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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M. NAGAPRASANNA, J.
Sri T.Roopeshkumar @ Roopi, S/O Thimmaiah – Appellant
Versus
State Of Karnataka – Respondent
Writ Petition No.392 of 2023 (GM -POLICE)
Decided on : 21-03-2023
Karnataka Police Act, 1963 - Section 87, 58, 55, 56, 54 - MMRD Act - Sections 4(1A) and 21(1) – Indian Penal Code, 1860 - Section 379 - Karnataka Minor Mineral Consistent Rules, 1994 - Sections 3, 42 and 44 - Indian Motor Vehicles Act, 1988 - Sections 3 and 181 - Order of externment - Destroying public peace - Petitioner is calling in question order passed by 2nd respondent/Assistant Commissioner externing petitioner from Kunigal Taluk – No report was even made available to petitioner at time of issuance of show cause notice nor was he provided with such report at time when he appeared before 2nd respondent in answer to a notice - Para 11.
Finding of the Court: Section 58 mandates examination of witnesses also as a right of person against whom order of externment would be passed, furnishing of a report upon him becomes imperative and if that cannot be done it should be for reasons to be recorded in writing, as there can be situations where there is impending urgency or extenuating circumstances where a person has to be externed without any loss of time - It is then those reasons should be recorded in writing in adherence to Section 58 - None of those situations have arisen for immediate order of externment to be passed against petitioner - Even on that score order of externment passed against petitioner is rendered unsustainable - On both these counts – one being no circumstance warranting curtailment of fundamental right of petitioner in terms of what is laid down by Apex Court in case of DEEPAK (supra) and other, being order in gross violation of Section 58 of Act - Order passed by 2nd respondent stands quashed.
Result: Petition is allowed.
ORDER :
The petitioner is before this Court calling in question order dated 15-12-2022 passed by the 2nd respondent/Assistant Commissioner externing the petitioner from Kunigal Taluk.
2. Heard Sri D.J. Satisha, learned counsel appearing for the petitioner and Sri M. Vinod Kumar, learned Additional Government Advocate appearing for the respondents.
3. Facts in brief, that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-
The petitioner is a resident of Kunigal Taluk. No other issue regarding his residence need be gone into. The petitioner gets embroiled in several criminal cases. The cases pending against the petitioner as on date are (i) Crime No.108 of 2019 which comes to be registered on 26-06-2019 for offence punishable under Section 87 of the Karnataka Police Act, 1963 (hereinafter referred to as ‘the Act’ for short) and the Police having filed the charge sheet in the said case, it is pending before the Senior Civil Judge and JMFC at Kunigal in C.C.No.3697 of 2022. (ii) The second crime that is registered against the petitioner in Crime No.24 of 2020 on 01-03-2020 is again for offences punishable under Section 87 of the Act. The Police have filed a charge sheet in respect of the said crime in C.C.No.3610 of 2022 before the same Court. (iii) The third crime that is registered against the petitioner is in Crime No.195 of 2021 on 18.12.2021 for offences punishable under Sections 341, 504, 323, 363 and 34 of the IPC. The Police after investigation have filed a charge sheet in this case also in C.C.No.132 of 2022. These are admitted cases that are pending against the petitioner.
4. The petitioner was also accused in several crimes in the past. In C.C.No.538 of 2017 for offences punishable under Section 379 of IPC, Sections 4(1A) and 21(1) of MMRD Act, Sections 3, 42 and 44 of Karnataka Minor Mineral Consistent Rules, 1994 and Sections 3 and 181 of the Indian Motor Vehicles Act and the petitioner gets acquitted on 27-12-2018. The other crime was for offences punishable under Section 379 of IPC in C.C.No.616 of 2017 in which also the petitioner is acquitted on 24-07-2019. The third crime that was registered against the petitioner was for offences under Section 269 of IPC and Section 87 of the Act in C.C.No.109 of 2022. This also ends in acquittal on 22-09-2022. Therefore, the three earlier cases that were pending against the petitioner have ended in acquittal and the three afore-mentioned are pending consideration.
5. In the light of the aforesaid pending cases, the 4th respondent/Station House Officer of Huliyurdurga Police Station submits a report against the petitioner furnishing all details of cases pursuant to which the 3rd respondent/Deputy Superintendent of Police communicates to the Assistant Commissioner to pass an order of externment against the petitioner. The 2nd respondent issues a notice to the petitioner on 24-11-2022 to appear before him seeking explanation as to why he should not be externed from Kunigal Taluk. On 15-12-2022 an order of externment is passed against the petitioner by the 2nd respondent.
6. The learned counsel appearing for the petitioner contends that the notice issued to the petitioner did not contain the report and without calling for explanation of the petitioner on the basis of the report, the order of externment is passed contrary to Section 58 of the Act. He would further contend that there was no allegation to show that the petitioner is destroying public peace in the area for him to be externed from Kunigal Taluk. Out of 6 cases that were registered against the petitioner, in three of them he is acquitted and three of them are pending consideration in which also he is hopeful of getting acquitted. He would contend that the order of externment suffers from the vice of illegality.
7. The learned Additional Government Advocate would refute the submissions to contend that all opportunities that are necessary to be provided to the petitioner ha
Section 54 deals with dispersal of gangs and bodies of persons which is applicable to case at hand.
The order of externment must stand the test of reasonableness and should be based on objective material, and the court can interfere when there is no material or the relevant material has not been co....
Externment orders must be supported by objective evidence and must not violate the fundamental right to free movement; failure to comply with these requirements renders such orders invalid.
Externment orders must be based on objective evidence of current danger or harm, and must comply with procedural safeguards to ensure the protection of fundamental rights under Article 19(1)(d) of th....
An externment order under the Karnataka Police Act must be supported by objective evidence and a clear demonstration of the necessity for such action, particularly in light of the fundamental right t....
An order of externment must be based on subjective satisfaction supported by objective material and must meet the test of reasonableness as per Article 19(1)(d) of the Constitution of India.
Order of externment is an extraordinary measure – As in case of any other administrative order, judicial review is permissible on the grounds of mala fide, unreasonableness or arbitrariness.
Externment orders under the Maharashtra Police Act must be supported by objective evidence and cannot infringe upon the fundamental right to free movement without justifiable grounds.
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