Kerala High Court
Binoy @ Gillappi vs State Of Kerala on 14 November, 2016
Author: V Shircy
Bench: P.R.Ramachandra Menon, V Shircy
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY, THE 13TH DAY OF DECEMBER 2017/22ND AGRAHAYANA, 1939
WP(C).No. 17660 of 2017 (F)
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PETITIONER:
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BINOY @ GILLAPPI
S/O VARKEY, AGED 36 YEARS,
VALLATHOOKKARAN HOUSE,
THURUTHUSSERY KARA,
NEDUMBASSERY VILLAGE,
ERNAKULAM DISTRICT,
NOW RESIDING AT PATTIKKAD,
THRISSUR DISTRICT.
BY ADVS.SRI.O.V.MANIPRASAD
SRI.JOSE ANTONY
RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE
GOVERNMENT, (HOME & VIGILANCE),
GOVT. SECRETARIAT,
THIRUVANANTHAPURAM
2. THE INSPECTOR GENERAL OF POLICE
COCHIN RANGE, ERNAKULAM
COCHIN-682011
3. THE DISTRICT POLICE CHIEF
ERNAKULAM RURAL POLICE DISTRICT,
ALUVA, ERNAKULAM DISTRICT PIN-683101
4. THE ADVISORY BOARD
KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT,
REPRESENTED BY ITS CHAIRMAN PADOM ROAD,
ELAMAKARA, COCHIN-682026
R1 -R 3 BY GOVT PLEDER SRI K.A. ANAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24.10.2017, THE COURT ON 13-12-2017, DELIVERED THE FOLLOWING:
WP(C).No. 17660 of 2017 (F)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 14/11/2016
EXHIBIT P2 A TRUE COPY OF THE EXPLANATION SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT ON 13/12/2016
EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 25/2/2016 OF THE 3RD
RESPONDENT
EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 23/3/2017 IN OP NO.
2/2017 BY THE 4TH RESPONDENT, ADVISORY BOARD.
RESPONDENT(S)' EXHIBITS
-----------------------
NIL
KS.
TRUE COPY
P.S. TO JUDGE
C.R.
P. R. RAMACHANDRA MENON & SHIRCY V.,JJ.
==============================
W.P.(C)No. 17660 of 2017
==============================
Dated this the 13th day of December, 2017
JUDGMENT
Shircy V.,J.
Aggrieved by the order of restriction of movements passed by the second respondent against the petitioner under Section 15 of the Kerala Anti Social Activities Prevention Act (for short 'KAAPA'), the petitioner has approached this Court with this petition under Article 226 of the Constitution of India.
2. His grievance is that he was served with Ext.P1 show cause notice on 14.11.2016 by the second respondent calling upon him to show cause why an order under Section WPC 17660/2017 2 15(1)(a) of KAPPA shall not be issued against him based on his antecedents in the light of the surrounding circumstances. In Ext.P1 it is stated that his involvement in Crime No.719/2011 of Angamaly Police Station, Crime No. 149/2004 of Kalady Police Station, Crime No. 327/2016 and 829/2016 of Chengamanad Police Station, are accounted to bring him under the sweep as 'known rowdy' as defined under Section 2(p) of KAAPA. On receipt of Ext.P1 notice, he submitted Ext.P2 a detailed explanation, but it was rejected and Ext.P3 order was passed on 25.02.2016 and it was served on him on 28.02.2017 restricting his entry in Ernakulam Rural District for one year from the date of receipt of the order. The details of the cases mentioned in the show-cause notice are as follows:
Sl.No. Crime No. and Offences u/s Date of Present Stage Police Station occurrence/FIR / Charge 1 719/2011 of 324,326,427,120( 11.05.2011 Pending as Angamaly P.S. B), 34 Charge C.C.No.580/ 2015 in the trial 30.3.2012 court.
WPC 17660/2017 3
Sl.No. Crime No. and Offences u/s Date of Present Stage Police Station occurrence/FIR / Charge 2 149/2017 of Kalady 143,147,148,307,4 27.01.2014 Pending as CP P.S. 52,427,506(ii), 22/15 of Judicial 120B,109,212, 149 First Class IPC r/w 3(a) of FIR Magistrate Explosive 28.1.2014 Court, Kalady.
Substance Act & 7
r/w. 27(2) of Arms
Act. Charge
31.07.2014
3 327/2016 363,395 IPC 22.3.2016 Pending
Chengamanad P.S. investigation.
4 829/2016 195(A), 506 IPC 26.07.2016 Pending
Chengamanad P.S. investigation.
3. Though he submitted a representation before the Advisory Board, the same was also rejected by Ext.P5 order and hence he filed this petition with the following reliefs:
"i) To call for the records leading to Ext.P3 and P5 orders and further may be pleased to issue a writ of certiorari quashing Ext.P3 and P5 orders.
ii) To declare that the petitioner is not liable to be restrained under Section 15 of the Kerala Anti-Social Activities (Prevention) Act.
WPC 17660/2017 4
(iii) Issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case."
4. The respondents have stoutly defended the impugned action and controverted the grounds projected and contended that the petitioner is a person involved in four crimes of serious nature and his illegal and anti-social activities are adversely affecting the peaceful atmosphere of the locality and he has been identified as a 'known rowdy'. From 2003 onwards, in total he had involved in 15 cases of different police stations, but somehow he was acquitted in 11 cases. He is repeatedly indulging in such activities and in fact, his presence and illegal activities in the district are causing immense threat to the public and hence, on thorough examination of all the materials produced, to prevent his continuous anti-social activities without any regard to rule of law, the restriction order was passed, contends the respondents. It is further contended WPC 17660/2017 5 that in the earlier detention order passed against him dated 27.07.2011, Crime No.719/2011 was considered. But the order was quashed because of the ground of delay in executing the detention order and hence, the contention that the said crime cannot be taken into consideration for passing restriction order is not sustainable. The order under challenge is perfectly justifiable and it was passed safeguarding the rights of the petitioner and hence the Advisory Committee had confirmed the order of the second respondent is the stand taken by the respondents to sustain the order.
5. Challenge is with respect to Ext P3 order passed under Section 15 of KAAPA. Section 15 of KAPPA is extracted for easy reference.
"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 WPC 17660/2017 6 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 acting at any place within the jurisdiction of such magistrate or officer, may make an order,-
(a) directing that, except in so far 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.
(2) Any person aggrieved by an order issued under sub-section (1) may represent before the Advisory Board within fifteen days of the date of service of the WPC 17660/2017 7 order and the Board on receipt of such representation, consider the same, and after enquiring into the facts and circumstances in such manner as it may deem fit, shall within thirty days of the date of receipt of such representation, annual, amend or confirm the order, either in part of in full. (3) The Government or the authority which issued the order under sub-section (1) may, on its own motion, annual or amend the order at any time either in part or in full.
(4) Any person violating an order under sub-section (1) shall be liable to be punished with imprisonment for a term which may extend to three years. (5) If an order issued under sub-section (1) above has ceased to have effect for any reason, a new order under the said sub-section may be issued against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in section 2(o) or section 2(p) and if, after such cessation, he has again involved, in an offence of the nature described in section 2(o) or section 2(p) at least in one instance."
6. A reading of Section 15 makes it clear that an order restricting movement of an individual curtaining his WPC 17660/2017 8 personal right could be passed by the competent authority only if he is coming within the sweep of a 'known goonda' or 'known rowdy'. Here the order under challenge was passed as he satisfy and fall under the definition of 'known rowdy' is the definite contention of the respondents .So the question mooted for consideration is whether he satisfies the conditions in the definition of known rowdy to classify and identify him as a 'Known rowdy' and whether the order is justifiable in the eye of law.
A Known rowdy is defined under 2(p) of KAAPA as ; '' Known rowdy means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,-
(i)made guilty, by a competent court at least once for an offence of the nature under item (i) of clause (t) of section 2 or any offence notified as such under the said clause; or
(ii)made guilty, by a competent court at least twice for any offence of the nature mentioned under item (ii) of clause (t) of section 2 or any offence notified as such under the said clause; or WPC 17660/2017 9
(iii) found 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 part of the same transaction to have committed any offence mentioned in clause (t) of section 2:
Provided that any offence committed by a person,-
(i)by virtue of his involvement as a member of the family or a close relative of the family in an incident which took place by reason of a family dispute or quarrel involving family members of close relatives on either side;
or
(ii)by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours; or
(iii)by virtue of his involvement as an employee of any establishment in an incident which occurred in connection with a dispute between himself and the establishment with regard to the conditions of service; or
(iv)as a member of the student community in a recognised educational institution, by virtue of his involvement, merely by his presence but without any overt act constituting the offence mentioned in clause (t) of section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of students of the institution in that particular incident; or WPC 17660/2017 10
(v)as a member of a recognised political party, by virtue of his involvement merely by his presence, but without any overt act constituting the offence mentioned in clause (t) of section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of the workers of that party in an agitation or protest or programme organised by the party with prior information given to the police officer or magistrate having jurisdiction; or
(vi) by virtue of his involvement in a criminal act committed by him before he had attained the age of eighteen years, shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy"
Section 2(t) of KAAPA defines 'rowdy' as follows:
"2 (t) 'rowdy' means and includes a person who either by himself or as a member of a gang commits or attempts to commit, or abets the commission of any offences under sections 153A and 153B of Chapter VIII and Chapters XV, XVI, XVII, & XXII of the Indian Penal Code, 1860 (Central Act 45 of 1860), or any offences under the provisions of the Arms Act, 1959 (Central Act 54 of 1959), or the Explosives Substances Act, 1908 (Central Act 6 of 1908),--
(i)punishable with five or more years of imprisonment of any type, or;
WPC 17660/2017 11
(ii) with less than five years of imprisonment of any type, except those punishable with less than one year of imprisonment; or
(iii) such offences under any other law for the time being in force, coming under item (i) or (ii), as may be notified by the Government, from time to time.
7. The petitioner assails Ext.P3 restriction order on various grounds, mainly contending that he cannot be classified as 'known rowdy' as subjective satisfaction to stamp a person as 'known rowdy' can be achieved only after affording an opportunity of being heard to the particular person against whom an order is proposed. But it is clear from Ext.P1 notice that it was issued as if the authority had convincingly satisfied before hearing the petitioner itself, that he is indulging in anti-social activities and to prevent him, it is essential to pass an order of restriction. The words emphasized in the notice would establish the fact that the authority with a predetermined mind approached the matter and the issuance of the notice was only a formality and hence the order under challenge is WPC 17660/2017 12 vitiated. It is revealed from Ext.P1 notice of the 2nd respondent/authority that he is prejudiced and he approached the matter with a closed mind, contends the learned counsel for the petitioner. But a reading of Ext.P1 show cause notice would only reveals the prima facie satisfaction of the authority to call for the explanation with regard to the reports and circumstances involved in recommending to pass a restriction order against him. Ext.P2 is the explanation offered by him to the show cause notice issued by the authority. He has denied each and every allegation in the show cause notice issued to him in detail meticulously and availed the opportunity in letter and spirit. It is amply clear from Ext.P1 itself that he was given sufficient opportunity to offer his explanation and by Ext.P2 he had in detail offered his explanation to the show cause notice issued to him,but did not turn up for personal hearing though twice the opportunity was offered to him. His failure to appear in person before the authority in spite WPC 17660/2017 13 of notices would dis-entitle him from raising a contention that the order is vitiated due to audi alteram partem rule. Though the authority waited for a hearing or interview with him personally after serving notice on him, he did not turn up, for the best reasons known to him, despite receipt. In such a scenario we find it difficult to accept the argument of the learned counsel for the petitioner that the authority had approached the matter with a prejudiced or prejudged mind. Hence, there is no merit in his submission that there is denial of natural justice and that the order is vitiated due to audi alteram partem rule . But as mentioned above, a reading of Ext.P1 show cause notice as well his reply to the same and Ext.P3 would show that the authority approached the matter with an open mind and also with an impartial attitude evaluated the issue with all fairness and concluded that an order restricting his movement was highly essential to maintain public tranquility and a peaceful atmosphere in the locality as a precautionary measure, as WPC 17660/2017 14 he was in the habit of indulging in very serious criminal activities causing disturbance to the general public affecting public order. The argument that he was not given an opportunity to prove his innocence before issuing the order so as to vitiate the same is without any merits and it could correctly be held that there is absolutely no violation of natural justice and his free movement was not restricted illegally by the authority. It is also to be noted that in Ext.P3 order clear and convincing reasonings have been given by the authority and hence the dictum laid down in Oryx Fisheries Private Ltd. v. Union of India and Others [2010 (13)SCC 427] that natural justice is denied if reasonable opportunity is not given to establish innocence by making objections to the show-cause notice, is not applicable for the reasons mentioned above and the order under challenge is not vitiated by unfairness or bias in this regard .
8. Four cases were reckoned by the authority to pass WPC 17660/2017 15 Ext.P3 order. The further contention raised by the learned counsel for the petitioner is that out of the four cases, in Crime No.327/2016 and 829/2016 investigation have not been complected and the complicity of the petitioner in committing the offences alleged is not established and those cases cannot reckoned for classifying the petitioner as a Known rowdy. In this regard, the legal position is clearly explained by a Full Bench of this court in Stenny Aleyamma Saju v. State of Kerala and Others [2017(3)KHC 517] in which one of us was a member (P.R. Ramachandra Menon, J.) as follows ( paras 27 and 28 ):
"27. As mentioned already, unlike the case of 'punitive detention' where the purpose is to punish the offender on proving guilt; in the case of 'preventive detention 'it is only a prudent action to prevent the possible damage which could be caused to the public order and the society at large. As such it has to be prevented at the earliest opportunity. The detaining authority, who is mulcted with the duty in this regard, cannot wait for completion of the investigation and submission of the final report under section 173(2) of Cr.PC to invoke the jurisdiction keeping as eyes shut till WPC 17660/2017 16 such time; which otherwise will only be an instance of dereliction of duty. The only requirement is that he should be in a position to record the 'satisfaction' with regard to the requirements under the statute, based on the information made available, whether it be final report or such other materials.
28. This Court does not intend to say that mere registration of FIR is enough under such circumstances. Of course, something more is necessary which is collected by the investigating officer during the course of investigation. If the data collected in such process is adequate enough to meet the requirements under the statute so as to record the 'objective' well as 'subjective' satisfaction to the extent it is necessary, it is open for the detaining authority to have it acted upon and need not wait till completion of investigation and submission of charge sheet under S.173(2) of the Cr.P.C."
9. The argument that as the investigation is only pending those cases can not be reckoned to bring the petitioner within the sweep of known rowdy is of no merits in the light of the above referred decision. It is also to be borne in mind that the scope of inquiry as per this enactment is very limited, as the object is to prevent the person from indulging in activities prejudicial to the public. WPC 17660/2017 17 It is an anticipatory action to prevent apprehended objectionable activities and conducts injurious to the society. The object is not to punish a person after evaluating legal evidence, but it is only a precautionary measure for the protection of the society by the authority who is supposed to prevent crimes especially when the prime and foremost duty of the police is 'prevention of crime'. More over the legality of the order has to be tested according to the circumstances of each case.
10. An argument was also advanced assailing Ext.P3 by the learned counsel for the petitioner that the FIR in Crime No.327/2016 does not contain the name of the petitioner and hence for that reason also this case cannot be considered for classifying the petitioner as a known rowdy. But it is well settled that FIR is not an encyclopedia which contains all the details of the prosecution case. More so when it is not necessary even for the detaining authority that filing of final report under Section 175 (2) of CrPC to WPC 17660/2017 18 have 'objective and subjective' satisfaction, the non-mention of the name of the petitioner as an accused in the FIR cannot be considered as a defect as pointed out by the learned counsel for the petitioner especially when no rule of law stipulates that involvement of an accused person could be determined solely on the basis of what has been mentioned in the FIR.
11. The further contention raised by the learned counsel for the petitioner is that in Crime No.829/2016 the offence alleged to have been committed by him under Section 195(A) of IPC is not coming under Chapter XXII of I.P.C. and hence he cannot be considered as a person coming under the definition 2(P) so as to pass an order identifying him as a 'known rowdy'. Of-course offence under Section 195(A) of IPC is not included under Chapter XII of I.P.C but Section 506 of IPC is coming under Chapter XXII of I.P.C .Hence the said contention is without any merits.
WPC 17660/2017 19
12. It is also pointed out by the learned counsel that Crime No.719/2011 was earlier considered by the detaining authority so as to pass a detention order against him on an earlier occasion i.e. on 27.1.2011, but the same was set aside by this Court in the petition filed by him as W.P.(Crl) 153/2017. But in Radhika B. v. State of Kerala and Others [ 2015(2) KHC 183] a Full Bench of this Court has held that revocation of an order of detention does not take away the prior prejudicial acts of the detenu, that were counted for prior detention from being counted again to impose another order of detention. Applying the said declaration of law no defect could be attributed against the authority in accepting Crime No.719/2011 again by the authority to pass the order of detention.
13. Ext.P4 is the representation submitted by the petitioner before the Advisory Board aggrieved by Ext.P3 order. The Advisory Board has rejected the representation submitted by the petitioner by Ext.P5 order and concluded WPC 17660/2017 20 that the petitioner is a person coming under the definition of known rowdy. As per 15(2) of the KAAPA, the Advisory Board evaluated the entire matter and heard the learned counsel for the petitioner as well the 3rd respondent and perused the records and rejected the representation on the finding that the order has been issued by the authority on satisfaction that the involvement of the petitioner in anti social activities is prejudicial to the society and observed that no genuine ground existed to interdict the impugned order. Though it is vehemently argued that the finding of the Advisory Board is illegal no material point was brought out to interfere with the finding of the Board. Therefore ,the action of the Advisory Board is also justified .
14. The materials available before us would show that the petitioner is a person coming under the definition 'known rowdy'. However, he was released on bail in all the cases reckoned by the 1st respondent. It is also to be noted though he contended that he has not received copy of the WPC 17660/2017 21 Report dated 29.12.2016 forwarded by the 3rd respondent to the 2nd respondent, from the records available, it could be seen that it was only a forwarding letter addressed by respondent No.3 while forwarding the remarks of the Station House Officer. Before the Advisory Board also such a contention was raised but it was found that no new matter other than what is stated in 26.10.2016 was mentioned in the report and hence no prejudice was caused to the petitioner. Such being the case, the contention raised here that non-supply of important documents had caused prejudice to him is also without any merits. It is to be noted in Section 15(1) of KAAPA it is not specifically stated that the copy of all materials produced before him by the sponsoring authority have to be furnished to the person against whom an order under section 15 is passed. Still in report dated 29.12.2016 no new materials have been furnished as found by the Advisory Board.
15. It is also contended by the learned counsel for the WPC 17660/2017 22 petitioner that the unexplained delay in the proceedings would throw considerable doubt on the genuineness of the subjective satisfaction of the authority which vitiates the impugned order. The learned Government pleader opposed it, submitting that the delay was well explained and the representation was dealt with utmost expedition . We have given due consideration to the submissions made by the counsel for both sides. The last Crime i.e. Crime No.829/ 16 was committed on 28.07.2016. The bail conditions were in force till 18.10.2016. The proposal was initiated on 26.10.2016. Show cause notice was served on him on 14.11.2016. The representation was submitted by the petitioner on 13.12.2016, but he did not appear for personal hearings fixed on 4.1.2017 and subsequently on 21.1.2017.Ext P3 order is dated 25.2.2017. Therefore, it is difficult to accede to the argument advanced by the learned counsel for the petitioner that there was unsatisfactory and unexplained delay which vitiate the proceedings as well the WPC 17660/2017 23 order of restriction.
16. The records before us would make it explicitly clear that the authority had objective as well subjective satisfaction, on the basis of the materials placed by the sponsoring authority and it was to safe guard the interest of the society and to maintain public order, that the impugned order was passed, which is strictly in conformity with the relevant provisions of KAAPA. The sponsoring authority made it clear that the petitioner was in judicial custody while the proposal was made. Therefore, on the basis of materials anticipating his release or likelihood of his release on bail, to protect the interest of the general public, which is of prime importance, the order was passed and executed it.
17. KAPPA is enacted to prevent as well to have effective control over anti-social activities of persons indulged in such activities, to protect the community or the public at large free from threat or danger by the unruly WPC 17660/2017 24 behavior of such persons . The order was passed to avoid the presence of the petitioner at a place he is having acquaintance and the imperative need to restrict his movement in the area for the welfare of the society at large is abundantly clear from the records and that such a decision was taken by the authority based on the antecedents or past conducts of the petitioner in the wake of the surrounding circumstances .As the prime intention of the Act is to prevent or control anti-social activities by such persons who fall within the sweep of 'Known goonda' or 'Known rowdy', for the safety of the public, the authority is vested with power to take tough and stringent decisions giving utmost importance to the welfare of society than the private right of an individual, restricting his free movements in particular and specified areas to intercept him before he commits further unlawful acts as an anticipatory measure. WPC 17660/2017 25
18. In view of the above reasons, we find that the order restricting his entry to certain particular area is perfectly justifiable and his case squarely falls within the four corners of the relevant law. Therefore, the argument of the learned counsel for the petitioner that the precious right guaranteed by the Constitution under Article 22(5) is violated is devoid of merits.
In the result, the Writ Petition is dismissed.
Sd/-
P.R. RAMACHANDRA MENON JUDGE Sd/-
SHIRCY V
ks JUDGE
True copy
P.S. To Judge
WPC 17660/2017 26