Sojan v. State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` THURSDAY, THE 21[ST] DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945 ``` ``` WP(CRL.) NO. 831 OF 2023 ``` ## **`PETITIONER:`** ``` SOJAN AGED 46 YEARS, S/O. JOHNY, CHETHALAN HOUSE, CHOWKA DESOM, KIZHAKKE CHALAKUDY VILLAGE, ELINJIPRA P.O, CHALAKUDY TALUK, THRISSUR DISTRICT., PIN - 680721 BY ADV. I.SHEELA DEVI ADV.BINESH.K.N. REJI RAMACHANDRAN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001 2THE DEPUTY INSPECTOR GENERAL OF POLICE, RAMAVARMAPURAM, THRISSUR, THRISSUR DISTRICT., PIN - 680010 3THE DISTRICT POLICE CHIEF THRISSUR RURAL, KATTUNGACHIRA, IRINJALAKUDA NORTH, PORATHISSERY, THRISSUR DISTRICT., PIN - 680125 ``` ``` 4THE DEPUTY SUPERINTENDENT OF POLICE, NIRMALA COLLEGE ROAD, JYOTHI NAGAR HOUSING COLONY, CHALAKUDY, THRISSUR DISTRICT., PIN - 680307 ``` ``` 5THE STATION HOUSE OFFICER CHALAKUDY POLICE STATION, CHALAKUDY THRISSUR DISTRICT., PIN - 680309 SRI.GRACIOUS KURIAKOSE, ADGP SRI.C.K.SURESH, SR.P.P SRI K.A. ANAS - GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 04.12.2023, THE COURT ON 21.12.2023 DELIVERED THE FOLLOWING: ``` 2 W.P.(Crl) No.831 of 2023 ## **JUDGMENT** ## G.Girish, J. The petitioner has filed this writ petition under Article 226 of the Constitution of India for a writ of certiorari to quash Ext.P1 order dated 01.08.2022 of the Advisory Board under the Kerala Anti Social Activities (Prevention) Act, 2007 which upheld Ext.P2 order of externment dated 16.06.2023 passed by the 2[nd] respondent Deputy Inspector General of Police, Thrissur Range, and to declare the said externment order as illegal and unsustainable. 2. The petitioner is alleged to have been involved in about 38 crimes registered in various police stations of Thrissur District from the year 1997 onwards. The proceedings under challenge in this writ petition were initiated in respect of four crimes committed by the petitioner during the period from 10.07.2016 to 29.01.2023. The 5[th] respondent Station House Officer, Chalakkudy Police Station submitted Ext.P4 report to the 3[rd] respondent District Police Chief, Thrissur Rural with regard to the anti-social activities allegedly committed by the petitioner. Based on the above report, the 3[rd] respondent submitted Ext.P6 report to the 2[nd] respondent for initiating proceedings under the Kerala Anti Social Activities (Prevention) Act, 2007 (for brevity ‘KAA(P) Act’). On the basis of the above report of the Sponsoring Authority, the 2[nd] respondent, 3 W.P.(Crl) No.831 of 2023 who is the Authorised Officer, issued show cause notice to the petitioner on 27.05.2023, requiring him to show cause why an order under Section 15(1) of the KAA(P) Act shall not be passed against him. After considering the explanation offered by the petitioner and personally hearing him, the Sponsoring Authority issued Ext.P2 order under Section 15(1)(a) of the KAA(P) Act restraining the entry of the petitioner in the Thrissur Revenue District for a period of six months from the date of receipt of that order. Though the petitioner challenged the above order before the Advisory Board constituted under KAA(P) Act, the said authority declined to interfere, and accordingly dismissed the petition filed by the petitioner vide Ext.P1 order. 3. In the present petition, the petitioner challenges Ext.P1 order passed by the Advisory Board, as well as Ext.P2 order passed by the Authorised Officer. According to the petitioner, the above authorities went wrong in arriving at the conclusion that he would come under the definition of ‘known rowdy’ envisaged under Section 2(p) of the KAA(P) Act. It is further contended that there is no nexus between the four incidents reckoned for initiation of proceedings, and that there is inordinate delay in taking steps under KAA(P) Act, which would snap the requirement of live link for invoking the relevant provisions. 4 W.P.(Crl) No.831 of 2023 4. On 21.08.2023, when this writ petition came up for admission, the learned Government Pleader took notice for the respondents and sought time for filing counter affidavit. 5. The 2[nd] respondent Deputy Inspector General of Police, Thrissur Range has filed a counter affidavit dated 16.09.2023 opposing the reliefs sought for in this writ petition, wherein it has been contended that the petitioner is a hard core criminal involved in 38 crimes including attempt to murder, and that he has been causing public threat and nuisance. Further, the impugned order was passed to prevent his anti-social activities and to protect the general public from his threat and to maintain public tranquillity prevailing in the area. 6. Heard the learned counsel for the petitioner and the learned Government Pleader for the respondents. 7. It is argued by the learned counsel for the petitioner that, to classify the petitioner as ‘known rowdy’ the Sponsoring Authority has to show that the requirements of Section 2(p)(iii) of the KAA(P) Act are fulfilled. It is thus pointed out that there should be materials on record to show that 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 5 ## W.P.(Crl) No.831 of 2023 part of the same transaction, the petitioner has been found to have committed any offence mentioned in clause (t) of Section 2 of the KAA(P) Act. According to the learned counsel for the petitioner, the above requirement of law is not fulfilled in the present case since the first offence attributed to the petitioner as the one committed on 10.07.2016 within the limits of Irinjalakkuda Police Station, is in respect of offences under the Abkari Act, which has not been notified under Section 2(p)(iii) of the KAA(P) Act, and the other two offences alleged to have taken place on 15.05.2020 and 29.01.2023 respectively, within the limits of Chalakkudy and Koratty Police Stations, have been initiated on complaints by police officers. It is further pointed out that the remaining one case registered at Chalakkudy Police Station, in respect of an incident which took place on 23.11.2020, is a trivial matter which would not affect public order. 8. As regards the first challenge against the inclusion of a crime registered under the Abkari Act, against the petitioner, for reckoning the necessity of invoking KAA(P) Act, it has to be stated that the contention of the petitioner in that regard is sustainable. However, the other challenges against the three remaining cases considered by the Authorised Officer for proceeding against the petitioner under the KAA(P) Act, are bereft of merit. 6 W.P.(Crl) No.831 of 2023 9. It is true that Section 2(p)(iii) of KAA(P) Act are worded in such a manner which would give the impression that the three separate cases under investigation or enquiry, attributed to the petitioner for reckoning the necessity of classifying him as a ‘known rowdy’, shall not be on complaints initiated by persons who are police officers. However, it is well settled by the decision of this Court in **Joicy v. State of Kerala and others [2018 (1) KHC 37]** that when police officers are attacked and complaints registered against assailants, it cannot be said that those cases shall not be reckoned for passing an order of detention against persons who are repeatedly indulging in criminal activities. This Court has observed in paragraph 12 of the aforesaid decision as follows: _“12. Of-course, in these two crimes, the defacto complainants are the Assistant Sub Inspectors of Police. The complaints were preferred by them as they sustained injuries in the attack by the detenu and the co-accused and they had given statements while undergoing treatment in the hospital. It is significant to note that the injured though police officers are the two victims in the attack by the detenu. They are two individuals/ human beings. Just because of the fact that they are police officers, they do not cease to be human beings. The provisions of this Act will no way curtail the rights of the Police Officers. At no stretch of imagination it could be construed that the words employed in S.2(p) (iii) that "complaints initiated by_ 7 W.P.(Crl) No.831 of 2023 _persons other than police officers" would mean that when police officers are attacked and complaints are registered against the assailants those cases shall not be reckoned for passing an order under S. 3 of KAAPA for issuing detention order against the persons who are repeatedly indulging in criminal activities causing threat, fear, nuisance and disturbance to the society at large. In fact, the police officers are in a better position than ordinary citizen as they were prevented from discharging their official duty. In the course of that they sustained injuries. The argument advanced by the learned counsel for the petitioner, if accepted, would mean that even if police officers are assaulted any number of times, the assailants could not be brought to book under the KAAPA. The intention of legislature could never be so. Clause (iii) of S.2 (p) of KAAPA would only indicate misuse of powers by police officers and to safeguard the interest of detenu . It appears that in both these incidents while the detenue along with the co-assailants were creating threat and fear in the public, the duty bound police personnel attempted to prevent them and avert causing terror and threats to public at large by them and tried to maintain law and order at the respective places, but they were wrongfully attacked with deadly weapons and attempted to murder them. In fact, the records would indicate that the detenu is a dangerous person, who is involved in prejudicial activities and will not spare even police officials who are supposed to protect law and order situation for the welfare and security of the general public, which is of prime importance and that the detenu is a person who has no respect towards law and_ 8 W.P.(Crl) No.831 of 2023 _order. The embargo in S.2(p)(iii) of KAAPA does not mean to say that complaints lodged by police officers who sustained injuries in an attack by the detenu, which resulted in launching of prosecution against the assailants cannot be reckoned to pass a detention order to bring them under the definition of known rowdy or Known goonda. The intention of legislation could only be to avoid or prevent misuse or exploitation of the powers of Police personnel and it could never be to discard the complaints of Police Officers when they themselves become victims in the attack by such miscreants which is quite often now a days. So, it is not correct to conclude that these two crimes could not be reckoned so as to bring the detenu within the sweep of S.2(p)(iii) of KAAPA and consequently to pass an order under S.3 of KAAPA. So at any cost, it cannot be construed that the detaining authority with nonapplication of mind disregarded the provisions of the Act and passed the order of detention against the detenu. A hyper technical approach is not possible, though preventive detention is preventive and not punitive.”_ 10. In the light of the aforesaid decision of this Court, if the crimes attributed to the offenders are in respect of violence or attack perpetrated upon police officers, and the proceedings in those crimes are initiated on the basis of the reports or complaints of those police officers who suffered the assault, it is not possible to conclude that those crimes could not be reckoned so as to bring the offenders 9 W.P.(Crl) No.831 of 2023 within the sweep of the definition of ‘known rowdy’ envisaged under Section 2(p)(iii) of the KAA(P) Act. 11. As far as the present case is concerned, Crime No.745/2020 of Chalakkudy Police Station has been registered against the petitioner for the commission of offence under Sections 294(b), 506 and 353 I.P.C for the verbal abuse, criminal intimidation and assault perpetrated upon a Home Guard engaged in traffic duty. The facts of the said case would clearly reveal the criminal assault of the petitioner, though the above Home Guard did not suffer any injury at the hands of the petitioner. 12. The other case registered at Koratty Police Station as Crime No.86/2023 against the petitioner is in respect of offence under Sections 341, 332 and 294 (b) I.P.C, for inflicting voluntary hurt upon a Civil Police Officer on duty at Koratty Police Station and deterring him from discharging his official duties, in addition to wrongfully restraining him and subjecting him to verbal abuses. The facts of the said case would also reveal the blatant attempt on the part of the petitioner to perpetrate violence in Police Station and to subject the law enforcing officers to criminal intimidation and terror. It is true that the petitioner has come up with a contention that the above case has been foisted against him as a counter-blast to the complaint of custodial torture preferred by him against the police 10 ## W.P.(Crl) No.831 of 2023 officers of Koratty Police Station. However, it is seen from the contention of the petitioner in this petition itself that the petitioner has already preferred a complaint in that regard before the Magistrate Court. The truth or falsity of the allegation of custodial torture raised by the petitioner cannot be adjudicated in a writ proceedings like this. Nor could it be said that the crime registered against the petitioner at Koratty Police Station for the alleged criminal assault upon a Civil Police Officer, has to be eschewed for the reason that the petitioner has preferred a complaint of custodial torture against the Police Officers of that Police Station. Therefore, the challenge of the petitioner against reckoning the above crime towards initiating the proceedings under KAA(P) Act, is devoid of merit. 13. As regards the remaining crime registered against the petitioner at Chalakkudy Police Station for the commission of offence under Sections 341, 324, 294 (b) and Section 506 I.P.C on 23.11.2020, the contention of the petitioner is that it is one of trivial nature, and hence, not liable to be reckoned for initiating proceedings under KAA(P) Act. It is not possible to accept the above argument of the learned counsel for the petitioner, since the facts of the said case would clearly reveal the blatant criminal assault perpetrated upon a couple, who were travelling in a motor bike, 11 ## W.P.(Crl) No.831 of 2023 resulting in injuries to both of them. By no stretch of imagination it could be termed that the offence under Section 324 I.P.C, which is punishable with imprisonment upto three years, is a trivial offence. Thus, the challenge raised by the petitioner on that score, is also totally unsustainable. 14. In the light of the discussions aforesaid in paragraph Nos.7 to 13, it has to be held that there was absolutely no illegality in the conclusion arrived by the Authorized Officer that the petitioner could be classified as a ‘known rowdy’, as envisaged under Section 2(p)(iii) of the KAA(P) Act. 15. The other contentions raised by the petitioner with regard to the absence of live link between the incidents and the delay in taking steps under the KAA(P) Act, are also found totally untenable in the facts and circumstances of this case. It is seen from the records that the petitioner is alleged to have committed Crime No.1282/2020 of Chalakkudy Police Station, within a period of 6 months and 8 days from the date of commission of Crime No.745/2020 of the same Police Station. So also, the petitioner is alleged to have committed Crime No.86/2023 of Koratty Police Station, within a period of two years and two months from the date of commission of Crime No.1282/2020 of Chalakkudy Police Station. 12 W.P.(Crl) No.831 of 2023 Thus, it is not possible to conclude that there was any long gap in the commission of the aforesaid three crimes by the petitioner. 16. The contention of the petitioner regarding absence of live link and the delay in initiating proceedings under the KAA(P) Act are totally unacceptable in view of the sequence of events disclosed from the materials placed on record. The records of the case would reveal that the last prejudicial anti-social activity committed by the petitioner was on 29.01.2023 in connection with Crime No.86/2023 of Koratty Police Station. The petitioner was arrested in connection with the above case on 16.02.2023. The Investigating Officer filed final report in the said case on 07.03.2023. The 3[rd] respondent sent a proposal to the Authorized Officer on 16.05.2023 towards initiating proceedings under the KAA(P) Act against the petitioner. The Authorized Officer issued show cause notice to the petitioner on 27.05.2023, to which he submitted an explanation followed by personal hearing on 03.06.2023. Thereafter, on 16.06.2023, the Authorized Officer is seen to have passed Ext.P2 order. It could be seen from the chronology of the events mentioned above that there is absolutely no delay in initiating the proceedings under the KAA(P) Act against the petitioner, and that the challenge against live link, is also totally unsustainable. 13 W.P.(Crl) No.831 of 2023 17. It has been held by the Hon’ble Supreme Court in **Golam** ## **Hussain Alias Gama v. The Commissioner of Police [(1974) 4** ## **SCC 530]** in paragraph 5 of that judgment as follows: _“..…….. It is true that there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, namely, inhibition of prejudicial activity of the species specified in the statute. This credible chain is snapped if there is too long and unexplained an interval between the Offending acts and the order of detention. Such is the ratio of proximity in Lakshman Khatik. No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. ………….”_ ## 18. Following the above dictum of the Apex Court, a Division Bench of this Court, in **Rahila Nazeer v. State of Kerala [2016** ## **(3) KHC 189]** held in paragraph 12 of the said judgment as follows: _“12. It is not the delay alone that matters. If the delay in passing the order of detention is unexplained and inordinate, it could be said that the live link between the prejudicial activity and the order of detention is snapped. It is not a mechanical test that can be applied in the matter of ascertaining whether the live link is snapped. If the delay is satisfactorily explained, it cannot be held that the live link is snapped. The KAA(P) Act does not provide that if the period of six months from the last prejudicial activity_ 14 W.P.(Crl) No.831 of 2023 _expires, no order of detention can be passed. The Legislature in its wisdom did not think that an order of detention cannot be passed after the expiry of the period for which a person can be detained under S.3, reckoning the period from the date of the last prejudicial activity to the order of detention. The period of detention under S.3 as such cannot be a determining factor to assess whether there is inordinate and unexplained delay. The facts and circumstances of the case are relevant in each case. Reasons may be varied as to why the order of detention is passed after several months of the date of the last prejudicial activity. If the person concerned is in judicial custody and there is no likelihood of his being released shortly, the detaining authority may stay its hands for a short while and think of passing an order of detention subsequent to the release of the person concerned. It is not necessary that the person concerned should commit another crime after the expiry of his judicial custody (in the crimes already registered and pending investigation) in order to enable the detaining authority to pass an order of detention. In short, the facts situation in each case makes it relevant the question whether the delay is inordinate so as to vitiate the order of detention on the ground of lack of live nexus between the prejudicial activity and the order of detention.”_ 19. As far as the present case is concerned, the time gap between the last prejudicial activity of the petitioner and the date of Ext.P2 order is 4 months and 18 days. As already stated, the chronology of events mentioned in paragraph 16 above would reveal that proceedings related to Ext.P2 order were initiated by the 15 W.P.(Crl) No.831 of 2023 authorities concerned without inordinate delay and that the above period of four months and eighteen days can only be termed as the normal time which had elapsed in between the relevant steps taken in this matter. Therefore, in view of the law laid down in the aforesaid decisions of the Apex Court and this Court, it is not possible to conclude that there was unexplained delay leading to snaping of live link between the last prejudicial activity of the petitioner and the order of externment passed against him. 20. In the present case, the order passed by the Authorized Officer against the petitioner is one under Section 15(1)(a) of the KAA(P) Act, restraining his entry in Thrissur revenue district, for a period of six months from the date of receipt of Ext.P2 order. The records of the case would reveal that the said order has been passed, on the basis of the objective as well as subjective satisfaction of the said authority by placing reliance upon the materials placed by the Sponsoring Authority. It is to be noted here that an order of restriction under Section 15 of the KAA(P) Act, is lighter in its impact on the personal liberty of the person concerned, when compared with the detention orders passed under Section 3(1) of the said Act. Having regard to the nature of the crimes attributed to the petitioner for reckoning the necessity to initiate proceedings under the KAA(P) Act, as well as the criminal background of the petitioner, borne out 16 ## W.P.(Crl) No.831 of 2023 of the records, it is not possible to conclude that the Authorized Officer exceeded his authority in preventing the entry of the petitioner into Thrissur revenue district, for a period of six months. Thus, it has to be held that the Advisory Board under the Kerala Anti-Social Activities (Prevention) Act, 2007 has rightly declined to interfere with the order of the Authorized Officer. Accordingly, we find that the present petition deserves no consideration on merit. In the result, the petition is hereby dismissed. (sd/-) **G. GIRISH, JUDGE** jsr/vgd