Karnataka High Court
Kaji Haroon Rashid @ Nadim @ Tyre Nadim vs State Of Karnataka on 25 October, 2024
CRL.RP NO.1250 OF 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE G. BASAVARAJA
CRIMINAL REVISION PETITION NO.1250 OF 2024
BETWEEN:
KAJI HAROON RASHID @ NADIM @ TYRE NADIM
S/O ABDUL RAZAK @ AMIR JAN
AGED ABOUT 49 YEARS, R/A 2ND CROSS,
ASHOK NAGAR
SHIMOGA TOWN - 577 201
...PETITIONER
(BY SRI RAKSHITH R., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY POLICE INSPECTOR
DODDAPETE POLICE STATION, SHIMOGA
REP BY SPP
HIGH COURT OF KARNATAKA
AMBEDKAR VEEDHI
BANGALORE 560 001
2. THE ASSISTANT COMMISSIONER
AND SUB-DIVISIONAL MAGISTRATE, SHIMOGA
REP BY SPP
HIGH COURT OF KARNATAKA
AMBEDKAR VEEDHI
BANGALORE - 560 001
...RESPONDENTS
(BY SRI RAJATH SUBRAMANYAM, HCGP)
2 CRL.RP NO.1250 OF 2024
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 438 READ WITH 442 OF BNSS, PRAYING TO SET
ASIDE THE ORDER DATED 04.09.2024 PASSED BY THE LEARNED
ASSISTANT COMMISSIONER, SUB-DIVISIONAL MAGISTRATE,
SHIVAMOGGA IN MAGCR:45/2024-25; AND ETC.
IN THIS CRIMINAL REVISION PETITION ARGUMENTS
BEING HEARD, JUDGMENT RESERVED, COMING ON FOR
"PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT MADE
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE G. BASAVARAJA
CAV ORDER
(PER: HON'BLE MR. JUSTICE G. BASAVARAJA)
1. Though this Revision Petition is listed for orders, with
the consent of the learned counsel appearing for the parties, the
same is taken up for final disposal.
2. This Revision Petition is filed under Section 438 read
with Section 442 of Bharatiya Nagarik Suraksha Sanhita, 2023 to
set aside the order dated 04th September, 2024 passed in
MAGCR:45/2024-25 by the Sub-Divisional Magistrate,
Shivamogga, wherein he has passed the order of externment
against the accused/revision petitioner under Section 55 of the
Karnataka Police Act, 1963.
3 CRL.RP NO.1250 OF 2024
3. Sri Rakshith R., learned Counsel appearing for the
Revision Petitioner submitted that the respondent No.2 herein,
has grossly erred in passing the impugned order, which is
manifestly erroneous and opposed to the facts and
circumstances. The Show-cause notice issued under Section 55
of the Karnataka Police Act by the respondent No.2 to the
revision petitioner is vague and general. A Notice issued under
the said Section should contain and specifically state what are
the concrete allegations made against the accused. He further
submitted that in all the offences at items No.2, 3 and 5, the
accused/revision petitioner has been acquired by the respective
courts of law. Further, he has reiterated the averments made in
the memorandum of Revision Petition and sought to allow the
petition. To substantiate his submissions, he has relied on the
following decisions of the Co-ordinate Bench of this Court:
(1) MAHANTAYYA v. THE STATE OF KARNATAKA
AND OTHERS - WRIT PETITION NO.104804 OF
2023 DECIDED ON 08.08.2023;
(2) SRI T. ROOPESHKUMAR @ ROOPI v. STATE OF
KARNATAKA AND OTHERS - WRIT PETITION
NO.392 OF 2023 DECIDED ON 21.03.2023;
4 CRL.RP NO.1250 OF 2024
(3) SRI MALI RIZWAN v. THE STATE OF
KARNATAKA AND OTHERS - WRIT PETITION
NO.9709 OF 2023 DECIDED ON 11.05.2023.
4. As against this, Sri Rajath Subramanyam, the
learned High Court Government Pleader appearing for the State,
contended that the petitioner has involved in many cases and his
presence in the location is causing law and order problem and
after subjective satisfaction only the Sub-Divisional Magistrate
has passed the impugned order. Hence he submitted that there
are no grounds to interfere with the same and accordingly,
sought for dismissal of the Revision Petition.
5. I have given my anxious consideration to the
material on record.
6. Before appreciation of the material on record, it is
appropriate to mention as to the provisions of Section 55 of the
Karnataka Police Act, 1963. The same reads thus:
"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
5 CRL.RP NO.1250 OF 2024
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 within the local limits of
6 CRL.RP NO.1250 OF 2024
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."
7. Further, it is also necessary to mention here as to
the decision of the Hon'ble Apex Court in the case of DEEPAK v.
STATE OF MAHARASHTRA reported in 2022 SCC ONLINE SC 99
wherein it is held that the personal liberty of a person under
Article 19(1)(d) of the Constitution of India is affected in a case
of this nature and hence the compliance of Section 56 of the
Karnataka Police Act is solicited, if the order lacks subjective
satisfaction, test of reasonableness by the competent authority
is sine qua non for passing a valid order of externment. In the
said judgment, at paragraphs 6, 13 and 15, the Hon'ble
Supreme Court, has observed 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
7 CRL.RP NO.1250 OF 2024
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 19(1)(d).
Hence, the restriction imposed by passing an order of
externment must stand the test of reasonableness.
7 to 12 xxx xxx 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
8 CRL.RP NO.1250 OF 2024
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. xxx xxx 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."
8. In the case on hand, it is alleged that the revision
petitioner is involved in a total of seven cases since the year
2015 and he is involving himself in unlawful activities such as
participating in commotion, gambling, OC Matka, as well as,
Dacoity and the involvement of the revision petitioner in such
activities, led to the disturbance of public peace, harmony and
tranquility. However, respondents have not placed any material
9 CRL.RP NO.1250 OF 2024
to show that the second respondent has issued the notice in
accordance with law.
9. As regards Crime No.15 of 2015 of Tunganagar
Police Station is concerned, the evidence is completed and the
accused is convicted. As regards Crime No.586 of 2016 of
Tunganagar Police Station is concerned, the prosecution has not
produced any material. As regards Crime No.13 of 2017 of
Mayalu Police Station is concerned, the same is at evidence
stage. Crime No.309 of 2019 of Tunganagar Police Station is
concerned, the same is still pending in CC No.2135 of 2019. As
regards Crime No.2 of 2023 of Doddapete Police Station is
concerned, the investigation is not complete and no final report
is filed. In Crime No.251 of 2023, investigation is not
completed. As regards Crime No.258 of 2024 of Doddapete
Police Station is concerned, the case is still under investigation.
A perusal of these material, make it clear that the revision
petitioner has not involved in any dacoity case.
10. In the case on hand, the prosecution has not placed
any material as to the Notification issued by the Government in
10 CRL.RP NO.1250 OF 2024
the official gazette that extend the provisions of Section 55 of
the Karnataka Police Act. In the absence of such Notification,
the concerned Police cannot invoke the provisions of Section 55
of the Karnataka Police Act. Respondents have neither placed
any material that attract the essential ingredients of Sections 55
to 58 of Karnataka Police Act nor any supportive document to
substantiate that the Revision Petitioner has been involved in the
aforementioned cases, as also, the stage of the proceedings.
11. For the aforestated reasons and also keeping in mind
the aforesaid decision of the Hon'ble Supreme Court, so also, the
decisions of the Co-ordinate Benches of this Court and
considering the facts and circumstances of the case on hand, I
am of the considered opinion that the impugned order is not
sustainable in law. Hence, I proceed to pass the following:
ORDER
i) Criminal Revision Petition is allowed;
ii) Order dated 04th September, 2024 passed in
No.MAGCR:45/2024-25 by the Assistant
Commissioner and Sub-Divisional Magistrate,
Shivamogga is set aside;
iii) Pending Interlocutory Applications, if any, stand
disposed of.
Sd/-
(G. BASAVARAJA)
JUDGE
lnn
