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KERALA HIGH COURT
C.T. Ravikumar and N. Nagaresh, JJ.
Anil Kumar M.V. —Petitioner
versus
State of Kerala and Ors. — Respondents
WP(C).No.7475 of 2019
Decided on 12.4.2019
For the Petitioner:Sri. Vipin Narayan and Sruthy N. Bhat, Advocates
For the Respondents: Sri. K.A. Anas, Addl. Director General of Prosecution Public Prosecutor
IMPORTANT POINT
There should be live link between last prejudicial activity alleged against petitioner and externment order.
Headnote:Kerala Anti-Social Activities (Prevention) Act, 2007 – Section 15(1) – Order of externment – Challenge as to – It is from 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 immediate future – In present case, there is delay of more than 11 months from last crime allegedly committed by petitioner – Even after petitioner being granted bail in crime described as last prejudicial activity, it took more than five months for respondents to pass Externment Order which has a currency of only six months – Live link between last prejudicial activity alleged against petitioner and Restriction Order did not exist and externment order is vitiated – Impugned order set aside. (Paras 17 to 20)
Result: Writ Petition allowed.
JUDGMENT
N. 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. 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 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 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 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 03.09.2014the 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 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 k
