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High Court of Kerala
K.M. JOSEPH & M.L. JOSEPH FRANCIS
C.V. Stalin
Versus
State Of Kerala, Represented By Its Secretary to Government & Others
WP(C).No. 2104 of 2011 (K)
Decided on : 22-02-2011
Kerala Anti Social Activities (Prevention) Act 2007 - Section. 15 & 3 - Power to make orders for detaining Known Goondas and Known Rowdies - Power to make orders restricting the movements of certain persons - Whether Cases which formed the subject matter of an earlier order of detention could validly be considered for arriving at the objective satisfaction that a person is a known rowdy or known goonda - Challenged - Held,There cannot be any dispute that for the purpose of arriving at the conclusion that a person is a known goonda or known rowdy, cases which formed the subject matter of an earlier order of detention could validly be considered for arriving at the objective satisfaction that a person is a known rowdy or known goonda. The only area where the Authority is debarred from considering the earlier cases is in the matter of arriving at subjective satisfaction. In this case, there cannot be any dispute that on a consideration of the four cases together, the petitioner can be treated as a known rowdy. Once the objective satisfaction is arrived at, namely that a person is a known rowdy or known goonda, then under S.15 of the Act, it is open to the Authority concerned, on information and after following the procedure, to arrive at the subjective satisfaction that there is a need to pass an order as contemplated therein - The conditions contemplated include imposing circumstances which the person can enter the otherwise prohibited area. Therefore, the direction contained in the impugned order that he shall not commit any anti-social activity within the said area, does not appear to be in conformity with the order that can be passed under S.15. But, that would not be the end of our enquiry. Court think that the mere fact that the Officer has gone a step further and given a direction which we have referred to above, may only indicate that the said direction was not called for, being illegal. Court view that the said portion which is found to objectionable, is clearly severable and the order which remains even after deleting the objectionable portion is one which is passed well within the four corners of the Act. In other words, the objectionable portion is clearly severable and what is more, it does not affect the validity of the order which is passed otherwise - Writ Petition dismissed.
K.M. Joseph, J.
1. Petitioner challenges Ext.P1 dated 25.9.2010. Ext.P1 is an order passed by the third respondent (Deputy Commissioner of Police, Kochi City). By the said order, the petitioner has been restrained from entering into the Kochi City limits coming under his jurisdiction and also not to commit any anti-social activities within the said limits for a period of one year. The Advisory Board on a representation filed by the petitioner, reduced the period of restriction to six months.
2. We heard Shri Hanis M.H. (Manakal), learned counsel appearing for the petitioner and also Shri P. Ravindra Babu, learned Senior Government Pleader. Learned counsel for the petitioner would submit as follows:
The impugned order is vitiated for the reason that it is in violation of the dicta laid down by a Division Bench of this Court in Uma v. State of Kerala (2010 (4) KLT 511). He also relies on another decision of this Court in Praseetha v. State of Kerala and Others (2009 (4) KHC 382). It is his case that the basis for passing the impugned order under Section 15 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act) are the following Crimes:
(a) Crime No.31/05
(b) Crime No.153/07
(c) Crime No.1018/08 &
(d) Crime No.507/10.
There was an earlier order which was passed under Section 3 of the Act providing for detention of the petitioner. Petitioner filed W.P. (Crl). No.131/08. By Judgment dated 3.6.2008 this Court had quashed the said order. It is, therefore, contended that the two cases which were earlier relied on by the District Magistrate, Ernakulam for passing the order of detention could not be relied on for arriving at the subjective satisfaction regarding the need for passing the order under Section 15 of the Act.
Secondly, it is contended that Crime No.507/2010 was allegedly committed on 23.2.2010. According to him, the charge-sheet was filed on 31.3.2010. It discloses, according to the learned counsel, a determination to somehow take action against the petitioner under the Act. Undue haste is pointed out as a vitiating circumstance. The incident which was the basis of Crime No.1018/08 was alleged to be committed on 13.9.2008. He would, therefore, contend that there was no real need to invoke the provisions of the Act against the petitioner. Learned counsel would also submit that the last crime was allegedly committed on 23.3.2010. The restriction order was passed on 25.9.2010 and there was no proximity between the last prejudicial act and the date of the impugned order.
Thirdly, he would contend that Crime Nos.1018/08 and 507/10 were liable to be excluded for the reason that they come under the second proviso to Section 2(p) of the Act. Reliance is placed on the decision of this Court in Praseetha v. State of Kerala and Others (2009 (4) KHC 382). It is his contention that the complainant in Crime No.1018/08 was one Mruthul who is the neighbour of the petitioner and in Crime No.507/10 the complainant is one Prasanth whose spouse is residing near the petitioner's house. He would further contend that the order betrays non-application of mind for the reason that though under Section 15, the order that can be passed is to prevent entry of a person within a geographical limit, in this case, the Officer has by the impugned order, gone beyond the said limits and further ordered that the detenu shall not indulge in any anti-social activity within the said geographical limits. It is also contended that in violation of Section 15, petitioner was not given an opportunity of being heard.
3. Shri P. Ravindra Babu, learned Senior Government Pleader would submit as follows:
The decisions of this Court relied on by the petitioner to contend that the two Crimes which were the subject matter of the earlier order of detention could not be considered, do not apply as such to the facts of this case. True, he submits that as held in Uma v. State of Kerala (2010 (4) KLT 511), the first tw
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