Kumar S/O Adiveppa Gaddigoudra vs The State Of Karnataka
2023 Latest Caselaw 3009 Kant

                                                   -1-
                                                         CRL.RP No. 100084 of 2023




                                    IN THE HIGH COURT OF KARNATAKA

                                            DHARWAD BENCH

                                  DATED THIS THE 8TH DAY OF JUNE, 2023

                                                 BEFORE
                                  THE HON'BLE MR JUSTICE ANIL B KATTI
                           CRIMINAL REVISION PETITION NO. 100084 OF 2023 (397-)
                      BETWEEN:

                      KUMAR S/O ADIVEPPA GADDIGOUDRA
                      AGE. 45 YEARS, OCC. AGRICULTURE,
                      R/O. TUPPADAKURAHATTI, TQ. ANNIGERI,
                      DIST. DHARWAD.

                                                                    ...PETITIONER

                      (BY SRI. PRAKASH N. HOSAMANE, ADVOCATE)

                      AND:

                      1.    THE STATE OF KARNATAKA
                            BY POLICE COMMISSIONER
                            DHARWAD-580001

        Digitally     2.    SUPERINTENDENT OF POLICE
        signed by J
J
        MAMATHA             DHARWAD RURAL, DHARWAD-580001
MAMATHA Date:
        2023.06.13
        12:27:11 -
        0700
                      3.    CIRCLE POLICE INSPECTOR
                            NAVALAGUND POLICE STATION,
                            NAVALAGUND, DIST. DHARWAD-580001

                      4.    POLICE SUB-INSPECTOR
                            ANNIGERI POLICE STATION,
                            ANNIGERI, TQ. ANNIGERI,
                            DIST. DHARWAD-580001

                            RESPONDENT NO.1 TO 4 REPRESENTED BY
                            SPP HIGH COURT OF KARNATAKA
                                -2-
                                      CRL.RP No. 100084 of 2023




     DHARWAD BENCH, DHARWAD-580001

5.   ASSISTANT COMMISSIONER,
     SUB-DIVISIONAL MAGISTRATE SUB-DIVISION,
     DHARWAD DISTRICT,
     DHARWAD-580001

                                              ...RESPONDENTS

(BY SRI. PRAVEEN UPPAR, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED U/SEC.
397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER
DATED 13.02.2023 IN NO. MAG/CR/148/2022-23 PASSED BY
RESPONDENT NO.5 I.E., (ASSISTANT COMMISSIONER SUB
DIVISION MAGISTRATE SUB DIVISION DHARWAD) U/SEC. 56
OF KARNATAKA POLICE ACT EXTERMINATION ORDER
PASSED AGAINST THE PETITIONER AS PER ANNEXURE-A.

    THIS CRIMINAL REVISION PETITION, COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
                              ORDER

Revision petitioner challenging the order of externment

proceedings bearing No.MAJ CR/148-2022-23 by respondent

No.5-Assistant Commissioner, Sub Divisional Magistrate Sub-

division, Dharwad district.

2. On the basis of a report of respondent No.2 on the

recommendation of respondents 3 and 4, respondent No.5

issued show cause notice dated 21.01.2023 for submitting the

explanation of revision petitioner. In response to show cause

notice, revision petitioner appeared before respondent No.5.

CRL.RP No. 100084 of 2023

Thereafter, respondent No.5 on the basis of the material

evidence placed before him passed impugned order under

revision dated 13.02.2023 at Annexure-A in exercise of powers

conferred under Section 56 of the Karnataka Police Act, 1963

(for short 'the Act') and ordered for externment of revision

petitioner out of the jurisdiction of Dharwad district to the

jurisdiction of Gadag from 16.02.2023 to 16.08.2023.

3. Learned High Court Government Pleader has taken

notice for respondents 1 to 5 and the records have been

secured.

4. Heard the arguments of both sides.

5. The learned counsel for revision petitioner

contended that externment order passed by respondent No.5

dated 13.02.2023 is against the mandatory provisions of

Section 58 of the Act and no any opportunity was given to the

revision petitioner to file objections and to lead evidence on his

behalf. Therefore, the impugned order for non-compliance of

Section 58 of the Act cannot be legally sustained.

6. Per contra, learned High Court Government Pleader

contended that revision petitioner did not avail the opportunity

CRL.RP No. 100084 of 2023

given to him and sought for excusing him. Respondent No.5

based on the material evidence furnished by respondents 3 and

4 with the report of respondent No.2 has passed externment

order dated 13.02.2023. The mandate of Section 58 of the Act

has been complied. Therefore, there is no reason to interfere

with the externment order passed by respondent No.5.

7. The impugned order under revision passed by

respondent No.5 dated 13.02.2023 for removal of persons

about to commit offence falls within the ambit of Section 55 of

the Act. The removal of persons convicted for certain offences

falls within Section 56 of the Act. In the present case, there

are no any material evidence placed on record to show that in

any of the criminal cases referred in the order of respondent

No.5, revision petitioner after trial is convicted. Therefore,

Section 56 of the Act has no application. It is only Section 55

of the Act has been invoked by respondent No.5 for ordering

externment of revision petitioner under the impunged order

keeping revision petitioner out of the jurisdiction of Dharwad

district. The legal requirement of Section 55 of the Act are as

follows:

CRL.RP No. 100084 of 2023

"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 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

CRL.RP No. 100084 of 2023

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.

8. The impugned order under revision passed by

respondent No.5 and the materials relied by him would go to

show that the present case falls in terms of Section 55(a) of the

Act.

9. The respondent No.5 on the basis of material placed

on record must be satisfied that the movements or acts of any

person are causing or calculated to cause alarm, danger or

harm to a person or property and in order to prevent violence

and harm, the externment of revision petitioner is absolutely

necessary.

10. Respondent No.5 before ordering for externment of

any person in terms of Section 55 must necessarily follow the

procedure contemplated under Section 58 of the Act and the

same reads as follows:

"58. Hearing to be given before an order is passed under Sections 54, 55 or 56.-- (1) Before

CRL.RP No. 100084 of 2023

an order under Sections 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 Sections 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 to the officer or authority to proceed with the inquiry and thereupon such order as

CRL.RP No. 100084 of 2023

was proposed to be passed against him may be passed."

11. The show cause notice issued by respondent No.5 to

revision petitioner dated 21.01.2023 as per Annexure-C would

go to show that general allegations are made calling upon the

revision petitioner to submit his explanation. The cases

referred in the report of 2nd respondent on the basis of

recommendation made by respondents 3 and 4 does not

disclose reference of the said criminal cases referred in the

impugned order passed by respondent No.5.

12. Learned counsel for revision petitioner relied on the

judgment of co-ordinate bench of this Court in the case of

EJAZ HUSSAIN @ EJAZ ALI @ GUNDA S/O MEER HUSSAIN

VS. THE STATE OF KARNATAKA (Crl.R.P.No.1018/2018

dated 08.02.2019) wherein it has been held that:

"11. Even as could be seen from the impugned order the learned Sub-Divisional Magistrate is swayed away by the report given by the police and on the basis of the said report without making a detailed enquiry has passed an externment order. Mere apprehension of the police is not enough for passing such an order under Section 55 of the Act. There must be some grounds or there must be adequate material to show

CRL.RP No. 100084 of 2023

that there is danger and there is credible material which makes the movements and acts of the person in question alarming or dangerous or fraud with violence and there must be sufficient reasons to believe that the person proceeded against is so desperate and dangerous that his mere presence in the locality or any part thereof is hazardous to the community and its safety."

13. In the present case also, the respondent No.5 has

failed to form an opinion on tangible material that witnesses

were not willing to come forward to give the evidence in public

against the petitioner. This Court observed and held that non-

compliance of Section 55 of the Act and recording of subjective

decision of Sub-divisional Magistrate renders the externment

order not sustainable in law.

14. Learned counsel for revision petitioner also relied on

the judgment of co-ordinate bench of this Court in the case of

DARVESH @ MOHD. DARVESH S/O BHAVASAB VS. THE

STATE OF KARNATAKA AND ANOTHER

(Crl.R.P.No.200022/2021 disposed of on 09.02.2021). In

this case also, the order passed by Special Divisional Magistrate

in terms of Section 55 of the Act was under consideration and

held that mere allegation of unlawful act is not sufficient for

- 10 -

CRL.RP No. 100084 of 2023

passing an order under Section 58 of the Act of 1963 of which

the consequences are very serious. In the present case,

respondent No.5 has passed the impugned order under revision

solely based on the report of respondent No.2 on the

recommendation of respondents 3 and 4 without making any

enquiry. The mere apprehension of the police is not a factor

which is required to be considered before passing an order

under Section 58 of the Act. There must be application of mind

by the Officer who passes the order with regard to the

apprehensions made by the police.

15. In the present case also, impugned order passed by

respondent No.5 except stating that being convinced the

movement of revision petitioner are causing or calculated to

cause alarm, danger or harm to person or property by

reproducing Section 55(a) of the Act, itself cannot be said as

sufficient evidence to have subjective satisfaction of respondent

No.5 regarding the apprehension without making any enquiry.

Therefore, the impugned order under revision passed by

respondent No.5 cannot be legally sustained.

- 11 -

CRL.RP No. 100084 of 2023

16. The proceedings maintained by respondent No.5

also would go to show that accused was present on 30.01.2023

and his presence was taken on record. On the next date,

06.02.2023 revision petitioner was present and sought for

excusing him and then impugned order under revision came to

be passed. The mere obtaining signature of revision petitioner

on the order-sheet is not enough to hold that reasonable

opportunity of tendering explanation was given. There is

nothing in writing to show that revision petitioner sought for

excuse by admitting the averments shown in the show cause

notice. The show cause notice dated 21.01.2023 has no any

reference of the criminal cases referred in the report of

respondent No.2 and the one referred in the order by

respondent No.5. The order of externment has serious

consequence and keeps away the person so ordered from the

family and from his place. The proviso to Section 58 of the Act

also entitles the revision petitioner to be represented by a legal

practitioner for the purposes of tendering his explanation and

examining the witnesses produced by him. There is nothing

that has been recorded in the order-sheet that respondent No.5

has given to understand revision petitioner that he is entitled to

- 12 -

CRL.RP No. 100084 of 2023

engage advocate and file explanation to the show cause notice,

so also can give necessary evidence to rebut the allegations

made in the show cause notice. Therefore, the impugned order

under revision passed by respondent No.5 for non-compliance

of mandatory requirement in terms of Sections 55 and 58 of

the Act and without conducting any enquiry cannot be legally

sustained. Consequently, proceed to pass the following:

ORDER

Revision petition filed by revision petitioner is hereby

allowed.

The impugned order passed by respondent No.5 bearing

No.MAG/CR/148/22-2023 dated 13.02.2023 is set aside.

Pending IA-1/2023 does not survive for consideration.

Accordingly, it is disposed of.

(Sd/-) JUDGE

JM/