Karnataka High Court
Rohith D R vs The State Of Karnataka on 11 May, 2023
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WP No. 9760 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
WRIT PETITION NO. 9760 OF 2023 (GM-POLICE)
BETWEEN:
ROHITH D R,
AGED ABOUT 27 YEARS,
S/O RENUKAPRASAD,
RESIDING AT 3RD CROSS,
HOUSING BOARD COLONY,
TUMKUR - 572 107.
...PETITIONER
(BY SRI. VIJAYAKUMARA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS CHIEF SECRETARY,
Digitally signed by HOME DEPARTMENT,
MALA K N VIDHANA SOUDHA,
Location: HIGH
COURT OF BENGALURU - 560 001.
KARNATAKA
2. THE SUB-DIVISIONAL MAGISTRATE,
TUMKUR SUB DIVISION,
TUMKUR - 560 101.
3. THE DEPUTY SUPERINTENDENT OF POLICE,
TUMKUR DISTRICT,
TUMKUR - 572 101.
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WP No. 9760 of 2023
4. THE SUB-INSPECTOR OF POLICE,
TUMKUR TOWN POLICE,
TUMKUR - 572 101.
...RESPONDENTS
(BY SRI. GOPALA KRISHNA SOODI, HCGP)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO IN VIEW OF THE
FACTS MENTIONED AND CIRCUMSTANCES THE PETITIONER
HUMBLY PRAYS THAT THIS HONBLE COURT MAY BE PLEASED
TO QUASHING THE ORDER PASSED BY THE R-2 DATED
28.03.2023 IN PETITION NO.MAG 38/2022 AS PER ANNX-A
AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Articles 226 and 227 of the Constitution of India, challenging the Order dated 28.03.2023 (Annexure 'A') in MAG:38/2022 passed by the learned Sub-divisional Magistrate, Tumkur Sub-division, Tumkur in extermining the petitioner from Tumkur District to Davanagere District for a period of 6months from the date of impugned order.
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2. Heard the arguments of Sri. Vijayakumara, learned counsel for the petitioner and the learned Government Advocate and perused the records.
3. It is the contention of the learned counsel for the petitioner that in the year 2020, the petitioner was brought from Goa and he was shot at his right leg resulting in amputation of his right leg due to gangrene. Though there are 13 cases are filed against the petitioner, in most of the cases, he has been acquitted and in remaining cases, he is facing the trial before the jurisdictional Court. Only in one case, he has been convicted. There is no allegation of violation of bail condition and these cases were filed prior to 2020. Soon before passing of impugned Order there are no cases filed against him or any complaint that he has any role in any criminal activity. There is no subjective satisfaction and prays for quashing of the impugned order.
4. On contrary, the learned Government Advocate has contended that the petitioner is having notorious -4- WP No. 9760 of 2023 character and background, he has involved in two murder cases, 4 attempt to murder cases and three decoity and robbery cases. For the reasons of his involvement in so many criminal activities, only after subjective satisfaction, the impugned order at Annexure 'A' is passed and supported the impugned order.
5. I gave my anxious consideration to the arguments advanced on behalf of both the parties and carefully perused the materials on records. On perusal of impugned order it is pertinent to note that, totally 13 cases have been registered against the petitioner in between 2012 to 2020. Out of them, five cases are pending consideration before the jurisdictional Court, 7 cases are ended in acquittal. Only in one case, i.e., in Crime No.57/2012 in CC No.2/2013, the petitioner has been convicted. Soon before the impugned order there are no cases filed against the petitioner or any allegation about his involvement in any criminal activity or activities. The right leg of the petitioner was amputed above knee and it is claimed that -5- WP No. 9760 of 2023 while arresting the petitioner police have shot him on his leg, which lead to gangerene and amputation above knee. He has to lead his life only with his single leg and said to be confined to home. The reasons assigned by the learned Executive Magistrate in involvement of the petitioner in cases of murder, attempt to murder, decoity and robbery cases, but these are all old cases, police report is only the material for subjective satisfaction in coming to conclusion that externment of the petitioner is warranted.
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 case of this nature, hence the compliance of Section 56 of the Act require, if the order lacks subjective satisfaction, test of reasonableness by the competent authority is sine qua non for passing a valid order of externment. At paragraph Nos.6, 13 and 15 of the judgment it was held as follows:
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"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.
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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 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 and request 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 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 28.03.2023 passed by the 2nd respondent is quashed.-8- WP No. 9760 of 2023
(iii) Matter is remanded back to the learned Sub- Divisional Magistrate, Tumkur Sub-Division, Tumkur. If situation warrants, the competent authority is at liberty to initiate fresh proceedings subject to compliance of the dictum of the Hon'ble Apex Court in the case of Deepak Vs. State of Maharashtra referred supra.
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JUDGE SNC List No.: 1 Sl No.: 80 CT: BHK