Karnataka High Court
Sri. Bharath Kumar vs The State Of Karnataka on 5 April, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:14198
WP No. 10446 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 10446 OF 2024 (GM-POLICE)
BETWEEN:
SRI. BHARATH KUMAR,
S/O SESAPPA BELCHAD,
AGED ABOUT 35 YEARS,
R/AT KUMDEL HOUSE,
PUDU VILLAGE, BANTWALA TALUK,
D.K. DISTRICT - 574 211.
...PETITIONER
(BY SRI. M. ARUNA SHYAM, SENIOR ADVOCATE A/W.,
SRI. SUYOG HERELE E., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
Digitally signed DEPARTMENT OF HOME,
by NAGAVENI
2ND FLOOR, VIDHANA SOUDHA,
Location: HIGH
COURT OF BENGALURU - 560 001.
KARNATAKA
2. THE ASSISTANT COMMISSIONER,
MANGALORE SUB-DIVISION,
MANGALORE - 575 001.
3. THE DEPUTY SUPERINTENDENT OF POLICE,
BANTWALA SUB-DIVISION,
DAKSHINA KANNADA - 574 211.
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NC: 2024:KHC:14198
WP No. 10446 of 2024
4. THE POLICE INSPECTOR,
BANTWALA RURAL POLICE,
BANTWALA TALUK, D.K. - 574 211.
...RESPONDENTS
(BY SRI. K.P. YOGANNA, AGA)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 02/04/2024 AND NOTICE DATED
30/12/2024 IN PROCEEDINGS, BEARING NO.
M.A.G.S.R./39/2023 PASSED BY THE R2 (PRODUCED VIDE
ANNEXURE A AND B) AND ALL FURTHER PROCEEDINGS
PURSUANT THERETO AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court seeking the following prayer:
"(i) Issue a writ of certiorari and quash the impugned order dated 02.04.2024 in proceedings and notice dated 30.12.2023 bearing No.M.A.G.S.R/39/2023 passed by the 2nd respondent (produced vide Annexure A and B) and all further proceedings pursuant thereto;
(ii) Issue such other writ, order or direction and grant such other and further relief as this Hon'ble court may deem fit in the circumstances of the case, in the interest of justice and equity."-3-
NC: 2024:KHC:14198 WP No. 10446 of 2024
2. Heard Sri M. Aruna Shyam, learned senior counsel for the petitioner and Sri K.P.Yoganna, learned Additional Government Advocate for the respondents.
3. The petitioner is said to be the resident of Bantwal Taluk, Dakshina Kannada District, involved in certain social activities and having business for his livelihood. He gets embroiled in close to 8 crimes. The learned senior counsel representing the petitioner submits that out of 8 cases, 6 cases has ended in acquittal, 1 case is in trial and remaining one case in crime No.130/2023, the proceedings of which has been stayed by a co-ordinate bench of this Court in Crl.P.No.644/2024, filed by the petitioner, in terms of the order dated 26.02.2024.
4. A notice comes to be issued to the petitioner on 30.12.2023, seeking to show cause as to why the petitioner should not be externed. He was directed to appear on 29.01.2024, listing all 8 cases against the petitioner. The petitioner appears and submits his explanation to the show cause notice. What comes about is the order impugned dated 02.04.2024, externing the petitioner from Dakshina Kannada to -4- NC: 2024:KHC:14198 WP No. 10446 of 2024 Mysuru. It is this, that has driven the petitioner to this Court in the subject petition.
5. Learned senior counsel submits that all the crimes alleged against the petitioner are of the year 2012 and 6 of them have ended in acquittal, 2 are pending, one is at the stage of crime, wherein the co-ordinate bench has granted stay and the another is pending trial. Learned senior counsel would submit that there is no proximity whatsoever in law to pass the impugned order of externment.
6. Learned Additional Government Advocate would refute the submissions to contend that the acquittal of any person would not mean that he could not be externed. If a person is a nuisance or has the propensity to commit a crime, it would be an enough circumstance to extern such a person. He would seek to defend the action of the respondents.
7. As submitted by the learned senior counsel, with regard to the proximity for passing an order of externment, there is no narration of the incident in the show cause notice that has happened in the near past to pass an order of externment. This Court considering an identical circumstance -5- NC: 2024:KHC:14198 WP No. 10446 of 2024 in W.P.No.104804/2023, disposed on 08.08.2023, has held as follows:
"7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. Before embarking upon consideration of the case on its merits, I deem it appropriate to notice the legal frame work under which an order of externment could be passed against any person. Chapter-II of the Act deals with dispersal of gangs and bodies of persons convicted of certain offences. Section 54 deals with dispersal of gangs and bodies of persons which is applicable to the case at hand. What is germane to be noticed is Sections 55 to 60 and they read as follows:-
"55. Removal of persons about to commit offences.--Whenever it shall appear in the City of Bangalore and other areas for which a Commissioner has been appointed under section 7 to the Commissioner, 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 person by -6- NC: 2024:KHC:14198 WP No. 10446 of 2024 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.
56. Removal of persons convicted of certain offences.--If a person has been convicted at any time either before or after the commencement of this Act,--
(a) of an offence under Chapter XII,XVI or XVII of the Indian Penal Code (CentralAct 45 of 1860); or
(b) of an offence under section 6 of 13 of the Mysore Mines Act, 1906 (Mysore Act 4of 1906); or
(c) of an offence under section 86 of the Karnataka Forest Act, 1963 (Karnataka Act 5 of 1964); or
(d) twice of an offence under Section 19 of the Mysore Prohibition of Beggary Act, 1944 (Mysore Act 33 of 1944) or any other corresponding law in force in any area of the State; or
(e) twice of an offence under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Central Act 104 of 1956); or -7- NC: 2024:KHC:14198 WP No. 10446 of 2024
(f) twice of an offence under the Untouchability (Offences) Act, 1955 (Central Act 22 of 1955); or
(g) thrice of an offence within a period of three years under section 78, 79 or 80 of this Act; or
(h) thrice of an offence within a period of three years under sections 32, 34, 37 or 38A of the Karnataka Excise Act 1965, (Karnataka Act 21 of 1966), the Commissioner, the District Magistrate, or any Sub-divisional Magistrate specially empowered by the Government in this behalf, if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction or such area or 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 place from which he was directed to remove himself.
Explanation.--For the purpose of this section "an offence similar to that for which a person was convicted" shall mean,-- (i) in the case of a person convicted of an offence mentioned in clause (a), an offence falling under any of the Chapters of the Indian Penal Code mentioned in that clause; and (ii) in the case of person convicted of an offence mentioned in clauses (e) and (f), an offence falling under the provisions of the Acts mentioned respectively in the said clauses.
57. Period of operation of orders under section 54, 55 or 56.--A direction made under section 54, 55 or 56 not to enter any particular area or such area and any district or districts or any part thereof, contiguous thereto shall be for such period as may be specified therein and shall in no case exceed a period of two years from the date on which it was made.
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58. Hearing to be given before an order is passed under section 54, 55 or 56.-- (1) Before an order under section 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 fails to furnish the security bond as required or fails to appear before the officer or authority during the inquiry, 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.
59. Appeal.--Any person aggrieved by an order made under section 54, 55 or 56 may appeal to the Government within thirty days from the date of such order.
60. Finality of orders.--Any order passed under section 54, 55 or 56 or by the Government -9- NC: 2024:KHC:14198 WP No. 10446 of 2024 under section 59 shall not be called in question in any court except on the ground that the authority making the order or any officer authorised by it had not followed the procedure laid down in sub- section (1) of section 58 or that there was no material before the authority concerned upon which it could have based its order or on the ground that the said authority was not of opinion that witnesses were unwilling to come forward to give evidence in public against the person in respect of whom an order was made under section 55.
(Emphasis supplied) Section 55 is removal of persons who were about to commit offences. Whenever it appears in the city of Bangalore or other areas that movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, such person can be removed from that area by passing an order of externment. Section 56 deals with removal of persons convicted of certain offences. Section 57 deals with period of operation of orders passed under Sections 54, 55 or 56. Therefore, Section 57 mandates that the period should be indicated in the order. Section 58 mandates that an opportunity of hearing should be rendered to the person against whom the order is to be passed under Sections 54, 55 or 56. Section 59 permits any person aggrieved by orders passed under Sections 54, 55 or 56 to appeal to the Government within 30 days from the date of such order. This is the statutory frame work under which orders of externment can be passed against any person."
In the light of the issue standing answered supra, it deem it appropriate to allow the petition reserving liberty to the respondents to pass orders afresh, if it becomes necessary and
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NC: 2024:KHC:14198 WP No. 10446 of 2024 while doing so, the respondents shall pass an order bearing in mind the observations made in the course of the order.
8. For the aforesaid reasons, the following:
ORDER
(i) The writ petition is allowed.
(ii) The impugned order dated 02.04.2024 passed by second respondent and the notice dated 30.12.2023, vide Annexures 'A' and 'B' are hereby quashed.
(iii) Liberty is reserved to the second respondent to pass necessary orders afresh in accordance with law, if need arises and while doing so, shall bear in mind the observations made in the course of the order.
Sd/-
JUDGE SS List No.: 1 Sl No.: 33