Karnataka High Court
Hanumanta S/O Yenkappa Kansavi vs The Deputy Commissioner And District ... on 17 February, 2023
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 200042/2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.200042/2022
BETWEEN:
HANUMANTA S/O YENKAPPA KANSAVI,
AGE: 33 YEARS, OCC: AGRICULTURIST,
R/O JAMBUNATHANA HALLI,
TQ. SINDHANOOR,
DIST. RAICHUR
...PETITIONER
(BY SRI MAHANTESH PATIL, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
& DISTRICT MAGISTRATE
COURT AT RAICHUR-584101
Digitally signed
by VARSHA N REPRESENTED BY SPP
RASALKAR HIGH COURT OF KARNATAKA,
Location: High
Court of KALABURAGI BENCH-585107
Karnataka
2. THE STATE OF KARNATAKA
THROUGH POLICE INSPECTOR,
TURVIHAL POLICE STATION,
(DIST. RAICHUR)
REP BY ADDL. SPP
HCK KALABURAGI-585103
...RESPONDENTS
(BY SMT. MAYA T.R., HCGP)
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CRL.RP No. 200042/2022
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE ORDER
DATED 02.09.2022 PASSED BY THE RESPONDENT NO.1 IN
BEARING CASE NO.MAG/07/2021-22 THEREBY PASSING AN
ORDER OF EXTERNMENT AGAINST THE PETITIONER U/SEC.55
AND U/SEC.56(b) OF KARNATAKA POLICE ACT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Mahantesh Patil, learned counsel for the petitioner and Smt. Maya T.R., learned High Court Government Pleader for respondent-State.
2. The present petition is filed under Section 482 of Cr.P.C., with the following prayer:
"WHEREFORE it is hereby prayed that for the reasons stated herein above, this Hon'ble court be pleased to:
1) Call for records.
2) Set aside the order dated 02.09.2022 passed by the respondent No.1 in bearing case No. MAG/07/2021-22 thereby passing an order of externment against the petitioner U/Sec.55 and U/Sec.56(b) of Karnataka Police Act, in the interest of justice and equity."-3- CRL.RP No. 200042/2022
3. Brief facts for disposal of the petition are as under:
Petitioner has called in question the order of externment passed in MAG/07/2021-22 dated 02.09.2022 against the petitioner by respondent No.1 under sections 55 and 56(b) of Karnataka Police Act, 1963 (hereinafter referred to as 'KP Act').
4. Superintendent of Police, communicated to the Deputy Commissioner of Raichur, by a written communication dated 27.01.2022 to the effect that the petitioner herein is involved in number of crimes under the provisions of Section 78(3) of KP Act on the file of Turvihal police station. A list has been given as to 16 such complaints. In 08 cases out of 16 cases, the petitioner has already been convicted and imposed fine. Despite the same, he has indulged in similar activities and involved in practicing 'matka' gambling whereby not only petitioner but also other villagers are being spoiled. -4- CRL.RP No. 200042/2022
5. Despite registering 16 cases and in 8 cases he has been convicted, the police are unable to prevent him from indulging in such activities again and again and therefore, sought for his externment from Raichur District.
6. On receipt of such information, the Deputy Commissioner, Raichur, who is the proper authority to pass externment order, issued show cause notice to the petitioner. The petitioner gave a written explanation. Thereafter, the learned Deputy Commissioner passed the impugned order marked at Annexure-E.
7. The petitioner assailed the said order on the following grounds:
"The impugned order passed by respondent No.1 is illegal, arbitrary, contrary to law and records of the case and besides being against the principles of natural justice.
That, the Deputy Commissioner though referred the ingredients of the Section but subjectively has not considered that, the petitioner has done any act which requires to take action as per Sec.55 of K.P Act. the Deputy Commissioner -5- CRL.RP No. 200042/2022 merely mentioned and referred the grounds and passed the order for removing the petitioner from the jurisdiction of the city. There is no instance referred in the impugned order that, the petitioner was either successful or attempted to prevent any of the witness, in any of the Criminal cases from appearing and deposing before the court. Under such circumstances the impugned order suffers from subjective assessment giving reasons for passing the order. Hence, the impugned order is liable to be set aside.
That, though the petitioner was convicted under the 8 cases but the said conviction was on the pleading guilty by the petitioner. Moreover the petitioner was convicted on pleading guilty in the year 2017 to 2019. So, in view of long lapse of time, there can be no assumption that the petitioner likely to commit the offence U/s 78 (3) of the Act is erroneous and unsustainable in the eye of law. Moreover, the notice does not contain any such allegations against the petitioner or no such person has given a complaint before the authority. Under these circumstances the impugned order liable to be set aside.
That, the petitioner is having a minor son, old aged parents. The petitioner is a small scale agriculturist having 3 acres 20 guntas in sy. No. -6- CRL.RP No. 200042/2022 189/V at Jambunathanahalli, Sindhanoor Taluka. The entire family is depending on the income of the petitioner and the petitioner is the only male member to manage the agricultural works. Since, the petitioner having grown paddy crop in his land and his presence is much necessary in order to maintain the agricultural field. The Hon'ble Supreme Court, in the case of Deepak Vs. State of Maharashtra and others in Crl. A. No.139/2022 (DD on 28.01.2022) held that "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 in subsistence. In a given case, such order may deprive the person of his livelihood. It thus follows that recourse should be taken to Sec.56 very sparingly keeping in mind that it is an extraordinary measure." Therefore, the impugned order does not show any application of mind to make out a case for taking extraordinary measure passing externment order.
That, the respondent No.1 has passed the order without considering the relevant facts stated by the petitioner herein. The Procedure contemplated U/Sec.58 of the K.P. Act is not followed by the respondent. The petitioner has been deprived off opportunity before the respondent.-7- CRL.RP No. 200042/2022
Hence, the impugned order is not sustainable in the eye of law.
That, there is no allegation in the show cause notice that the petitioner movement or acts are causing or calculated to cause harm as required U/Sec.55(a) of the Act has been stated in the show cause notice nor any allegation that the petitioner has involved in committing such offences relating to involving violence and force etc coupled with fear of witnesses not coming forward to give evidence in public. Hence, the show cause notice itself is not clear on grounds relied on by the respondent Police for seeking externment order. Therefore, in the absence of necessary ingredients to pass an externment order, the impugned order is unsustainable in the eye of law.
That, the show cause notice issued U/Sec.55 of the K.P Act, however the order was passed U/Sec.55 and 56(g) of Karnataka Police Act. Since both the sections operates under the different circumstances and the show cause notice does not contain an requirements to give reply, the relying on the said show cause notice the order of externment is bad in law and liable to be set aside.
That the respondent No.2 issued the show cause notice U/Sec.55 of the K. P.Act stating that, -8- CRL.RP No. 200042/2022 the petitioner has involved in illegal activities like Matka (Gambling) and petitioner involved in the inducing the people for playing the Matka and involved in deceiving the persons. It is further stated that the petitioner involved in 16 cases and out of 16 cases he has been convicted for
8 cases. Based on the aforesaid allegations the petitioner was issued notice for show causing for not initiating the action U/Sec.58 of the K.P. Act. The none of the statements are sufficient to satisfy the ingredients of Sec.55 of the K.P. Act. That the respondent No.2 without properly considering the allegations against the petitioner has passed the order of externment, which is illegal and liable to be set aside.
Even otherwise viewed from any angle the impugned orders passed by respondent No.2 is illegal, arbitrary, contrary to law and records of the case and calls for interference by this Hon'ble court as just and necessary.
Some more grounds will be urged during the course of arguments."
8. Reiterating the grounds urged in the petition, learned counsel for the petitioner vehemently contended that first respondent did not consider the case of the -9- CRL.RP No. 200042/2022 petitioner in proper manner and there was no material to invoke Section 55 of the KP Act and sought for allowing petition. He relied on the order passed in Criminal Revision Petition No.200068/2020 dated 10.12.2020 passed by the Co-ordinate Bench of this Court in this regard.
9. Per contra, learned High Court Government Pleader contended that against the externment order passed by the Deputy Commissioner, appeal lies to the Government under Section 59 of the KP Act and without exhausting such remedy, the petitioner has approached this Court and therefore, very petition itself is not maintainable.
10. She also contended that facts referred to in Criminal Revision Petition No.200068/2020 disposed of on 10.12.2020, relied on by the learned counsel for the petitioner are different from the facts involved in the case on hand and therefore, sought for dismissal of the petition.
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CRL.RP No. 200042/2022
11. In reply, learned counsel for the petitioner contended that the present case is covered by the ratio decided in the case of Ambadas and Others vs. State of Karnataka and Others reported in ILR 1987 KAR 1481 and sought for allowing the petition.
12. In the case on hand, the relevant portion of the externment order that has been passed reads as under:
"Accused Hanumanta S/o Yenkappa Kansavi, R/o Jumbunathana Halli, Tq. Sindhnoor, Dist. Raichur is convicted under Section 55 and 56 (g) of Karnataka Police Act 1963, and directed to remove himself from the date of this order out the area from the local limits of my Jurisdiction (Raichur Dist.) forthwith for a period of Six (6) months and he should not return to this place till completion of the period of Externment, If the above named Accused fails to remove himself from Raichur District as directed above, then PSI Turvihal is authorized to remove him as per section 61 of Karnataka Police Act- 1963."
13. According to the petitioner, he left the limits of Raichur district on and from 03.09.2022 and the
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CRL.RP No. 200042/2022externment order expires on 03.03.2023 and from 04.03.2023 he can very well come back to Raichur district and reside with the family members.
14. Taking note of the fact that period of externment expires on 03.03.2023, directing the petitioner to approach the appellate authority and getting the order on merits would be a futile exercise.
15. Therefore, without expressing much opinion on the merits of the matter, period of externment ordered by the learned Deputy Commissioner which is challenged in this petition, if reduced till 24.02.2023 would meet the ends of justice having regard to the peculiar facts involved in the case.
16. Accordingly, the following order is passed:
ORDER Criminal Revision petition is allowed in part.
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The order of externment dated 02.09.2022 in case No. MAG/07/2021-22 passed by the Deputy Commissioner, Raichur is maintained and the period of externment is reduced and it shall be operative till 24.02.2023.
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JUDGE VNR List No.: 2 Sl No.: 38