Karnataka High Court

Shakeeb @ Mohammed Shakeebulla vs State Of Karnataka on 28 November, 2023

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                            WP No. 14426 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                            DATED THIS THE 28TH DAY OF NOVEMBER, 2023
                                               BEFORE
                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                            WRIT PETITION NO. 14426 OF 2023 (GM-POLICE)
                      BETWEEN:

                            SHAKEEB @ MOHAMMED SHAKEEBULLA,
                            S/O LATE SANAULLA,
                            AGED ABOUT 28 YEARS,
                            OCC: COOLIE,
                            R/AT 1ST CROSS,
                            BOMMANAKATTE,
                            BHADRAVATHI - 577 006.
                                                                    ...PETITIONER
                      (BY SRI. SUHAIB FAZEEL MADAV, ADVOCATE)
                      AND:

                      1.    STATE OF KARNATAKA,
                            BY PAPER TOWN POLICE STATION,
                            BHADRAVATHI TALUK,
Digitally signed by         SHIVAMOGGA DISTRICT,
PADMAVATHI B K              REPRESENTED BY
Location: HIGH              STATE PUBLIC PROSECUTOR,
COURT OF
KARNATAKA                   HIGH COURT OF KARNATAKA,
                            BENGALURU - 560 001.

                      2.    ASSISTANT COMMISSIONER AND
                            SUB-DIVISIONAL MAGISTRATE,
                            SHIVAMOGGA SUB-DIVISION,
                            SHIVAMOGGA DISTRICT,
                            SHIVAMOGGA - 577 201.
                                                                 ...RESPONDENTS
                      (BY SRI. MANJUNATH K., HCGP)
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                                           NC: 2023:KHC:42980
                                        WP No. 14426 of 2023




     THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE OR
QUASH     THE     IMPUGNED      ORDER      OF    EXTERNMENT
DATED:13.03.2023     PASSED    BY   THE   R2    AGAINST    THE
PETITIONER IN MAGCR.103/2022-23 BY EXILING HIM FROM
SHIVAMOGGA DISTRICT TO CHIKKAMAGALURU DISTRICT FOR
A PERIOD OF 01 YEAR I.E., FROM 13.03.2023 TO 13.03.2024
WHICH IS PRODUCED AND MARKED AS ANNEXURE-B OF THE
WRIT PETITION AND ETC.,

     THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
                            ORDER

The petitioner is before this Court calling in question an

order dated 13.03.2023, which externs the petitioner from

Shivamogga district to Davanagere for a period of one year i.e.

13.03.2023 to 13.03.2024.

2. Heard Sri. Suhaib Fazeel Madar, learned counsel

appearing for the petitioner and Sri. Manjunath K., learned

HCGP appearing for the respondents.

3. The petitioner is a resident of Shivamogga district

and claims to be a coolie. The petitioner gets involved in

several crimes, which leads to the impugned order being

passed on the score that there are several crimes registered

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against the petitioner. Therefore, he has to be externed from

Shivamogga to Davanagere. The order dated 13.03.2023 refers

to seven cases pending against the petitioner.

4. The learned HCGP on instructions and verification of

the record submits that out of the seven, except one is pending

trial in crime No.68/2022. In all the other cases, the petitioner

is acquitted or the case is closed against him on acceptance of

fine.

5. Be those submissions as they may. The issue is

whether the procedures stipulated under Section 55 of the

Karnataka Police Act, 1963 is followed or otherwise, prior to the

passage of the order of externment against the petitioner.

6. The learned HCGP again on verification of record

would submit that the report that was against him, which was

the foundation to pass the order of externment was not served

in as much as, it was appended to the show cause notice, so

issued to the petitioner. This is a serious flaw, as is held by

this Court in plethora of judgments, one of which I deem it

appropriate to quote. In W.P.No.8182/2023 disposed on

21.04.2023, this Court had passed the following order:

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" 5. It is germane to notice the provision under which an order of externment can be passed against a citizen by respondent No.2 - Assistant Commissioner and they are under Sections 55 to 60 of the Act and they read as follows:

"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

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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 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.

56. Removal of persons convicted of certain offences.--If a person has been convicted at any time either before or after the commencement of this Act,--

(a) of an offence under Chapter XII, XVI or XVII of the Indian Penal Code (Central Act 45 of 1860); or

(b) of an offence under section 6 of 13 of the Mysore Mines Act, 1906 (Mysore Act 4 of 1906); or

(c) of an offence under section 86 of the Karnataka Forest Act, 1963 (Karnataka Act 5 of 1964); or

(d) twice of an offence under Section 19 of the Mysore Prohibition of Beggary Act, 1944 (Mysore Act 33 of 1944) or any other corresponding law in force in any area of the State; or

(e) twice of an offence under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Central Act 104 of 1956); or

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(f) twice of an offence under the Untouchability (Offences) Act, 1955 (Central Act 22 of 1955); or

(g) thrice of an offence within a period of three years under section 78, 79 or 80 of this Act; or

(h) thrice of an offence within a period of three years under sections 32, 34, 37 or 38A of the Karnataka Excise Act 1965, (Karnataka Act 21 of 1966), the Commissioner, the District Magistrate, or any Sub-divisional Magistrate specially empowered by the Government in this behalf, if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction or such area or 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 place from which he was directed to remove himself.

Explanation.--For the purpose of this section "an offence similar to that for which a person was convicted" shall mean,--

(i) in the case of a person convicted of an offence mentioned in clause (a), an offence falling under any of the Chapters of the Indian Penal Code mentioned in that clause; and

(ii) in the case of person convicted of an offence mentioned in clauses (e) and (f), an offence falling under the

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provisions of the Acts mentioned respectively in the said clauses.

57. Period of operation of orders under section 54, 55 or 56.--A direction made under section 54, 55 or 56 not to enter any particular area or such area and any district or districts or any part thereof, contiguous thereto 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 it was made.

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 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.

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(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 to the officer or authority to proceed with the inquiry and thereupon such order as was proposed to be passed against him may be passed.

59. Appeal.--Any person aggrieved by an order made under section 54, 55 or 56 may appeal to the Government within thirty days from the date of such order.

60. Finality of orders.--Any order passed under section 54, 55 or 56 or by the Government under section 59 shall not be called in question in any court except on the ground that the authority making the order or any officer authorised by it had not followed the procedure laid down in sub-section (1) of section 58 or that there was no material before the authority concerned upon which it could have based its order or on the ground that the said authority was not of opinion that witnesses were unwilling to come forward to give evidence in public against the person in respect of whom an order was made under section 55."

(Emphasis supplied)

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An order of externment can be passed under Section 55 of the Act against a person who is about to commit an offence/s. Such orders can be passed only if such person is engaged or about to engage in the commission of a crime or an offence punishable under chapters XII, XVI or XVII of the IPC. It is only under those circumstances that an order of externment for offences can be passed.

6. A perusal at the offences indicated in the impugned order, which are the foundation for passage of the impugned order would indicate that there is no such offence that the petitioner gets involved which are under chapters XII, XVI or XVII of the IPC. The allegation against the petitioner in the aforesaid crimes are all offences punishable under Section 78 (3) of the Act except in one particular case, which also involves an offence punishable under Section 420 of the IPC. This, in the considered view of this Court would not lay a foundation for passage of the order impugned in the petition, which takes away the fundamental right of the petitioner for his free movement in his territory.

7. Reference being made to the judgment of 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

2022 SCC OnLine SC 99

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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:

"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,

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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 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

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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 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.

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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

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subjective satisfaction that the movements or acts 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

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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 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

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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 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

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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.

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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 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

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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)

In the light of the aforesaid facts and the law laid down by the Apex Court in the case of DEEPAK (supra), the order of externment externing the petitioner would lose its legal legs to stand as none of the offences alleged could become an ingredient for passage of the order of externment.

8. For the aforesaid reasons, the following: