Need To Invoke Kerala Anti-Social Activities Act Must Be Assessed If Proceedings For Peace Keeping U/S 107 CrPC Already Initiated: High Court

Section 107 of CrPC is initiated for taking security for keeping peace and public tranquillity.

The Division Bench of Justice Raja Vijayaraghavan V and Justice Jobin Sebastian observed that if authorities are convinced that proceedings under the KAAPA Act also have to be initiated against an individual to prevent him from engaging in anti-social activities, then they may initiate such actions, even if proceedings have already been taken under Section 107 CrPC.

“In other words, 107 proceedings and the provisions under the KAAP Act operate in different spheres. At the same time, it has to be borne in mind that in a case where it is possible to prevent the detenu from continuing his anti-social activity by methods other than his preventive detention, the authorities are bound to adopt those methods rather than depriving the detenu his rights under Article 21 of the Constitution of India. It was therefore that this court as well as the Apex Court have held that in cases where proceedings such as those under Section 107 Cr.P.C are initiated, the authorities should consider whether, in spite of the initiation of such proceedings it is necessary to preventively detain or extern the person concerned and that on such examination if the authorities are satisfied that detention or externment is necessary, it is open to the authorities to validly do so.”

The petitioner was classified as known rowdy under the KAAPA Act for initiation of proceedings against him. He was issued with a show cause notice as to why a restriction order should not be issued against him. After hearing the petitioner, he was issued with an order restricting him from entering Thrissur Revenue District for a period of six months from the date of receipt of the order. The order was also confirmed by the Advisory Board.

The Petitioner thus approached the High Court challenging the externment order issued against him Section 15 (1)(b) of the KAAPA Act.

The Counsel for petitioner argued that there was no need to initiate proceedings under the KAAPA Act against the petitioner since proceedings under Section 107 of the CrPC had already been initiated against him.

The Public Prosecutor submitted that proceedings under Section 107 CrPC and under Section 15(1) of KAA(P)Act operate in different spheres. It was stated that initiation of proceedings under 107 CrPC in no way would preclude the power of the competent authority to pass an externment order under Section 15(1) of the KAA(P) Act.

The Court observed that the petitioner was classified as known rowdy under the KAAPA Act due to his involvement in three cases. The Court further stated that there was no inordinate delay in issuing the externment order against him.

The Court referred to Anita Antony v. State of Kerala and Others (2022) to state that the scope of proceedings under the KAAPA Act and Section 107 CrPC are distinct and different.

The Court held that under Section 107 CrPC, security is taken to keep peace and public tranquillity, and it does curtail an individual's free movement. The Court stated that proceedings under the KAAPA Act would be initiated once an individual was classified as known rowdy to prevent anti-social activities.

Regarding externment order under the KAAPA Act, the Court said, “This order can be issued if, after affording an opportunity of being heard, the officer is satisfied that the individual is engaging in, about to engage in, or likely to engage in anti-social activities. The affected person must meet the criteria for a Known goonda or Known rowdy, and the officer must satisfy himself, objectively and subjectively, that restrictions are necessary to prevent further anti-social activities as defined under section 2(a) of the KAAP Act.”

In the facts of the case, the Court noted that the petitioner engaged in another crime even after initiation of proceedings under Section 107 of the CrPC. The Court thus found that the detaining authority was satisfied that Section 107 CrPC proceedings were insufficient to prevent the petitioner from continuing anti-social activities.

As such, the Court held that there is no illegality in issuing restraining order against the petitioner under Section 15 of the KAAPA Act.

Counsel for Petitioner: Advocates Jithin Babu A, Arun Samuel, Anood Jalal K.J.

Counsel for Respondents: Senior Public Prosecutor T V Neema

Case Number: WP(CRL.) NO. 1093 OF 2024

Case Title: Yasar Arafath v State of Kerala

Citation: 2024 LiveLaw (Ker) 708