IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.379 of 2019 BETWEEN SRI RUDOLFF AROJA, S/O. PEATER AROJA, MAJOR, RESIDING AT KADAVINA BAGILU, UDYAVARA VILLAGE, UDUPI DISTRICT - 576 101.
(BY SMT. HALEEMA AMEEN, ADVOCATE FOR SRI VISHWAJITH SHETTY S., ADVOCATE) AND THE STATE OF KARNATAKA, REPRESENTED BY SUPERINTENDENT OF POLICE, UDUPI DISTRICT, UDUPI.
REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU - 560 001.
... PETITIONER ... RESPONDENT (BY SRI K.P. YOGANNA, HCGP) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 02.02.2019 MADE IN No.MAG(2)CR:257/2018/E38329 BY THE DEPUTY COMMISSIONER AND DISTRICT MAGISTRATE, UDUPI DISTRICT, UDUPI.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This revision petition is filed by the petitioner being aggrieved by the order dated 02.02.2019 passed by the Deputy Commissioner and District Magistrate, Udupi, in No.MAG(2) CR:257/2018/E38329 directing the petitioner to go out of Udupi district for three months from the date of the order i.e. 02.02.2019 by exercising the power under Section 56 of the Karnataka Police Act, 1963 (for short ‘Act’).
2. The case of the petitioner is that the Superintendent of Police, Udupi District sent a report to the Deputy Commissioner and District Magistrate, Udupi District with a report to transport the petitioner from the District on the ground that the petitioner is said to have been involved and convicted in more than 5 cases under Section 78(i)(iii) of the Act and has been convicted and sentenced to pay the fine as follows;
(i) Cr.No.63/2013 in CC No.1679/2013–Fine of Rs.100/-
(ii) Cr.No.107/2017 in CC No.2422/2017–Fine of Rs.150/-
(iii)Cr.No.117/2017 in CC No.2563/2017–Fine of Rs.150/-
(iv) Cr.No.07/2018 in CC No.304/2018–Fine of Rs.150/-
(v) Cr.No.50/2018 in CC No.2645/2018 – Pending consideration.
3. Based upon the report, the District Magistrate issued notice to the petitioner. Accordingly, the petitioner appeared through his counsel and filed objections taking the contention that merely convicting him in three cases on the plea of guilty cannot be the ground for transporting the petitioner from the District and he is having a family; he do not have any abode outside the village and in support of his case, he relied upon the judgment of this Court in case of Anjanappa vs. State of Karnataka and others reported in 1987 (2) KLJ 201: ILR 1987 Kar.
2326.
4. After hearing the arguments, the District Magistrate passed the order under Section 56 of the Act directing to transport the petitioner for three months from 02.02.2019, which is under challenge in this revision petition.
5. Learned counsel for the petitioner contended that the impugned order passed by the District Magistrate does not satisfy the provisions of Section 56 of the Act and the cases were though closed, the petitioner has paid the fine. On pleading guilty, he was not tried, but found guilty and the order does not make out any subjective satisfaction of the District Magistrate, while accepting the report of the Police. The petitioner also not continuously involved in the alleged offences under Section 78 of the Act and there is no apprehension for the District Magistrate to show that the petitioner would commit similar offence in future. It is only the presumption of the District Magistrate. Therefore, prayed for setting aside the order and in support of the case, learned counsel for the petitioner relied upon the judgments of this Court in the case of Anajanappa vs. State of Karnataka (1987 (2) KLJ 201: ILR 1987 Kar. 2326); Baburao vs. District Magistrate (ILR 1991 627) and Kempaiah.H vs. State of Karnataka (ILR 1982 Kar. 841).
6. Per contra, learned High Court Government Pleader strenuously argued that the order under revision does not call for interference by this Court. The report of the Police and the order of the District Magistrate goes to show that there were five cases registered against the petitioner and out of five cases, in one case, he has been convicted and sentenced to pay fine of Rs.100/- and in other three cases, he has been sentenced to pay fine of Rs.150/- each. As per the provisions of Section 56 of the Act, it is required that atleast in three cases, he should have been convicted in three years. The petitioner is involved in the first offence in the year 2013 and subsequently, he has committed similar offence in two cases in the year 2017 and one case in 2018 and another case is also registered against him in the year 2018, which is pending for investigation. In three cases, he has already been convicted within two years, which satisfies Section 56(g) of the Act. Therefore, the District Magistrate has rightly come to the conclusion that there is an apprehension that the petitioner is likely to commit similar offence in future. Therefore, the impugned order came to be passed. There is no illegality committed by the District Magistrate. Hence, prayed for dismissing the petition.
7. Learned High Court Government Pleader also submitted that the decision in the case of Baburao (supra) stands on a different footing wherein, this Court has quashed the proceedings and subsequently, another notice was issued without any additional ground. Therefore, the said case came to be dismissed and the said decision is not applicable to the case on hand. In respect of the decision in the case of Anjanappa (supra), it is argued that there is a provision for filing an appeal under Section 59 of the Act. The petitioner has not chosen to file an appeal before the State of Karnataka. Hence, prayed for dismissal of the revision petition.
8. Learned counsel for the petitioner contended that the petitioner can also approach this Court under revisional jurisdiction even without filing an appeal under Section 59 of the Act, as this Court has already dealt with the case of Anjanappa (supra) wherein, the petitioner has moved this Court without filing an appeal and this Court has passed the order.
9. Upon hearing the arguments of learned counsel on both side and on perusal of the record, it is clear that the District Magistrate received a report from the Superintendent of Police of Udupi District. As per the report, the petitioner was involved totally in five cases. The first case was in Cr.No.63/2013 for the offence under Section 78(i)(iii) of the Act wherein, the petitioner has been convicted and sentenced to pay fine of Rs.100/-. The second case is in Cr.No.107/2017 for the similar offence wherein, he has been convicted and sentenced to pay fine of Rs.150/-. The third case is in Cr.No.117/2017 for the same offence wherein, he has been convicted and sentenced to pay fine of Rs.150/-. The fourth case is in Cr.No.7/2018 for the similar offence wherein, he has been convicted and sentenced to pay fine of Rs.150/-. The fifth case is in Cr.No.50/2018 for the offence under Section 78(i)(iii) of the Act and the same is pending before the JMFC in CC No.2645/2018. The main allegation was that the petitioner is said to be running a gambling centre in the name of Matka and he has received huge amounts from the general public in the area and due to the running of Matka business, there was heavy financial crises amongst the general public and their lives were ruined and continuously, the petitioner was involved in a series of offences for three years prior to passing of the order as required under Section 56(g) of the Act. Therefore, the Superintendent of Police requested the District Magistrate to transport the petitioner out of the District. Subsequently, the notice has been issued to the petitioner by the District Magistrate and the petitioner filed objections through his counsel and thereafter, the impugned order came to be passed.
10. As regards the technicality raised by the High Court Government Pleader that the petitioner is required to approach the State Government under Section 59 of the Act by filing an appeal, but the petitioner has approached this Court without filing an appeal, learned counsel for the petitioner brought to the notice of this Court that this issue has already been settled by this Court, as the aggrieved person even without filing an appeal under Section 59 of the Act to the State Government can approach this Court under revisional jurisdiction by filing a revision petition under Section 397 of Cr.P.C. This issue has already been settled by this Court. In the case of Anjanappa (supra), this Court has held as follows;
“(B) KARNATAKA POLICE ACT, 1963 (Karnataka Act No.4 of 1964) - Section 56 – ‘Sub-Divisional Magistrate’ means ‘Court of Sub-Divisional Magistrate’ and inferior Criminal Court – Orders revisable by High Court.
SECTION 59 – Although remedy of appeal not availed Revision lies to High Court under Section 401(4).”
Therefore, in view of the judgment of this Court in the aforesaid case, the petitioner can directly approach this Court under the provisions of Section 397 of Cr.P.C. even without filling an appeal. This Court once again need not go into the competency of this Court under Section 397 of IPC, since it is already settled by this Court in the aforesaid case.
11. The only question that arises for consideration of this Court is, whether the District Magistrate was satisfied with the material placed on record and passed the impugned order having an apprehension that the petitioner is likely to commit similar offence in future.
12. In the case of Baburao (supra), this Court has held as under:
“ To initiate action under Section 56 of the Act, narrating of a mere conviction of the offences enumerated in sub-clauses (a) to (h) is not sufficient. On a plain reading of the Section, it indicates that there should be something more to convince the authority to initiate the proceedings. The authorities should have reason to believe that such person is likely to engage himself again in the commission of similar offences. The term ‘reason to believe’ is a condition precedent to initiate action. The authority should enumerate in the show-cause notice as to what are the materials on which it feels necessary to remove the person from the District. Further, the order should direct the area or any district or districts or any part thereof contiguous thereto, by such route and within which time is to be mentioned… The general nature of material allegations contemplated under Section 58 through of general nature, but, at the same time, it should not be too general or too vague so as to render the person not able to tender explanation in respect of what is alleged against him.”
This Court has also relied upon an earlier order of this Court reported in the case of Kempaiah (supra).
13. Keeping in view the principles laid down by this Court in the case of Baburao (supra), wherein though it is a similar case, the Police Officer Gulbarga, sent a report to the District Magistrate on 16.08.1986 alleging that the petitioner was continuously indulging in the game of ‘Matka’ in the Gulbarga town in the year 1986, for which, he was convicted and sentenced to pay fine of Rs.50/- in the cases in the same order. Based upon the report, the District Magistrate passed the order and this Court by order dated 18.03.1987 quashed the order of the District Magistrate by invoking the provisions of Section 482 of Cr.P.C. Subsequent to quashing of the proceedings, again at the request of the Police, the District Magistrate issued another notice to the petitioner on similar averments, which was challenged before this Court whereby, this Court held that, once this Court has already quashed the proceedings, without putting any additional material or grounds, the District Magistrate has no power to pass the order of externate. On perusal of the said case, notice was issued for the second time. The facts of this case is different from the case on hand. In this case no such second notice has been issued, but for the first time the order came to be challenged by the petitioner and it was not quashed earlier.
14. It is worth to mention the provisions of Section 56(g) of the Act, which is as under;
“ 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) … (b) … (c) … (d) … (e) … (f) ..
(g) Thrice of an offence within a period of three years under Section 78, 79 or 80 of this Act; or (h) …”
15. A bare reading of the Section 56(g) of the Act shows that a person must have been convicted thrice of an offence under Sections 78, 79 or 80 of the Act at any time either before or after the commencement of the Act for the similar offence within a period of three years. The order under revision goes to show that the petitioner was involved in similar offences under Section 78(i)(iii) of the Act. Firstly, though in the year 2013, but there was gap of four years. Later, second offence was committed in 2017 and the case was registered in Cr.No.107/2017 by Sirva Police and the third case in the same year in Cr.No.117/2017 and fourth case in the year 2018. In all these three cases, other than Cr.No.63/2013, he has been convicted and sentenced to pay a fine of Rs.150/- each respectively. Though, the 5th case has been registered in 2018, but still the investigation is pending. The cases referred at Sl.Nos.2 to 5 stated above are the three cases registered between 2017 and 2018. The same was mentioned by the District Magistrate in the impugned order stating that the petitioner was convicted in one case in the year 2013 and two cases in the year 2017 and one case in 2018 and another case has been registered and pending for investigation. Therefore, it was stated by the District Magistrate that the petitioner was continuously involved in three cases within two years and also he is involved in another case, which is under investigation for trial and the order of the District Magistrate clearly goes to show that he is satisfied with the report filed by the Police that the petitioner was involved in three cases within three years and he was convicted and he is likely to commit similar offence and there is apprehension in his mind. On perusal of the order, it clearly goes to show that the District Magistrate is satisfied with the material placed on record to show that the petitioner is likely to commit similar offence in future also. Therefore, as held by this Court in Baburao’s case (supra), the District Magistrate is required to satisfy himself and the apprehension should not be a simple presumption in his mind. But, in this case, five cases were registered and in four cases, he has been convicted. Though learned counsel contended that the accused was convicted by the Court not after trial, but on pleading guilty, the accused has been sentenced to pay fine therefore, the provisions would not attract cannot be acceptable. Whether the Trial Court imposed sentence either on the plea of guilty or by adjudication of trial does not make any deference in passing the order of conviction and sentence. Therefore, the contention taken by learned counsel for the petitioner cannot be acceptable. On the other hand the reasons assigned by the District Magistrate while passing the order clearly goes to show that the District Magistrate is satisfied with the material placed on record while passing the impugned order. Therefore, it does not call for interference under revisional jurisdiction. Hence, the criminal revision petition being devoid of merit is dismissed.
In view of dismissal of the main petition itself, I.A.No.1/2019 for stay does not survive for consideration and the same is also dismissed.
Sd/- JUDGE mv