Shivraj Vs the Assistant Commissioner of Police and Anr.

THE ASSISTANT COMMISSIONER OF POLICE (LAW AND ORDER) AND SPECIAL EXECUTIVE MAGISTRATE, KALABURAGI CITY, NOW REPRESENTED BY THE ADDITIONAL STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, KALABURAGI BENCH-585142.

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THE INSPECTOR OF POLICE, M B NAGAR POLICE STATION, KALABURAGI CITY, NOW REPRESENTED BY THE, ADDITIONAL STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, KALABURAGI BENCH-585142.

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…RESPONDENTS

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(BY SRI VEERANAGOUDA, MALIPATIL, HCGP FOR R1 AND R2)

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THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C PRAYING TO EXAMINE THE RECORDS IN FILE NO.12/GADIPARU/MAG-2/KA.NA/2023-24 ON THE FILE OF THE ASSISTANT COMMISSIONER OF POLICE (LAW AND ORDER) AND THE COURT OF SPECIAL EXECUTIVE MAGISTRATE KALABURAGI CITY AND SET ASIDE THE ORDER OF EXTERNMENT PASSED BY THE ASSISTANT COMMISSIONER OF POLICE (LAW AND ORDER) AND SPECIAL EXECUTIVE MAGISTRATE, KALABURAGI CITY IN FILE NO. NO.12/GADIPARU/M.A.G-2/KA.NA/2023-24 DATED 21.02.2024.

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

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CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)

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This Criminal Revision Petition under Section 397

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read with Section 401 of the Code of Criminal Procedure, is filed with a prayer to set aside the order of externment passed by the respondent No.2 herein, bearing No.12/Gadiparu/MAG-

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2/Ka.Na/2023-24, dated 21.02.2024.

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Heard the learned counsel for the parties.

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The petitioner was served with an enquiry notice

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dated 20.09.2023 issued by respondent No.2 based on the report of the Police Inspector of M.B.Nagar, Police Station,

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Kalaburagi, dated 09.04.2023 for initiating action against the petitioner under Section 55 of the Karnataka Police Act, 1963 (hereinafter referred to as ‘the Act, 1963’). In response to the enquiry notice, the petitioner has filed a detailed statement of objections before the respondent No.2 on 14.02.2024. The respondent No.2 thereafter has passed the impugned order dated 21.02.2024 in exercise of his powers conferred under Section 55 of the Act, 1963, externing the petitioner for the period of one year from 21.02.2024. Being aggrieved by the same, the petitioner is before this Court.

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Learned counsel for the petitioner having reiterated the grounds urged in the petition, submitted that, the enquiry notice was not accompanied with the police report dated 09.04.2023. There is no material to show that, the petitioner has threatened any of the witnesses and undisputedly, the petitioner has not been convicted in any of the criminal cases, registered against him under the provisions of Indian Penal Code.

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Per contra, learned HCGP opposed the petition. He

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submits that, the petitioner is a person involved in several

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criminal cases and after being enlarged on bail, he has continued to commit similar offence. The respondent No.1 has considered the objections filed by the petitioner and has passed a detailed order and the said order does not call for any interference by this Court. Accordingly, he prays to dismiss the petition.

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The material on record would go to show that, the enquiry notice dated 20.09.2023 was not accompanied with the police report dated 09.04.2023, based on which the enquiry was initiated. In the report, action is sought as against the petitioner as provided under Section 55 of the Act, 1963. Section 55 of the Act, 1963 reads as under:

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55. Removal of persons about to commit offences.-

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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,—

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

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(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

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

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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.

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7. In the case of Ambadas Vs. State of Karnataka,

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at paragraph No.5, it has been held as under:

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"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 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

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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 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 out by their Lordships of the Supreme Court in the case 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

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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 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."

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The observations made by the co-ordinate Bench of

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this Court in the case of Ambadas, would be applicable in the present case since the impugned order does not reflect that the witnesses in any one of the criminal cases, registered against

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the petitioner has not made any allegation that the petitioner had threatened them. The impugned order also does not reflect that there are reasonable grounds for believing that the petitioner 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 abetment of any such offence. The material on record would also go to show that, the last case registered against the petitioner for the offence punishable under the Indian Penal Code is in the year 2022 and the impugned order has been passed in the year 2024. Therefore, prima-facie it appears that, the requirement for passing an order under Section 55 of the Act, 1963, is not established by the prosecution. In addition to the same, the impugned order also gets vitiated for not following the required procedure before passing the impugned order. Undisputedly, a copy of the police report dated 09.04.2023 which has resulted in issuing enquiry notice has not been enclosed along with enquiry notice so as to enable the petitioner to effectively reply to the same. Therefore, there is no compliance of Section 58 of the Act, 1963.

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