Karnataka High Court
Sri Mahesh Shetty Thimarodi vs State Of Karnataka on 17 November, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2025
BEFORE R
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 30021 OF 2025 (GM-POLICE)
BETWEEN
SRI MAHESH SHETTY THIMARODI
A/A 58 YEARS,
S/O VITTAL SHETTY,
R/AT THIMMARODI HOUSE,
UJJIRE VILLAGE, BELTHANGADY TALUK,
DAKSHINA KANNADA-574240.
...PETITIONER
(BY SRI. THARANATH POOJARY., SR ADVOCATE FOR
SRI. BALAKRISHNA M.R., ADVOCATE)
AND
1. STATE OF KARNATAKA
REP. BY SECRETARY,
DEPARTMENT OF HOME,
VIDHANA SOUDHA,
BENGALURU 560001.
Digitally signed
by SHWETHA
RAGHAVENDRA 2. ASSISTANT COMMISSIONER
Location: HIGH CUM SUB DIVISIONAL MAGISTRATE,
COURT OF PUTTUR SUB DIVISION, PUTTUR,
KARNATAKA DAKSHINA KANNADA 574201.
3. DEPUTY SUPERINTENDENT OF POLICE,
BANTWAL SUB DIVISION,
DAKSHINA KANNADA 574211.
4. POLICE SUB INSPECTOR
BELTHANGADY POLICE STATION,
BELTHANGADY, DAKSHINA KANNADA 574214.
.... RESPONDENTS
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(BY SRI. K. SHASHI KIRAN SHETTY., A.G. A/W
SRI. B.N. JAGADEESHA., ADDL. SPP A/W
SMT. K.P. YASHODHA., AGA FOR RESPONDENTS)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF IN
THE NATURE OF APPROPRIATE NATURE TO DECLARE THAT SECTION
12(5)(6) THE KARNATAKA CO-OPERATIVE SOCIETIES ACT IS ULTRA
VIRES AND IN VIOLATION OF ARTICLE 19(1)(G) AND ARTICLE 43-B
OF THE CONSTITUTION OF INDIA AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 13.10.2025, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CAV ORDER
1. The Petitioner is before this Court seeking for the
following reliefs:
i. Issue a writ of certiorari quashing the order dated
18.09.2025 passed by the R2 made in No. MAGCR
(Gadiparu)/18/2025-26 vide Annexure-A, in the
interest of Justice and equity
ii. Pass such other writ or order as this Hon'ble Court
deems fit in the facts and circumstances of the case,
in the interest of Justice and equity.
2. The Petitioner claims that on 18.07.2025 a show-
cause notice was issued to the Petitioner under
Section 58 of the Karnataka Police Act, 1963 (herein
after referred to as "KP Act, 1963") asking him
to appear before the Assistant Commissioner and
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also the Sub-Divisional Magistrate to show-cause
against his proposed externment under Section 55
(a) and (b) of the KP Act, 1963.
3. In the said notice, the reports of the Deputy
Superintendent of Police, dated 12.05.2025, and the
Inspector of Police, dated 11.05.2025, were
mentioned. It is contended that the externment of
the Petitioner is based on 21 criminal cases filed
against the Petitioner from 1992 onwards. In the said
notice, it was alleged that the Petitioner had
spearheaded agitations insofar as Sowjanya's murder
was concerned.
4. The Petitioner was served with another show-cause
notice on 20.08.2025, citing 24 criminal cases, and
was required to submit a reply to the Assistant
Commissioner by 20.08.2025. The Petitioner has
appeared before the Assistant Commissioner, who,
vide the impugned order dated 18.09.2025
(Annexure-A), had directed the externment of the
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Petitioner. It is challenging the same, that the
Petitioner is before this Court seeking the aforesaid
reliefs.
5. Sri. Tharanath Poojary., learned Senior Counsel
appearing for the Petitioner, would submit that;
5.1. All the reports and documents were not
furnished along with the show-cause notice.
5.2. The details of all cases have not been furnished.
The Petitioner has been harassed by the
Respondent police by filing false cases. Five
cases have been filed in recent years, two of
which were filed after the notice was issued.
These factors were not brought to the notice of
the Petitioner, and without doing so, the
Assistant Commissioner has passed an order
without applying his mind.
5.3. The principles of natural Justice have been
completely violated by the Respondents by not
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furnishing all the documents and details relied
upon by the Assistant Commissioner.
5.4. The Petitioner has been targeted for carrying
out agitations which are in the public interest.
Several complaints have been filed against the
Petitioner regarding the agitation.
5.5. The respondents are completely ill-disposed
towards the Petitioner. In that background, he
submits that an appeal under Section 59 of the
KP Act, 1963, is not an adequate alternative
remedy and, as such, he submits that this
Court ought to exercise jurisdiction under
Articles 226 and 227 of the Constitution of
India.
5.6. In the impugned order, five reports are
mentioned. When the Petitioner had appeared
before the Assistant Commissioner on
01.09.2025, two additional cases were placed
on record. Although a direction was issued to
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the respondents to furnish the details, and a
request was made by the Petitioner, his
submission on instructions is that the case
details had not been furnished to the Petitioner.
Therefore, he submits that action has been
taken against the Petitioner without complying
with the principles of natural Justice.
5.7. He relies on the decision of the Hon'ble Apex
Court in Deepak S/o Laxman Dongre vs.
The State of Maharashtra & Ors1, more
particularly para 6, 7, 11 and 12 thereof, which
are reproduced hereunder for easy reference;
6. 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
1
Criminal Appeal No.139/2022
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Court also held that the requirements of Section
56 must be strictly complied with.
7. 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 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
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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. 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 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.
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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.
12. 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.
5.8. By relying on Deepak's case, his submission is
that mere registration of multiple offences
would not be sufficient to satisfy the
requirement of Clause (b) of Sub-section (1) of
Section 56 to pass an order of externment. The
competent Authority is required to be satisfied
and express such satisfaction in the order
passed on the basis of material on record that
witnesses are not willing to come forward to
give evidence against the person proposed to
be externed on account of their apprehension
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as regards their safety or that of their property,
if they were to depose against the person
sought to be externed. Since the Assistant
Commissioner expressed no such satisfaction in
the impugned order, he submits that, as the
basic requirements were not satisfied, this
Court could exercise jurisdiction under Article
226 of the Constitution of India.
5.9. He relies on the decision of the Hon'ble Apex
Court in Ambadas v. State of Karnataka2,
more particularly para No.5 thereof, which is
reproduced hereunder for easy reference;
5. No doubt if there is express provision in the
statute governing a particular subject matter,
there is no scope for invoking or exercising
inherent powers of the Court; because the Court
ought to apply the provisions of the statute
which are made advisedly to govern the
particular subject matter and it being an
extraordinary power, has to be sparingly
exercised with great care and caution, the power
cannot be invoked where another remedy is
available and if any matter is covered by
express provisions of the statute, the High Court
cannot and need not give a goby invoking the
provisions of Section 482 because that may
amount to evolving new procedure in the garb of
2
1987 SCC OnLine Kar 68
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exercise of inherent powers, and that is well
settled. Although as provided under Section 59
of the Act a remedy by appeal is available to any
person aggrieved by such order of externment
passed under Section 55 of the Act and the
appeal lies to the Government, but from a
reading of Section 59 together with Section 60
of the Act, it would appear that there is no bar
against the Court interfering with such order of
externment in the circumstances as enumerated
in Section 60 of the Act - (1) where the
procedure laid down in sub-section (1) of
Section 58 is not followed; (2) there is no
material before the Authority concerned upon
which it could have been based its order; and
(3) the Authority making the order is not of the
opinion that witnesses were not willing to come
forward to give evidence in public against the
persons in respect of whom an order is made
under Section 55. Forming of such opinion by
the Authority as to the willingness of the
witnesses to come forward in public to give
evidence against the persons sought to be
proceeded is a must; because under Clause (b)
of Section 55, externment order could be made
only where it appears there are reasonable
grounds for believing that person or persons is
engaged or is about to be engaged in
commission of an offence involving force or
violence an offence punishable under Chapter
XII, XVI or XVII of the Penal Code, 1860, or in
the abetment of any such offence, and 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. Here in the case on hand,
although the learned Sub Divisional Magistrate
appears to have referred to so many criminal
cases instituted against the three of the
petitioners, but nowhere he is of the opinion
that cases against those of the persons had
ended in acquittal because of the witnesses
unwilling to give evidence for fear of safety of
person or property. In fact, no material worth
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the name has been placed to show that the
cases ended in acquittal because of such fear. At
one stage, of course the S.D.M. appears to have
thought, that may be so, but there is no basis
for the same. As pointed out by their Lordships
of the Supreme Court in the case of Prem Chand
v. Union of India [(1981) 1 SCC 639 : AIR 1981
SC 613.] mere apprehension of the police is not
enough for passing an order of externment.
Some ground or the other is not adequate for
making the order of externment. There must be
a clear and present danger based upon credible
material which makes the movements and acts
of the person in question alarming or dangerous
or fraught with violence. Likewise, there must be
sufficient reason to believe that the person
proceeded against is so desperate and
dangerous that his mere presence in the locality
or any part thereof is hazardous to the
community and its safety. A stringent test must
be applied in order to avoid easy possibility of
abuse of this power to the detriment of the
fundamental freedoms. Natural Justice must be
fairly complied with and vague allegations and
secret hearings are gross violations of Articles
14, 19 and 21 of the Constitution. The Act
permits externment, provided the action is bona
fide. All power, including police power, must be
informed by fairness if it is to survive judicial
scrutiny. It would appear, the Learned S.D.M.
has been more influenced by the secret report
sent by the Circle Inspector of Police about such
apprehension and the secret visit to the place,
which has not been put to the petitioners. In
substance, the S.D.M. has failed to form an
opinion on tangible material that witnesses were
not willing to come forward to give evidence in
public against the petitioners. The latter part of
the requirement of Clause (b) of Section 55
having not been fulfilled, the impugned order of
externment passed cannot be sustained.
The petitions are therefore allowed. The
impugned order passed by the Sub Divisional
Magistrate is set aside.
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5.10. By relying on Ambadas's case, he submits
that even though a remedy is provided under
Section 59 of the KP Act 1963, Section 59
would have to be read with Section 60 and if so
read, it would be clear that there is no Bar for
the Constitutional Court to exercise jurisdiction
under Article 226 when the procedure laid down
in Sub-section (1) of Section 58 is not followed,
or when there is no material before the
Authority concerned upon which it could have
based its order or the Authority making the
order is as not clearly stated that witnesses
were not willing to come forward to give
evidence in public against whom an order under
Section 55 of the KP Act, 1963 is proposed to
be passed. If any of these requirements are not
satisfied, this Court could exercise powers
under Article 226 and 227 of the Constitution of
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India, set aside the order without requiring the
externee to file an appeal under section 59 of
the KP Act 1963.
5.11. He relies on the decision of this Court in
SACHIN M.R., vs. STATE OF KARNATAKA &
Ors.3, more particularly para Nos.11 and 14
thereof, which are reproduced hereunder for
easy reference;
11. The case of the Petitioner merits
consideration on the touchstone of the statute
quoted hereinabove. The three crimes pending
against the Petitioner are as afore-narrated. The
show cause notice referred to all the three
crimes. Two of the crime for the offences under
the IPC and the third for offences punishable
under Section 107 of the Cr.P.C. He was
directed to appear on 20.03.2024. The notice is
dated 16.03.2024. It is signed on 18.03.2024
and the Petitioner is said to have been served
and directed for appearance within 2 days. The
notice as is required does not append the report
by respondent No.3. On the day on which the
Petitioner was directed to appear, the impugned
order is passed. Verbatim similar to what was
obtaining in the show cause notice. There is not
a whisper in the order about the notice being
sent or received by the Petitioner and his reply
being submitted.
3
WP NO.9727 OF 2024 dated 05.04.2024
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14. There are several safeguards for passage of
an order of externment upon the person against
whom it is sought to be passed. These are
procedural safeguards. It is trite that procedural
safeguards are the life blood of liberty, which
cannot be treated or taken away in the manner
that it is done in the case at hand. It is also to
be noticed that the orders passed by this Court
and the Apex Court are deliberately or blissfully
ignored by the 2nd respondent, as there is not
even a semblance of compliance either of the
statute or the orders passed by this Court.
Therefore, the State/the 2nd respondent is
hereby admonished that any repetition of the
kind of the orders that is passed in deliberate
defiance to the orders passed by the Apex Court
or this Court would fringe on the borders of
contumacious contempt on the part of the State.
Therefore, such acts iterated through such
orders would be viewed seriously. It thus
becomes necessary to direct the Chief Secretary
of the State, to take note of the situation, and
issue a circular for appropriate passage of the
orders of externment, bearing in mind the
observations made in the course of the order.
This would prevent abuse of the office and
mushrooming of cases filed before this Court.
5.12. By relying on Sachin's case, he submits that if
all the documents are not furnished and there is
no acknowledgement of such service on the
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externee, then the order passed for externment
is required to be set aside.
5.13. He relies on the decision of the Hon'ble Apex
Court in Mohammed Javeed Agha vs. State
of Karnataka4, more particularly para Nos.4, 9
and 11 thereof, which are reproduced
hereunder for easy reference;
4. The Petitioner herein has been arraigned as
an accused in several criminal cases registered
against him in between 1995 i.e., S.C. No.
560/95, S.C. No. 9/95, S.C. No. 529/2000, S.C.
No. 153/99, C.C. No. 18455/99 and C.C. No.
24323/98. The Commercial Street Police
registered a case in Crime No. 154/04 for the
offence punishable under Sections 399 and 402
of the Penal Code, 1860 and after investigation,
charge-sheet came to be filed in C.C. No.
24787/04, which is still pending and the other
case registered in Crime No. 36/05 for the
offence punishable under Sections 386 and
506(b) r/w Section 34 of the IPC the Petitioner
was arrested subsequently and he was released
on bail and investigation is still pending. So as
on today the charge-sheet came to be filed
against the revision-petitioner by Commercial
Street Police Station which is pending on the file
of the 11th Addl. ACM, Bangalore in C.C. No.
24787/04 and another case is still under
investigation. So during pendency of the
4
(2007) 2 AIR KAR R 243
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investigation of the case in Crime No. 154/04
filed by the Commercial Street Police Station'
and another case, the impugned order came to
be passed by the respondent after issuing show
cause notice to the Petitioner. Of course no prior
notice was issued about the involvement of the
revision-petitioner in Hyder Asgar's case. In
order to take revenge against the murder of
Petitioner's Guru Chappal Hameed and Rizwan
Being alias Moulana, the impugned order has
been passed.
9. On the other hand the learned State Public
Prosecutor for the respondent submitted that
the Commissioner of Police and District
Magistrate has rightly passed the Annexure-C
against the revision-petitioner after considering
the involvement of this Petitioner in several
criminal cases. It is argued that the Petitioner
was acquitted in several cases on account of the
threat given to the prosecution witnesses and
nobody is prepared to come forward to give
evidence against him and his associates. Several
rowdy sheets have been opened in some police
station. Since the revision-petitioner is a rowdy
sheeter and he is threatening several persons
and, therefore, respondent is right in passing
the Annexure-C. It is submitted that there are
no incorrect or illegal findings recorded by the
respondent and, therefore, he prays for
dismissal of the revision-petition.
11. Hence, the revision-petition is allowed and
the impugned order under challenge passed by
the Commissioner of Police and District
Magistrate, Bangalore is hereby quashed.
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5.14. By relying on Mohammed Javeed Agha's
case, he submits that though there may be
several cases or complaints which might have
been filed, the fact of acquittal in those cases
would have to be considered by the competent
Authority and if such acquittal is taken into
consideration, there could be no externment
order passed since by way of such acquittal, the
very filing of the complaint is set at naught and
as such, such complaint cannot be used against
a person sought to be externed. Even if such an
acquittal were to be used for passing an
externment order, it would be required that the
competent Authority come to a categorical
conclusion that such an acquittal occurred
because the prosecutional witnesses did not
come forward to give evidence against the
externee, but for which there would be no
acquittal in those proceedings.
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5.15. He relies on the decision of this Court in Shri
Aluru Kadasidda @ Badaka vs. The State of
Karnataka & another5 , more particularly
para Nos.5 and 7 thereof, which are reproduced
hereunder for easy reference;
5. Perused the material available on record. The
contention of learned HCGP that the Petitioner
has got appeal remedy under Section 59 of the
K.P. Act is required to be rejected in view of
position of law declared by Co-ordinate Bench of
this Court in the case of Ambadas and others vs.
State of Karnataka and another1 , wherein it
has been held as under:
"5. No doubt if there is express provision in
the statute governing a particular subject
matter, there is no scope for invoking or
exercising inherent powers of the Court;
because the Court ought to apply the provisions
of the statute which are made advisedly to
govern the particular subject matter and it being
an extraordinary power, has to be sparingly
exercised with great care and caution, the power
cannot be invoked where another remedy is
available and if any matter is covered by
express provisions of the statute, the High Court
cannot and need not give a go by invoking the
provisions of S. 482 because that may amount
to evolving new procedure in the grab of
exercise of inherent powers, and that is well
settled. Although as provided under S. 59 of the
Act a remedy by appeal is available to any
person aggrieved by such order of externment
5
Criminal petition No.102529/2024 dated 02.07.2025
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passed under S. 55 of the Act and the appeal
lies to the Government, but from a reading of S.
59 together with S. 60 of the Act, it would
appear that there is no bar against the Court
interfering with such order of externment in the
circumstance as enumerated in S. 60 of the Act
- (1) where the procedure laid down in sub-
section (1) of S. 58 is not followed; (2) there is
no material before the Authority concerned upon
which it could have based its order, and (3) the
Authority making the order is not of the opinion
that witnesses were not willing to come forward
to give evidence in public against the persons in
respect of whom an order is made under S. 55.
Forming of such opinion by the Authority as to
the willingness of the witnesses to come forward
in public to give evidence against the persons
sought to be proceeded is a must; because
under Clause (b) of S. 55, externment order
could be made only where it appears there are
reasonable grounds for believing that person of
parsons in engaged or is about to be engaged in
commission of an offence involving force or
violence an offence punishable under Chapter
XII, XVI or XVII of the Penal Code, or in the
abetment of any such offence, and 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. Here in the case on hand,
although the learned Sub Divisional Magistrate
appears to have referred to so many criminal
cases instituted against the three of the
petitioners, but nowhere he is of the opinion
that cases against those of the persons had
ended in acquittal because of the witnesses
unwilling to give evidence for fear of safety of
person or property. In fact, no material worth
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the name has been placed to show that the
cases ended in acquittal because of such fear. At
one stage, of course the S.D.M. appears to have
thought, that may be so, but there is no basis
for the same. As pointed but by their Lordships
of the Supreme Court in the case of Prem Chand
v. Union of India, mere apprehension of the
police is not enough for passing an order of
externment. Some ground or the other is not
adequate for making the order of externment.
There must be a clear and present danger based
upon credible material which makes the
movement and acts of the person in question
alarming or dangerous or fraught with violence.
Likewise, there must be sufficient reason to
believe that the person proceeded against is so
desperate and dangerous that his mere
presence in the locality or any part thereof is
hazardous to the community and its safety. A
stringent test must be applied in order to avoid
easy possibility of abuse of this power to the
detriment of the fundamental freedoms. Natural
Justice must be fairly complied with and vague
allegations and secret hearings are gross
violations of Arts. 14, 19 and 21 of the
Constitution. The Act permits externment,
provided the action is bona fide. All power,
including police power, must be informed by
fairness if it is to survive judicial scrutiny. It
would appear, the learned S.D.M. has been
more influenced by the secret report sent by the
Circle Inspector of Police about such
apprehension and the secret visit to the place,
which has not been put to the petitioners. In
substance, the S.D.M. has failed to form an
opinion on tangible material that witnesses were
not willing to come forward to give evidence in
public against the petitioners. The latter part of
the requirement of Clause (b) of S. 55 having
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not been fulfilled, the impugned order of
externment passed cannot be sustained."
7. On perusal of the report of the PSI and the
impugned order passed by respondent No.2,
there is no allegation of Petitioner involving
force or violence or an offence punishable under
Chapter XII, XVI or XVII of IPC or in abetment
of any such offences. There is also no allegation
against the Petitioner that the PSI was of the
opinion that witnesses are not wiling to come
forward to give evidence in public case against
Petitioner for the reason of apprehension on
their part as regards to safety of their persons
or property. Therefore, Clause (b) of Section 55
of the K.P. Act is not attached. What is alleged
against the Petitioner is of committing offence
under K.P. Act, wherein the Petitioner pleaded
guilty and accordingly he paid fine amount and
in another case there is allegation of causing
hurt and in third case, the Tahasildar has issued
notice under Section 107 of Cr.P.C. for
maintenance of peace and tranquility in the
area. Therefore, there is no allegation of causing
or calculating cause alarm, danger or harm to
persons or property. Therefore, Clause (a) of
Section 55 of the K.P. Act is also not made out.
As there is no out break of epidemic decease,
clause (c) of Section 55 of the K.P. Act is not
attracted.
5.16. By relying on Aluru Kadasidda's case, he
submits that neither in the reports which have
been submitted nor in the order passed by the
competent Authority, there is any whisper as
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regards witnesses not willing to come forward
to give evidence against the externee on
apprehension of fear of person or property.
There is no allegation made against the
externee that if he is not so externeed, he may
cause harm, loss and injury to the person or
property of the prosecution witnesses. Hence,
there cannot be an externment order passed
without such a finding.
5.17. He relies on the decision of the Hon'ble Apex
Court in Tamil Nadu Cements Corporation
Limited vs. Micro and Small Enterprises
Facilitation Council & Anther6 more
particularly para Nos.54, 55 and 57 thereof,
which are reproduced hereunder for easy
reference;
54. The access to High Courts by way of a writ
petition under Article 226 of the Constitution of
India, is not just a constitutional right but also a
part of the basic structure. It is available to
every citizen whenever there is a violation of
6
(2025) 4 SCC 1
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their constitutional rights or even statutory
rights. This is an inalienable right and the rule of
availability of alternative remedy is not an
omnibus rule of exclusion of the writ jurisdiction,
but a principle applied by the High Courts as a
form of judicial restraint and refrain in
exercising the jurisdiction. The power to issue
prerogative writs under Article 226 of the
Constitution is plenary in nature and the same is
not limited by any provision of the Constitution
and cannot be restricted or circumscribed by a
statute. [Whirlpool Corpn. v. Registrar, Trade
Marks, (1998) 8 SCC 1. See also, L. Chandra
Kumar v. Union of India, (1997) 3 SCC 261 :
1997 SCC (L&S) 577 : (1997) 228 ITR 725; S.N.
Mukherjee v. Union of India, (1990) 4 SCC 594 :
1990 SCC (Cri) 669 : 1991 SCC (L&S) 242;
Union of India v. Parashotam Dass, (2025) 5
SCC 786.]
55. It has been well-settled through a legion of
judicial pronouncements of this Court that the
writ courts, despite the availability of alternative
remedies, may exercise writ jurisdiction at least
in three contingencies -- (i) where there is a
violation of principles of natural Justice or
fundamental rights; (ii) where an order in a
proceeding is wholly without jurisdiction; or (iii)
where the vires of an Act is challenged.
Noticeably, Msefc as a statutory authority
performs a statutory role and functions within
the four corners of the law.
57. Following the judgments in Whirlpool Corpn.
v. Registrar, Trade Marks [Whirlpool Corpn. v.
Registrar, Trade Marks, (1998) 8 SCC 1] and
Harbanslal Sahnia [Harbanslal Sahnia v. Indian
Oil Corpn. Ltd., (2003) 2 SCC 107] , this Court
in Radha Krishan Industries v. State of H.P.
[Radha Krishan Industries v. State of H.P.,
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(2021) 6 SCC 771 : (2021) 88 GSTR 228] laid
down the following principles : (Radha Krishan
Industries case [Radha Krishan Industries v.
State of H.P., (2021) 6 SCC 771 : (2021) 88
GSTR 228] , SCC p. 795, para 27)
"27. The principles of law which emerge are
that:
27.1. The power under Article 226 of the
Constitution to issue writs can be exercised not
only for the enforcement of fundamental rights,
but for any other purpose as well.
27.2. The High Court has the discretion not to
entertain a writ petition. One of the restrictions
placed on the power of the High Court is where
an effective alternate remedy is available to the
aggrieved person.
27.3. Exceptions to the rule of alternate remedy
arise where : (a) the writ petition has been filed
for the enforcement of a fundamental right
protected by Part III of the Constitution; (b)
there has been a violation of the principles of
natural Justice; (c) the order or proceedings are
wholly without jurisdiction; or (d) the vires of a
legislation is challenged.
27.4. An alternate remedy by itself does not
divest the High Court of its powers under Article
226 of the Constitution in an appropriate case
though ordinarily, a writ petition should not be
entertained when an efficacious alternate
remedy is provided by law.
27.5. When a right is created by a statute,
which itself prescribes the remedy or procedure
for enforcing the right or liability, resort must be
had to that particular statutory remedy before
invoking the discretionary remedy under Article
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226 of the Constitution. This rule of exhaustion
of statutory remedies is a rule of policy,
convenience and discretion.
27.6. In cases where there are disputed
questions of fact, the High Court may decide to
decline jurisdiction in a writ petition. However, if
the High Court is objectively of the view that the
nature of the controversy requires the exercise
of its writ jurisdiction, such a view would not
readily be interfered with."
5.18. By relying on Tamil Nadu Cements
Corporation Limited case, he submits that
the fetter of non-exercise of powers under
Article 226 and 227 of the Constitution of India
is a self-imposed one by the Constitutional
Courts. In appropriate cases, the Constitutional
Courts could exercise writ jurisdiction more
particularly when there is a violation of
principles of natural Justice or fundamental
rights where the order passed in a proceeding
without jurisdiction or where the vires of an Act
has been challenged. The externment order is
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violative of Article 21 as also Article 19(1)(g) of
the constitution of India. Therefore, this Court
ought to in these circumstances exercise its
jurisdiction under Article 226 and 227 of the
Constitution of India.
5.19. He relies on the decision of the Hon'ble Apex
Court in Ram & Shyam Company vs. State
of Haryana & Ors.,7 more particularly para
No.9 thereof, which is reproduced hereunder for
easy reference;
9. Before we deal with the larger issue, let me
put out of the way the contention that found
favour with the High Court in rejecting the writ
petition. The learned Single Judge as well as the
Division Bench recalling the observations of this
Court in Assistant Collector of Central Excise v.
Jainson Hosiery Industries [(1979) 4 SCC 22 :
1979 SCC (Cri) 896] rejected the writ petition
observing that "the petitioner who invokes the
extraordinary jurisdiction of the court under
Article 226 of the Constitution must have
exhausted the normal statutory remedies
available to him". We remain unimpressed.
Ordinarily it is true that the Court has imposed a
restraint in its own wisdom on its exercise of
jurisdiction under Article 226 where the party
7
(1985) 3 SCC 267
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invoking the jurisdiction has an effective,
adequate alternative remedy. More often, it has
been expressly stated that the rule which
requires the exhaustion of alternative remedies
is a rule of convenience and discretion rather
than rule of law. At any rate it does not oust the
jurisdiction of the Court. In fact in the very
decision relied upon by the High Court in State
of U.P. v. Mohammad Nooh [AIR 1958 SC 86 :
1958 SCR 595 : 1958 SCJ 242] it is observed
"that there is no rule, with regard to certiorari as
there is with mandamus, that it will lie only
where there is no other equally effective
remedy". It should be made specifically clear
that where the order complained against is
alleged to be illegal or invalid as being contrary
to law, a petition at the instance of person
adversely affected by it, would lie to the High
Court under Article 226 and such a petition
cannot be rejected on the ground that an appeal
lies to the higher officer or the State
Government. An appeal in all cases cannot be
said to provide in all situations an alternative
effective remedy keeping aside the nice
distinction between jurisdiction and merits. Look
at the fact situation in this case. Power was
exercised formally by the Authority set up under
the Rules to grant contract but effectively and
for all practical purposes by the Chief Minister of
the State. To whom do you appeal in a State
administration against the decision of the Chief
Minister? The clitch of appeal from Caesar to
Caesar's wife can only be bettered by appeal
from one's own order to oneself. Therefore this
is a case in which the High Court was not at all
justified in throwing out the petition on the
untenable ground that the appellant had an
effective alternative remedy. The High Court did
not pose to itself the question, who would grant
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relief when the impugned order is passed at the
instance of the Chief Minister of the State. To
whom did the High Court want the appeal to be
filed over the decision of the Chief Minister.
There was no answer and that by itself without
anything more would be sufficient to set aside
the judgment of the High Court.
5.20. By relying on Ram & Shyam Company's
case, he submits that when on the face of the
record it appears that the establishment is
against the Petitioner, an appeal remedy would
not be an efficacious remedy since the
Appellate Authority, being part of the
establishment, is unlikely to set aside the order
passed by the Assistant Commissioner.
5.21. In that background, he submits that the above
petition is required to be allowed and the reliefs
sought for granted.
6. Sri.K.Shashi Kiran Shetty., learned Advocate General
appearing for the State submits that;
6.1. There are numerous cases which have been
filed against the Petitioner. Even before
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Sowjanya's agitation, there were more than 11
cases which have been filed against the
Petitioner. Thereafter, several cases have been
filed, some of which are not related to the
Sowjanya agitation. The Petitioner is making
use of the Sowjanya agitation and has resorted
to criminal activities for which the State has
been forced to take necessary action.
6.2. His submission is that under Sub-section (1) of
Section 58, all the documents and details are
not required to be furnished. Only the material
allegations are required to be made known to
the person sought to be externed. Even though
that is the requirement, all the documents have
been furnished to the Petitioner. The show-
cause notice itself is a detailed one wherein the
details of all the proceedings/complaints which
have been filed against the Petitioner have
been detailed. The police reports dated
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11.05.2025 and 12.05.2025 have been
acknowledged by the Petitioner to have been
received in the objection statement filed.
6.3. The show-cause notice dated 20.08.2025 at
Annexure-C would indicate that the report
dated 18.08.2025 has also been furnished. The
Petitioner did not raise his grievance regarding
the non-furnishing of the said report at any
point in time. It is only now, after suffering an
order, that the Petitioner has raised this issue
before this Court.
6.4. He submits that the other police reports dated
27.08.2025, 29.08.2025 and 10.09.2025 are
basically further statements in respect of the
earlier reports and as such constitute a subset
of the earlier reports. Even though these
reports have been furnished, original records
are produced before this Court to evidence the
receipt of the report dated 27.08.2025. His
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submission is that some of the documents had
been sent by post and have returned
unclaimed.
6.5. Be that as it may, he submits that in terms of
Sub-section (1) of Section 58 of the KP Act,
1963, it is only the material particulars which
are required to be furnished, which have been
so furnished, hence the question of the
Petitioner raising a dispute in relation thereto
would not arise.
6.6. He submits that the Hon'ble Supreme Court has
upheld the constitutional validity of Section 57
of the Bombay Police Act, 1951, which is in pari
materia to Section 55.
6.7. He relies on Hari Khemu Gawali v. Deputy
Commissioner of Police, Bombay & Ors.,8
more particularly para Nos.16, 17, 18, 19 and
31 thereof, which are reproduced hereunder for
easy reference;
8
(1956) 1 SCC 815
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16. It was next contended that the proceedings
are initiated by the police and it is the police
which is the judge in the case and that therefore
the provisions of the Act militate against one of
the accepted principles of natural Justice that
the prosecutor should not also be the judge. In
order to appreciate this argument reference has
to be made to the provisions of Section 59 of
the Act. It provides that before action is taken
under Sections 55, 56 or 57 of the Act, the
Authority entrusted with the duty of passing
orders under any one of those sections or any
officer above the rank of an Inspector
authorised by that officer or Authority shall
inform the person proceeded against in writing
"of the general nature of the material allegations
against him" in order to give him a reasonable
opportunity of explaining his conduct. If that
person wishes to examine any witnesses, he has
to be given an opportunity of adducing
evidence. That person has the right to file a
written statement and to appear in the
proceeding by an advocate or attorney for the
purpose of tendering his explanation and
adducing evidence. If the person fails to appear
or to adduce evidence, the Authority or officer
has the right to proceed with the enquiry and to
pass such order as may appear fit and proper. It
is thus clear that the criticism against the
procedure laid down in Section 59 is not entirely
correct. The evidence or material on the basis of
which a person may be proceeded against under
any one of the Sections 55, 56 or 57 may have
been collected by police officers of the rank of
an Inspector of Police or of lower rank. The
proceedings may be initiated by a police officer
above the rank of Inspector who has to inform
the person proceeded against of the general
nature of the material allegations against him.
But the order of externment can be passed only
by a Commissioner of Police or a District
Magistrate or a Sub-Divisional Magistrate
specially empowered by the State Government
in that behalf. Hence the satisfaction is not that
of the person prosecuting, if that word can at all
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be used in the context of those sections. The
person proceeded against is not prosecuted but
is put out of the harm's way. The legislature has
advisedly entrusted officers of comparatively
higher rank in the police or in the magistracy
with the responsible duty of examining the
material and of being satisfied that such person
is likely again to engage himself in the
commission of an offence similar to that for
which he had previously been convicted.
17. The proceedings contemplated by the
impugned Section 57 or for the matter of that,
the other two Sections 55 or 56 are not
prosecutions for offences or judicial proceedings,
though the officer or Authority charged with the
duty aforesaid has to examine the information
laid before him by the police. The police force is
charged with the duty not only of detection of
offences and of bringing offenders to Justice,
but also of preventing the commission of
offences by persons with previous records of
conviction or with criminal propensities. As
observed by Patanjali Sastri, C.J. in State of
Madrasv. V.G. Row [State of Madras v. V.G.
Row, (1952) 1 SCC 410 at p. 421 : 1952 SCR
597] , "externment of individuals, like
preventive detention, is largely precautionary
and based on suspicion". To these observations
may be added the following words in the
judgment of Patanjali Sastri, C.J. with reference
to the observations of Lord Finlay in R. v.
Halliday [R. v. Halliday, 1917 AC 260, 269 (HL)]
: (V.G. Row case [State of Madras v. V.G. Row,
(1952) 1 SCC 410 at p. 421 : 1952 SCR 597] ,
SCC p. 420, para 25)
"25. ... The Court was the least appropriate
tribunal to investigate into circumstances of
suspicion on which such anticipatory action must
be largely based."
It is thus clear that in order to take
preventive action under Section 57 of the Act
the legislature has entrusted police officers or
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Magistrates of the higher ranks to examine the
facts and circumstances of each case brought
before them by the Criminal Investigation
Department. But the legislature has provided
certain safeguards against tyrannical or wholly
unfounded orders being passed by the higher
ranks of the police or the magistracy.
18. It was next contended that the provisions
relating to hearing any evidence that may be
adduced by the police or by the person
proceeded against and right of appeal to the
State Government conferred by Section 60 of
the Act are illusory. We cannot agree that the
right of appeal to the State Government granted
to the person proceeded against by an order
under Section 57 is illusory because it is
expected that the State Government which has
been charged with the duty of examining the
material with a view to being satisfied that
circumstances existed justifying a preventive
order of that nature, will discharge its functions
with due care and caution. Section 61 has
provided a further safeguard to a person dealt
with under Section 57 by providing that though
an order passed under Section 55, Section 56 or
Section 57, or by the State Government under
Section 60 on appeal shall not be called in
question in any court, he may challenge such an
order in a court on the ground (1) that the
Authority making the order or any officer
authorised by it had not followed the procedure
laid down in Section 57, or (2) that there was no
material before the Authority concerned upon
which it could have based its order, or (3) that
the said Authority was not of opinion that
witnesses were unwilling to come forward to
give evidence in public against the person
proceeded against. In this connection it was
argued on behalf of the Petitioner that Section
59 only required the general nature of the
material allegations against the person externed
to be disclosed and that, as it did not further
provide for particulars to be supplied to such a
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person, it would be very difficult for him to avail
of at least the second ground on which Section
61 permits him to get the matter judicially
examined. But in the very nature of things it
could not have been otherwise. The grounds
available to an externee had necessarily to be
very limited in their scope because if evidence
were available which could be adduced in public,
such a person could be dealt with under the
preventive sections of the Code of Criminal
Procedure, for example, under Section 107 or
Section 110. But the special provisions now
under examination proceed on the basis that the
person dealt with under any of the Sections 55,
56 or 57 is of such a character as not to permit
the ordinary laws of the land being put in
motion in the ordinary way, namely, of
examining witnesses in open Court who should
be cross-examined by the party against whom
they were deposing. The provisions we are now
examining are plainly intended to be used in
special cases requiring special treatment, that
is, cases which cannot be dealt with under the
preventive sections of the Code of Criminal
Procedure.
19. Reliance was placed on a number of
decisions of this Court referred to above on
behalf of the Petitioner to show that the terms
of Section 57 impugned in this case could not
come within the permissible limits laid down by
the Constitution in clause (5) of Article 19. But
arguments by analogy may be misleading. It
has been repeatedly said by this Court that it is
not safe to pronounce on the provisions of one
Act with reference to decisions dealing with
other Acts which may not be in pari materia.
The case nearest to the present one is the
decision of this Court in Gurbachan Singh v.
State of Bombay [Gurbachan Singh v. State of
Bombay, (1952) 1 SCC 683 : 1952 SCR 737] ,
where Section 27(1) of the City of Bombay
Police Act was under challenge and the Court
upheld the constitutionality of that section. If
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anything, Section 57 impugned in this case
provides a surer ground for proceeding against a
potential criminal insofar as it insists upon a
previous conviction at least. At least in clauses
(b) and (c) it insists upon more than one
previous order of conviction against the person
proceeded against, thus showing that the
Authority dealing with such a person had some
solid ground for suspecting that he may repeat
his criminal activities. It has not been contended
before us that the decision of this Court referred
to above does not lay down the correct law or
that it was open to challenge in any way. We do
not think it necessary therefore to consider in
detail the other cases relied upon on behalf of
the Petitioner.
31. For all the above reasons I consider that
Section 57 of the Act is constitutionally invalid.
6.8. By relying on Hari Khemu Gawali's case, the
learned Advocate General submits that what is
required to be informed is the general nature of
the material allegation, which is the general
nature of the material allegation against him.
There is no requirement to furnish all
documents and/or copies. The externment
order being required to be passed by a higher
official, the legislature has entrusted such
officers of higher rank the responsible duty of
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examining the material and on being satisfied,
pass such orders. An order of externment is a
preventive order to ensure that offences are not
committed by the externee when there is a
suspicion i.e., likely to commit offences. Once
the State Government is satisfied from the
material on record that circumstances exist for
passing such preventive order, this Court ought
not to exercise its powers under Article 226 and
227 of the Constitution of India but leave the
externee to file necessary appeal.
6.9. It is not the case of the Petitioner that the
Assistant Commissioner did not have the power
to pass an order. When an order has been
passed by an Authority having jurisdiction, the
same cannot challenged in a proceeding under
Article 226 and 227 of the Constitution of India.
The statutory remedy available would have to
be resorted to by such an externee.
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6.10. He submits that if a notice has been issued to
the proposed externee and he has appeared
before the Authority concerned, the principles
of natural Justice have been satisfied, and any
appeal against an Order passed under Section
55 lies before the Government under Section
59.
6.11. He relies upon the decision of this Court in
Mr.Javeed vs. State of Karnataka9, more
particularly para No.3 and 4 thereof, which are
reproduced hereunder for easy reference;
3. What is being challenged is the externment order
dated 04.09.2025 at Annexure-A. A perusal of the
papers indicates that before such an order was
passed, notice was issued to the Petitioner, the
Petitioner appeared before respondent No.2 and
made his submissions.
4. In that view of the matter, the requirement of
natural Justice has been satisfied and the Petitioner
has an alternative efficacious remedy in terms
Section 59 of the Karnataka Police Act 1963.
6.12. By relying on Javeed's case, he submits that
once a notice has been issued and the externee
9
WP No.28910 of 2025 dated 09.10.2025
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has appeared before the Competent Authority,
the Principles of natural Justice have been
satisfied; it is only the appellate remedy which
is available under Section 59 of the KP Act
1963.
6.13. He relies upon the decision of this Court in
Sunil @ papu vs. State of Karnataka10, more
particularly para 8 and 9 thereof, which are
reproduced hereunder for easy reference;
8. I have considered the submission made by the
learned counsel for both sides. Admittedly, the
Petitioner has remedy of filing an appeal under
Section 59 of the Karnataka Police Act, 1963.
Therefore, I am not inclined to entertain the writ
petition.
9. So far as the prayer made by the learned counsel
for the Petitioner that till the decision of the appeal,
the impugned order should not be given effect to. I
am afraid that in the fact situation of the case, such
relief cannot be granted as the order of externment
has been passed only for a period of 11 days and in
case the interim order is granted, the same would
tantamount to granting final relief to the Petitioner
without even filing of the appeal by the Petitioner.
Therefore, the order passed by a Bench of this Court
dated 09.01.2018 passed in W.P.No.712/2018 is
distinguishable on the facts of the case which do not
apply to the present fact situation of the case.
10
2019 SCC Online Kar 550
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6.14. By relying on Sunil @ papu's case, he submits
that when an appeal under Section 59 of the KP
Act, 1963 is available, the writ petition ought
not to be entertained.
6.15. He relies upon the decision of Hon'ble Delhi
High Court in Dhiraj vs. State (NCT Delhi)
and Others11, more particularly para No.18
thereof, which is reproduced hereunder for easy
reference;
18. The Supreme Court in Radha Krishan
Industries v. State of H.P., (2021) 6 SCC 771
was observed as under:--
27. The principles of law which emerge
are that:
27.1. The power under Article 226 of the
Constitution to issue writs can be
exercised not only for the enforcement
of fundamental rights, but for any other
purpose as well.
27.2. The High Court has the discretion
not to entertain a writ petition. One of
the restrictions placed on the power of
the High Court is where an effective
11 2023 SCC online Del 6911
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alternate remedy is available to the
aggrieved person.
27.3. Exceptions to the rule of alternate
remedy arise where : (a) the writ
petition has been filed for the
enforcement of a fundamental right
protected by Part III of the Constitution;
(b) there has been a violation of the
principles of natural Justice; (c) the
order or proceedings are wholly without
jurisdiction; or (d) the vires of a
legislation is challenged.
27.4. An alternate remedy by itself does
not divest the High Court of its powers
under Article 226 of the Constitution in
an appropriate case though ordinarily, a
writ petition should not be entertained
when an efficacious alternate remedy is
provided by law.
27.5. When a right is created by a
statute, which itself prescribes the
remedy or procedure for enforcing the
right or liability, resort must be had to
that particular statutory remedy before
invoking the discretionary remedy under
Article 226 of the Constitution. This rule
of exhaustion of statutory remedies is a
rule of policy, convenience and
discretion.
27.6. In cases where there are disputed
questions of fact, the High Court may
decide to decline jurisdiction in a writ
petition. However, if the High Court is
objectively of the view that the nature of
the controversy requires the exercise of
its writ jurisdiction, such a view would
not readily be interfered with.
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28. These principles have been
consistently upheld by this Court in
Chand Ratan v. Durga Prasad [Chand Ratan
v. Durga Prasad, (2003) 5 SCC 399],
Babubhai Muljibhai Patel v. Nandlal Khodidas
Barot [Babubhai Muljibhai Patel v. Nandlal
Khodidas Barot, (1974) 2 SCC 706] and
Rajasthan SEB v. Union of India [Rajasthan
SEB v. Union of India, (2008) 5 SCC 632]
among other decisions.
6.16. By relying on Dhiraj's case, he submits that
none of the exceptions carved out in the said
matter apply to the present matter, inasmuch
as the rights which are sought to be asserted
by the Petitioner are subject to the KP Act
1963. Even if it were to be a fundamental right,
since the procedure under law has been
followed, a writ petition would not lie, more so
when an alternative relief of appeal is available.
The Petitioner has been served with notice,
furnished with documents, and heard in the
matter, he being represented by counsel. Thus,
none of the principles of natural Justice is
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violated. The orders having been passed under
Section 55 of the KP Act 1963 and being
permitted to be so passed under law by the
Competent Authority cannot be said to be one
without jurisdiction. The vires of the Act not
having been challenged, none of the exceptions
carved out in Dhiraj's case or that in Radha
Krishan Industries case, would be attracted
in the present case.
6.17. The proposed externee is entitled to be
informed only of the general nature of the
allegations against him, and not the specific
particulars. All documents are not required to
be furnished.
6.18. He relies upon the decision of the Hon'ble Apex
Court in Pandharinath Shridhar Rangnekar
v. Dy. Commr. of Police, the State of
Maharashtra12, more particularly para Nos.9,
12
(1973) 1 SCC 372
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10, 11 and 12 thereof, which are reproduced
hereunder for easy reference;
9. These provisions show that the reasons
which necessitate or justify the passing of an
externment order arise out of extraordinary
circumstances. An order of externment can be
passed under Clause (a) or (b) of Section 56,
and only if, the Authority concerned is satisfied
that witnesses are unwilling to come forward to
give evidence in public against the proposed
externee by reason of apprehension on their
part as regards the safety of their person or
property. A full and complete disclosure of
particulars such as is requisite in an open
prosecution will frustrate the very purpose of
an externment proceeding. If the show-cause
notice were to furnish to the proposed externee
concrete data like specific dates of incidents or
the names of persons involved in those
incidents, it would be easy enough to fix the
identity of those who out of fear of injury to
their person or property are unwilling to depose
in public. There is a brand of lawless element in
society which is impossible to bring to book by
established methods of judicial trial because in
such trials there can be no conviction without
legal evidence. And legal evidence is impossible
to obtain, because out of fear of reprisals
witnesses are unwilling to depose in public.
That explains why Section 59 of the Act
imposes but a limited obligation on the
authorities to inform the proposed externee "of
the general nature of the material allegations
against him". That obligation fixes the limits of
the co-relative right of the proposed externee.
He is entitled, before an order of externment is
passed under Section 56, to know the material
allegations against him and the general nature
of those allegations. He is not entitled to be
informed of specific particulars relating to the
material allegations.
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10. It is true that the provisions of Section 56
make a serious inroad on personal liberty but
such restraints have to be suffered in the larger
interests of society. This Court in Gurbachan
Singh v. State of Bombay [(1952) 1 SCC 683 :
1952 SCR 737 : AIR 1952 SC 221 : 1952 SCJ
279] had upheld the validity of Section 27(1) of
the City of Bombay Police Act, 1902, which
corresponds to Section 56 of the Act. Following
that decision, the challenge to the
constitutionality of Section 56 was repelled in
Bhagubhai v. Dulldbhabhai Bhandari v. District
Magistrate, Thana. We will only add that care
must be taken to ensure that the terms of
Sections 56 and 59 are strictly complied with
and that the slender safeguards which those
provisions offer are made available to the
proposed externee.
11. In Hari Khemu Gawali v. Deputy
Commissioner of Police, Bombay [1956 SCR
506 : AIR 1956 SC 559 : 1956 SCJ 599] in
which an order of externment was passed
under Section 57 of the Act, it was held by this
Court on an examination of the general scheme
of the Act that the provisions of Sections 55,
56, 57 and 59 cannot be held to be invalid on
the grounds that only the general nature of the
material allegations is required to be disclosed
to the externee, and that it would be difficult
for him to get the matter judicially examined.
Sinha J., speaking for the majority, observed:
"The grounds available to an externee had
necessarily to be very limited in their scope
because if evidence were available which could
be adduced in public, such a person could be
dealt with under the preventive sections of the
Code of Criminal Procedure, for example, under
Section 107 or Section 110. But the special
provisions now under examination proceed on
the basis that the person dealt with under any
of the Section 55, 56 or 57 is of such a
character as not to permit the ordinary laws of
the land being put in motion in the ordinary
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way, namely, of examining witnesses in open
Court who should be cross-examined by the
party against whom they were deposing. The
provisions we are now examining are plainly
intended to be used in special cases requiring
special treatment, that is, cases which cannot
be dealt with under the preventive sections of
the Code of Criminal Procedure."
12. In State of Gujarat v. Mehboob Khan
Usman Khan, this Court, reversing the
judgment of the High Court of Gujarat, rejected
the argument that a notice substantially similar
to the one in the instant case was bad for
vagueness. It was held that the person
proposed to be externed was entitled to be
informed of the general nature of the material
allegations and not to the particulars of those
allegations. As to the meaning of the phrase
"general nature of the material allegations", it
was observed:
"Without attempting to be exhaustive we may
state that when a person is stated to be a 'thief'
that allegation is vague. Again, when it is said
that 'A' stole a watch from X on a particular day
and at a particular place', the allegation can be
said to be particular. Again, when it is stated
that X is seen at crowded bus stands and he
picks pockets' it is of a general nature of a
material allegation. Under the last illustration,
given above, will come the allegations, which,
according to the Gujarat High Court, suffer
from being too general, or vague. Considering
it from the point of view of the party against
whom an order of externment is proposed to be
passed, it must be emphasised that when he
has to tender an explanation to a notice, under
Section 59, he can only give an explanation,
which can be of a general nature. It may be
open to him to take a defence, of the action
being taken, due to mala fides, malice or
mistaken identity, or he may be able to tender
proof of his general good conduct, or alibi,
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during the period covered by the notice and the
like."
6.19. By relying on Pandharinath Shridhar
Rangnekar's case, he submits that a full and
complete disclosure of particulars would
frustrate the very purpose of the externment
proceedings. The proposed externee cannot be
given the concrete data, like specific dates of
incidents or the names of the persons involved
in the incident, which is likely to cause harm
and injury to the witnesses. The legislature in
its wisdom has thought it fit to provide such a
power to extern a person subject to the
procedure being complied. In the present
matter procedure having been complied the
Petitioner cannot have any grievance. His
submission by relying on Hari Khemu
Gawali's case is that the grounds available to
an externee would be necessarily limited, since
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if evidence could be adduced in public, such a
person would be dealt with under the applicable
criminal law and preventive provisions would
not be required to be applied. Preventive
provisions are applied in special cases where
the State is of the belief that the externee may
cause or commit any offence.
6.20. He relies upon the decision of the Hon'ble Apex
Court in State of Maharashtra & Anr. vs.
Salem Hasan Khan13, more particularly para
No.4 thereof, which is reproduced hereunder for
easy reference;
4. On behalf of the appellant reliance has
been placed on the decision of this Court in
Pandharinath Shridhar Rangnekar v. Deputy
Commissioner of Police [(1973) 1 SCC 372:
1973 SCC (Cri) 341 : (1973) 3 SCR 63] ,
wherein a similar plea was taken by the
appellant before this Court. It was contended
that the failure on the part of the State
Government indicated non-application of
mind. The appellant had also urged that the
allegations contained in the show-cause
notice were too vague in absence of details
to afford him reasonable opportunity to
defend himself. Rejecting the argument, this
Court held that a full and complete disclosure
13
(1989) 2 SCC 316
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of particulars, as is requisite in an open
prosecution, will frustrate the very purpose
of an externment proceeding. There is a
brand of lawless elements in society which it
is impossible to bring to book by established
methods of judicial trial because in such
trials there can be no conviction without legal
evidence. And legal evidence is impossible to
obtain, because out of fear of reprisal
witnesses are unwilling to depose in public.
While dealing with the contention that the
State Government was under a duty to give
reasons in support of its order dismissing the
appeal, the point was rejected in the
following terms: (SCC p. 378, para 14)
"Precisely for the reason for which the
proposed externee is only entitled to be
informed of the general nature of the
material allegations, neither the externing
authority nor the State Government in appeal
can be asked to write a reasoned order in the
nature of a judgment."
As observed, if the authorities were to
discuss the evidence in the case, it would be
easy to fix the identity of the witnesses who
were unwilling to depose in public against the
proposed externee. A reasoned order
containing a discussion would probably spark
off another round of harassment. We are,
therefore, of the view that the High Court
was in error in quashing the order as
confirmed by the State Government in
appeal.
6.21. By relying on Salem Hasan Khan's case, he
submits that the externee is only entitled to be
informed of the general nature of the material
allegation, neither the externing Authority nor
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the State Government in appeal can be asked
to write a reasoned order in the nature of a
judgment.
6.22. He submits that the Courts should not interfere
with externment orders unless the order passed
is demonstratively perverse and based on no
evidence.
6.23. He relies upon the decision of the Hon'ble Apex
Court in Gazi Saduddin vs. State of
Maharashtra14, more particularly para No.13
thereof, which is reproduced hereunder for easy
reference;
13. It has not been pointed out that there
was any lapse in following the procedure laid
down under the Act and the Rules in passing
the order of externment. The procedure laid
down under the Act culminating in passing of
the order of externment was duly followed.
Primarily, the satisfaction has to be of the
Authority passing the order. If the
satisfaction recorded by the Authority is
objective and is based on the material on
record then the courts would not interfere
with the order passed by the Authority only
because another view possibly can be taken.
Such satisfaction of the Authority can be
interfered with only if the satisfaction
14
(2003) 7 SCC 330
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recorded is either demonstratively perverse
based on no evidence, misreading of
evidence or which a reasonable person could
not form or that the person concerned was
not given due opportunity resulting in
prejudicing his rights under the Act.
6.24. By relying on Gazi Saduddin's case, he
submits that an order of externment can be
passed on subjective satisfaction of the
concerned Authority which can be recorded in
writing for an externee to seek for interference
the externee would have to establish that the
satisfaction recorded is demonstratively
perverse based on no evidence, misreading of
evidence or which a reasonable person would
not form or that the person concerned was not
given due opportunity resulting in prejudicing
his rights. None of these being established in
the present case, the relief sought for by the
Petitioner cannot be granted.
6.25. Lastly, he relies upon the Interlocutory Order
passed by the Hon'ble Apex Court in Special
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Leave to Appeal (Crl.)No(s).6588/2025
dated 08.09.2025 in Mohammed Rasal.C. &
Anr., vs. State of Kerala & Anr., more
particularly para Nos.6, 7, 8, 9, thereof, which
are reproduced hereunder for reference;
6. We find that in this case, the petitioners had
approached the High Court directly for pre-arrest
bail under Section 482 of the Bharatiya Nagarik
Suraksha Sanhita, 2023(for short, 'BNSS'),,without
first approaching the Sessions Court for the said
relief. We are of the opinion that though the
concurrent jurisdiction is conferred upon the
Sessions Court and the High Court to entertain a
prayer for pre-arrest bail under Section 482 of the
BNSS (formerly, Section 438 CrPC), the hierarchy
of Courts demands that no person seeking such
remedy should be encouraged or allowed to directly
approach the High Court for exercising jurisdiction
under Section 482 of the BNSS (formerly, Section
438 CrPC) by bypassing the jurisdiction of the
concerned Sessions Court.
7. The Sessions Judge exercises powers under
Section 438 CrPC in relation to all cases registered
with the police stations in the particular District.
This area-wise distribution of work would make it
much more convenient and facilitate expeditious
disposal, if the application for pre- arrest bail is first
filed before the Sessions Court which would have a
direct and first-hand assistance of the concerned
Public Prosecutor appointed for that particular
District. The Sessions Court would also have an
immediate access to the Case Diary thereby
facilitating a better appreciation of facts of the
case.
8. We further feel that if the practice of
entertaining the applications for pre-arrest bail
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directly in the High Court is encouraged, and the
parties concerned are not relegated to first
approach the Sessions Court concerned, the High
Court would be flooded with a spate of pre-arrest
bail applications thereby creating a chaotic
situation. We say so, because if the parties are
required to approach the Sessions Court concerned
for seeking remedy of pre-arrest bail, there is a
strong probability that significant number of
applications would be allowed at that level only
thereby acting as a filtration process before the
process reaches the High Court.
9. It is trite that in most of the States, there is a
consistent practice requiring the litigant concerned
to first approach the Sessions Court for seeking
relief of pre-arrest bail and only in the event of
denial of such relief, the litigant would be granted
access to approach the High Court for seeking such
relief. This is, of course, subject to just exceptions
and the High Court, for reasons to be recorded,
may entertain an application for pre-arrest bail
directly in special/extra-ordinary circumstances.
6.26. By relying on the Interlocutory Order passed in
Mohammed Rasal.C's case, he submits that
the Hon'ble Apex Court has frowned on the
practice of an accused approaching the High
Court directly seeking for anticipatory bail or a
pre-arrest bail and the Hon'ble Apex Court has
categorically directed that the accused ought to
first approach the District Court having
jurisdiction which cannot bypassed by
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approaching the High Court directly, even
though there is a concurrent jurisdiction of the
District Court and the High Court. By relying on
the same, he submits that it is for the Petitioner
to approach the appellate Authority under
Section 59 of the KP Act 1963 and the
Petitioner could not have approached this Court
by-passing the alternative efficacious remedy of
an appeal.
6.27. Based on all the above, he submits that the writ
petition filed is required to be dismissed and if
the Petitioner so wishes, he could file an Appeal
under Section 59 of the KP Act, 1963.
7. Heard Sri.Tharanath Poojary., learned Senior Counsel
appearing for the Petitioner and Sri.K.Shashi Kiran
Shetty., learned Advocate General appearing for the
Respondent-State. Perused papers.
8. The points that would arise for consideration are;
1. Whether all police reports and documents,
including FIR, statements, charge sheet,
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etc., are required to be furnished to the
person who is sought to be externed?
2. Whether there is a requirement in all cases
for the Assistant Commissioner to consider
and State as to whether witnesses have
not come forward or would not come
forward to depose against the person who
is sought to be externed, if he continues to
reside within the jurisdiction?
3. Whether the principles of natural Justice
have been followed in the present case?
4. Is there any infirmity in the impugned
order requiring this Court to intercede?
5. What order?
9. I answer the above points as follows;
10. Answer to point No.1: Whether all police
reports and documents, including FIR,
statements, charge sheet, etc., are required to
be furnished to the person who is sought to be
externed?
10.1. The submission of Sri.Tharanath Poojary.,
learned Senior Counsel for the Petitioner, is
that without the reports and documents being
furnished along with the show-cause notice,
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the Petitioner as the addressee of the notice,
would not know what to reply to. The principle
of natural Justice would stand completely
violated if they are not furnished.
10.2. After the appearance of the Petitioner before
the Assistant Commissioner, two additional
cases were filed. Though a request had been
made for furnishing the same, copies were not
furnished. On that ground, he submits that the
rights of the Petitioner have been adversely
affected.
10.3. In that regard, he has relied upon the decision
in Sachin M.R's case and contends that if all
documents are not furnished, and there is no
acknowledgement of such service on the
externee, then the order for the externment
would be required to be set aside.
10.4. A persusal of said judgment in Sachin's case
does not indicate that it is so inasmuch as that
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decision was one relating to service of notice
and not service of documents, and it is in the
background of the show-cause notice not
having been issued, that the above
observations were made.
10.5. In the present case, the issue raised by the
Petitioner is as regards service of documents
and not that of service of notice, notice having
been received and acknowledged by the
Petitioner to have been so received, and
sunsequently having been represented by legal
counsel in the proceedings before the Assistant
Commissioner.
10.6. Learned Advocate General would submit that
under Sub-section (1) of Section 58 of the KP
Act, 1963, all the documents and details are
not required to be furnished; only material
allegations are required to be made known to
the person sought to be externed. The show-
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cause notice detailing the allegations against
the Petitioner, the Petitioner was well aware of
what the Petitioner had to reply to.
10.7. Be that as it may, he submits that the police
reports have been furnished to the Petitioners,
this being done by the State in its fairness and
not because the Petitioner is entitled thereto.
10.8. He relies on Hari Khemu Gawali's case to
contend that what is required to be informed to
the person sought to be externed is the
general nature of material allegations. There is
no requirement to furnish all documents and/or
copies. The externment order being required to
be passed by a higher official like the Assistant
Commissioner, the legislature has thought it fit
to interest such a higher officer with the
responsibility to pass such an order, who would
consider the matter on the merits thereof, and
only if satisfied that the circumstances exist for
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passing a preventive order, such an order
would be passed. This discretion being
exercised by the higher officer, the order on
the face of it reflecting that there is an
application of mind, this Court ought not to
intercede in the matter.
10.9. He also relies upon the decision in
Pandharinath Shridhar Rangnekar's case
and submits that full and complete disclosure
of particulars would frustrate the very purpose
of the externment. The police reports and
other reports containing sensitive information,
including the complete details of the incident,
the persons involved, and witnesses, etc.,
those details, if furnished, would lead to an
adverse effect in the investigation.
10.10. Reliance is also placed on Salem Hasan
Khan's case to contend that the externee is
only entitled to be informed of the general
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nature of the material allegations. These being
the arguments advanced, it would be required
for this Court to ascertain the requirement
under law.
10.11. Section 55 of the KP Act, 1963 is reproduced
hereunder for easy reference.
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
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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
(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 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.
10.12. A perusal of Section 55 would indicate that
whenever it appears that in the city of
Bangalore and other areas for which a
Commissioner has been appointed, that the
movements or acts of any person are causing
or calculated to cause alarm from a danger or
harm to person or property, or if there are
reasonable grounds for believing that such
person is engaged or is about to be engaged in
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the commission of an offence involving force or
violence, or an offence punishable under
Chapter XII, XVI and XVII of the IPC, 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 or their
personal property, then an order of externment
could be passed.
10.13. Section 58 of the KP Act, 1963, is reproduced
hereunder for easy reference.
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,
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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.
(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.
10.14. A perusal of Sub-section (1) of Section 58 of
the KP Act, 1963 would indicate that before an
order under Section 54, 55 or 56 is passed
against any person, an officer acting under any
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of the said sections shall inform the person in
writing of the general nature of the material
allegation against him and gave him a
reasonable opportunity of tending an
explanation regarding them. If such a person
who is sought to be externed 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 the opinion that such application is made for
the purpose of vexation or delay.
10.15. Any written statement put in by such a person
shall be filed with the record of the case, and
such person shall be entitled to appear before
the officer proceeding under Section 58 of the
KP Act, 1963, by a legal practitioner for the
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purpose of tendering his explanation and
examining the witnesses produced by him.
10.16. Sub-section (2) of Section 58 of the KP Act,
1963 deals with securing the attendance of any
person against whom the order is proposed to
be passed and for that purpose to secure
bonds etc., Thus, in terms of Sub-section (1)
of Section 58 it is clear that what is required to
be informed to the person who is sought to be
externed is the general nature of the material
allegation against him, which should be given
in writing and a reasonable opportunity of
tendering and explanation regarding it.
10.17. The statute requiring information of the general
nature of material allegation, it is not
sustainable for the Petitioner to contend that
all reports and documents are required to be
made available.
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10.18. Looked at from another angle, the information
required to be given under Sub-section (1) of
Section 58 of the KP Act, 1963 would require
detailing the pending or disposed criminal
proceedings, the allegations against the
proposed externee and the possible reasons as
to why the externment order is proposed to be
made.
10.19. Insofar as the pending or disposed matters, the
externee would be well aware of the details
thereof, being a party to those proceedings,
the documents thereof would also be available
with the proposed externee. As such, the
question of providing details thereof would not
arise. This would necessarily have to be
caveated with the situation where the
proposed externee is not a party to those
proceedings and/or did not have access to the
copies of the papers in those proceedings. In
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those circumstances it would be required for
the concerned officer acting under Section 58
of the KP Act, 1963, to provide the papers of
the proceedings.
10.20. Insofar as the police reports are concerned, as
held by the Hon'ble Apex Court in
Pandharinath Shridhar Rangnekar's case
full and complete disclosure of particulars
would frustrate the very purpose of
externment. Thus, in my considered opinion,
providing of the police report would amount to
full and complete disclosure, and those police
report containing sensitive information, the
Petitioner would not be entitled to the entire
report/reports but would only be entitled to be
informed of the general nature of the material
allegation made against him.
10.21. Thus, I answer point No.1 by holding
that in cases relating to externment, all
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police reports and documents,
including FIR, statements, charge
sheet etc, are not required to be
furnished to the person who is sought
to be externed. General information of
the material allegations, in the police
report, documents, FIR, statements,
charge sheet would have to be
provided in writing to the person
sought to be externed.
10.22. It is again reiterated that copies of
those documents are not required to
be provided. Whether the general
nature of material allegations has been
provided in the notice issued under
Sub-section (1) of Section 58 of the KP
Act, 1963 would be the subject matter
of an appeal, if and when filed under
Sub-section (1) of Section 59 of the KP
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Act, 1963. Since, the same would
relate to disputed questions of fact,
which would have to be considered by
the Appellate Authority.
11. Answer to point No.2: Whether there is a
requirement in all cases for the Assistant
Commissioner to consider and state as to
whether witnesses have not come forward
or would not come forward to depose
against the person who is sought to be
externed, if he continues to reside within
the jurisdiction?
11.1. Sri Tharanath Poojari., learned Senior Counsel
for the Petitioner has sought to contend that
before passing an order of externment, it is
required for the Competent Authority in this
case the Assistant Commissioner to have
categorically stated that witnesses have not
come forward or would not come forward to
depose against the Petitioner who is sought to
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be externed, if he continues to reside within
the jurisdiction. He bases the said submission
on the decision in Deepak S/o Laxman
Dongre's Case and submits that a Competent
Authority is required to be satisfied and
express such satisfaction in the order passed
on the basis of the material on record that
witnesses are not willing to come forward to
give evidence against the person proposed to
be externed on account of their apprehension
as regards their safety or that their of
property, if they were to depose against the
person sought to be externed. Reliance is also
placed on the decision of Aluru Kadasidda's
case to a similar effect.
11.2. Section 55 of the KP Act, 1963 has been
extracted hereinabove. Clause (b) of Section
55 of the KP Act, 1963, which has been dealt
with in answer to point No.1, clearly mandates
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that 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.
11.3. The usage of the word in Clause (b) of sub-
section 55 of the KP Act, 1963 is "and" i.e., to
say, there has to be a reasonable ground for
believing 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 and XVII of
the Indian Penal Code or the abatement of any
such offence. When, in the opinion of such
officer, witnesses are not willing to come
forward to give evidence in public..... Thus, the
usage of the word being "and", which is
conjunctive, both requirements are to be
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satisfied under Clause (b) of Section 55 of the
KP Act, 1963.
11.4. It is not only for reasonable grounds to be in
existence, indicating the person sought to be
externed is engaged or is about to be engaged
in the commission of an offence. It should also
be that witness/es would not come forward, it
is only then could an order of externment be
passed.
11.5. The submission of the learned Advocate
General that serious offences have been
alleged against the Petitioner, no witnesses
would come forward, would not suffice the
requirements of judicial review to be exercised
by this Court when an order of externment,
which impacts right to life and liberty under
Article 21 of the Constitution of India, has been
passed. There being no dispute that an order
of externment would be one which impacts the
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right to life and liberty under Article 21 of the
Constitution of India.
11.6. As indicated, Supra, the conjunctive "and"
having been used, the order of the Assistant
Commissioner would have to be clear and
categorical and comply with the requirements
of Section 55 of the KP Act, 1963, which
includes Clause (b) thereof.
11.7. The reason for the same is not far to see, since
every person who commits an offence or is
likely to commit an offence is not externed.
The powers under Section 55 of the KP Act,
1963 would have to be exercised in terms of
Clause (a), where the movements or acts of
any person are causing or calculated to cause
alarm, danger or harm to person or property or
in terms of Clause (b) as aforesaid. If powers
are exercised under Clause (b) of Section 55,
the conjunctive word "and" having been used,
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both the requirements aforesaid have to be
complied with.
11.8. The matter would be different if the powers are
exercised under Clause (a) or Clause (c) of
Section 55, which do not require such a
condition to be satisfied.
11.9. In the present case, though it is stated that the
powers under Section 55 of the KP Act, 1963
have been exercised, it is not clear as to
whether it is under Clause (a), Clause (b) or
Clause (c) [it cannot be Clause (c) since the
same is not attracted]. The powers could have
been exercised under Clause (a) or Clause (b),
it was required for the Assistant Commissioner
to have categorically indicated as to under
which provision the order was passed.
11.10. If it had been passed under Clause (b) of
Section 55 of the KP Act, 1963, in view of the
use of the conjunctive "and" both the
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requirements would have to be satisfied. In the
event of powers being exercised under Clause
(a), externment could be made only if the
movements or acts of any person are causing
or calculated to cause alarm, danger or harm
to person or property.
11.11. Since the disjunctive "or" has been used
between Clause (a) and Clause (b) as indicated
supra, the impugned order does not indicate
under which provision the order has been
passed to ascertain whether the requirement of
that provision have been satisfied.
11.12. Hence, I answer point No.2 by holding
that, in all cases, there is no requirement
for the Assistant Commissioner to consider
and state as to whether witnesses have
not come forward or would not come
forward to depose against the person who
is sought to be externed if he continues to
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reside within the jurisdiction. Since the
same would not get attracted, if an order
under Clause (a) of Section 55 is passed.
Such an order would be required to be
passed only if power is exercised under
Clause (b) of Section 55 of the KP Act,
1963.
12. Answer to point No.3: Whether the principles of
natural Justice have been followed in the
present case?
12.1. Principles of natural Justice contemplate
issuance of notice, providing an opportunity of
hearing and a reasoned order to be passed
amongst other things.
12.2. In the present case, a notice has been issued to
the Petitioner, he has been heard in the matter,
and a reasoned order has been passed, thereby
complying with the requirements of the
principles of natural Justice.
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13. Answer to point No.4: Whether there is any
infirmity in the impugned order requiring this
Court to intercede?
13.1. Section 60 of the KP Act, 1963, is
reproduced hereunder for easy reference;
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.
13.2. Though an appeal under Section 59 of the
KP Act, 1963 has been provided, Section 60
provides for the scope of judicial review
dehors the appellate remedy. This has
probably having been provided since an
order of externment directly impacts the
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fundamental right to life and liberty under
Article 21 of the Constitution of India.
13.3. A perusal of Section 60 of the KP Act, 1963
would indicate that any order passed under
Section 54, 55 or 56 or by the Government
under Section 59 of the KP Act, 1963 shall
not be called in question by 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 of the KP Act, 1963.
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13.4. Section 60 of the KP Act, 1963 again uses
the disjunctive word "or" inasmuch as it is
Section 54, 55 or 56 or by the Government
under Section 59. If it was only Section 59
which had been used in Section 60, then an
appeal would be the only remedy available
for an order passed under Section 55. Since
the disjunctive "or" has been used at any
stage of the order i.e., if an order is passed
under Section 54 or 55 or 56, then the
same would be subject to judicial review
under Section 60 of the KP Act, 1963.
13.5. Of course, an order under Section 59 i.e.,
an appeal, would always be subject to
judicial review. However the judicial review
is restricted to only a situation where the
procedure laid down under Sub-section (1)
of Section 58 of the KP Act, 1963 has not
been followed or that there was no material
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before the Authority concerned upon which
it could have based its order or on the
ground there is said Authority was not of
opinion that witness were unwilling to come
forward to give evidence in public. The
disjunctive "or" having been used all of
them would have to be read separately and
not together.
13.6. Though the submission of, Sri Tharanath
Poojari, learned Senior Counsel for the
Petitioner, is that in every order of
externment it should be reflected that
witnesses are not willing to come forward
for an order of externment to be passed, I
have dealt with the same in my answer to
point No.2 and indicated in what
circumstances the same would apply.
13.7. Section 60 of the KP Act, 1963 is worded in
the negative; there has to be an opinion
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that witnesses are not unwilling to come
forward to give evidence in public for
Section 60 of the KP Act, 1963 to apply.
The wording being as it is, I am of the
considered opinion that the same would be
relevant only if an externment order is
passed under Clause (b) of Section 55 of
the KP Act, 1963 and that is the reason
why the disjunctive "or" has been used in
Section 60 of the KP Act, 1963.
13.8. Thus, again there was no reason for the
Assistant Commissioner to have referred to
witnesses coming forward or not to give
evidence or otherwise unless the order has
been passed under Clause (b) of Section 55
and as indicated supra the order does not
indicate as to whether it has been passed
under Section 55(a) or 55(b) i.e., only for
that limited extent that there is an infirmity
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in the order requiring this Court to
intercede.
14. Answer to point No.5: What order?
14.1. In view of the findings above, the impugned
order not disclosing whether it is passed
under Clause (a) or Clause (b) of Section
55 of the KP Act, 1963. If it is an order
under Clause (b) of Section 55 of the KP
Act, 1963 the said order not disclosing the
reasonable grounds for believing that such
person is engaged or is about to be
engaged in the commission of offense, or
an offence punished under Chapter XII, XVI
and XVII of the Indian Penal Code or in the
abatement of any such offence, and when
in the opinion of such officer or witnesses
are not willing to come forward to give
evidence in public, I am of the considered
opinion that the matter would have to be
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required to be remitted to the Assistant
Commissioner to pass a fresh order clearly
and categorically indicating as to under
which provision it has been passed and the
order to satisfy the requirement of the said
provision.
14.2. In that view of the matter, I pass the
following;
ORDER
i. The writ petition is partly-allowed.
ii. The order dated 18.09.2025 passed by
respondent No.2 in No.MAGCR (Gadiparu)
/18/2025-26 at Annexure-A is set aside.
iii. The matter is remitted to respondent No.2
for the limited purposes of passing a
reasoned order indicating the provision
under which the said order has been
passed by complying with the
requirements thereof, which order shall be
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passed within 15 days from the receipt of
a copy of this order.
SD/-
(SURAJ GOVINDARAJ)
JUDGE
SR
