Karnataka High Court

Sri Bhavith Shetty vs The State Of Karnataka on 26 June, 2025

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                              NC: 2025:KHC:22484
                                                         CRL.P No. 8416 of 2025


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                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 26TH DAY OF JUNE, 2025

                                              BEFORE
                             THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                                CRIMINAL PETITION NO. 8416 OF 2025
                   BETWEEN:
                      SRI. BHAVITH SHETTY.
                      C/O NAGARAJ,
                      AGED ABOUT 27 YEARS,
                      R/AT NO. 8-41, KANADKA HOUSE,
                      PADAVU VILLAGE, MANGALORE,
                      SHAKTINAGAR, MANGALORE,
                      D.K. DISTRICT - 575 016.
                                                                     ...PETITIONER
                   (BY SRI. SUYOG HERELE E, ADVOCATE)
                   AND:

                   1.    THE STATE OF KARNATAKA
                         REP. BY ITS SECRETARY,
                         DEPARTMENT OF HOME, 2ND FLOOR,
                         VIDHANA SOUDHA, BENGALURU - 560 001.

                   2.    THE SPECIAL EXECUTIVE MAGISTRATE
Digitally signed         AND DEPUTY COMMISSIONER OF POLICE,
by                       MANGALURU CITY, MANGALORE - 575 001.
SHARADAVANI
B
                   3.    THE POLICE INSPECTOR,
Location: High
Court of                 KANKANADI POLICE STATION,
Karnataka                MANGALURU - 577 302.
                                                                   ...RESPONDENTS
                   (BY SRI. B.N. JAGADEESHA, ADVOCATE A/W
                      SMT. SOWMYA R, HCGP)

                         THIS CRL.P IS FILED U/S 482 OF CR.PC (FILED U/S 528 BNSS)
                   PRAYING TO QUASH THE ORDER OF EXTERNMENT PASSED BY
                   RESPONDENT NO.2 U/S 55A AND 55D OF K.P ACT DATED
                   10.05.2025 IN PROCEEDINGS BEARING NO.5/SEM/KPA/MC/2025 ON
                   THE FILE OF (THE SPECIAL EXECUTIVE MAGISTRATE AND DEPUTY
                   COMMISSIONER OF POLICE) PRODUCED AT DOCUMENT NO.1.
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                                             NC: 2025:KHC:22484
                                         CRL.P No. 8416 of 2025


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    THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM:      HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

                          ORAL ORDER

This petition is directed against the impugned order dated

10.5.2025 passed by the second respondent under Section

55(a) and (b) of the Karnataka Police Act, 1963 directing

externment of the petitioner.

2. Heard learned counsel for the petitioner and the learned

Additional SPP for the respondents and perused the material on

record.

3. In addition to reiterating the various contentions urged

and referring to the material on record, the learned counsel for

the petitioner invited my attention to the impugned order dated

10.5.2025 in order to point out that, pursuant to the report,

submitted to respondent no.2, dated 21.4.2025 by respondent

no.1 recommending for externment of the petitioner, without

issuing any notice to the petitioner calling upon him to appear

and render his explanation as to why action cannot be taken

against the petitioner, the respondent no.2 on 29.4.2025, has

passed the impugned order. The impugned order is not only in

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violation of the principles of natural justice but also under the

provisions of the Karnataka Police Act and contrary to the

principles laid down by the Hon'ble Apex Court in the case of

Deepak Vs. State of Maharashtra and Others reported in

2022 SCC OnLine SC 99, followed by this Court in Prakash

vs. The State of Karnataka and others in Criminal

Petition No.101633/2023 dated 31.7.2023 and also in the

case of Shankar vs. The State of Karnataka and Others in

Criminal Petition No.101340/2025 dated 22.4.2025. It

is therefore, submitted that the impugned order deserves to be

set aside and the matter to be remitted for reconsideration in

accordance with law.

3. Per contra, learned Additional SPP would refute the

submissions made by the learned counsel for the petitioner and

submits that, the notice was actually received by the petitioner,

who actually appeared on 29.04.2025, and since he did not file

objections, it was deemed that, he has no objection to be

submitted and therefore, proceeded to pass the impugned

order, and as such there is no merit in the petition. Hence, he

submits that the petition is liable to be dismissed.

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4. The Hon'ble Apex Court in the case of Deepak (supra),

has held as under :

"6. 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 Chapters XII, XVI or XVII of the Indian Penal Code (XLV of 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, 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, Anti-Social and other Dangerous Activities Act, 1980 (Mah. VII of 1981), 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

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Commodities Act, 1980 (VII of 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 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."

(emphasis supplied)

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7. 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 Chapters 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. Obviously, the opinion must be formed on the basis of material on record.

8. 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 Pandharinath Shridhar Rangnekar v. Commr. of Police [Pandharinath Shridhar Rangnekar v. Commr. of Police, (1973) 1 SCC 372 : 1973 SCC (Cri) 341] in para 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.

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9. 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 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 Chapters XII, XVI or XVII 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

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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).

10. On 2-6-2019, 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 151CrPC (as inserted by Maharashtra Act 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 7-7-2020 on the basis of which the impugned order of externment was passed. The police arrested the appellant and produced him on 2-6- 2020 before the learned Judicial Magistrate, First Class along with the aforesaid proposal. By the order dated 2-6-2020 (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 police station concerned between 10 a.m. to 1 p.m. till 9-6-2020.

11. 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

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initiated action of externment against him by issuing a show- cause notice on 7-7-2020. It is not the case made out in the show-cause notice dated 7-7-2020 that after release of the appellant on 2-6-2020, the appellant indulged in the commission of any offence or any other objectionable activity.

12. 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 a 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 fides, unreasonableness or arbitrariness.

13. In the facts of the case, the non-application of mind is apparent on the face of the record as the order dated 2-6-2020 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 detained under sub-section (3) of Section 151CrPC for a period of 15 days on the basis of the same

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offences which are relied upon in the impugned order of externment. As mentioned earlier, from 2-6-2020 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 the witnesses were not coming forward to depose in these two cases. Therefore, both clauses (a) and (b) of sub-section (1) of Section 56 are not attracted.

14. 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.

15. Section 58 of the 1951 Act reads thus:

"58. Period of operation of orders under Sections 55, 56, 57 and 57-A.--A direction made under Sections 55, 56, 57 and 57-A 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 may be, shall be for such period as may be specified therein and shall in no case

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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."

16. 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 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 15-12-2020 shows that it does not disclose any application of mind on this aspect. It does not record the subjective satisfaction of Respondent 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

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restrictions on the fundamental right guaranteed under clause

(d) of Article 19(1) of the Constitution of India.

17. Perusal of the impugned judgment and order [Deepak v. State of Maharashtra, 2021 SCC OnLine Bom 7860] of the High Court shows that unfortunately, the Division Bench did not notice that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances. It was the duty of the constitutional court to test the said order within the parameters which are well settled by this Court"

In the instant case, a perusal of the impugned order would

indicate that the date of fixed by the respondent was 29.4.2025

immediately after which, within a short span of time, the

impugned order came to be passed, without providing sufficient

or reasonable opportunity to the petitioner to have his say

which is not only in violation of the principles laid down by the

Hon'ble Apex court in the case of Deepak supra and also the

judgments rendered by this Court in this regard, but also not in

accordance with the provisions of the Karnataka Police Act,

thereby warranting interference by this Court in the present

petition. Hence, I am of the view that the impugned order

passed by respondent no.2 deserves to be allowed and the

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matter remitted to respondent no.2 to reconsider the same

afresh in accordance with law.

5. In the result, the following order is passed :

ORDER

i) The petition is allowed;

ii) The impugned order is set aside;

iii) Matter is remitted to respondent no.2 for fresh consideration in accordance with law.

iv) The petitioner is directed to appear before the respondent no.2 on 14.7.2025 without waiting for further notice from respondent no.2.

v) Liberty is reserved in favour of the petitioner to submit his reply with necessary documents, which shall be considered by respondent no.2, who shall afford proper, sufficient and reasonable opportunity of hearing to the petitioner, and, thereafter, proceed further in terms of the Karnataka Police Act as well as the principles of law laid down in the judgments referred to in the body of the order.