Karnataka High Court
Giddappa @ Lambu Giddappa vs The State Of Karnataka on 21 April, 2023
Bench: M.Nagaprasanna
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WP No. 8182 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 8182 OF 2023 (GM-POLICE)
BETWEEN:
GIDDAPPA @ LAMBU GIDDAPPA
S/O MAHADEVAPPA
AGED ABOUT 44 YEARS,
R/AT KURUBA JANANGA
KAMANURU KADEKARI,
PRESENTLY R/AT:
CHENNAKESHAVA NAGARA,
5th CROSS, SHIKARIPURA TOWN,
SHIVAMOGGA DISTRICT - 577 201.
...PETITIONER
(BY SRI VISHWAJITH RAI M, ADVOCATE)
AND:
PADMAVATHI 1. THE STATE OF KARNATAKA
BK
REPRESENTED BY ITS SECRETARY,
Digitally signed by HOME DEPARTMENT
PADMAVATHI B K
Location: HIGH 2nd FLOOR, VIDHANA SOUDHA
COURT OF
KARNATAKA BENGALURU - 560 001.
2. THE ASSISTANT COMMISSIONER
AND SUB-DIVISIONAL MAGISTRATE
SAGAR SUB DIVISION,
SAGAR - 577 401.
3. THE DEPUTY SUPERINTENDENT OF POLICE
HOSANAGARA POLICE STATION,
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WP No. 8182 of 2023
SHIKARIPURA,
SHIVAMOGGA - 577 418.
...RESPONDENTS
(BY SRI B.V.KRISHNA, AGA
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASHING OF THE ORDER OF THE R-2 DATED 07.03.2023
BEARING NO. MAG(GALIPAMA)VIVA.4AA/2021-22 AT
ANNEXURE-A AND ALL FURTHER PROCEEDINGS.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an
order dated 07.03.2023, passed by the second respondent -
Assistant Commissioner and Sub-Divisional Magistrate, Sagara,
externing the petitioner for a period of six months commencing
from 07.03.2023 to 07.09.2023 from Sagara Sub-Division and
sent him to Kalaburagi District.
2. Heard Sri Vishwajith Rai M., learned counsel for the
petitioner and Sri B.V.Krishna, learned Additional Government
Advocate for the respondents.
WP No. 8182 of 2023
3. The petitioner is alleged to have been involved in
several offences, totaling 11 cases. The first one is, in crime
No.36/2011 for offence punishable under Section 78(3) of the
Karnataka Police Act, 1963 ('the Act' for short); second in crime
No.89/2011 for offences punishable under Section 78(3) of the
Act read with Section 420 of the IPC; third in crime No.21/2012
again for the offence punishable under Section 78(3) of the
Act; fourth in crime No.23/2013 for offence punishable under
Section 78(3) of the Act; fifth in crime No.106/2014 for offence
punishable under Section 78(3) of the Act; sixth in crime
No.92/2015 for offence punishable under Section 78(3) of the
Act; seventh one is, in crime No.92/2015 for offence punishable
under Section 78(3) of the Act; eighth one is, crime
No.14/2020 for offence punishable under Section 78(3) of the
Act; ninth is, crime No.114/2022 for offence punishable under
Section 78(3) of the Act; tenth is, crime No.20/2021 in terms
of Section 107 of the Cr.P.C.; eleventh is, crime No.19/2022 in
terms of Section 107 of Cr.P.C.
4. The aforesaid criminal cases are the foundation for the
second respondent for passage of the order of externment,
WP No. 8182 of 2023
externing the petitioner for a period of six months from Sagara
to Kalaburagi district. It is this order, that drives the petitioner
to this Court in the subject petition.
5. It is germane to notice the provision under which an
order of externment can be passed against a citizen by
respondent No.2 - Assistant Commissioner and they are under
Sections 55 to 60 of the Act and they read as follows:
"55. Removal of persons about to commit
offences.--Whenever it shall appear in the City of
Bangalore and other areas for which a
Commissioner has been appointed under section 7
to the Commissioner, and in other area or areas to
which the Government may, by notification in the
official Gazette, extend the provision of this
section, to the District Magistrate, or the Sub-
Divisional Magistrate having jurisdiction and
specially empowered by the Government in that
behalf,--
(a) that the movements or acts of any
person are causing or calculated to cause alarm,
danger or harm to person or property, or
(b) that there are reasonable grounds for
believing that such person is engaged or is about
to be engaged in the commission of an offence
involving force or violence or an offence
punishable under Chapter XII, XVI or XVII of the
Indian Penal Code, or in the abetment of any such
offence, and when in the opinion of such officer
witnesses are not willing to come forward to give
evidence in public against such person by reason
WP No. 8182 of 2023
of apprehension on their part as regards the safety
of their person or property, or
(c) that an outbreak of epidemic disease is
likely to result from the continued residence of an
immigrant, the said officer may, by an order in
writing duly served on him, or by beat of drum or
otherwise as he thinks fit, direct such person or
immigrant so to conduct himself as shall seem
necessary in order to prevent violence and alarm
or the outbreak or spread of such disease or to
remove himself outside the area within the local
limits of his jurisdiction or such area and any
district or districts or any part thereof contiguous
thereto by such route and within such time as the
said officer may specify and not to enter, or return
to the said place from which he was directed to
remove himself.
56. Removal of persons convicted of certain
offences.--If a person has been convicted at any
time either before or after the commencement of
this Act,--
(a) of an offence under Chapter XII, XVI or
XVII of the Indian Penal Code (Central Act 45 of
1860); or
(b) of an offence under section 6 of 13 of
the Mysore Mines Act, 1906 (Mysore Act 4 of
1906); or
(c) of an offence under section 86 of the
Karnataka Forest Act, 1963 (Karnataka Act 5 of
1964); or
(d) twice of an offence under Section 19 of
the Mysore Prohibition of Beggary Act, 1944
(Mysore Act 33 of 1944) or any other
corresponding law in force in any area of the
State; or
WP No. 8182 of 2023
(e) twice of an offence under the
Suppression of Immoral Traffic in Women and
Girls Act, 1956 (Central Act 104 of 1956); or
(f) twice of an offence under the
Untouchability (Offences) Act, 1955 (Central Act
22 of 1955); or
(g) thrice of an offence within a period of
three years under section 78, 79 or 80 of this Act;
or
(h) thrice of an offence within a period of
three years under sections 32, 34, 37 or 38A of the
Karnataka Excise Act 1965, (Karnataka Act 21 of
1966), the Commissioner, the District Magistrate,
or any Sub-divisional Magistrate specially
empowered by the Government in this behalf, if he
has reason to believe that such person is likely
again to engage himself in the commission of an
offence similar to that for which he was convicted,
may direct such person to remove himself outside
the area within the local limits of his jurisdiction
or such area or any district or districts or any part
thereof contiguous thereto, by such route and
within such time as the said officer may specify
and not to enter or return to the place from which
he was directed to remove himself.
Explanation.--For the purpose of this section
"an offence similar to that for which a person was
convicted" shall mean,--
(i) in the case of a person convicted of an
offence mentioned in clause (a), an offence falling
under any of the Chapters of the Indian Penal
Code mentioned in that clause; and
(ii) in the case of person convicted of an
offence mentioned in clauses (e) and (f), an
offence falling under the provisions of the Acts
mentioned respectively in the said clauses.
WP No. 8182 of 2023
57. Period of operation of orders under
section 54, 55 or 56.--A direction made under
section 54, 55 or 56 not to enter any particular
area or such area and any district or districts or
any part thereof, contiguous thereto shall be for
such period as may be specified therein and shall
in no case exceed a period of two years from the
date on which it was made.
58. Hearing to be given before an order is
passed under section 54, 55 or 56.-- (1) Before an
order under section 54, 55 or 56 is passed against
any person, the officer acting under any of the
said sections or any officer above the rank of an
Inspector authorised by that officer shall inform
the person in writing of the general nature of the
material allegations against him and give him a
reasonable opportunity of tendering an
explanation regarding them. If such person makes
an application for the examination of any witness,
produced by him, the authority or officer
concerned shall grant such application and
examine such witness, unless for reasons to be
recorded in writing the authority or officer is of
opinion that such application is made for the
purpose of vexation or delay. Any written
statement put in by such person shall be filed with
the record of the case. Such person shall be
entitled to appear before the officer proceeding
under this section by a legal practitioner for the
purposes of tendering his explanation and
examining the witnesses produced by him.
(2) The authority or officer proceeding under
sub-section (1) may, for the purpose of securing
the attendance of any person against whom any
order is proposed to be made under section 54, 55
or 56 require such person to appear before him
and to furnish a security bond with or without
sureties for such attendance during the inquiry. If
the person fails to furnish the security bond as
WP No. 8182 of 2023
required or fails to appear before the officer or
authority during the inquiry, it shall be lawful to
the officer or authority to proceed with the inquiry
and thereupon such order as was proposed to be
passed against him may be passed.
59. Appeal.--Any person aggrieved by an
order made under section 54, 55 or 56 may appeal
to the Government within thirty days from the
date of such order.
60. Finality of orders.--Any order passed
under section 54, 55 or 56 or by the Government
under section 59 shall not be called in question in
any court except on the ground that the authority
making the order or any officer authorised by it
had not followed the procedure laid down in sub-
section (1) of section 58 or that there was no
material before the authority concerned upon
which it could have based its order or on the
ground that the said authority was not of opinion
that witnesses were unwilling to come forward to
give evidence in public against the person in
respect of whom an order was made under section
55."
(Emphasis supplied)
An order of externment can be passed under Section 55
of the Act against a person who is about to commit an
offence/s. Such orders can be passed only if such person is
engaged or about to engage in the commission of a crime or an
offence punishable under chapters XII, XVI or XVII of the IPC.
It is only under those circumstances that an order of
externment for offences can be passed.
WP No. 8182 of 2023
6. A perusal at the offences indicated in the impugned
order, which are the foundation for passage of the impugned
order would indicate that there is no such offence that the
petitioner gets involved which are under chapters XII, XVI or
XVII of the IPC. The allegation against the petitioner in the
aforesaid crimes are all offences punishable under Section 78
(3) of the Act except in one particular case, which also involves
an offence punishable under Section 420 of the IPC. This, in
the considered view of this Court would not lay a foundation for
passage of the order impugned in the petition, which takes
away the fundamental right of the petitioner for his free
movement in his territory.
7. Reference being made to the judgment of the Apex
Court in the case of DEEPAK v. STATE OF MAHARASHTRA1,
in the circumstances would become apposite. The Apex Court
has held as follows:
"6. We have given careful consideration to the
submissions. Under clause (d) of Article 19(1) of the
Constitution of India, there is a fundamental right
conferred on the citizens to move freely throughout
the territory of India. In view of clause (5) of Article
19, State is empowered to make a law enabling the
imposition of reasonable restrictions on the exercise
2022 SCC OnLine SC 99
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of the right conferred by clause (d). An order of
externment passed under provisions of Section 56 of
the 1951 Act imposes a restraint on the person
against whom the order is made from entering a
particular area. Thus, such orders infringe the
fundamental right guaranteed under Article 19(1)(d).
Hence, the restriction imposed by passing an order of
externment must stand the test of reasonableness.
7. Section 56 of the 1951 Act reads thus:
"56. Removal of persons about to commit
offence-
(1) Whenever it shall appear in Greater Bombay
and other areas for which a Commissioner has
been appointed under section 7 to the
Commissioner and in other area or areas to
which the State Government may, by
notification in the Official Gazette, extend the
provisions of this section, to the District
Magistrate, or the Sub-Divisional Magistrate
specially empowered by the State Government
in that behalf (a) that the movements or acts
of any person are causing or calculated to
cause alarm, danger or harm to person or
property or (b) that there are reasonable
grounds for believing that such person is
engaged or is about to be engaged in the
commission of an offence involving force or
violence or an offence punishable under
Chapter XII, XVI or XVII of the Penal Code,
1860, or in the abetment of any such offence
and when in the opinion of such officer
witnesses are not willing to come forward to
give evidence in public against such person by
reason of apprehension on their part as
regards the safety of their person or property,
or [(bb) that there are reasonable grounds for
believing that such person is acting or is about
to act (1) in any manner prejudicial to the
maintenance of public order as defined in the
Maharashtra Prevention of Communal,
Antisocial and other Dangerous Activities Act,
1980 or (2) in any manner prejudicial to the
maintenance or supplies of commodities
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essential to the community as defined in the
Explanation to sub-section (1) of section 3 of
the Prevention of Blackmarketing and
Maintenance of Supplies of Essential
Commodities Act, 1980, or (c) that an
outbreak of epidemic disease is likely to result
from the continued residence of an immigrant,
the said officer may, by an order in writing
duly served on him or by beat of drum or
otherwise as he thinks fit, direct such person
or immigrant so to conduct himself as shall
seem necessary in order to prevent violence
and alarm [or such prejudicial act], or the
outbreak or spread of such disease or
[notwithstanding anything contained in this
Act or any other law for the time being in
force, to remove himself outside such area or
areas in the State of Maharashtra (whether
within the local limits of the jurisdiction of the
officer or not and whether contiguous or not),
by such route, and within such time, as the
officer may specify and not to enter or return
to the area or areas specified (hereinafter
referred to as "the specified area or areas")
from which he was directed to remove himself.
(2) An officer directing any person
under sub-section (1) to remove himself from
any specified area or areas in the State may
further direct such person that during the
period the order made against him is in force,
as and when he resides in any other areas in
the State, he shall report his place of
residence to the officer-in-charge of the
nearest police station once in every month,
even if there be no change in his address. The
said officer may also direct that, during the
said period, as and when he goes away from
the State, he shall, within ten days from the
date of his departure from the State send a
report in writing to the said officer, either by
post or otherwise, of the date of his departure,
and as and when he comes back to the State
he shall, within ten days, from the date of his
arrival in the State, report the date of his
arrival to the officer-in-charge of the police
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station nearest to the place where he may be
staying.
(underline supplied)
8. A perusal of sub-section (1) of Section 56 shows
that there are distinct grounds specified under sub-section
(1) of Section 56 for passing an order of externment. The
said grounds are in clauses (a), (b), (bb), and (c). In the
present case, clauses (a) and (b) of sub-section (1) of
Section 56 of the 1951 Act have been invoked. The ground
in clause (a) is that the movements or acts of any person
are causing or calculated to cause alarm, danger or harm to
a person or property. The ground in clause (b) is that there
are reasonable grounds for believing that such person is
engaged or is about to be engaged in the commission of an
offence involving force or violence or an offence punishable
under Chapter XII, XVI or XVII in IPC, or the abetment of
any such offence. Clause (b) is qualified by a condition that
the competent authority empowered to pass such order
should be of the opinion that witnesses are not willing to
come forward to give evidence in public against such
person by reason of apprehension on their part as regards
the safety of their person or property. Obviously, the
opinion must be formed on the basis of material on record.
9. As observed earlier, Section 56 makes
serious inroads on the personal liberty of a citizen
guaranteed under Article 19(1)(d) of the Constitution
of India. In the case of Pandharinath Shridhar
Rangnekar v. Dy. Commr. of Police, State of
Maharashtra1 in paragraph 9, this Court has held that
the reasons which necessitate or justify the passing
of an extraordinary order of externment arise out of
extraordinary circumstances. In the same decision,
this Court held that care must be taken to ensure that
the requirement of giving a hearing under Section 59
of the 1951 Act is strictly complied with. This Court
also held that the requirements of Section 56 must be
strictly complied with.
10. There cannot be any manner of doubt that
an order of externment is an extraordinary measure.
The effect of the order of externment is of depriving a
citizen of his fundamental right of free movement
throughout the territory of India. In practical terms,
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such an order prevents the person even from staying
in his own house along with his family members
during the period for which this order is in
subsistence. In a given case, such order may deprive
the person of his livelihood. It thus follows that
recourse should be taken to Section 56 very sparingly
keeping in mind that it is an extraordinary measure.
For invoking clause (a) of sub-section (1) of Section
56, there must be objective material on record on the
basis of which the competent authority must record
its subjective satisfaction that the movements or acts
of any person are causing or calculated to cause
alarm, danger or harm to persons or property. For
passing an order under clause (b), there must be
objective material on the basis of which the
competent authority must record subjective
satisfaction that there are reasonable grounds for
believing that such person is engaged or is about to
be engaged in the commission of an offence involving
force or violence or offences punishable under
Chapter XII, XVI or XVII of the IPC. Offences under
Chapter XII are relating to Coin and Government
Stamps. Offences under Chapter XVI are offences
affecting the human body and offences under Chapter
XVII are offences relating to the property. In a given
case, even if multiple offences have been registered
which are referred in clause (b) of sub-section (1) of
Section 56 against an individual, that by itself is not
sufficient to pass an order of externment under
clause (b) of sub-section (1) of Section 56. Moreover,
when clause (b) is sought to be invoked, on the basis
of material on record, the competent authority must
be satisfied that witnesses are not willing to come
forward to give evidence against the person proposed
to be externed by reason of apprehension on their
part as regards their safety or their property. The
recording of such subjective satisfaction by the
competent authority is sine qua non for passing a
valid order of externment under clause (b).
11. On 2nd June 2019, the Police Inspector of
Badnapur Police Station, District Jalna submitted a proposal
to the Judicial Magistrate, First Class at Badnapur for
permitting detention of the appellant for a period of 15 days
by invoking provisions of sub-section (3) of Section 151 of
Cr.PC (as inserted by the Maharashtra Act No. 7 of 1981).
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WP No. 8182 of 2023
In the said proposal, reliance was placed on the same six
offences registered against the appellant, which were made
a part of the show-cause notice dated 7th July 2020 on the
basis of which the impugned order of externment was
passed. The police arrested the appellant and produced him
on 2nd June 2020 before the learned Judicial Magistrate,
First Class along with the aforesaid proposal. By the order
dated 2nd June 2020 (Annexure P-4), the learned Judicial
Magistrate rejected the said proposal to detain the
appellant and directed his immediate release subject to the
condition of attending the concerned Police Station between
10 am to 1 pm till 9th June 2020.
12. The power under sub-section (3) of Section 151
as amended for the State of Maharashtra is to arrest a
person on the basis of an apprehension that he is likely to
continue the design to commit, or is likely to commit a
cognizable offence after his release and that the
circumstances of the case are such that his presence is
likely to be prejudicial to the maintenance of public order.
The learned Judicial Magistrate rejected the proposal to
keep the appellant in detention for 15 days. There is
nothing placed on record to show that the said order was
challenged by the police. After having failed to satisfy the
learned Judicial Magistrate about the necessity of detaining
the appellant for 15 days, the Sub-Divisional Police Officer
initiated action of externment against him by issuing a
show-cause notice on 7th July 2020. It is not the case made
out in the show cause notice dated 7th July 2020 that after
release of the appellant on 2nd June 2020, the appellant
indulged in the commission of any offence or any other
objectionable activity.
13. Considering the nature of the power under
Section 56, the competent authority is not expected
to write a judgment containing elaborate reasons.
However, the competent authority must record its
subjective satisfaction of the existence of one of the
grounds in sub-section (1) of Section 56 on the basis
of objective material placed before it. Though the
competent authority is not required to record reasons
on par with a judicial order, when challenged, the
competent authority must be in a position to show
the application of mind. The Court while testing the
order of externment cannot go into the question of
sufficiency of material based on which the subjective
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satisfaction has been recorded. However, the Court
can always consider whether there existed any
material on the basis of which a subjective
satisfaction could have been recorded. The Court can
interfere when either there is no material or the
relevant material has not been considered. The Court
cannot interfere because there is a possibility of
another view being taken. As in the case of any other
administrative order, the judicial review is
permissible on the grounds of mala fide,
unreasonableness or arbitrariness.
14. In the facts of the case, the non-application of
mind is apparent on the face of the record as the order
dated 2nd June 2020 of the learned Judicial Magistrate is not
even considered in the impugned order of externment
though the appellant specifically relied upon it in his reply.
This is very relevant as the appellant was sought to be
detained under sub-section (3) of Section 151 of Cr.PC for
a period of 15 days on the basis of the same offences which
are relied upon in the impugned order of externment. As
mentioned earlier, from 2nd June 2020 till the passing of the
impugned order of externment, the appellant is not shown
to be involved in any objectionable activity. The impugned
order appears to have been passed casually in a cavalier
manner. The first three offences relied upon are of 2013
and 2018 which are stale offences in the sense that there is
no live link between the said offences and the necessity of
passing an order of externment in the year 2020. The two
offences of 2020 alleged against the appellant are against
two individuals. The first one is the daughter of the said
MLA and the other is the said Varsha Bankar. There is
material on record to show that the said Varsha Bankar was
acting as per the instructions of the brother of the said
MLA. The said two offences are in respect of individuals.
There is no material on record to show that witnesses were
not coming forward to depose in these two cases.
Therefore, both clauses (a) and (b) of subsection (1) of
Section 56 are not attracted.
15. As the order impugned takes away
fundamental right under Article 19(1)(d) of the
Constitution of India, it must stand the test of
reasonableness contemplated by clause (5) of Article
19. Considering the bare facts on record, the said
order shows non-application of mind and smacks of
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arbitrariness. Therefore, it becomes vulnerable. The
order cannot be sustained in law.
16. Section 58 of the 1951 Act reads thus:
"58. Period of operation of orders under
section 55, 56, 57 and 57A - A direction made under
section 55, 56, 57 and 57A not to enter any
particular area or such area and any District or
Districts, or any part thereof, contiguous thereto, or
any specified area or areas as the case maybe, shall
be for such period as may be specified therein and
shall in no case exceed a period of two years from
the date on which the person removes himself or is
removed from the area, District or Districts or part
aforesaid or from the specified area or areas as the
case may be".
17. On a plain reading of Section 58, it is apparent
that while passing an order under Section 56, the
competent authority must mention the area or District or
Districts in respect of which the order has been made.
Moreover, the competent authority is required to specify
the period for which the restriction will remain in force. The
maximum period provided for is of two years. Therefore, an
application of mind on the part of the competent authority
is required for deciding the duration of the restraint order
under Section 56. On the basis of objective assessment of
the material on record, the authority has to record its
subjective satisfaction that the restriction should be
imposed for a specific period. When the competent
authority passes an order for the maximum permissible
period of two years, the order of externment must disclose
an application of mind by the competent authority and the
order must record its subjective satisfaction about the
necessity of passing an order of externment for the
maximum period of two years which is based on material
on record. Careful perusal of the impugned order of
externment dated 15th December 2020 shows that it does
not disclose any application of mind on this aspect. It does
not record the subjective satisfaction of the respondent no.
2 on the basis of material on record that the order of
externment should be for the maximum period of two
years. If the order of externment for the maximum
permissible period of two years is passed without recording
subjective satisfaction regarding the necessity of extending
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the order of externment to the maximum permissible
period, it will amount to imposing unreasonable restrictions
on the fundamental right guaranteed under clause (d) of
Article 19(1) of the Constitution of India."
(Emphasis supplied)
In the light of the aforesaid facts and the law laid down
by the Apex Court in the case of DEEPAK (supra), the order of
externment externing the petitioner would lose its legal legs to
stand as none of the offences alleged could become an
ingredient for passage of the order of externment.
8. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) The order dated 07.03.2023 passed by the 2nd
respondent stands quashed.
(iii) Petitioner is declared entitled to all consequential
benefits that would flow from quashment of the
orders.
Sd/-
JUDGE
NVJ
CT:SS
