IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 WP(C).No. 2104 of 2011(K) ------------------------- PETITIONER(S): -------------------- STALIN.C.V,S/O.BABU,AGED 33 YEARS, CHAMBAKKAL HOUSE,PERUMPADAPPU,PALLURUTHY, KOCHI-682006. BY ADV. SRI.M.H.HANIS RESPONDENT(S): ------------------------ 1. STATE OF KERALA,REPRESENTED BY ITS SECRETARY TO GOVERNMENT,HOME DEPARTMENT,GOVT. SECRETARIAT,THIRUVANANTHAPURAM. 2. THE ADVISORY BOARD,REPRESENTED BY ITS CHAIRMAN,OFFICE OF THE ADVISORY BOARD,KERALA ANTI-SOCIAL ACTIVITIES(PREVENTION)ACT,SREENIVAS, VIVEKANDA NAGAR,PADAM ROAD,ELAMAKKARA, KOCHI-26. 3. THE DEPUTY COMMISSIONER OF POLICE, KOCHI CITY,KOCHI-682031. BY SR. GOVERNMENT PLEADER SHRI P. RAVINDRA BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C).NO.2104 OF 2011 K PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF ORDER NO.D1(A) 20928/2007/EC DATED 25.09.2010 PASSED BY THE THIRD RESPONDENT. EXT.P2 TRUE COPY OF ORDER IN O.P.NO.24/2010 DATED 17.11.2010 PASSED BY THE 2ND RESPONDENT. EXT.P3 TRUE COPY OF ORDER DATED 21.12.2010 IN CRIME NO.31/2005 OF PALLURUTHY POLICE STATION BY THE COURT OF THE ASSISTANT SESSIONS JUDGE, KOCHI. EXT.P4 TRUE COPY OF ORDER DATED 1.11.2010 IN CRIME NO.153/2007 OF PALLURUTHY POLICE STATION BY THE COURT OF JFCM-II, KOCHI. RESPONDENTS' EXHIBITS: NIL. // TRUE COPY// K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- W.P.(C).NO. 2104 OF 2011 K ------------------------------------------ Dated this the 22nd February, 2011 JUDGMENT K.M. Joseph, J. 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 WP(C).NO.2104/2011 K 2 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, WP(C).NO.2104/2011 K 3 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. WP(C).NO.2104/2011 K 4 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. WP(C).NO.2104/2011 K 5 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 two Crimes committed in the years 2005 and 2007 could not be considered for the purpose of entering into a subjective satisfaction, but it is not the law that the said two crimes cannot be considered for arriving at the objective satisfaction. He would further submit that it is settled law that the Court will not interfere with the subjective satisfaction. It is undisputed, he points out that even excluding the two cases, namely the cases of 2005 and 2007, there are two cases, namely the case of the year 2008 and the case of the year 2010. It is not the requirement of the law that there should be any particular number of cases from which the Authority could arrive at the WP(C).NO.2104/2011 K 6 conclusion that there is a need for passing an order under Section 15 of the Act. 4. As far as the question of link between the last crime being lost, in view of the last crime being allegedly committed on 23.3.2010 and the final report being filed on 31.3.2010 and the impugned order being passed on 25.9.2010, it is submitted that it cannot be compared with a case under Section 3 of the Act. Secondly, he would point out that under Section 15, steps have to be taken to hear the party. He relied on the wording of section 15 to buttress his argument that there is no merit in the petitioner's argument. He would also point out that there is no material to show that Crime Nos.1018/08 and 507/10 were to be excluded. He would point out that there is no basis for arriving at such a conclusion on the facts. 5. As far as the case based on non-application of mind by reason of the additional restriction being put in the order, he would submit that it is without merit and even if that portion is struck WP(C).NO.2104/2011 K 7 down, it will not affect the validity of the legal order passed providing for restriction. Petitioner was given opportunity of being heard, he submits. Findings: 6. Admittedly, Crime Nos.31/05 and 153/07 were among the crimes which formed the subject matter of the order of detention passed under Section 3 of the Act. There is also no dispute that the said order of detention was interfered with by this Court. There is also no dispute that it was interfered with on procedural grounds. The question to be decided is whether by reason of the said decision of the High Court, the impugned order is vitiated. 7. In Praseetha v. State of Kerala and Others (2009 (4) KHC 382), the Court, inter alia, held as follows: “It has clearly been held that setting aside of an order by superior constitutional Courts in exercise of their power of judicial review cannot be held to amount to revocation - i.e., Voluntary revocation under Section 11 of the COFEPOSA. Similar is the provision in WP(C).NO.2104/2011 K 8 Section 13 of the KAAPA. There is no contention before us that setting aside of an order of detention by superior constitutional Courts would attract Section 13 (2).” It was further held as follows: “Ordinarily and normally, revocation of an order of detention must be held to make it impermissible to pass a fresh order of detention on the same grounds. Section 13(2) only clarifies that notwithstanding the fact that an order of revocation was passed earlier or the fact that the period of detention under an earlier order of detention has expired, a subsequent order of detention under Section 3 of the KAAPA can be passed if the stipulations of Section 13(2) of the KAAPA are satisfied. Section 13(2) does therefore only lift (subject to conditions) the bar against passing a fresh order of detention when an earlier order of detention has been revoked under Section 13(1) or when the period of detention under an earlier order has expired. To understand this, it must be noted that Section 13(1) deals with revocation or modification whereas Section 13(2) deals not only with such revocation or WP(C).NO.2104/2011 K 9 modification, but also with the expiry of the period of detention stipulated under the order of detention......We are of the view that grounds relied on in the orders revoked on the basis of the opinion of the Advisory Board cannot also be reckoned as grounds for passing a fresh order of detention. Not doing so would be disservice to the mandate of Article 22(4) of the Constitution of India. But, if there are fresh grounds justifying the passing of a fresh order of detention, the mere fact that there was revocation under Section 10 (4) of an earlier order of detention cannot offer any immunity against detention under Section 3. The question then will be whether a fresh order of detention can be justified on the fresh grounds that have been relied on. We need only state that a fresh order of detention on fresh grounds is perfectly possible even when the earlier order is revoked under Section 10(4) of the KAAPA.” Still later, in Uma v. State of Kerala (2010 (4) KLT 511), this Court, inter alia, held as follows: WP(C).NO.2104/2011 K 10 “16. We find merit in this contention. The precedents referred above refer to the subjective satisfaction to be entertained by the detaining authority. The detention on the basis of such subjective satisfaction entertained already having been set aside by a constitutional court by issuing a high prerogative writ those grounds which earlier instilled the subjective satisfaction in the mind of the detaining authority cannot be relied on afresh. But that is not to say that those cases cannot be considered for entertaining the former objective satisfaction - as to whether the detenu is a known goonda or a known rowdy. The learned D.G.P. Submits, even if the earlier grounds cannot be relied on, that to entertain the subjective satisfaction, there can be no fetter on ascertaining the factual position as to whether the proposed detenu is a known goonda or a known rowdy. Even Ibrahim Bachu Bafan and C. B. Kahar (supra) are no authority for the proposition that the earlier events cannot be taken into consideration to entertain the former objective satisfaction, contends the learned D.G.P. WP(C).NO.2104/2011 K 11 It is also relevant to refer to paragraph 26 which reads as follows: 26. It is well settled that subjective satisfaction entertained by the detaining authority is not justiciable. This Court does not sit in appeal in proceedings under Art. 226 of the Constitution over the decisions taken by the detaining authority on the basis of the materials placed before the detaining authority as to whether preventive detention is necessary or warranted. The short area of jurisdiction is to ascertain whether the subjective satisfaction is entertained properly on the basis of materials placed before the detaining authority. If the entertainment of the latter subjective satisfaction is vitiated by malafides or by total absence of materials or by reference to and reliance on materials which cannot legally be taken note of, certainly the powers of judicial review vested in this Court can be invoked and the order of detention on the basis of such alleged subjective satisfaction can be set aside. But, certainly if there are materials, it is not open to this Court to sit in appeal over the subjective satisfaction entertained WP(C).NO.2104/2011 K 12 by the detaining authority.” 8. Therefore, 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 Section 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. But, in the facts of this case, it can be done only after excluding Crime Nos.31/05 and WP(C).NO.2104/2011 K 13 153/07. This is not a case where apart from Crime Nos.31/05 and 153/07, there is no fresh material. In fact, admittedly, there are two further criminal cases - one of the year 2008 and the another of the year 2010, in which the petitioner was allegedly involved. Therefore, it cannot be said that there is total want of material justifying the Authority arriving at subjective satisfaction as contemplated under the Act. In such circumstances, we repel the contention of the petitioner based on the decisions of this Court in Uma's case and Praseetha's case (supra). 9. Regarding the contention based on the second proviso to Section 2(p) of the Act, we feel that there is no material for us to arrive at the conclusion that the complainants in those cases can be treated as the immediate neighbours. Learned counsel for the petitioner would only submit that both the parties are residents in the nearby location. We feel that it is too vague for us to arrive at a conclusion that the requirements of the second proviso to Section 2 (p) of the Act are satisfied. WP(C).NO.2104/2011 K 14 10. We are equally unimpressed by the contention based on the observation or direction contained in the impugned order that the petitioner shall not commit any anti-social act within the city limits of Kochi. No doubt, Section 15 reads, inter alia, as under: “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 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.” WP(C).NO.2104/2011 K 15 Learned Senior Government Pleader would, no doubt, submit that what is intended is that restrictions can be placed in the order passed under Section 15(1)(a) and the very purpose of passing the order is to prevent commission of any anti-social activity. A perusal of the provisions would bear out the learned counsel for the petitioner and we would think that he is correct in contending that though the purpose of Section 15 is to prevent commission of anti- social activities and the Officer concerned must arrive at the conclusion that a known rowdy or a known goonda is likely to commit an anti-social activity, but the actual order that he can pass is to prevent such person from entering into a geographical area. 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 Section 15. But, that would not be the end of our enquiry. WP(C).NO.2104/2011 K 16 We must further consider the question whether by mere reason of the fact that the officer has gone a step further and passed an illegal direction, will it establish non-application of mind or an illegality which renders the entire proceedings infirm ? 11. We would 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. The fact that he has passed an order which is partly illegal by itself may not indicate, in the circumstances of this case, that there was non-application of mind. Still further, we are of the 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. WP(C).NO.2104/2011 K 17 12. The next question which we must consider is the effect of the last crime which was considered by the Officer being allegedly committed on 23.3.2010, but the order of restriction under Section 15 being passed on 25.9.2010. We must, first of all, remind ourselves that we are not dealing with an order of detention. An order of detention under Section 3 is a grave deprivation of the personal liberty of the person detained. An order under Section 15 also visits the person concerned with an incursion into his personal liberty within the meaning of Article 21. This is for the reason that every citizen has a right to travel in any part of India, subject to any law which may provide otherwise. In fact, as held in Smt. Maneka Gandhi v. Union of India and Another (AIR 1978 SC 597), the right to travel abroad itself was treated as part of Article 21 of the Constitution. Proceeding on the basis, therefore, that the order under Section 15 of the Act also visits the person with the lesser deprivation of liberty in comparison with Section 3, we must consider whether the principle WP(C).NO.2104/2011 K 18 of delay in passing an order of detention in relation to the last crime allegedly committed results in snapping of the link is as such applicable in the case of an order of restriction under Section 15 and also whether, in the facts, much store can be laid by the petitioner based on the said principle. 13. As far as the facts are concerned, we notice that in the Counter Affidavit it is stated as follows: “The averment of the petitioner in para 4 of the Writ Petition that there is no proximate nexus between the last prejudicial act and the date of the restriction order is not correct. The last prejudicial act that led to the registration of Crime No.507/10 was on 23.03.2010 and investigation was completed and charge sheet was prepared and filed on 31.03.2010, thereafter the preliminary report was prepared on 26.06.2010 by the Circle Inspector of Police, Palluruthy and forwarded to the Deputy Commissioner of Police. The Deputy Commissioner after due application of mind and after being satisfied that there is need for passing an order for restriction against the petitioner, forwarded the WP(C).NO.2104/2011 K 19 report to the Deputy Inspector General of Police on 29.08.2010. Thereafter this respondent after due application of mind and after examining all the records arrived at the objective satisfaction that the petitioner is a known rowdy and further at the subjective satisfaction that with a view to prevent him from further committing anti-social activities, that there was a need to pass an order under Section 15(1) of KAAPA restraining the petitioner from entering the jurisdiction of Kochi City Police.” Therefore, the proceedings was commenced in June, 2010 itself. Unlike an order of detention under Section 3, in the case of an order of restriction under Section 15, it is mandatory that the principles of natural justice be observed. In other words, it is necessary that the Officer must issue a show cause notice and afford an opportunity of being heard. Necessarily, this consumes time. Therefore, the nature of the proceedings under Section 3 and Section 15 are inherently different. Still further more, we must also remind ourselves that in Section 15, as pointed out by the WP(C).NO.2104/2011 K 20 learned Senior Government Pleader, the Authority can act in a matter where the known goonda or known rowdy is indulging or about to indulge or is likely to indulge in anti-social activities and it is to prevent the concerned person from so acting in any place within his jurisdiction that an order could be passed. This language is to be contrasted with the phraseology in Section 3 where it is provided as follows: “3. Power to make orders for detaining Known Goondas and Known Rowdies.- (1) The Government or an Officer authorised under sub-section (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained.” WP(C).NO.2104/2011 K 21 Thus, in the case of Section 3(1) of the Act, there is an indication that the legislature intended a sense of immediacy and, therefore, a proximate nexus between the act or acts and the order of detention is inevitable. We must reiterate that Section 15, apart from allowing the Officer to delve into the past, it permits him to hypothesise about what the known goonda or known rowdy, is likely to do in the immediate future, having regard to the use of the words “about to indulge”. What is more, it also permits the Officer to glean out the likelihood of such a person indulging in anti-social activities. We must also immediately remind ourselves that certainly in comparison to the order of detention, an order of restriction under Section 15, is lighter in its impact on the personal liberty of the person concerned. In fact, the learned Senior Government Pleader would point out that it is almost like the conditions attached to bail granted by the Courts. We are not, for a moment, saying that if the act/acts which are complained of have completely lost their relevance by the passage of time, giving rise WP(C).NO.2104/2011 K 22