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2018 Supreme(Ker) 532

IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.VINOD CHANDRAN, ASHOK MENON, JJ.
KIRAN SHAJI S/O.SHAJI – Appellant
Vs.
STATE OF KERALA – Respondent
WP(C).No. 10194 of 2018
Decided on : 03-09-2018

Advocates:
Advocate Appeared:
For the Appellant : SRI. M.H. HANIS, Adv.
For the Respondent: SRI.SURESH BABU THOMAS, SRI.K.A.ANAS, GOVERNMENT PLEADER

Headnote:

The Kerala Anti-Social Activities (Prevention) Act, 2007- Section 15-The statement under S.161 CrPC can be perused by the detaining authority to ensure that the ingredients of the definition of 'known rowdy' under Clause (p) of S.2 are available on record. S.7(2) of the KAAPA provides what all documents should be furnished to the detenu after his arrest- Non-consideration of the condition imposed in granting bail by the authority is not fatal to the impugned restrain order.

Statement of facts:

The petitioner is before us seeking to set aside Ext.P2 modified order of restriction made against him by the Advisory Board, under Section 15 of the Kerala Anti-Social Activities (Prevention) Act, 2007 and also to strike down Section 15 of the Act as unconstitutional and command the respondents not to enforce the provisions of the Act against the petitioner, and for such other reliefs.

Finding of the court:

There is no breach of right of the petitioner under the Constitution in imposing such restriction which is only for a period of six months- Nor is there a procedural violation vitiating the order passed-Writ petition is not sustainable-The intention behind such restriction is to prevent the petitioner from getting involved in such criminal activities.

Result: Writ Petition dismissed

JUDGMENT :

Ashok Menon, J.

The petitioner is before us seeking to set aside Ext.P2 modified order of restriction made against him by the Advisory Board, under Section 15 of the Kerala Anti-Social Activities (Prevention) Act, 2007 ('Act' for short) and also to strike down Section 15 of the Act as unconstitutional and command the respondents not to enforce the provisions of the Act against the petitioner, and for such other reliefs.

2. The petitioner contends that, without affording an opportunity of a personal hearing, and without considering his detailed objection to the notice, order No.2(AA)/Camp/17-KOR dated 8.11.2017 was made under Section 15 of the Act restricting the petitioner's entry into Ernakulam District for a period of one year from the date of the said order, which was reduced by the Advisory Board to six months, vide Ext.P2.

3. The order was produced directly before the third respondent Advisory Board, without even serving a copy of the said order on the petitioner. Annexures of the said order were received by the petitioner, which is produced at Ext.P1, which contains the recommendation of the District Police Chief and the other documents pertaining to the crimes registered against the petitioner. On 11.12.2017, the third respondent Advisory Board modified the order of the second respondent by limiting it to a period of six months vide Ext.P2.

4. The petitioner states that the order of restriction passed against him was in a mechanical manner without any application of mind. It is also pointed out that the cases against the petitioner which have been the basis for making such an order of restriction could not have been relied upon under the provisions of the Act. The petitioner was implicated in five crimes. Crime No.1403/2013 was registered against him at Kalady Police Station while he was still a minor, his date of birth being 11.5.1996. In 2014, proceedings were initiated against the petitioner under Section 107 of the Code of Criminal Procedure by registering Crime No.2275/2014 at Kalady Police Station, which was dropped on acceptance of a detailed reply filed by the Petitioner to the show cause notice. In Crime No.1060/2017 of Angamaly Police Station, the final report is yet to be filed. Crime No.1807/2014 of Kalady Police Station, was quashed by this Court. On 2.12.2013, most of the crimes could not have been taken into consideration for issuing restriction order under the Act. The petitioner was granted bail in Crime No.1060/2017 of Angamaly Police Station. As per the bail conditions, the petitioner was directed not to enter into the limits of Ernakulam Sessions Division for a period of two months from the date of release. It was also directed that he shall not get involved in identical crimes and if he got involved so, prosecution could move for cancellation of the bail. Before initiating the proceedings against the petitioner under Section 15 of the Act, the respondents failed to consider the fact that the condition imposing restriction of his movement was already imposed by this Court while granting bail and that would have been sufficient. He has not violated any condition imposed in that bail order and therefore, a further restriction could not have been imposed by the respondents. Moreover, it is also pointed out that the last prejudicial activity allegedly committed by the petitioner was on 14.4.2017 and the order of restriction is made on 8.11.2017. This delay has not been considered by the respondents. It is submitted that the petitioner is a daily wage earner and a labourer and that is his only means for livelihood. Imposition of restriction from entering the locality, where he has been residing and earning his livelihood, would amount to depriving him of his livelihood. The Act does not provide for livelihood, food or shelter to the petitioner, in case of imposing restriction. Without such provision being made, while imposing restriction depriving the petitioner of his livelihood, there is a gross v




















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