Karnataka High Court
Chandra @ Chandrahas Poojary vs The State By Ullala Police on 9 May, 2023
Bench: T G Bytgsj
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WP No. 9507 of 2023
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 9TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
WRIT PETITION NO. 9507 OF 2023 (GM-POLICE)
BETWEEN:
CHANDRA @ CHANDRAHAS POOJARY,
AGED ABOUT 49 YEARS,
S/O LATE NARAYANA POOJARY,
R/AT NO. 11-57-A, LALITHA COMPOUND,
SOMANATHA COLONY, KOTEKAR POST,
SOMESHWARA VILLAGE, ULLALA TALUK,
PRESENT ADDRESS:
MUDA LAYOUT, NEHRU NAGARA,
SOMESHWARA VILLAGE, ULLALA TALUK,
MANGALURU, D. K. DISTRICT - 575 023
Digitally signed by
...PETITIONER
MALA K N
Location: HIGH (BY SRI. K. RAJESH RAO, ADVOCATE)
COURT OF
KARNATAKA
AND:
1. THE STATE BY
ULLALA POLICE STATION,
MANGALURU CITY,
DAKSHINA KANNADA DISTRICT,
REPRESENTED BY,
THE GOV'T PLEADER,
HIGH COURT OF KARNATAKA,
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WP No. 9507 of 2023
BENGALURU - 560 001.
2. THE SPECIAL EXECUTIVE MAGISTRATE,
AND DY. COMMISSIONER OF POLICE,
MANGALURU CITY,
REPRESENTED BY THE GOVT PLEADER,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2. THE STATE OF KARNATAKA
REPRESENTED BY
THE CHAIR PERSON,
MINISTRY OF HOME,
DEPARTMENT OF KARNATAKA,
VIDHANA SOUDHA, BANGALORE - 560001.
...RESPONDENTS
(BY SRI. GOPALAKRISHNA SOODI, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO ALLOW THIS WRIT; TO SET ASIDE THE
ORDER PASSED BY THE SPECIAL EXECUTIVE
MAGISTRATE AND DY. COMMISSIONER OF POLICE AT
MANGALURU, D.K. DIST, U/S: 55 (B) OF KARNATAKA
POLICE ACT-1963, AS PER ANNEXURE A IN CASE NO.
25/SEM/KPA/MC/2023, VIDE ORDER DATED
05/04/2023.
THIS PETITION, COMING ON FOR ORDER, THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 9507 of 2023
ORDER
The petitioner has challenged the impugned
order at Annexure - A dated 05.04.2023, the
Special Executive Magistrate and the Deputy
Commissioner of Police, Mangaluru City has passed
the order exterminating the petitioner from the
limits of Mangaluru City to the limits of Mulagunda
Police Station of Gadag District for a period of one
year from 05.04.2023 to 04.04.2024.
2. Heard the argument of Sri. K.Rajesh
Rao, learned counsel for the petitioner and learned
Government Advocate for the State. Perused the
records.
3. It is the contention of learned counsel for
the petitioner that though several cases have been
filed against the petitioner, some of them have
already ended in the acquittal and some of them
WP No. 9507 of 2023
are pending. In C.C.No.116/2006, the petitioner
was convicted and same is under appeal. Only for
the sake of election, the impugned order came to
be passed without any satisfactory explanation and
due compliance of law. Even before passing
impugned order, no opportunity was provided to
the petitioner which affected his personal liberty.
4. Per contra, learned Government
Advocate submitted that the petitioner is involved
in as many as thirteen cases, the impugned order
came to be passed in this background and after
observing the activities of the petitioner only after
subjective satisfaction and supported the impugned
order.
5. I gave my anxious consideration to the
materials on record. On perusal of the order at
Annexure-A which came to be passed on
05.04.2023, the last case which was filed against
WP No. 9507 of 2023
the petitioner was in Crime No.128/2022 for the
offence under Section 427 of IPC and Section 2(A)
of KPDLP Act, which is under investigation. Apart
from this, the petitioner is attending the Court in six
cases and facing the trial. In none of these cases,
any allegation of violation of the bail condition is
reported to the Court. The narration made in the
impugned order speaks about involvement of the
petitioner in thirteen cases. Out of it, five cases
have been ended in acquittal, five cases are under
trial stage, one case is under investigation and one
case ended in conviction and the petitioner had
undergone sentence. In all these cases, the
petitioner was granted bail and there are no reports
of misuse of bail conditions. The only apprehension
is expressed in the impugned order which is
necessary to keep the petitioner in check for the
coming Assembly Election. Soon before
commencement of the proceedings, there were no
WP No. 9507 of 2023
records to show the bad antecedents of the
petitioner.
6. The Hon'ble Apex Court in the case of
Deepak Vs. State of Maharashtra reported in
2022 SCC Online SC 99 has held that if personal
liberty of a person under Article 19(1)(d) of the
Constitution of India is affected in a case of this
nature, requirements of Section 56 of the
Karnataka Police Act, 1963 (for short, 'the K.P. Act
1963') must be strictly complied with, if the order
lacks subjective satisfaction, test of reasonableness
by the competent authority is sine qua non for
passing a valid order of externment. At paragraph
Nos.6, 13 and 15 of the judgment, it was 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
WP No. 9507 of 2023
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.
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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
permissible on the grounds of mala fide,
unreasonableness or arbitrariness.
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WP No. 9507 of 2023
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.
7. In the light of the settled law, before
passing the impugned order, the competent
authority is required to comply the statutory
requirements. The objective material relied is only
the police report for subjective satisfaction. As
observed above, non-compliance of Section 56 of
the K.P. Act 1963 is imminent. The impugned order
lacks subjective satisfaction and test of
reasonableness. Hence, there are no reasons to
sustain the impugned order. Therefore, petition
deserves to be allowed. In the result, the following:
ORDER
The petition is allowed.
WP No. 9507 of 2023
The impugned order dated 05.04.2023
at Annexure-A stands quashed.
The competent authority is at liberty to
initiate fresh proceedings subject to
compliance of the statutory requirements in
the light of the dictum of the Hon'ble Apex
Court referred supra.
Sd/-
JUDGE
RB
