Karnataka High Court
Mr. Babu @ Matka Babu vs The State Of Karnataka on 9 May, 2023
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WP No. 9624 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
WRIT PETITION NO. 9624 OF 2023 (GM-POLICE)
BETWEEN:
MR. BABU @ MATKA BABU,
S/O RAZZAK SAB,
AGED ABOUT 42 YEARS,
R/AT INDIRA BADAVANE,
Y.N. HOSAKOTE VILLAGE,
PAVAGADA TALUK,
TUMKUR DISTRICT - 572 141.
...PETITIONER
(BY SRI. K. GIRI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF HOME AFFAIRS,
Digitally signed by VIKAS SOUDHA, BENGALURU -560001
MALA K N
Location: HIGH COURT
REPRESENTED BY HOME SECRETARY
OF KARNATAKA
2. THE ASSISTANT COMMISSIONER,
MADHUGIRI SUB DIVISION,
MADHUGIRI TUMKUR DISTRICT - 572 132.
3. THE DEPUTY SUPERINTENDENT OF POLICE
MADHUGIRI SUB DIVISION,
MADHUGIRI, TUMAKURU DISTRICT - 572 132.
4. THE POLICE SUB INSPECTOR
Y.N. HOSAKOTE POLICE STATION,
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WP No. 9624 of 2023
Y.N. HOSAKOTE, PAVAGADA TALUK,
TUMKUR DISTRICT - 572 141.
...RESPONDENTS
(BY SRI. GOPALAKRISHNA SOODI, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER OF EXTERNMENT
PASSED IN MAG (GADIPARU) 7/2022-23 DATED
06.04.2023 AT ANNEXURE-A BY THE RESPONDENT NO.
2, AFFECTING THE PETITIONER OF HIS PERSONAL
LIBERTY AND PRIVATE LIFE WITH HIS FAMILY
MEMBERS; TO ISSUE AN APPROPRIATE WRIT IN THE
NATURE OF MANDAMUS NOT TO TAKE ANY ARBITRARY
ACTION IN FURTHERANCE WITH THE MAG(GADIPARU)
7/2022-23 DATED 06.04.2023 PASSED BY THE
RESPONDENT NO. 2 AT ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner has challenged the impugned order at Annexure - A dated 06.04.2023, passed by the Sub-Divisional Magistrate, Madhugiri Sub- Division, Tumkur District, in exterminating the petitioner from the limits of Madhugiri Sub-Division -3- WP No. 9624 of 2023 to Kunigal Taluk for a period of six months from 06.04.2023.
2. Heard the arguments of Sri.K.Giri, learned counsel for the petitioner and learned Government Advocate for the State. Perused the materials on record.
3. It is the contention of the learned counsel for the petitioner that the impugned order at Annexure-A did not point out any allegation against the petitioner that soon before the impugned order his involvement in any of the activities which affected the law and order or he was dangerous to the society. All the cases filed against the petitioner are older one prior to 2022, but the impugned order came to be passed based on the police report without complying Section 56 of the Karnataka Police Act. There is no reasons assigned as to -4- WP No. 9624 of 2023 subjective satisfaction, it is mechanical order and will not stand to its reason.
4. Per contra, learned Government Advocate has contended that there are as many as in 5 cases the petitioner was convicted for the offence under Section 78 of KP Act, is a professions Matka gambler/conductor dangerous person in the locality. Hence only after subjective satisfaction, the impugned order came to be passed and supported the impugned order.
5. I have given my anxious consideration to the material on record and perused the impugned order. The records point out that, though as many as 5 cases filed between 2013 to 2019 under Section 78 of KP Act, the petitioner was paid penalty of Rs.300/- in each of the case. Remaining two cases filed in the year 2021 and 2022 one for IPC offences and another is for the offence under -5- WP No. 9624 of 2023 Section 78 of KP Act. The petitioner is said to be on bail on all these cases. Soon before the impugned order there are no cases filed against the petitioner. The apprehension of the learned Executive Magistrate is police report and conviction recorded against the petitioner between 2013 to 2019 only. There is no independent enquiry why the learned Executive Magistrate recorded his apprehension and it shows lack of subjective satisfaction is forthcoming.
6. The Hon'ble Apex Court in the case of "Deepak Vs. State of Maharashtra" reported in 2022 SCC Online SC 99 has held that personal liberty of a person under Article 19(1)(d) of the Constitution of India is affected in a cases of this nature, hence the compliance of Section 56 of the Act require compliance, if the order lacks subjective satisfaction, test of reasonableness by the competent authority is sine qua non for passing a -6- WP No. 9624 of 2023 valid order for externment. At paragraph Nos.6, 13 and 15 it was held as follows:
"6. We have given careful consideration to the submissions. Under clause (d) of Article 19(1) of the Constitution of India, there is a fundamental right conferred on the citizens to move freely throughout the territory of India. In view of clause (5) of Article 19, State is empowered to make a law enabling the imposition of reasonable restrictions on the exercise of the right conferred by clause (d). An order of externment passed under provisions of Section 56 of the 1951 Act imposes a restraint on the person against whom the order is made from entering a particular area. Thus, such orders infringe the fundamental right guaranteed under Article 19(1)(d). Hence, the restriction imposed by passing an order of externment must stand the test of reasonableness.
xxx
13. Considering the nature of the power under Section 56, the competent authority is not expected to write a judgment containing elaborate reasons. However, the competent authority must record its subjective satisfaction of the existence of one of the grounds in sub-section (1) of Section 56 on the basis of objective material placed before it. Though the competent authority is not required to record reasons on par with a judicial order, when challenged, the competent authority must be in a position to show the application of mind. The Court while testing the order of externment cannot go into the question of sufficiency of material based on which the subjective satisfaction has been recorded. However, the Court can always consider whether there existed any material on the basis of which a subjective satisfaction -7- WP No. 9624 of 2023 could have been recorded. The Court can interfere when either there is no material or the relevant material has not been considered. The Court cannot interfere because there is a possibility of another view being taken. As in the case of any other administrative order, the judicial review is permissible on the grounds of mala fide, unreasonableness or arbitrariness.
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15. 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.
7. In the light of the above settled law, before passing an order of externment, the competent authority is require to comply the statutory requirements. The objective material relied is only the police report for subjective satisfaction. As observed above, non-compliance of Section 56 of the K.P. Act 1963 is imminent. The impugned order lacks subjective satisfaction and test of reasonableness. Hence, there are no reasons to -8- WP No. 9624 of 2023 sustain the impugned order. Therefore, petition deserves to be allowed. In the result, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Impugned Order at Annexure-A dated 06.04.2023 passed in M.A.G.(Gadiparu).07/22-
23 is quashed.
(iii) Matter is remanded back to the learned Executive Magistrate. The competent authority is at liberty to initiate fresh proceedings subject to compliance of the statutory requirements in the light of the dictum of the Hon'ble Apex Court in the case of Deepak Vs. State of Maharashtra referred supra.
Sd/-
JUDGE RB