Karnataka High Court

Sri. Sridhara Prabhu vs The Police Superintendent on 21 April, 2023

Bench: M.Nagaprasanna

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                                                            WP No. 9022 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. 9022 OF 2023 (GM-POLICE)
                      BETWEEN:

                      SRI SRIDHARA PRABHU,
                      S/O LATE VASUDEVA PRABHU
                      AGED ABOUT 68 YEARS
                      R/OF MILL ROAD,
                      VIVEKANANDA COLONY,
                      NEAR PUSHPANJALI THEATRE,
                      MADHAVANAGAR,
                      GOWRIBIDANURU TOWN,
                      CHIKKABALLAPURA DISTRICT - 561 208.

           PRESENTLY R/AT, C/O GOWTHAM PRABHU M. S,
           S/O SRIDHAR PRABHU
           NO. 28, 3RD FLOOR, 6TH CROSS
           HOSAPALYA, NEAR MUNESHWARA TEMPLE,
PADMAVATHI
BK         BOMMANAHALLI,
           BENGALURU - 560 068.
Digitally signed by
PADMAVATHI B K                                                     ...PETITIONER
Location: HIGH
COURT OF
KARNATAKA
                      (BY SRI PRASANNA V. R, ADVOCATE)

                      AND:

                      1.    THE POLICE SUPERINTENDENT
                            CHIKKABALLAPURA DISTRICT
                            CHIKKABALLAPURA - 562 101.

                      2.    THE ASSISTANT COMMISSIONER
                            CHIKKABALLAPURA SUB-DIVISION
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                                           WP No. 9022 of 2023




    CHIKKABALLAPURA - 562 101.
                                                ...RESPONDENTS
(BY SMT. RASHMI PATEL, HCGP)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASHING THE ORDER DATED 06/04/2023 IN MAGCR (GOW)
83/2019-2020 PASSED BY THE 2ND RESPONDENT ASSISTANT
COMMISSIONER, VIDE ANNEXURE-A.

      THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

The petitioner aged 68 years is knocking at the doors of

this Court in the subject petition calling in question an order

dated 06.04.2023, by which the second respondent - Assistant

Commissioner has externed the petitioner for a period of one

year from the date of the order i.e., 06.04.2023, from

Gowribidanur Taluk, Chikkaballapur District and sent him to

Belthangadi Taluk, Dakshina Kannada District, invoking Section

55 of the Karnataka Police Act, 1963 ('the Act' for short).

2. Heard Sri Prasanna V.R., learned counsel for petitioner

and Smt. Rashmi Patel, learned High Court Government Pleader

for the respondents.

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3. The name of the petitioner is drawn into the list of

rowdies on 12.04.2002 and claims to be still in the list. The

petitioner gets embroiled in certain crimes, all of which are

non-cognizable offences punishable under Section 78(4) and

(6) of the Act and out of them, two are under Section 78(3) of

the Act. The six criminal cases are, crime Nos.66/2009,

06/2010, 105/2010, 85/2012, 50/2009 and 103/2011. The

petitioner avers that all the cases were under the Act and all

have been closed by the competent Courts by imposition of

fine. Notwithstanding the aforesaid closure of cases, an order

of externment is passed against the petitioner on 06.04.2023,

making those crimes as the foundation for passage of the

order. It is this order that drives the petitioner to this Court in

the subject petition.

4. I have given my anxious consideration to the

submissions made by the learned counsel for the parties and

have perused the material on record.

5. The afore-narrated facts are not in dispute and require

no reiteration. Apart from the aforesaid facts, what merits

immediate consideration of the case at hand is that, the

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petitioner is suffering from cancer of the esophagus and is

undergoing chemotherapy. The petitioner has produced scan

report and discharge summary to indicate that he is undergoing

chemotherapy. The second respondent has failed to consider

this aspect of the matter atleast before passing a bald and

laconic order curtailing the fundamental right of the petitioner.

The order runs counter to the very provisions of the Act, defies

logic.

6. 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 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:

2022 SCC OnLine SC 99

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"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 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

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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 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

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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, 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

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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). 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

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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 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

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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 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

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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 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)

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In the light of the facts of the case at hand and the

judgment of the Apex Court, I deem it appropriate to obliterate

the order of externment passed against the petitioner.