Kerala High Court
Anil Kumar.M.V vs State Of Kerala on 12 April, 2019
Bench: C.T.Ravikumar, N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941
WP(C).No.7475 of 2019
PETITIONER:
ANIL KUMAR.M.V
AGED 30 YEARS
S/O VISHWAMBHARAN, MADATHILPARAMBIL HOUSE,
NEENDOOR P.O., KOTTAYAM
BY ADVS.
SRI.VIPIN NARAYAN
SRUTHY N. BHAT
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 INSPECTOR GENERAL OF POLICE,
KOCHI RANGE,1 G OFFICE, ERNAKULAM 682 031.
3 THE DISTRICT POLICE CHIEF,
KOTTAYAM 686 103.
4 SUB INSPECTOR OF POLICE,
ETTUMANOOR POLICE STATION, ETTUMANOOR-686 631.
BY ADVS.
ADDL. DIRECTOR GENERAL OF PROSECUTION
PUBLIC PROSECUTOR SRI. K.A. ANAS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.7475 of 2019
2
JUDGMENT
~~~~~~~~~ Nagaresh, J.
The petitioner is aggrieved by Ext.P1 order of externment issued by the 2nd respondent under Section 15(1) of the Kerala Anti Social Activities (Prevention) Act, 2007, whereby the petitioner has been restrained from entering into the territorial limits of District Police Chief, Kottayam for a period of six months, except for appearing in Court litigations, attending marriages and bereavement in respect of close relatives and for own medical treatment.
2. The petitioner states that he was issued Ext.P3 notice dated 03.12.2018 under Section 15(1) of the Kerala Anti Social Activities (Prevention) Act, 2007 ('the Act, 2007', for short) on the basis of Ext.P2 report of the 3rd respondent-District Police Chief. The petitioner was required to show cause why he should not be subjected to restriction of movement under Section 15 of the Act, 2007. WP(C).No.7475 of 2019 3 Thereafter, Ext.P1 order of externment was passed on 13.01.2019.
3. The petitioner submitted Ext.P4 representation before the Advisory Board constituted under Section 8 of the Act, 2007. The Advisory Board did not consider the materials produced before it. The authorities have not applied their mind. Relevant documents/statements were withheld from the petitioner, contends the petitioner.
4. According to the petitioner, the 2nd respondent has taken into consideration the following crimes for restricting the the movements of the petitioner:-
(i) Crime No.812/2014 of Ettumanoor Police Station under Sections 120(b), 406, 420 and 395 IPC.
(ii) Crime No.1301/2015 of Ettumanoor Police Station under Sections 457, 380 and 427 IPC.
(iii) Crime No.549/2017 of Ettumanoor Police Station under Sections 323, 324, 341, 326, 307 and 34 IPC.
(iv) Crime No.137/2018 of Ettumanoor WP(C).No.7475 of 2019 4 Police Station under Sections 452, 429, 427 and 34 IPC and Section 11(1)(L) of Prevention of Cruelty to Animals Act.
(v) Crime No.236/2018 of Gandhinagar Police Station under Sections 457, 511 and 380 IPC.
The petitioner contended that an externment order under the Act, 2007 cannot be sustained on the basis of the aforesaid crimes.
5. The counsel for the petitioner contended that there is inordinate and considerable delay between last prejudicial activity and passing of Ext.P1 order. The date of the alleged last prejudicial activity by the petitioner was 08.02.2018. Ext.P1 order was passed only after 11 months, on 10.01.2019. According to the petitioner, there was no complaint against the petitioner during the 11 months and there is absolutely no case that during the said period he had indulged in any similar prejudicial activity and hence, there existed no live link for the 2nd respondent to act upon.
6. Secondly, the counsel for the petitioner WP(C).No.7475 of 2019 5 contended, the crime referred firstly in Ext.P1 namely, Crime No.812/2014, is a crime initiated by police officers and should be excluded while considering the requirement of restricting petitioner's movements, in view of Section 2(p)(iii) of the Act, 2007. The second listed Crime No.1301/2015, discloses absolute foul pay on the part of police. The allegation in this Crime is that on 03.09.2014 the petitioner committed theft of R.C. Books of a motor cycle and car, Bank cheque leaf, two stamp papers of ₹50/- and ₹20,000/-, from the rented house of one Vivekanandan. Though the theft was alleged to have happened on 03.09.2014 at 3.00 a.m., an FIR in this regard was lodged only on 21.09.2015. It is inconceivable that a person who lost so many valuables will wait for one year to lodge an FIR. According to the counsel for the petitioner, the deliberate implication of the petitioner in the said crime is evidently motivated.
7. According to the petitioner, a bare reading of FIR in Crime No.137/2018 would show that the said crime is also concocted and the petitioner has been deliberately WP(C).No.7475 of 2019 6 implicated in the crime as 2nd accused and there is no link to connect the petitioner with the crime. The allegation is that some people trespassed into a farm house, destroyed plantains and pipes and killed a buffalo. None was originally named in the FIR, as accused. Subsequently, the de facto complainant gave a statement before the police that someone called him from a mobile phone bearing No.7356287906 and abused him, and he suspects the caller as the person behind such atrocious and prejudicial activities. The de facto complainant has not named the petitioner. The mobile phone bearing the said number does not belong to the petitioner or to any of his near relatives. The petitioner has been subsequently arrayed as 2 nd accused in the crime solely based on confession statement of 1st accused. It is totally illegal and unwarranted. There is no material whatsoever to implicate the petitioner in this crime, even in the Final Report. Counsel for the petitioner contends that these three crimes should not have been made the basis to curb the personal liberty of the petitioner. WP(C).No.7475 of 2019 7 Neither the 2nd respondent nor the Advisory Board applied their mind on these very crucial aspects. The learned counsel relied on judgment in Abdul Wahab v. State of Kerala and others [2017 (3) KLJ 728 (FB)] in support of his argument.
8. The counsel for the petitioner argued that the Advisory Board totally misdirected in its approach. The Board opined that it is not for the Board to delve into evidence, while considering an externment order. The counsel argued that powers of the Board under Section 10(4) of the Act and Section 15(2) are not similar. Section 15(2) envisages much wider powers for the Board, akin to the powers of an appellate body. When under Section 15(2), the Board is conferred with the power to annul, amend or confirm the Externment Order, necessarily the Board has to act responsibly, apply its mind and consider whether there exists sufficient materials to pass an order restricting movement of citizens. The failure of the Board to exercise its powers has resulted in violation of fundamental WP(C).No.7475 of 2019 8 right of the petitioner. The counsel relied on the judgments in A.K.Roy v. Union of India and another [AIR 1982 SC 710], Shibu v. State of Kerala [2009 (4) KLT 872] and Manikantan v. State of Kerala [2013 (4) KLT 272], in support of the argument.
9. The counsel for the petitioner further contended that the sponsoring authority has not supplied statements of witnesses recorded under Section 161 Cr.P.C. to the Authority. The Authority is not a prisoner of findings of the investigating officer. The spiteful and vindictive acts of the police is writ large in the five crimes. The offences alleged do not show that the petitioner will pose any danger to public order. Lastly, the counsel urged that the petitioner is a tile worker, will get employment only in his native place and the restriction order, will put himself and his family into penury.
10. Respondents 1 to 4 entered appearance in the case through learned Government Pleader, filed counter affidavit and opposed the writ petition. Learned Government Pleader stated that the District Police Chief initiated WP(C).No.7475 of 2019 9 proceedings and gave a report, based on which Ext.P1 order was passed. The order was to prevent anti social activities of the petitioner. The petitioner filed appeal before the Chairman, Advisory Board. The appeal was considered, petitioner was heard and the appeal was dismissed by the Board. The petitioner is a threat to public order.
11. Learned Government Pleader stated that while passing the restriction order, the 2nd respondent considered all material documents and examined them in detail. Thereafter, a decision was taken to proceed against the petitioner under Section 15 of the Act, 2007. Procedural formalities were duly complied with.
12. All the listed five cases were filed on the basis of statements of independent victims. The nature of the offences committed by the petitioner includes crimes of serious nature such as attempt to murder, criminal conspiracy, dacoity, house braking, criminal trespass, etc. Action taken against the petitioner under Section 107 Cr.P.C. became futile and the petitioner continued to commit crimes WP(C).No.7475 of 2019 10 even thereafter. Therefore, action under Section 15(1) was necessitated. The petitioner is a 'known rowdy'.
13. The Government Pleader argued that though powers of Advisory Board under Section 15(2) is wider than that under Section 10(4), the Board cannot substitute its views to those of Restricting Authority. The Board cannot scrutinise the materials on record in order to arrive at a conclusion of guilt or otherwise of the petitioner. The Board's function is to see whether subjective satisfaction recorded by the Restricting Authority is proper or not.
14. As regards live link between last prejudicial activity of the petitioner and Ext.P1 order, the Government Pleader pointed out that the last prejudicial activity was on 08.02.2018. The petitioner was under judicial custody thereafter. The petitioner was granted bail on 31.07.2018. Immediately thereupon Inspector of Police, Ettumanoor made the proposal to District Police Chief, Kottayam. After scrutinising all records, the sponsoring authority submitted proposal to the Restricting Authority which issued notice to WP(C).No.7475 of 2019 11 petitioner on 03.12.2018. The petitioner submitted representation on 02.01.2019. The petitioner was heard on 07.01.2019 and the restriction order was passed on 10.01.2019. There is no wilful delay on the part of the respondents and the live link between last prejudicial activity of the petitioner and restriction order cannot be said to be snapped.
15. We have perused the pleadings in the case and heard the arguments raised by the learned counsel for the petitioner and learned Government Pleader for respondents.
16. The first argument of the petitioner in support of his challenge against Ext.P1 order is that the last prejudicial activity alleged against the petitioner was on 08.02.2018, in respect of Crime No.236/2018 of Gandhinagar Police Station. The Externment/Restriction order against the petitioner was passed on 10.01.2019, namely more than 11 months of the alleged last prejudicial activity. This Court in the judgment in Ansar T.A. v. State of Kerala and others [2017 (2) KHC 413] has held that the question whether WP(C).No.7475 of 2019 12 prejudicial activity of a person is proximate to the time when the order is made or whether the live link between the prejudicial activities and the purpose of the order is snapped, depends on the facts and circumstances of each case. In Rahila Nazeer v. State of Kerala and others [2016 (3) KHC 189], this Court held that factual situation in each case makes the question whether the delay is inordinate so as to vitiate the order, relevant.
17. It is from the antecedent inclinations of a man that an inference is drawn whether he is likely to act in a manner prejudicial to public order in near future. Such antecedent conduct should be proximate in time and one should be able to reasonably predict that such person is likely to indulge in anti social activities in the immediate future.
18. In the present case, there is a delay of more than 11 months from the last crime allegedly committed by the petitioner. The said incident was on 08.02.2018 and the Restriction Order was issued on 10.01.2019. The learned Government Pleader argued that the petitioner was in WP(C).No.7475 of 2019 13 judicial custody thereafter and came out on bail on 31.07.2018. Immediately thereafter, the authorities took steps. Materials had to be obtained, documents had to be perused and scrutinised. Show cause notice had to be issued, which was issued on 03.12.2018. The petitioner was heard on 07.01.2019 and the order was passed on 10.01.2019. Therefore, it cannot be said that live link has been snapped due to the delay, contended the Government Pleader.
19. We have considered the sequence of actions taken by the respondents and the attenuating circumstances of the case. Even after the petitioner being granted bail on 31.07.2018 in the crime described as last prejudicial activity, it took more than five months for the respondents to pass an Externment Order which has a currency of only six months. In the facts and circumstances of the case, we are of the view that the live link between the last prejudicial activity alleged against the petitioner and the Restriction Order did not exist and Ext.P1 order is therefore, vitiated. WP(C).No.7475 of 2019 14
20. In the light of the above view we have taken, we find it not necessary to decide on other grounds urged by the petitioner and opposed by the respondents.
This writ petition is accordingly allowed. Ext.P1 order of the 2nd respondent will stand set aside.
Sd/-
C.T.RAVIKUMAR, JUDGE Sd/-
N. NAGARESH, JUDGE aks/12.04.2019 WP(C).No.7475 of 2019 15 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER NO 3(BN)/CAMP/18-K.O.R. DATED 10.1.2019 ISSUED BY THE RESPONDENT NO 2 UNDER SECTION 15(1) OF KAAPA ACT.
EXHIBIT P2 TRUE COPY OF THE RECOMMENDATION DATED 3.11.2018 GIVEN BY THE RESPONDENT NO 3 TO THE RESPONDENT NO 2 EXHIBIT P3 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 3.12.2018 ISSUED BY THE RESPONDENT NO 2 TO THE PETITIONER EXHIBIT P4 TRUE COPY OF THE ORDER DATED 13.2.2019 IN OP NO 1/2019 PASSED BY THE ADVISORY BOARD.
EXHIBIT P5 TRUE COPY OF THE FINAL REPORT ALONG WITH THE DOCUMENTS SUPPLIED TO THE PETITIONER IN CRIME NO 812/2014 OF THE ETTUMANOOR POLICE STATION AS SUPPLIED TO THE PETITIONER EXHIBIT P6 TRUE COPY OF THE FINAL REPORT IN CRIME NO 1301/2015 OF THE ETTUMANOOR POLICE STATION ALONG WITH THE DOCUMENTS SUPPLIED TO THE PETITIONER EXHIBIT P7 TRUE COPY OF THE FINAL REPORT IN 549/2017 OF THE ETTUMANOOR POLICE STATION ALONG WITH THE DOCUMENTS SUPPLIED TO THE PETITIONER EXHIBIT P8 TRUE COPY OF THE FINAL REPORT IN CRIME NO 137/2018 OF ETTUMANOOR POLICE STATION ALONG WITH THE DOCUMENTS SUPPLIED TO THE PETITIONER EXHIBIT P9 TRUE COPY OF THE FINAL REPORT IN CRIME NO 236/2018 OF THE GANDHI NAGAR POLICE STATION ALONG WITH THE DOCUMENTS SUPPLIED TO THE PETITIONER