Karnataka High Court

Mahammad Shareef @ Shareef @ Kunta ... vs The State Of Karnataka on 21 April, 2023

Bench: M.Nagaprasanna

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                                                              WP No. 8060 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. 8060 OF 2023 (GM-POLICE)
                       BETWEEN:

                       MAHAMMAD SHAREEF @ SHAREEF
                       @ KUNTA SHAREEF
                       S/O ISMAIL,
                       AGED ABOUT 38 YEARS,
                       R/AT NO. 4-102,
                       KUMPANAMAJALU HOUSE,
                       PUDU VILLAGE,
                       BANTWALA TALUK,
                       DAKSHINA KANNADA DISTRICT - 574 222.
                                                                     ...PETITIONER
                       (BY SRI LETHIF B, ADVOCATE)

                       AND:

PADMAVATHI 1.                THE STATE OF KARNATAKA
BK
                             REPRESENTED BY ITS SECRETARY,
Digitally signed by          HOME DEPARTMENT,
PADMAVATHI B K
Location: HIGH COURT         2ND FLOOR, VIDHANA SOUDHA,
OF KARNATAKA
                             BENGALURU - 560 001.

                       2.    THE DEPUTY COMMISSIONER AND
                             DISTRICT EXECUTIVE MAGISTRATE,
                             DAKSHINA KANNADA DISTRICT,
                             MANGALURU - 575 001.

                       3.    THE STATION HOUSE OFFICER,
                             BANTWALA RURAL POLICE STATION,
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                                           WP No. 8060 of 2023




    DAKSHINA KANNADA DISTRICT - 574 211.
                                       ...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 NOTICE DATED 03.04.2023 ISSUED BY                 R-2
BEARING     NO.    MAG(2)160/2023/230954/C4            WHICH    IS
PRODUCED AT ANNEXURE-A AND ALL FURTHER PROCEEDINGS
THERETO.

     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 a

notice issued on 03.04.2023, by the second respondent -

Deputy Commissioner and District Executive Magistrate,

seeking to show cause as to why an order of externment should

not be passed against the petitioner.

2. Heard Sri Lethif B., learned counsel for petitioner and

Smt. Rashmi Patel, learned High Court Government Pleader for

the respondents.

3. A notice comes to be issued on 03.04.2023, by the

second respondent. The notice issued to the petitioner seeks to

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place reliance upon ten cases against the petitioner and makes

them the foundation for issuance of the impugned notice.

Those ten cases, the petitioner explains that they have all

ended in acquittal and no case is pending against him.

4. Learned counsel for the petitioner Sri Lethif B.,

vehemently contends that the fundamental right of the

petitioner has been sought to be taken away, notwithstanding

the fact that the petitioner is not involved in any case. The

notice that is issued is too vague to even submit a reply, as

nothing against the petitioner, as required in law is narrated in

the notice.

5. Learned Additional Government Advocate though seek

to refute the submissions of the learned counsel for petitioner,

is not in a position to dispute the fact that the notice does not

contain any reason/s to pass an order of externment against

the petitioner but would contend that it is only a notice and the

petitioner has to submit his reply.

6. In reply, the learned counsel for the petitioner seeks to

place reliance upon several judgments of the co-ordinate

Benches of this Court, where the impugned notices therein, are

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quashed on the ground that it was too vague as they did not

render any circumstance based on which the said notice was

issued against those petitioner/s.

7. I have given my anxious consideration to the

submissions made by the learned counsel for the parties and

have perused the material on record.

8. The afore-narrated facts are not in dispute. The issue

before the Court springs from a notice issued by the second

respondent - Deputy Commissioner, who seeks a reply at the

hands of the petitioner as to why an order of externment

should not be passed. The notice narrates ten cases pending

against the petitioner. The petitioner narrates that all the ten

cases have ended either in acquittal or closure of those cases

by imposing fine. In crime No.125/2006 in which the police

had filed a charge sheet in C.C.No.369/2007 has ended in

acquittal on 15.07.2011; crime in crime No.134/2006 in which

the police had filed a charge sheet in C.C.No.415/2007 has

ended in acquittal on 04.01.2012; in crime No.145/2006 in

which the police had filed charge sheet in C.C.No.372/2007 has

ended in acquittal of the petitioner on 28.06.2011; in crime

WP No. 8060 of 2023

No.100/2012 in which the police had filed a charge sheet in

C.C.No.1115/2012 has ended in acquittal on 18.01.2014; in

crime No.218/2013 in which the police had filed charge sheet in

C.C.No.1060/2014 has ended in acquittal on 19.10.2017; in

crime No.75/2015 in which the police had filed charge sheet in

C.C.No.593/2016 has ended in acquittal on 31.08.2021 and in

crime No.92/2020 in which the police filed a charge sheet in

C.C.No.69/2022 had ended in acquittal on 04.04.2022.

9. The notice, except stating the aforesaid cases in which

the petitioner has already acquitted does not whisper about any

other offence pending against the petitioner. Vaguely it is

stated that the petitioner is likely to indulge in commission of

offence. Notice of this kind would run foul of the judgments

rendered by a co-ordinate Bench of this Court in the case of

SHRI JAYANTH VS. DEPUTY COMMISSIONER / DISTRICT

MAGISTRATE, U.K. DISTRICT reported in ILR 2018 KAR

901, wherein, the co-ordinate Bench has held as follows:

"9. Now before adverting to the above submissions, it is just and necessary to look into the relevant provisions of K.P.Act. In order to initiate the proceedings and to proceed with the same under Section 55 of the Act, to pass an order of removal of the persons, about to commit offences, certain procedures have to be followed. The provision under Section 58 of the Karnataka Police Act, 1963,

WP No. 8060 of 2023

mandates that before an order under Section 54, 55 or 56 is passed against any person certain procedure require to be adhered to, Section 58 reads as under:

"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 authorized 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 required or fails to appear before the officer or authority during the inquiry, it shall be lawful for the officer or authority to proceed with the enquiry and thereupon

WP No. 8060 of 2023

such order as was proposed to be passed against him may be passed."

Therefore, irrespective of the fact, the District Magistrate shall provide an opportunity to the party before him to file his written statement or examining any witnesses or tendering any explanation, it is mandatory on the part of the District Magistrate to issue such legal show-cause notice. In this connection, the Learned Counsel has relied upon a ruling of this Court in the case of BASAPPAGHAVIYAPPA vs. STATE OF KARNATAKA', wherein this Court has held that:

"No doubt, Section 58 says that the information to be furnished to the person against whom an order is to be passed should be of a general nature. But at the same time, it should not be too general or vague so as to render the persons not able to tender their explanation in respect of what is levelled against them. The test to be applied for the purpose of finding out whether the information which is conveyed to the persons is proper or not, is whether the information is of such a character as to enable them to give explanation."

Therefore, this Court held that issuance of show-cause notice, without mentioning what exactly the allegations made against the person and the materials collected in support of such allegations would vitiate the entire proceedings.

10. In this background, I would come back to the show-cause notice (Annexure-B), dated 17.05.2016, issued by the District Commissioner. It is the case that, after the receipt of the report from the Superintendent of Police is concerned, a notice was issued. In the said notice it is only stated that the Superintendent of Police, Karwar, has submitted a report against the petitioner and the case was posted on 20.05.2016, at 3.00 P.M., and the petitioner is directed to appear in person or through a Counsel in

WP No. 8060 of 2023

order to give his written statement to the said allegations.

11. This notice, as noted above, is very vague. This notice is not supported by a copy of the report of the Superintendent of Police, Karwar. In the said notice, neither the specific contents of the report nor the gist of the report submitted by the Superintendent of Police is reiterated, so as to make the said notice in compliance with Section 58 of the Karnataka Police Act. Therefore, without issuing any such notice and seeking explanation from the party, the District Magistrate should not have initiated and proceeded with the proceedings against the petitioners. Therefore, the proceedings initiated by the District Magistrate is vitiated at the initial stage itself.

12. Now, coming to the other materials on record, it is noted. in the impugned order at page No.3, that the petitioner's Counsel has submitted five documents with list and also submitted his arguments. But, it is not stated in the impugned order that what were the documents that were produced before the District Magistrate and how they were relevant to the facts and circumstances of this case. Though the arguments of the Learned Counsel for the petitioner is culled out in the order, no reasons have been given meeting out those grounds urged by the petitioner before the District Magistrate. After culling out all the above said allegations, the District Magistrate has stated that, in spite of the petitioners being acquitted in four cases and bonds were executed in four cases under Section 107 of Cr.P.C., two cases are still pending, the petitioner has not mend his conduct, therefore, there is likelihood of communal clashes in the said area. Hence, he has issued such orders. The above said observation made by the District Magistrate is without considering the documents produced by the petitioner and the arguments addressed by the Leamed Counsel for the petitioner before the Learned District Magistrate. The Leamed Counsel has produced before this Court, that in the year 2015. particularly, in the month of June, himself and his wife were elected as members of the Zilla

WP No. 8060 of 2023

Panchayat, and in view of they being elected, they cannot leave the place because they have to attend meetings and, as elected members, they also have to take care of the said area with reference to development and other things, and in spite of producing those documents, the same were not considered by the District Magistrate.

13. Be that as it may. As I have already stated that subsequent granting of opportunity after initiation of the proceedings will not cure the initial defect occurred while issuing show-cause notice to the petitioner. The show-cause notice is not in compliance with Section 58 of the Karnataka Police Act, and in view of the decision noted above, whole of the proceeding is vitiated. Therefore, in my opinion, the proceedings initiated by the District Magistrate is vitiated by serious procedural irregularities which cannot be cured after initiating the proceedings itself. Therefore, the order impugned under this petition deserves to be quashed. Hence, I proceed to pass the following order:"

(Emphasis added)

In the light of the afore-narrated facts and the notice

being as vague, as vagueness could be, I deem it appropriate

to obliterate the same reserving liberty to the respondents to

initiate any action under Section 55 of the Karnataka Police Act,

1963, after forming an opinion of willingness to pass an order

of externment against the petitioner.

10. For the aforesaid reasons, the following:

ORDER

a. The writ petition is allowed.

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WP No. 8060 of 2023