Karnataka High Court
M Harish Reddy @ Harish vs Assistant Commissioner on 16 September, 2019
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL REVISION PETITION NO.1097/2019
BETWEEN :
M.Harish Reddy @ Harish
S/o late Munireddy
Aged about 35 years
Mothakapalli Village
Srinivaspura Taluk
Kolar-563 138.
... Petitioner
(By Sri C.N.Raju, Advocate)
AND :
1. Assistant Commissioner
Kolar Sub-Division
Near Court Circle, Kolar,
Represented by State Public Prosecutor
High Court of Karnataka
Bengaluru-560 001.
2. The Superintendent of Police
Kolar District, Kolar,
Represented by State Public Prosecutor
High Court of Karnataka
Bengaluru-560 001.
-2-
3. The Deputy Superintendent of Police
Mulbagal Division,
Mulbagal, Kolar District,
Represented by State Public Prosecutor
High Court of Karnataka
Bengaluru-560 001.
4. The Station House Officer
Srinivasapura Police Station
Srinivasapura, Kolar District.
Represented by State Public Prosecutor
High Court of Karnataka
Bengaluru-560 001.
... Respondents
(By Sri M.Divakar Maddur, HCGP)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the impugned
order dated 28.4.2018, Bearing No.MAG/CR/33/2013-14,
passed by the Assistant Commissioner, Kolar Sub-
Division Kolar, by allowing this Petition.
This Criminal Revision Petition coming on for
Admission this day, the Court made the following:-
ORDER
This petition is filed by the accused being aggrieved by the order passed by the Assistant Commissioner, Kolar Sub-Division, Kolar in MAG:CR:33/2013-14, dated 28.4.2018, directing the petitioner not to enter upon the -3- jurisdiction on Srinivasapura Taluka for a period of two years.
2. I have heard the learned counsel for the petitioner and the learned HCGP for respondent Nos.1 to 4.
3. Brief facts of the case are that respondent No.2- Superintendent of Police, Kolar District sent a report dated 18.12.2013 to the Assistant Commissioner, Kolar, for removal of the petitioner beyond taluka limits of Srinivasapura alleging that he is involved in criminal offence; he is politically influential person and he is likely to involve in criminal activities, if the petitioner-accused is enlarged on bail. In pursuance of the said report, the Assistant Commissioner, Kolar, i.e., respondent No.1 herein initiated proceedings by issuing notice to the petitioner calling upon him to appear for the enquiry. Petitioner appeared on 4.4.2014. Time and again, the case was adjourned and subsequently on 4.8.2014 it was -4- reserved for orders and the impugned order came to be passed on 28.4.2018. Challenging the legality and correctness of the said order, the petitioner is before this Court.
4. It is the contention of the learned counsel for the petitioner that though there is no material to proceed against the accused-petitioner herein under Section 55 of the Karnataka Police Act, 1963 ('Act' for short), the impugned order has been passed. It is his further submission that the notice issued under Section 55 of the Act should contain and specially state as to what are the concrete allegations made as against the accused. The said notice was so vague and no case was made out as against the petitioner. Only on suspicion, such an order is passed without there being any concrete material. He further submitted that though the matter was reserved for orders on 4.8.2014, the impugned order has been passed on 28.4.2018. He further submitted that based -5- on the past acts and future apprehension the impugned order is passed which is contrary to law and evidence placed on record. On these grounds, he prayed to allow the petition and to set aside the impugned order.
5. Per contra, the learned HCGP argued and submitted that notice has been served on the petitioner and he is involved in an heinous offence of committing the murder and instigating the accused in the said case. He further submitted that the said externment order passed by respondent No.1 is within the purview of Section 55 of the Act. There are no good grounds to set aside the impugned order. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
-6-
7. On close reading of the order dated 28.4.2018 it would indicate that the allegations which have been made against the petitioner are based on the report said to have been given by respondent No.2-Superintendent of Police, Kolar on 18.12.2013. No details are also contained in the said order. Respondent No.2 has only stated that the petitioner is a rowdy-sheeter. He is a politically and economically influential person and he is having a threatening character. He may threaten the voters to cast their votes only to particular party persons. On the basis of the same, the Assistant Commissioner has passed the externment order for a period of two years. On going through the impugned order, there is no specific allegation made as contemplated under Section 55 of the Act. For the purpose of brevity, I quote Section 55 of the Act, which reads as under:-
"55. Removal of persons about to commit offences. - Whenever it shall appear in the City of Bangalore and other areas for -7- which a Commissioner has been appointed under Section 7 to the Commissionerate, and in other area or areas to which the Government may, by notification in the official Gazette, extend the provision of this section, to the District Magistrate, or the Sub-Divisional Magistrate having jurisdiction and specially empowered by the Government in that behalf, -
(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property; or
(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such -8- 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."
8. On close reading of the aforesaid Section it would indicate that to attract the provisions of Clause(a) of the said Section, there should be an allegation to show that -9- movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property. Mere allegation of unlawful act is not sufficient. This proposition of law has been laid down by this Court in the case of Basappa Ghaviyappa Vs. State of Karnataka, reported in 1976(2) Kar.LJ 329.
9. Even on close reading of the impugned order it would indicate that a detailed enquiry has not been held while passing the said order. Mere apprehension of the police is not enough for passing such an order under Section 55 of Act. There must be some grounds or there must be an adequate material to show that there is danger and there is credible material which makes the movements and acts of the person in question alarming or dangerous or fraud with violence and there must be sufficient reasons 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
- 10 -
to the community and its safety. While passing such order, the said authority has to keep in mind the fundamental rights guaranteed under the Constitution of India. No doubt the said rights can be restrained with reasonable restrictions, but it must be supported by some material. Merely because the said authority has an apprehension, passing of such an order by it, is not sustainable in law. This proposition of law has also been laid down by this Court in the case of Ambadas Vs. State of Karnataka, reported in ILR 1987 Kar. 1481, wherein at paragraph-5 it has been observed 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
- 11 -
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 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
- 12 -
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 Indian 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
- 13 -
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 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
- 14 -
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
- 15 -
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".
10. On close reading of the said ratio and the aforesaid proposition of law, the impugned order must contain all the aforesaid aspects in order to pass externment order. This Court in the case of Ejaz Hussain Vs. The State of Karnataka, in Criminal Revision Petition No.1018/2018, disposed of on 8.2.2019 has uphold the ratio laid down and has come to the conclusion that the aforesaid proposition of law has to be followed.
11. As per the report given by the Superintendent of Police, Kolar on 18.12.2013, the proceedings were initiated on 4.4.2014 and subsequently time and again
- 16 -
the case was adjourned. On 4.8.2014 the case was posted for orders and till 28.4.2018 no further proceedings have taken place and no notice was issued to the petitioner. Only after four years, abruptly externment order dated 28.4.2014 came to be passed by the Assistant Commissioner, Kolar, prohibiting the petitioner to enter upon the locality in question for a period of two years, which itself appears to be an illegal order violating the principles of natural justice. What was the situation as on the date when the report has been given by respondent No.2-Superintendent of Police, Kolar and after four years, what was the condition to pass such an order is not forthcoming in the said order. Under such circumstances, I am of the considered opinion that the petitioner has made out a case to set aside the impugned order. Accordingly, the following order is made:-
Petition is allowed.
- 17 -
Impugned order dated 28.4.2018 passed by respondent No.1-Assistant Commissioner, Kolar under Section 55 of the Act is set aside.
Consequently, I.A.2/2019 for stay is disposed of.
Sd/-
JUDGE *ck/-