Thankachan K.V. et al. v. Kerala State Election Commission and others; Biju M. Paul et al. v. Kerala State Election Commission and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** ## **WP(C).No.3525 OF 2021(M)** ## **PETITIONERS:** |**1**|**THANKACHAN K.V.,**| |---|---| ||**AGED 55 YEARS**| ||**S/O. VARKEY, KALLIYADICKEL HOUSE, CHARAL P.O. KANNUR,**| ||**KERALA 670 706.**| |**2**|**JAYEESH SEBASTIAN,**| ||**AGED 39 YEARS**| ||**S/O. SEBASTIAN, KUDAKASSERY HOUSE, KOOMANTHODE P.O.**| ||**KARIKOTTAKARY, KANNUR DISTRICT, KERALA, 670 704.**| |**3**|**SHIBIN JOSE,**| ||**AGED 44 YEARS**| ||**S/O. JOSE THOMAS, AMBALATHURUTHEL HOUSE, KALLERIMALA,**| ||**MANATHANA P.O. MELMURINGODI, PERAVOOR, KANNUR**| ||**DISTRICT , KERALA 670 673.**| |**4**|**P.M. MATHEW,**| ||**AGED 65 YEARS**| ||**S/O. MATHAI, PAMBACKAL HOUSE, CHARAL P.O. KANNUR**| ||**DISTRICT, KERALA 670 706.**| |**5**|**THURUTHEL AUGUSTHY.**| ||**AGED 66 YEARS**| ||**S/O. AUGUSTHY , THURUTHEL HOSUE, VANIYAPPARA, CHARAL**| ||**P.O. KANNUR DISTRICT, KERALA 670 706.**| ||**BY ADVS.**| ||**SRI.SAJI KURIACHAN**| ||**SRI.M.R.NANDAKUMAR**| ## **RESPONDENTS:** - **1 KERALA STATE ELECTION COMMISSION REPRESENTED BY SECRETARY, VIKAS BHAVAN NEAR LEGISLATURE COMPLEX, THIRUVANANTHAPURAM , KERALA 695 033.** - **2 THE CHIEF ELECTORAL OFFICER, VIKAS BHAVAN, LEGISLATIVE COMPLEX, THIRUVANANTHAPURAM DISTRICT, KERALA 695 033.** WP(C).Nos.3525 & 3727 OF 2021 2 |**3**|**THE DISTRICT COLLECTOR,**| |---|---| ||**KANNUR P.O. KANNUR 670 001.**| |**4**|**THE SUPERINTENDENT OF POLICE (RURAL),**| ||**KANNUR P.O. KANNUR 670 001.**| |**5**|**THE STATION HOSUE OFFICER,**| ||**KARIKOTTAKARI P.O. KANNUR 670 704.**| |**6**|**THE STATION HOUSE OFFICER,**| ||**PERAVOOR P.O. KANNUR 670 673.**| **ADV.SMT.PRINCY XAVIER, GP ADV.SRI.MURALI PURUSHOTHAMAN,SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH W.P.(C)NO.3727/2021 ON 18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.3525 & 3727 OF 2021 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** **WP(C).No.3727 OF 2021(M)** ## **PETITIONERS:** |**1**|**BIJU M. PAUL**| |---|---| ||**AGED 50 YEARS**| ||**S/O. PAULOSE, MUNDAKAL HOUSE, CHEMPANTHOTTY P.O.,**| ||**THALIPARAMBU, KANNUR, KERALA-670631.**| |**2**|**K.H.KUNHABDULLA,**| ||**AGED 66 YEARS**| ||**S/O. USSANKUTTY, KUNDERI VALAPPIL HOUSE,**| ||**CHEMPANTHOTTY P.O., THALIPARAMBU, KANNUR DISTRICT,**| ||**KERALA-670631.**| |**3**|**JACOB J.,**| ||**AGED 62 YEARS**| ||**S/O. JOSEPH P., AYLOOKUNNEL HOUSE, KOLAKKAD P.O.,**| ||**PERAVOOR (VIA), IRITTY, KANNUR DISTRICT, KERALA-**| ||**670673.**| |**4**|**JOSEPH V.D.,**| ||**AGED 67 YEARS**| ||**S/O. DEVASYA, VADAKKE MULANJANAL HOUSE, PEUMPUNNA**| ||**P.O., KANNUR DISTRICT, KERALA-670673.**| ||**BY ADVS.**| ||**SRI.SAJI KURIACHAN**| ||**SRI.M.R.NANDAKUMAR**| ## **RESPONDENTS:** |**1**|**KERALA STATE ELECTION COMMISSION**| |---|---| ||**REPRESENTED BY SECRETARY, VIKAS BHAVAN, NEAR**| ||**LEGISLATURE COMPLEX, THIRUVANANTHAPURAM, KERALA-**| ||**695033.**| |**2**|**THE CHIEF ELECTORAL OFFICER,**| ||**VIKAS BHAVAN, LEGISLATIVE COMPLEX,**| WP(C).Nos.3525 & 3727 OF 2021 4 ## **THIRUVANANTHAPURAM DISTRICT, KERALA-695033.** - **3 THE DISTRICT COLLECTOR, KANNUR P.O., KANNUR-670001.** - **4 THE SUPERINTENDENT OF POLICE (RURAL), KANNUR P.O., KANNUR-670001.** - **5 THE STATION HOUSE OFFICER, SREEKANDAPURAM POLICE STATION, KANNUR-670631.** - **6 THE STATION HOUSE OFFICER, KELAKOM POLICE STATION, KANNUR-670674.** - **7 THE STATION HOUSE OFFICER, PERAVOOR POLICE STATION, KANNUR-670673.** **R1 BY SHRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM** **ADV.SMT.PRINCY XAVIER, GP ADV.SRI.MURALI PURUSHOTHAMAN,SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH W.P.(C)NO.3525/2021 ON 18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.3525 & 3727 OF 2021 5 ## **JUDGMENT** **Dated this the 18th day of February 2021** The petitioners in both these cases are aggrieved by the action of the respective Station House Officers who compelled them to deposit their licensed fire arms with the Police Station. 2. In W.P.(C) No.3525/2021, the respondents 5 and 6 are the Station House officers, who have directed the petitioners to deposit the licensed arms. The petitioners have produced the deposit receipts, Exts.P2 to P6 out of which Ext.P6 was as early as on 18.11.2020, even before the election to the local body was conducted and it was not returned. 3. In W.P.(C)No.3727/2021, the respondents 5 to 7 are the Station House Officers, who have directed the petitioners to deposit the licensed arms. Exts.P2 to P5 are the receipts given to the petitioners towards the deposit of their WP(C).Nos.3525 & 3727 OF 2021 **==> picture [8 x 9] intentionally omitted <==** licensed arms. They have deposited the licensed arms in January and February 2021. 4. The petitioners have approached this Court complaining the illegal action of the respondents contrary to the provisions in the circular issued by the Election Commission as well as the judgments of this court. 5. The learned Government Pleader on instructions submits that the Station House Officers directed them to deposit the licensed arms in order to ensure the law and order situations. 6. I have already considered similar cases. This court has time and again cautioned that the police officers do not have any authority to require deposit of licensed arms and that a decision regarding the requirement of deposit of licensed arms in view of upcoming elections can only be taken by the screening committee constituted as per the provisions contained in WP(C).Nos.3525 & 3727 OF 2021 7 the circular issued by the Election Commission on 01.09.2009. As per the said circular a screening committee has to be constituted for review and assessment of all licenseholders. Clause 3.10 and 3.11. of the circular reads as follows: ## _**“Deposit of Licensed Arms**_ _**3.10.** Immediately after the announcement of elections, District Magistrates shall make a detailed and individual review and assessment (in accordance with the prevalent State laws) of all licence holders so that licensed arms in those cases where they consider it essential are impounded in order to ensure maintenance of law and order so essential for ensuring free and fair elections. These arms should be deposited with the district authorities. Among cases which may need to be reviewed are the following:_ _(a) Arms licenses of persons released on bail,_ - _(b) Arms licenses of persons having a history of criminal offences, and_ _(c) Arms licenses of persons previously involved in rioting at any time but especially during the election period. The above categories are only illustrative and not exhaustive._ _**3.11.** As per the above referred guidelines laid down by the Bombay High Court, for such review and assessment of all licence holders;_ _(a) There shall be a Screening Committee in every District and in every Commissionerate area. In the District, the Screening Committee shall consist of the District Magistrate and the Superintendent of Police. In the Commissionerate area, it shall consist of the Commissioner of Police (Admn.) and Joint/Additional Commissioner of Police(Admn.)._ _(b) The Screening Committee shall commence the work of screening from the day of announcement of election by the Election Commission and it shall complete the exercise of screening in respect of licences placed before it as far as possible before the date of issue of notification of elections._ _(c) Cases of all licence holders as mentioned in para 3.10 above shall be placed before the Screening Committee._ WP(C).Nos.3525 & 3727 OF 2021 8 _(d) On receipt of report from the Screening Committee, the licensing authority shall issue notice before the last date fixed for withdrawal of candidature to the individual licence holder for depositing his arms and inform the licence holder that failure to deposit the arms as directed would result in prosecution under Section 188 of the I.P.C. as stated in clause 3.11(g)._ _(e) The licence holder thereafter shall deposit his arms forthwith and in any case within a period of seven days from the date of receipt of the notice. The Licensing Authority shall give proper receipt to the licence holder._ _(f) The decision taken by the Screening Committee shall be final._ _(g) Any licence holder who fails to deposit arms within the period specified above shall be liable for prosecution under Section 188 of the Indian Penal Code.”_ 7. From the circular it is clear that the screening committee is expected to commence its screening work from the date on which election is announced; screening work is to be completed before the issuance of notification for election. On receipt of a report of the said screening committee that the impounding of the licensed arm of a particular licenseholder is essential for ensuring the maintenance of law and order and for ensuring a free and fair election, the licensing authority can issue a notice to the licenseholder directing him to deposit the licensed arm within one week. WP(C).Nos.3525 & 3727 OF 2021 9 8. In the present case the respondents do not have a case that petitioners are involved in any of the parameters coming under clause (a) to (c) of Clause 3.10. Date of election is so far not notified. There is no report from the screening committee. No notice is issued to the petitioners by the licensing authority. 9. The only reason stated for directing deposit of the licensed arms is that the respondents want to ensure a serene atmosphere for the election. 10. When the Government has laid down a specific procedure which should precede the direction for deposit of licensed arms, there is no reason for deviating from the said procedure and collect the licensed arms well before election without authority and also to retain the guns even months after the election. It is unfortunate that the authorities concerned continue to adopt such illegal procedure even after a series of judgments from this court WP(C).Nos.3525 & 3727 OF 2021 10 |starting from<br> **_Saji Kuriachan v. _**|starting from<br> **_Saji Kuriachan v. _**|**_District_**| |---|---|---| |**_Collector, Ernakulam: 2011 (1) KLT_**||**_484 _**and| |reiterated in**_Binesh G. Vadath v._**||**_District_**| |**_Collector [2011 (1) KHC 214],_**|**_Joseph v._**|**_District_**| |**_Collector [2019 (1) KLT 1034] etc._**||| |Therefore, there shall be|a direction to the|| |respondents <br>3 and 4 to see that the Police||| |officers under them are not|resorting to such|| |short cut methods. There will be a further||| |direction to the respondents|<br>5 and 6 in W.P.(C)|| |No.3525/2021 and respondents|5 to 7|in W.P.| |(C)No.3727/2021,<br>to return|the licensed guns|| |deposited by the petitioners|within 2 days from|| |the date of receipt of a copy of the judgment.||| **Sd/P.V.ASHA JUDGE** DM WP(C).Nos.3525 & 3727 OF 2021 11 ## **APPENDIXOF W.P.(C)NO.3525/2021** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE CIRCULAR DATE 01.09.2009 FROM THE ELECTION COMMISSION. EXHIBIT P2 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 5TH RESPONDENT DATED 23.01.2021. EXHIBIT P3 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 5TH RESPONDENT DATED 24.01.2021. EXHIBIT P4 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 6TH RESPONDENT DATED 04.02.2021. EXHIBIT P5 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 5TH RESPONDENT DATED 23.01.2021. EXHIBIT P6 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 5TH RESPONDENT DATED 18.11.2020.** WP(C).Nos.3525 & 3727 OF 2021 12 ## **APPENDIX OF W.P.(C)NO.3727/2021** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE CIRCULAR DATED 1.9.2009 FROM THE ELECTION COMMISSION. EXHIBIT P2 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 5TH RESPONDENT DATED 18.1.2021. EXHIBIT P3 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 5TH RESPONDENT DATED 8.2.2021. EXHIBIT P4 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 6TH RESPONDENT DATED 15.1.2021. EXHIBIT P5 TRUE COPY OF THE DEPOSIT RECEIPT ISSUED BY THE 7TH RESPONDENT DATED 4.2.2021.** ## **RESPONDENTS EXHIBITS: NIL** ## **//TRUE COPY//** **PA TO JUDGE**