Karnataka High Court
N L Naveen Kumar @ Appunu vs The State Of Karnataka on 11 May, 2023
Bench: T G Bytgsj
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WP No. 8740 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
WRIT PETITION NO. 8740 OF 2023 (GM-POLICE)
BETWEEN:
N L NAVEEN KUMAR @ APPUNU,
S/O N.K.LAKSHMANA,
AGED 26 YEARS,
R/AT GONDHI BASAVANAHALLI VILLAGE,
KUSHALNAGARA TALUK,
KODAGU DISTRICT - 571 234.
...PETITIONER
(BY SRI. M N MADHUSUDHAN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY SECRETARY,
Digitally signed by DEPARTMENT OF HOME,
MALA K N
VIDHANA SOUDHA,
Location: HIGH
COURT OF BENGALURU - 560 001.
KARNATAKA
2. THE ASSISTANT COMMISSIONER
AND SUB DIVISIONAL MAGSITRATE,
MADIKERI SUB DIVISION,
MADIKERI - 571 234.
3. THE SUPERINTEDENT OF POLICE,
KODAGU DISTRICT,
KODAGU - 571 201.
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WP No. 8740 of 2023
4. THE POLICE INSPECTOR,
KUSHALNAGARA TOWN POLICE STATION,
AT KUSHALANAGARA,
KUSHALNAGARA TALUK,
KODAGU DISTRICT - 571 234.
...RESPONDENTS
(BY SRI. GOPALA KRISHNA SOODI, HCGP)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR ENTIRE
RECORDS IN CASE NO. MAG/GA.PARU/05/2022-23 ON THE
FILE OF THE R2/THE ASSISTANT COMMISSIONER AND SUB
DIVISIONAL MAGISTRATE, MADIKERI AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged the impugned order at
Annexure - C dated 28.03.2023, passed by the learned
Sub-Divisional Magistrate, Madikeri Sub-Division, Madikeri
in extermining of the petitioner from the limits of Madikeri
District to Ramanagar District in MAG/GA.PARU/5/2022-23
for a period of 3months from 28.03.2023 to 28.06.2023.
WP No. 8740 of 2023
2. Heard the arguments of Sri.M.N.Madhusudhan
learned counsel for the petitioner and learned Government
Advocate for the State. Perused the records.
3. It is the contention of the learned counsel for the
petitioner that the entire order of Annexure-C did not point
out any allegation against the petitioner that soon before
the impugned order his involvement in any of the activities
which affected the law and order. There is no subjective
satisfaction and peace proceedings. The records point
out that there are five cases filed against the petitioner.
Out of which, four of them are under the provisions of IPC
and one is under Section 107 of Cr.P.C. filed in the year
2021. The cases filed under the provisions of IPC are
under trial and the case filed under Section 107 of Cr.P.C.,
he was already bond over. The learned Sub-Divisional
Magistrate came to the direct opinion that charges have
been proved. What are the charges and whether he is
guilty of these charges is not forthcoming. This shows lack
of subjective satisfaction.
WP No. 8740 of 2023
4. Per contra, learned Government Advocate
submitted that the petitioner is involved in as many as
four cases and the impugned order came to be passed in
this background and after observing the activities of the
petitioner and supported the impugned order.
5. I have given my anxious consideration to the
material on record and perused the impugned order at
Annexure-C. The records point out that, there are six
cases filed against the petitioner. Out of which, four of
them are under the provisions of IPC, three of them were
ended in acquittal and one is pending for trial before the
Jurisdictional Court. One case is filed under Section 107 of
Cr.P.C. filed in the year 2020, which was bond over in the
year 2021. The learned Sub-Divisional Magistrate came to
the direct opinion that charges have been proved. What
are the charges, what was the evidence and who has
declared the petitioner guilty of the charges is not
forthcoming. Jurisdictional Court issuing NBW against the
petitioner in pending case is not a ground for passing an
WP No. 8740 of 2023
order of externment. The reason assigned by the learned
Sub-Divisional Magistrate, is only the apprehension based
on the police report only, there is no objective material for
recording subjective satisfaction.
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 personal liberty of a person
under Article 19(1)(d) of the Constitution of India is
affected in a case of this nature, hence the compliance of
Section 56 of the Act require compliance, 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
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
WP No. 8740 of 2023
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.
xxx
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.
xxx
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.
WP No. 8740 of 2023
7. In the light of the above settled law, before
passing an order of externment, the competent authority
is require 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
(i) Writ Petition is allowed.
(ii) Impugned Order at Annexure-C dated
28.03.2023 passed in MAG/GA.PARU/05/2022-
23 is quashed.
(iii) Matter is remanded back to the learned
Sub-Divisional Magistrate, Madikeri Sub-Division,
Madikeri. If situation warrants, the competent
authority is at liberty to initiate fresh proceedings
WP No. 8740 of 2023
subject to compliance of the dictum of the
Hon'ble Apex Court in the case of Deepak Vs.
State of Maharashtra referred supra.
Sd/-
JUDGE
AP
CT: BHK
