W.P.(C). Nos. 4957 of 2015 (T), 7993 and 10458 of 2015. Case: Thejas Vs Inspector General of Police. High Court of Kerala (India)
| Case Number | W.P.(C). Nos. 4957 of 2015 (T), 7993 and 10458 of 2015 |
| Counsel | For Appellant: K.S. Arun Kumar, M.S. Dileep and Resmi Thomas, Advs. and For Respondents: Tom Jose Padinjarekara, Addl. Director General of Prosecution |
| Judges | K. T. Sankaran and Anu Sivaraman, JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 107, 111, 122(1)(b), 482; Constitution of India - Article 22; Delhi Police Act, 1978 - Section 47; Indian Penal Code 1860, (IPC) - Section 188; Kerala Anti-social Activities (Prevention) Act, 2007 - Sections 12, 13, 15, 15(1), 15(2), 2, 2(o), 2(p)(iii), 3, 4, 5, 6, 7, 8, 9, 10, 11, 3(1), 7(3) |
| Judgement Date | June 11, 2015 |
| Court | High Court of Kerala (India) |
Judgment:
K. T. Sankaran, J.
1. The question involved in these Writ Petitions is: In order to pass an order under Section 15 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the 'KAAPA') in cases where proceedings under Section 107 of the Code of Criminal Procedure are taken against the person concerned, is it necessary that another case should be registered against him after the initiation of the proceedings under Section 107 Cr.P.C.?
2. Since the question involved in all these Writ Petitions is the same, these Writ Petitions are being disposed of by this common judgment.
3. An order under Section 15(1) of the KAAPA was passed against Thejas, the petitioner in W.P.(C) No. 4957 of 2015, on 9.1.2015, on the ground that the petitioner is a 'known rowdy" as defined under the KAAPA. The petitioner was involved in five cases registered at Dharmadam police station as Crime Nos. 879/2012, 556/2013, 71/2014, 85/2014 and 275/2014. In the first among the aforesaid cases, the petitioner was acquitted even before the passing of the order under Section 15(1) of the KAAPA. Proceedings under Section 107 Cr.P.C. were taken against the petitioner on 29.4.2014. It is stated that the petitioner was directed to execute a bond under Section 111 Cr.P.C. and he executed the bond accordingly. The last crime mentioned in the order of detention was allegedly committed on 17.4.2014 and the final report therein was filed on 21.5.2014. The petitioner is not involved in any other crime after the initiation of the proceedings under Section 107 Cr.P.C. In the order of detention, initiation of the proceedings under Section 107 Cr.P.C. has been mentioned. However, it is stated that to complete the proceedings therein, delay would occur and that an order under Section 15(1) of the KAAPA would be necessary in the circumstances. The order of detention was challenged by the petitioner before the Advisory Board under Section 15(2) of the KAAPA. The Advisory Board rejected the contentions raised by the petitioner. It was contended that the fifth case mentioned in the order under Section 15(1) of the KAAPA was quashed under Section 482 Cr.P.C.. Relying on the decisions in Vijayamma v. State of Kerala (2014 (4) KLT 563) and Fazludhin v. State of Kerala (2014 (1) KHC 14 (DB)), the Advisory Board held that the subjective satisfaction arrived at by the authority under Section 15(1) of the KAAPA would not be affected by the subsequent quashing of the case or the acquittal of the person concerned. It was held that there are sufficient number of cases against the petitioner to hold him as a 'known rowdy' under the KAAPA. The Advisory Board also held that though the last crime was registered against the petitioner on 17.4.2014, "the petitioner was found responsible for the offences" on 21.5.2014, on which date charge sheet was filed, which would establish the "habitual criminal nature" of the petitioner. The Advisory Board also held that the petitioner is "untameable antisocial element who is a threat to the public at large unless he is externed".
4. Jyothish. K., the petitioner in W.P.(C) No. 10458 of 2015, is a co-accused in the five cases in which Thejas is involved. The order under Section 15(1) of the KAAPA against Jyothish was passed on 28.1.2015. It is submitted that proceedings under Section 107 Cr.P.C. were initiated against him in April, 2014 and in which, as per the order passed by the Sub Divisional Magistrate, he executed a bond. In the case of Jyothish also, the Advisory Board rejected the contentions put forward by him. The Advisory Board also held that it "is not a case of detention where the liberty of the individual is fully curtailed so as to warrant subjective satisfaction at a more rigorous plane". The contention put forward that there was delay in passing the order of externment was also rejected, on facts, by the Advisory Board.
5. Gopakumar P.P., the petitioner in W.P.(C) No. 7993 of 2015, was involved in three crimes registered at Iritty Police Station in the year 2014. Final reports were filed in those cases and the trial of the cases is pending. The order of externment was passed by the Deputy Inspector General of Police, Kannur Range on 9.1.2015, holding that the petitioner satisfies the definition of "known rowdy" under Section 2(p)(iii) of the KAAPA. Proceedings were initiated under Section 107 Cr.P.C. against the petitioner and the matter is pending before the Sub Divisional Magistrate. It is stated that the petitioner has not appeared before the Sub Divisional Magistrate. In the case of Gopakumar also, the Advisory Board rejected his representation under Section 15(2) of the KAAPA on almost similar grounds as in the other two cases referred to above.
6. The learned counsel appearing for the petitioners submitted that since the petitioners were not involved in any crime after the date of initiation of the proceedings under Section 107 Cr.P.C., there was no justification for passing an order under Section 15(1) of the KAAPA against them. The ordinary law of the land would be sufficient to prevent the petitioners from committing crimes and the drastic step of passing an order of externment under Section 15(1) of the KAAPA before finding the petitioners guilty was not justified. The learned counsel submitted that in the case of Thejas and Jyothish, they had executed bonds as directed by the Sub Divisional Magistrate in the proceedings under Section 107 Cr.P.C. It is submitted that when a bond is executed, the person concerned would be under constant surveillance and it cannot be expected that he would involve in another crime during the period of one year for which the bond is executed. If there is violation of the conditions of bond, Section 188 of the Indian Penal Code and Section 122(1)(b) of the Code of Criminal Procedure would apply. The learned counsel also relied on the decisions in Susi v. State of Kerala (2011 (1) KLT 760), Manju v. State of Kerala (2011 (3) KLT 150) and Rekha Gopakumar v. State of Kerala (2012 (4) KLT 990).
7. Sri. Tom Jose Padinjarekara, the learned Additional Director General of Prosecution, submitted that the object and purpose of the proceedings under Section 107 Cr.P.C. and Section 15(1) of the KAAPA are not the same. Even if proceedings are initiated against...
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