Karnataka High Court
Darvesh @ Mohd. Darvesh vs The State Of Karnataka And Anr on 9 February, 2021
Equivalent citations: AIRONLINE 2021 KAR 109, 2021 (2) AKR 559
Author: S Vishwajith Shetty
Bench: S.Vishwajith Shetty
CRL.RP.200022/2021
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF FEBRUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
CRL.R.P.No.200022/2021
BETWEEN:
Darvesh @ Mohd. Darvesh,
S/o Bhavasab,
Aged about 38 years,
Occ: Business,
R/o Azad Nagar,
Near Shadi-Mahal,
Lingasugur. ...PETITIONER
(By Sri I.R.Biradar, Adv.)
AND:
1. The State of Karnataka,
Through its Police Inspector,
Lingasugur, Dist: Raichur,
Rep. by Addl. SPP, HCK,
Kalaburagi - 584 101.
2. The Assistant Commissioner
& Sub-Divisional Magistrate,
Lingasugur, Dist: Raichur. ...RESPONDENTS
(By Sri Sharanabasappa M.Patil, HCGP)
This Criminal Revision Petition is filed under Section 397
Cr.PC praying to set aside the order dated 27.10.2020 in Case
CRL.RP.200022/2021
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No.Kum/M.A.G/03/2020-21/3041, thereby passing an order of
Gadipur against the petitioner under Section 55 of K.P.Act passed
by hte Assistant Commissioner and Sub-Divisional Magistrate
Court, Lingasugur.
This petition coming on for Admission, this day, the Court
made the following:
ORDER
1. This criminal revision petition is filed with a prayer to set aside the order dated 27.10.2020 passed in Case No.Kum/M.A.G./03/2020-21/3041 by the second respondent/Assistant Commissioner and Sub-Divisional Magistrate, Lingasugur, Raichur District, wherein he has passed an order of externment against the petitioner under Sections 55 and 58 of the Karnataka Police Act, 1963 (for short 'the Act of 1963'). Under the said order, the second respondent has passed externment order against the petitioner directing the Police to send the petitioner out of Raichur district for a period of two terms from the date of order i.e., 27.10.2020 and also directed the Police to see that CRL.RP.200022/2021 -3- the petitioner does not enter the district of Raichur during the said period.
2. Brief facts of the case are, in the report dated 26.02.2020 submitted by the Deputy Superintendent of Police, Lingasugur Sub-Division, proceedings under Section 55 of the Act of 1963 was initiated against the petitioner on the ground that he is involved in unlawful activities such as matka and gambling, etc. It is also averred that the petitioner is involved in various criminal cases and he was indulged in activities, which disturbed the life and property of the people. It is also alleged that the petitioner was in the habit of threatening the prosecution witnesses. With these allegations, show cause notice dated 01.06.2020 was issued to the petitioner calling upon him to appear before the Sub- Divisional Executive Magistrate on 11.06.2020 to show cause as to why an order under Section 58 of the Act of 1963 should not be passed against him. The petitioner has filed detailed objections to the show cause notice on 02.09.2020. CRL.RP.200022/2021 -4- Without considering the same, the second respondent herein has passed the impugned order on 27.10.2020. Being aggrieved by the same, this revision petition is filed.
3. Learned counsel for the revision petitioner submits that in identical set of facts, this Court in Crl.R.P.No.200092/2020 has set aside the order passed by the second respondent. He submits that the police report, show cause notice and the date of enquiry, etc., are all common in the said case and in the present case. He submits that the show cause notice has not been accompanied with a police report which is the requirement of law. He submits that the impugned order has been passed in a very casual manner without taking into consideration the consequences of the same. The show cause notice, according to him, does not contain material particulars and only bald statements are made against the petitioner which does not give the necessary particulars for the purpose of enabling the petitioner to file a suitable reply. He also relies upon the CRL.RP.200022/2021 -5- judgment of this Court in Crl.R.P.No.10220/2016 dated 27.02.2017 and in Crl.R.P.No.1018/2018 dated 08.02.2019 in support of his case.
4. Per contra, learned HCGP though opposes the petition does not dispute the fact that the date of police report, show cause notice and date of enquiry are all common in this case and in Crl.R.P.No.2000092/2020. However, he contends that having regard to the criminal background of the petitioner, it is not a fit case for interference, and therefore, prays to dismiss the petition.
5. The provision under Section 58 of the said Act of 1963 mandates that before any order is passed under Sections 54, 55 or 56 of the said Act of 1963 against any person, the authority concerned is required to comply certain procedural requirements. Section 58 of the said Act of 1963 reads as follows:
" 58. Hearing to be given before an order is passed under section 54, 55 or 56.--(1) Before an order under section CRL.RP.200022/2021 -6- 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, 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 34 fails to furnish the security bond as required or fails to appear before the officer or authority during the enquiry, 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."
CRL.RP.200022/2021-7-
6. In the background of the said provision of law, if the show cause notice dated 01.06.2020 issued by the second respondent is considered, it is very clear that the requirement of the said provision of law has not been complied. The copy of the said notice is not accompanied with the report of the first respondent. The particulars of the cases, which are registered against the petitioner, are also not mentioned in the notice. The show cause notice itself is therefore defective. In the impugned order passed by the second respondent, he has only stated that there is a report of the Inspector of Police, Lingasugur, who has stated that there are certain cases registered against the petitioner, who is an anti-social element indulged in playing matka and gambling and his activities have been hampering the peace and tranquility of the public and he is also in the habit of purchasing the prosecution witnesses by paying them money which has resulted in stalling the progress of the criminal cases pending against him.
CRL.RP.200022/2021-8-
7. Mere allegation of unlawful act is not sufficient for passing an order under Section 58 of the Act of 1963 of which the consequences are very serious. The second respondent has passed the order solely based on the report of the first respondent without making any enquiry. Mere apprehension of the Police is not a factor, which is required to be considered before passing of an order under Section 58 of the said Act of 1963. There must be application of mind by the officer, who passes the order with regard to the apprehensions made by the Police. In the impugned order except stating that the petitioner has been continuously indulged in playing matka and gambling and that the activities have been disturbing peace and tranquility of the public and that the petitioner is in the habit of purchasing the prosecution witnesses which has resulted in stalling the progress of the criminal cases against him, there are no material particulars of the allegations made against the petitioner forthcoming in the impugned order. There are no CRL.RP.200022/2021 -9- instances quoted where a case against petitioner has ended in acquittal because the material witnesses were prevented from deposing against him.
8. In the case of Ambadas -vs- State of Karnataka1 at paragraph-5, it has been held as follows:
"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 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 1 ILR 1987 KAR 1481 CRL.RP.200022/2021
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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 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 CRL.RP.200022/2021
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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, 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 not been fulfilled, the impugned order of externment passed cannot be sustained."CRL.RP.200022/2021
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9. The judgments in Crl.R.P.No.100220/2016 and in Crl.R.P.No.1018/2018 relied by the learned counsel for the petitioner are also squarely applicable to the facts of the present case. Even in the said cases under similar circumstances, the order of externment has been set aside by this court.
10. Learned Counsel for the petitioner is also right in submitting that in identical circumstances, this Court has quashed the externment order passed against one Ali @ Alisab @ Aleem in Crl.R.P.No.200092/2020 dated 15.01.2021.
11. Having regard to the facts and circumstances of the present case and in view of the law declared by this court in the judgments referred to above, I am of the considered opinion that the proceedings initiated by the second respondent and the impugned order passed by him is vitiated by procedural irregularities, and therefore, the impugned CRL.RP.200022/2021
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order is not sustainable in law. Accordingly, I proceed to pass the following order:
The Criminal Revision Petition is allowed. The impugned order dated 27.10.2020 passed in Case No.Kum/M.A.G./03/2020-21/3041 by the second respondent/Assistant Commissioner, is hereby set aside.
Sd/-
JUDGE KK