 3 from committing any acts within the said area for a period of one year. 3. Aggrieved, the petitioner submitted Ext.P4 representation dated 03.07.2019 before the third respondentAdvisory Board invoking Section 15(2) of KAAPA. The third respondent however, rejected the representation stating that there is a delay of three days in making the representation and that the Board has no power to condone the delay in making representation in view of the judgment of this Court in **Biju Aduppukallingal v. Advisory Board, KAA(P)A, Kochi and others** reported in 2014 (3) KLT 69. 4. It is aggrieved by Ext.P3 and P6 orders, the petitioner is before this Court. The petitioner states that in **Biju Aduppukallingal's** case (supra) this Court has categorically held that the remedy of an aggrieved person in such case is to approach this Court under Article 226 of the Constitution of India. The Advisory Board proceeded with a wrong notion that this Court has laid down a law that Section 5 of the Limitation Act is not applicable to proceedings under Section 15(2) of KAAPA. **WP(C).No.27969 OF 2019(U)** 4 The petitioner stated that the second respondent has passed Ext.P2 order in a mechanical manner without considering the reply submitted by the petitioner. The petitioner also alleged violation of principles of natural justice. 5. The second respondent opposed the writ petition filing counter affidavit. The second respondent stated that proceedings were initiated against the petitioner as per the report of the Assistant Commissioner of Police, Ernakulam. After the externment order the petitioner filed a representation before the Chairman of the Advisory Board. The Advisory Board rejected the representation finding that there is delay in filing the same. The second respondent contended that the petitioner is a Known Rowdy, who had been involved in five cases including crimes of serious nature. Security proceedings under Section 107 Cr.P.C have also been initiated against the petitioner at Eloor Police Station. The second respondent further stated that the explanation to show cause notice submitted by the petitioner was not received within the stipulated time. The action against the petitioner were proceeded with only after the Competent **WP(C).No.27969 OF 2019(U)** 5 Authority arrived at a subjective satisfaction. While passing the restrainment order the second respondent considered all the material documents in connection with anti-social activities of the externee. The second respondent arrived at a subjective satisfaction that petitioner is a Known Rowdy and at an objective satisfaction that restrainment order is necessarily to be passed. It was thereafter that the impugned Ext.P3 order was passed. 6. Heard the learned counsel for the petitioner and the learned Public Prosecutor appearing for the respondents. 7. The learned counsel for the petitioner argued that the conclusion of the second respondent to arrive at a finding that the petitioner is a Known Rowdy, is unsustainable. The learned counsel for the petitioner further urged that there was no reason for the second respondent to hold that the petitioner is likely to be indulged in committing further crimes. It was pointed out that five crimes were considered by the second respondent while passing Ext.P3 order. The last of such crime was Crime No.766/2018 of Eloor Police Station, which was registered under Sections 294(b) and 506(i) of IPC. The date of commission of the said crime was **WP(C).No.27969 OF 2019(U)** 6 on 27.07.2018. After the said date, the petitioner is not alleged to have committed any crime. The externment order has been passed on 01.06.2019, after more than ten months of the last offence, on the conclusion that the petitioner is likely to indulge in further commission of crimes. The very fact that the petitioner has not indulged in any crimes for a long period of ten months since 27.07.2018, was sufficient enough for the second respondent to conclude that the petitioner is not likely to commit further crimes. Therefore, the findings of the second respondent for invoking Section 15(1) of KAAPA are unsustainable, contended the learned counsel for the petitioner. 8. The learned counsel for the petitioner further argued that the petitioner has a right under Section 15(2) of KAAPA to make a representation before the Advisory Board. The petitioner in fact, had made Ext.P1 representation also. The rejection of the representation by the third respondent-Advisory Board on the ground of delay, without going into the merits of the arguments contained in the representation, is unsustainable in law and offends fundamental rights of the petitioner. On this ground also **WP(C).No.27969 OF 2019(U)** 7 Ext.P3 and Ext.P6 orders are liable to be set aside, contended the learned counsel for the petitioner. 9. As regards the rejection of the representation of the petitioner by the third respondent-Advisory Board, this Court has considered the issue in **Biju Aduppukallingal's** case (supra). This Court held that it cannot be assumed that the party concerned can maintain a representation before the Advisory Board beyond the time limit prescribed under KAAPA. Therefore, this Court took a view that the Advisory Board has no jurisdiction to condone the delay in making representation under Section 15(2) of KAAPA. In the case on hand, Ext.P3 order was passed on 01.06.2019 and it was executed on 16.06.2019. The representation was filed on 03.07.2019, which is beyond 15 days period prescribed by the Act. In the circumstances, the Division Bench judgment of this Court in **Biju Aduppukallingal's** case (supra) will squarely apply. The challenge against Exts. P6 on this ground is therefore, not liable to be entertained. 10. As regards the contention of the learned counsel for the petitioner that the second respondent has not taken into **WP(C).No.27969 OF 2019(U)** 8 account the fact that the petitioner has not committed any crime after 27.07.2018, the last of the offence relied on by the second respondent for passing Ext.P3 order, we find considerable merit in the contention. After 27.07.2018 the date of occurrence of Crime No.766/2018, the petitioner has not indulged in any other crimes. The second respondent however came to the conclusion that taking into account the five crimes already committed by the petitioner, he is likely to indulge in further crimes. The fact that the petitioner was not found to be involved in any crime for a long duration from 27.07.2018 till 01.06.2019 could have been sufficient ground for the second respondent to conclude that the second respondent is not likely to indulge in further crimes in the immediate future. However, the second respondent has passed Ext.P3 order without taking into account the long period during which the petitioner has not indulged in any crime. For the said reason, we are of the opinion that the second respondent has not applied his mind properly in arriving at a conclusion that the petitioner is likely to indulge in further crimes and therefore, an order under Section 15(1) of KAAPA has to be passed against **WP(C).No.27969 OF 2019(U)** 9 the petitioner. 11. Before passing an order under Section 15(1) of KAAPA, the second respondent has to arrive at a subjective satisfaction that the petitioner is a Known Rowdy and also an objective satisfaction that the petitioner is likely to indulge in further crimes. As regards objective satisfaction of the third respondent, we find that five crimes were registered against the petitioner and the registration of such crimes of such nature are sufficient for the second respondent to arrive at a subjective satisfaction that the petitioner is a Known Rowdy. 12. However, as regards subjective satisfaction, it is necessary for the second respondent to arrive at a conclusion that the petitioner indulges in crimes or is about to indulge in further crimes or he is likely to indulge in anti-social activities in the immediate future. In the absence of such a satisfaction, which should in deed be based on an objective consideration of facts, the second respondent will not be justified in invoking Section 15(1) of KAAPA. In the case on hand, we find that after the date of the last of the registered crimes namely 27.07.2018, **WP(C).No.27969 OF 2019(U)** 10 the petitioner has not indulged in any crime whatsoever. Therefore, there was no material available for the second respondent, to arrive at a subjective satisfaction of the likelihood of the petitioner in indulging in further crimes. A reading of Ext.P3 also would show that such a subjective satisfaction based on facts analysed in the case, is not reflected therein. 13. In the circumstances, we are of the opinion that there were no sufficient grounds for the second respondent to pass Ext.P3 order invoking Section 15(1) of KAAPA restraining the petitioner from entering in the city limits of Kochi for a period of one year. For the aforesaid reason, we find Ext.P3 order is unsustainable. Ext.P3 is therefore, quashed. The writ petition is allowed as above. ## **Sd/-** ## **C.T.RAVIKUMAR** **JUDGE** **Sd/-** **N.NAGARESH** **JUDGE** dlk/4.2.2020 **WP(C).No.27969 OF 2019(U)** 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE REPRESENTATION DATED 28/05/2019 SUBMITTED BY THE PETITION BEFORE THE 2ND RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF THE POSTAL RECEIPT DATED 29/05/2019.** **EXHIBIT P3 TRUE COPY OF THE ORDER NO. D2/ (C)/24678/2019 EC DATED 01.06.2019 PASSED BY THE 2ND RESPONDENT.** ## **EXHIBIT P4** **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE ADVISORY BOARD DATED 3/7/2019.** **EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT AND PETITION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPLENDENT.** **EXHIBIT P6** **TRUE COPY OF THE ORDER DATED 16/7/2019 IN UNNUMBERED O.P. PASSED BY THE 3RD RESPONDENT ADVISORY BOARD.**