Karnataka High Court
Sri. Srinivasa. K vs The State Of Karnataka on 10 April, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 9461 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION No. 9461 OF 2024 (GM-POLICE)
BETWEEN:
1. SRI. SRINIVASA. K.,
S/O SRI. KRISHNA NAIKA,
AGED ABOUT 35 YEARS,
R/O KENDANA KOPPALU VILLAGE,
BENAKANAHALLI,
T. NARASIPURA TQ,
SOSALE HOBLI,
MYSURU-PIN 571110.
...PETITIONER
(BY SRI H. MALATESH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
Digitally signed DEPARTMENT OF HOME,
by NAGAVENI
VIDHANA SOUDHA,
Location: HIGH
COURT OF AMBEDKAR VEEDI,
KARNATAKA BENGLAURU 01,
REP. BY ITS SECRETARY.
2. THE DEPUTY SUPERINTENDENT
OF POLICE, NANJANGUDU DVN.,
NANJANGUDU TQ,
MYSURU DISTRICT 571110.
3. THE ASSISTANT COMMISSIONER,
MYSURU SUB DIVISION,
MYSURU DISTRICT,
MYSURU 571110.
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WP No. 9461 of 2024
4. THE POLICE INSPECTOR,
T. NARASIPURA POLICE STATION,
MYSURU TALUK AND DISTRICT,
MYSURU 571110.
...RESPONDENTS
(BY SRI K.P. YOGANNA, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER BEARING No.MYSAC/MAG/MAG/CR/97/
2022-23 DATED 16.03.2024 PASSED BY THE R-3 PRODUCED
AS ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR 'ORDERS IN
FRESH MATTERS LIST' THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court seeking the following
prayers;
"a) Set aside the Order bearing No.MYSAC-
MAG/MAG/CR/97/2022-23 dated 16.03.2024
passed by the 3rd respondent, produced as
Annexure-A;
b) Grant such order which this Hon'ble court
deems fit in the interest of justice."
2. Heard learned counsel Sri H. Malatesh appearing for the
petitioner and learned Additional Government Advocate
Sri K. P. Yoganna appearing for the respondents.
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3. The solitary submission of learned counsel appearing for
the petitioner is that the order of externment is passed twice
over on the same set of facts. Learned counsel would
demonstrate that the order is passed twice over on the same
set of facts by taking this Court to the documents appended to
the petition.
4. In the eve of the Assembly Election to the State, a show
cause notice was issued to the petitioner on 29.03.2023 as to
why he should not be externed from his area. This became the
subject matter of W.P.No.8688/2023. This Court allowed the
petition by a detailed order, which reads as follows;
" The order impugned in the subject petition is to be
tested on the aforesaid provisions of law. What is
invoked is Sections 55 and 56 of the Act. Section 55
mandates that if there are any 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 IPC and such an order of externment
can be passed. This is with regard to the persons about
to commit offences. Section 56 deals with removal of
persons convicted of certain offences. For invocation of
Section 55 or 56 of the Act there is no ingredient narrated
in the impugned order. The order is passed in blatant
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violation of Sections 55 and 56 of the Act. All the cases
pending against the petitioner are closed by imposition of
fine and he is not convicted of any offences or directing
him to undergo imprisonment. Therefore, the premise on
which the order is passed is itself erroneous. It is trite
that for an order of externment, which curtails the
fundamental right, formation of an opinion of such an
externment is imperative. The impugned order does not
indicate any such opinion being formed. The Apex Court
in the case of DEEPAK v. STATE OF MAHARASHTRA1
has considered the purport of the order of externment
and its impact upon the fundamental right of the person.
The Apex Court considers the Maharashtra Police Manual
which is in pari materia with the Act and holds 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
particular area. Thus, such orders infringe the
fundamental right guaranteed under Article
2022 SCC OnLine SC 99
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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
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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 [(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
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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 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,
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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
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property. 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
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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
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)
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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 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
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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 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
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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 externment though the
appellant specifically relied upon it in his reply. This
is very relevant as the appellant was sought to be
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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
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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.
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
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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 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)
The Apex Court clearly holds that externment is not an
ordinary measure and must be resorted to sparingly, only
in extraordinary circumstances, as an order of externment
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takes away the fundamental right of movement under
Article 19(1)(d) of the Constitution of India. Therefore, in
the light of the fact that the issue in the lis stands covered
by the judgment of the Apex Court (supra) "
5. The order was passed considering the show cause notice
that was issued on 29.03.2023 and the order passed thereon
dated 10.04.2023. The impugned show cause notice is dated
29.09.2023. A perusal of which would indicate that it is
verbatim similar to what was found fault with by this Court,
supra. The order that is passed against the petitioner
impugned herein externing him from Mysuru to Aurad, Bidar, is
also verbatim similar to what is passed earlier. Therefore, it
does suffer from want of application of mind for passage of
order externing the petitioner taking away his fundamental
right. It is solely on the said ground that the order suffers
from want of application of mind. Therefore, the respondent-
State shall reconsider the objections filed by the petitioner to
the show cause notice dated 29.09.2023 and then pass
necessary orders, in accordance with law, if it has become
necessary in law.
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6. For the aforesaid reasons, the following order;
i) The petition is allowed in part.
ii) The impugned order dated 16.03.2024 passed by
respondent No.3 stands quashed.
iii) The matter is remitted to the hands of respondent
No.3/Assistant-Commissioner, Mysuru, to
reconsider the objections filed by the petitioner and
then pass necessary orders in accordance with law,
if it has become necessary in law.
Sd/-
JUDGE
MV
