Shankar S/O Keshav Athani Vs the State of Karnataka

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. (528 OF BNSS), 2023 SEEKING TO QUASH THE EXTERNMENT ORDER DATED 13.01.2025 AGAINST THE PETITIONER IN KRA. CHP/VIKAD/COP/HU-DHA/ GADIPARU/ 39/ 2024 (ANNEXURE A) AS PASSED BY THE DEPUTY COMMISSIONER OF POLICE (LAW AND ORDER) AND SPECIAL EXECUTIVE MAGISTRATE, HUBBALLI/RESPONDENT NO.2 U/S 55 OF K.P. ACT, IN THE INTEREST OF JUSTICE.

¶22

THIS CRIMINAL PETITION, COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶23

CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

¶24

ORAL ORDER

¶25

This petition is filed under Section 528 of BNSS praying to quash the externment order dated 13.01.2025 passed against the petitioner in KRA: CHP/VIKAD/COP/HU-DHA/GADIPARU/39/2024 passed by the Deputy Commissioners of Police (Law and Order) and Special Executive Magistrate, Hubballi –Respondent No.2 under Section 55 of the Karnataka Police Act, 1963 (hereinafter referred to as ”K.P Act” For brevity).

¶26

The petitioner is a cloth businessman and he

¶27

is residing at Keshwapur Hubballi and he has been alleged to have been involved in various cases under

¶28

3 -

¶29

NC: 2025:KHC-D:6680 CRL.P No. 101340 of 2025

¶30

Section 78(3) of K.P. Act. That on 23.12.2024 the Police Inspector, Keshwapur Police Station (respondent No.3) by filing petition under Section 55 of the K.P Act before Hon’ble Deputy Commissioner of Police (Law and Order) and Special Executive Magistrate, Hubballi alleging that the petitioner being involved in several cases and being a Rowdy sheeter sought externment order. The Deputy Commissioner of Police (Law and Order) and Special Executive Magistrate, Hubballi (respondent No.2) issued show cause notices dated 26.12.2024, 31.12.2024 and 08.01.2025 to the petitioner under Section 58 of K.P Act seeking reply from the petitioner as to why the petitioner should not be exiled from Hubballi. On 13.01.2025, respondent no.2 has passed externment order against the petitioner directing the police to send the petitioner out of Hubballi Dharwad Police Commissionerate to Mysore for a period of 6 Months from 13.01.2025 till 12.07.2025. The petitioner has sought quashing of the said order in this petition.

¶31

4 -

¶32

NC: 2025:KHC-D:6680 CRL.P No. 101340 of 2025

¶33

Heard learned counsel for the petitioner and learned AGA for respondents.

¶34

Learned counsel for the petitioner would contend that there are no grounds made out in the entire order passed by respondent No.2 warranting exile of the petitioner or to invoke such stringent measures. There is no allegation against the petitioner of committing any of offences under Indian Penal Code (hereinafter referred to as ”IPC” for brevity) to attract Section 55 of the K.P Act. There is no allegation of any danger or harm to persons or property by the petitioner. The order of externment has curtailed movement of the petitioner. He contends that even though the appeal is provided under Section 59 of the K.P Act, the petition under Section 482 of Cr.P.C /528 of BNSS is maintainable. On that point he placed reliance on the decision of the Co-ordinate Bench of this Court in

¶35

the case of Ambadas And Ors Vs State of

¶36

5 -

¶37

NC: 2025:KHC-D:6680 CRL.P No. 101340 of 2025

¶38

Karnataka And Anr¹ . He also placed reliance on the decision of the Co-Ordinate Bench of this Court rendered in the case of Sri Syed Zulfikar @ Zulfi Vs State of Karnataka² . He contended that ingredients of Section 55 of the K.P Act are not made out for passing the order of externment. On these grounds he prays for quashing of the impugned order of externment passed by respondent No.2 under Section 55 of the K.P Act.

¶39

Learned AGA for respondents would contend that petitioner is involved in cricket betting and there are two cases registered against him in Keshavapur Police Station in Crime Nos.61/2024 and 65/2024 for offence punishable under Section 78(3) of the K.P Act.

¶40

The petitioner is involved in cricket betting and he is abeting and influencing youngsters in cricket betting. Considering the said aspects respondent No.2 has rightly passed the impugned order. He further contended that the remedy of appeal available under

¶41

1 Reported in ILR 1987 KAR 1481

¶42

2 In Crl.P.No.4999/2022 decided on 29.06.2022

¶43

6 -

¶44

NC: 2025:KHC-D:6680 CRL.P No. 101340 of 2025

¶45

Section 59 of the K.P Act and therefore, the present petition under Section 528 of BNSS is not maintainable. With these, he prays for dismissed of the petition.

¶46

Having heard learned counsels, this Court

¶47

has perused the impugned order and other materials placed on record.

¶48

The contention of learned AGA that the petitioner has got appeal remedy under Section 59 of the K.P Act is required to be rejected in view of possession of law declared by Co-Ordinate Bench of this

¶49

Court in the case of Ambadas(supra ) wherein it has been held as under:

¶50

“5. No doubt if there is express provision in the statute governing a particular subject matter, there is no scope for invoking or exercising inherent powers of the court; because the court ought to apply the provisions of the statute which are made advisedly to govern the particular subject matter and it being an extraordinary power, has to be sparingly exercised with great care and caution, the power

¶51

7 -

¶52

NC: 2025:KHC-D:6680 CRL.P No. 101340 of 2025

¶53

cannot be invoked where another remedy is available and if any matter is covered by express provisions of the statute, the High Court cannot and need not give a go by invoking the provisions of S. 482 because that may amount to evolving new procedure in the grab of exercise of inherent powers, and that is well settled. Although as provided under S. 59 of the Act a remedy by appeal is available to any person aggrieved by such order of externment passed under S. 55 of the Act and the appeal lies to the Government, but from a reading of S. 59 together with S. 60 of the Act, it would appear that there is no bar against the court interfering with such order of externment in the circumstance as enumerated in S. 60 of the Act - (1) where the procedure laid down in sub-section (1) of S. 58 is not followed; (2) there is no material before the authority concerned upon which it could have based its order, and (3) the authority making the order is not of the opinion that witnesses were not willing to come forward to give evidence in public against the persons in respect of whom an order is made under S. 55. Forming of such opinion by the authority as to the willingness of the witnesses to come forward in public to give evidence against the persons

¶54

8 -

¶55

NC: 2025:KHC-D:6680 CRL.P No. 101340 of 2025

¶56

sought to be proceeded is a must; because under clause (b) of S. 55, externment order could be made only where it appears there are reasonable grounds for believing that person of parsons in engaged or is about to be engaged in commission of an offence involving force or violence an offence punishable under Chapter XII, XVI or XVII of the Penal Code, or in the abetment of any such offence, and in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. Here in the case on hand, although the learned Sub Divisional Magistrate appears to have referred to so many criminal cases instituted against the three of the petitioners, but nowhere he is of the opinion that cases against those of the persons had ended in acquittal because of the witnesses unwilling to give evidence for fear of safety of person or property. In fact, no material worth the name has been placed to show that the cases ended in acquittal because of such fear. At one stage, of course the S.D.M. appears to have thought, that may be so, but there is no basis for the same. As pointed but by their Lordships of the Supreme Court in the case

¶57

9 -

¶58

NC: 2025:KHC-D:6680 CRL.P No. 101340 of 2025

¶59

of Prem Chand v. Union of India, mere apprehension of the police is not enough for passing an order of externment. Some ground or the other is not adequate for making the order of externment. There must be a clear and present danger based upon credible material which makes the movement and acts of the person in question alarming or dangerous or fraught with violence. Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in the locality or any part thereof is hazardous to the community and its safety. A stringent test must be applied in order to avoid easy possibility of abuse of this power to the detriment of the fundamental freedoms. Natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Arts. 14, 19 and 21 of the Constitution. The Act permits externment, provided the action is bona fide. All power, including police power, must be informed by fairness if it is to survive judicial scrutiny. It would appear, the learned S.D.M. has been more influenced by the secret report sent by the Circle Inspector of Police about such apprehension and the secret visit to the place, which has not been

¶60

10 -

¶61

NC: 2025:KHC-D:6680 CRL.P No. 101340 of 2025

¶62

put to the petitioners. In substance, the S.D.M. has failed to form an opinion on tangible material that witnesses were not willing to come forward to give evidence in public against the petitioners. The latter part of the requirement of Clause (b) of S. 55 having not been fulfilled, the impugned order of externment passed cannot be sustained.”

¶63

In the light of order being passed for externment of petitioner under Section 55 of the K.P Act, it is necessary to notice the said provision which reads thus

¶64

“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,—

¶65

11 -

¶66

NC: 2025:KHC-D:6680 CRL.P No. 101340 of 2025

¶67

(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or

¶68

(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 reason of apprehension on their part as regards the safety of their person or property, or

¶69

(c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant,

¶70

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

¶71

12 -

¶72

NC: 2025:KHC-D:6680 CRL.P No. 101340 of 2025

¶73

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.”

¶74

On perusal of the report of respondent No.3

¶75

and impugned order passed by respondent No.2, there is no allegation of petitioner involving force or violence or an offence punishable under Chapter XII, XVI or XVII of IPC or in abetment of any such offences. There is also no allegation against the petitioner that respondent No.3 is of the opinion that witnesses are not wiling to come forward to give evidence in public case against petitioner for the reason of apprehension on their part as regards to safety of their persons or property. Therefore, clause (b) of Section 55 of the K.P Act is not made out. What is alleged against the petitioner is of

¶76

13 - NC: 2025:KHC-D:6680 CRL.P No. 101340 of 2025

¶77

committing offence under Section 78(3) of the K.P Act. There is also no allegation of causing or calculating cause alarm or danger or harm to persons or property. What is alleged against the petitioner is that he may abet persons to involve in cricket betting. Therefore, clause (a) of Section 55 of the K.P Act is also not made out. As there is no out break of epidemic decease, clause (c) of Section 55 of the K.P Act is not attracted.

¶78

Considering above aspects, on perusal of the impugned order passed by respondent No.2 and report of respondent No.3, clause (a to c) of Section 55 of the K.P Act are not made out to pass the order of externment. In the light of above impugned order passed by respondent No.2 is not sustainable under law.

¶79