KAAPA | Delay In Initiating Proceedings Doesn't Invalidate Restraint Order If Nexus To Anti-Social Activity Not Severed: Kerala High Court

The Kerala High Court recently held that a delay in initiating proceedings under Section 15 of the Kerala Anti-Social Activities (Prevention) Act, 2007 does not always severe the live link between prejudicial activity and the initiation of legal action.

Section 15 of the Act deals with the power to make orders restricting the movements of certain persons.

Placing reliance on Stalin CV. v. State of Kerala & Ors., a Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha added that an accused engaging in yet another prejudicial activity shortly after receiving such an order bolsters the necessity of the order. 

"...in the light of the ratio in Stalin C.V, (supra), we find no reason to interfere with the impugned order on the ground of delay, for the passage of time in the case on hand does not give rise to total absence of any nexus. The conduct on the part of the petitioner in getting himself involved in another prejudicial activity immediately after serving the impugned order fortifies the subjective satisfaction rendered by the competent authority in this regard."

This petitioner had approached the Court challenging an order issued under Section 15(1)(a) of the Act restraining him from entering the Thrissur Revenue District for one year.

The impugned order referred to several prejudicial activities committed by the petitioner, the last one being reported on 03.02.2022. The petitioner had secured anticipatory bail in that case on 02.03.2022 and appeared before the police on 06.03.2022 as per the condition in the bail order. The final report in the case was filed on 30.03.2022.

However, on 09.07.2022, the Station House Officer recommended that proceedings be initiated against the petitioner under Section 15 and filed an additional report. Thereafter, the sponsoring authority under the Act recommended to the competent authority to initiate proceedings against the petitioner to prevent him from entering the limits of Thrissur Revenue District. Acting upon the recommendation, after affording the petitioner an opportunity of hearing, the impugned order was passed on 01.09.2022. 

Advocate Vishnuprasad Nair appearing for the petitioner contended that there was an inordinate delay in initiating proceedings after the last prejudicial activity. In the absence of any satisfactory explanation for such delay, he argued that it can be presumed that there is no application of mind on the aspect of the live link required to be maintained between the prejudicial activity and the initiation of proceedings. On this ground, the petitioner sought for the order to be set aside.

Meanwhile, Government Pleader K.A Anas pointed out that the petitioner was involved in yet another prejudicial activity after the impugned order and that this justifies the necessity of the order to prevent the petitioner from engaging in further anti-social activities. He contended that thus there was due application of mind on the part of the competent authority in passing the order.

In response, the petitioner argued that his involvement in prejudicial activity after the issuance of the order cannot justify its legality. He maintained that the order must be examined based on the circumstances existing at the time of its issuance, and if it is found to be illegal, subsequent involvement in a prejudicial activity does not validate it.

The Division Bench agreed that there must be a live link between the prejudicial activities and the decision of the competent authority to initiate proceedings under Section 15 and a long delay without a satisfactory explanation for the delay, it can be presumed that the live link between the prejudicial activity and initiation of proceedings is snapped.

In this case, there was a delay of 5 months and 18 days in initiating the proceedings from the date of the last prejudicial activity. The competent authority clarified that the delay has occasioned on account of the time taken for collecting the documents pertaining to the prejudicial activities committed by the petitioner and other relevant documents.

Thus, it was observed that the passage of time here did not give rise to a total absence of any nexus, and added that the conduct on the part of the petitioner in getting himself involved in another prejudicial activity immediately after serving the impugned order fortifies the subjective satisfaction rendered by the competent authority in this regard.

The Bench then referred to Stalin CV. v. State of Kerala & Ors, 2011 (1) KHC 852, where it was clarified that while an order of restriction cannot be passed if the prejudicial act has entirely lost its relevance by the passage of time, giving rise to a total absence of any nexus, an order of restriction under Section 15 is lighter in its impact on the personal liberty of the person concerned and that its effect is only in the nature of a condition attached to a bail order.

Examining the facts in the light of the ratio in Stalin C.V., the Bench found no reason to interfere with the impugned order on the ground of delay. The writ petition was found devoid of merits and was accordingly dismissed.

Case Title: Harikrishnan v. State of Kerala & Ors.

Citation: 2022 Livelaw (Ker) 311

Click Here To Read/Download The Order