IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8th DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.1018/2018 BETWEEN:
Ejaz Hussain @ Ejaz Ali @ Gunda S/o Meer Hussain Aged about 38 years Occ: Lorry Driver R/o Rabzee Galli, Mehandi Nagar, Shivamogga-577 201.
(By Sri R.B. Deshpande, Advocate) AND:
.…Petitioner The State of Karnataka by Police Circle Inspector, Kote Circle, Shivamogga-577 201 Represented by the State Public Prosecutor High Court Buildings Bengaluru-560 001.
… Respondent (By Sri S.T. Naik, HCGP) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the impugned order dated 13.08.2018 passed by the Sub-Divisional Magistrate, Shivamogga Sub-Division, Shivamogga in M.A.G.CR.13/18-19.
This Criminal Revision Petition coming on for Orders, this day the Court made the following:-
O R D E R The present petition has been filed by the petitioner challenging the order passed by the Sub-Divisional Magistrate, Shivamogga Sub-Division, Shivamogga in M.A.G.CR. 13/18-19 dated 13.8.2018 on various grounds.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
3. Before going to consider the submissions made by the learned counsels appearing for the parties, it is just and necessary to give the gist of the case.
4. A report was submitted to Sub-Divisional Magistrate to initiate proceedings under Section 55 of the Karnataka Police Act. Thereafter, show cause notice was issued on 1.6.2018 to the petitioner as to why an externment order should not be passed, as he is involving regularly in criminal activities and causing danger to the life and property of the people. To the said notice, the petitioner/accused gave his reply and after holding an enquiry the impugned order came to be passed directing the petitioner to keep out of Shivamogga for a period of six months (externment order for six months) from the date of the order. Assailing the same, the petitioner is before this Court.
5. It is the submission of the learned counsel for the petitioner that the notice which has been issued under Section 55 of the Act is vague and general, the said notice should contain and specifically state what are the concrete allegations made as against the petitioner. The said notice is so vague, it will not make out any clear allegation so as to enable the petitioner to offer his proper explanation. He further submitted that the order passed by the Sub- Divisional Magistrate is only on the basis of the report given by the Taluka Executive Magistrate. He has not specified with the explanation and he has been swayed away by the report given by the reporting authority. He further submitted that though the past acts are relevant, in order to pass externment order, the movement of the accused and future apprehension of the act of the accused is very much essential, the said fact is not forthcoming in the impugned order. He further submitted that while passing such order, mere apprehension of the police is not enough, there must be some ground or there must be clear and present juncture based upon credible material and information and the said aspect is lacking in this behalf. In order to substantiate his argument, he relied upon the decision in the case of Kempaiah H. Vs. State of Karnataka reported in ILR 1982 KAR 841. On these grounds he prayed to allow the petition and set aside the impugned order.
6. Per contra, the learned High Court Government Pleader vehemently argued and submitted that in spite of notices the petitioner has not changed his life style. Again he has involved in many cases including cases for violence.
He further submitted that earlier notice has been issued by the Magistrate and even in spite of that he has continued the said act. He further submitted that when 107 proceedings have been initiated, he has executed a bond and the said order has not been challenged and it has been confirmed. He further submitted that the said externment order which has been passed is going to come to an end on 13.2.2019. Already major portion of the order has been complied and the present petition has become infructuous and the same is liable to be dismissed. On these ground, he prays to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the record.
8. On close reading of the impugned order passed by the Sub-Divisional Magistrate, Shivamogga Sub-Division, Shivamogga, he has only stated that there is a report of the Superintendent of Police and Circle Inspector, Shivamogga dated 2.5.2018 and 27.4.2018 and on perusal of the report and after hearing the counsels appearing for the parties, he specified that nine cases have been registered against the petitioner and as he is a social element continuously he is involved in such activities including unlawful stealing the vehicle and committing decoity and murder and it is also stated that in future also he may involve in such activities and as such it is going to hamper the peace and tranquility of the public and he is likely to involve in such activities in future and the history sheet has also been opened about two years’ back against the petitioner.
9. By going through the said order there is no specific allegations made as contemplated under Section 55 of the Act. For the purpose of brevity, I quote Section 55 which reads as under:
“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 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.”
10. On close reading of the said Section, to attract the provisions of Clause(a) of the Act there should be an allegation to show that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property. Mere allegation of unlawful act are not sufficient. This proposition of law has been laid down by this Court in the case of Basappa Ghaviyappa Vs. State of Karnataka reported in 1976(2) Kar.LJ 329.
11. Even as could be seen from the impugned order the learned Sub-Divisional Magistrate is swayed away by the report given by the police and on the basis of the said report without making a detailed enquiry has passed an externment order. Mere apprehension of the police is not enough for passing such an order under Section 55 of the Act. There must be some grounds or there must be adequate material to show that there is danger and there is credible material which makes the movements and acts of the person in question alarming or dangerous or fraud with violence and there must be sufficient reasons 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.
12. As could be seen from the impugned order it is passed without mentioning any of the things, I am conscious of the fact that at the time of passing such order the said authority has to keep in mind the fundamental right guaranteed under the Constitution. No doubt the said rights can be retrained with reasonable restrictions, but it must be supported by some material. Merely because he is apprehending, such order is not sustainable in law. This proposition of law has also been laid down by this Court in the case of Ambadas Vs. State of Karnataka reported in ILR 1987 Kar. 1481. At paragraph 5 it reads as under:
“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 Section 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 Section 59 of the Act a remedy by appeal is available to any person aggrieved by such order of externment passed under Section 55 of the Act and the appeal lies to the Government, but from a reading of Section 59 together with Section 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 Section 60 of the Act - (1) where the procedure laid down in sub-section (1) of Section 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 Section 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 Section 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 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 Articles 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 Section 55 having not been fulfilled, the impugned order of externment passed cannot be sustained.”
On close reading of the said ratio and the above said proposition of law the said order must contain all the above said aspect in order to pass an externment order. When it is lacking such things it is liable to be set aside. In that light also the impugned order is not sustainable in law.
13. Be that as it may I have also gone through the notice issued by the concerned authority dated 1.6.2018. The said notice is also not contain anything, it is so vague and general and even what apprehension is there, has also not been stated and even the specific case or act has also not been disclosed. In that light also the notice which has been issued is also not sustainable in law.
14. No doubt during the course of argument, the learned High Court Government Pleader submitted that after passing of the order, the said externment period of six months is going to expire on 13.2.2019 and the said order becomes infructuous, it is not the real question before this Court, the only question is whether the order impugned is sustainable in law or not which has been raised in the petition.
15. Under the said facts and circumstances discussed above though the order passed becomes infructuous as on 13.2.2019, still some period is left out, before that it cannot be said that the said order has become infructuous. Apart from the said fact in this case rights and liberty of the petitioner is also involved. In that light it has to be decided on merits.
16. In the light of the discussion held by me above, the petitioner has made out a case to set aside the impugned order and accordingly the petition is allowed and the impugned order dated 13.8.2018 passed by Sub- Divisional Magistrate, Sub-Division Shivamogga, in M.A.G.CR.13/18-19 is set aside.
Sd/- JUDGE *AP/-