SRI. H.R. SACHINDRA @ SACHIN v. STATE OF KARNATAKA

(BY SRI. K.P. YOGANNA, AGA) …RESPONDENTS - 2 - NC: 2024:KHC:14196 WP No. 10418 of 2024 THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SETTING ASIDE THE IMPUGNED ORDER DATED 01/04/2024 BEARING NO. MAJ/GAPARU/LOW.CHU/10/2023-24, PASSED BY THE R2 ASSISTANT COMMISSIONER, MADIKERI SUB-DIVISION, KODAGU A COPY OF WHICH IS PRODUCED AS ANNEXURE-A AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioner is before this Court calling in question an order dated 01.04.2024 by which the petitioner comes to be externed from his home town Madikeri to Mandya invoking the provisions of the Karnataka Police Act, 1963.

2. Heard Smt.Leela P.Devadiga, learned counsel for the petitioner and Mr.K.P.Yoganna, learned Additional Government Advocate for the respondents.

3. The petitioner is a resident of Virajpet. He is said to have got embroiled in several crimes. Based upon the said factum of the petitioner getting involved in several crimes, a - 3 - NC: 2024:KHC:14196 WP No. 10418 of 2024 notice comes to be issued by the 2nd respondent/Assitant Commissioner seeking to show cause as to why, the petitioner should not be externed. The notice is dated 18.03.2024. The petitioner claims to have filed his objections to the said notice on 28.03.2024. Without considering any of the defence taken by the petitioner in the reply, the impugned order comes to be passed. The impugned order takes within its sweep 18 cases against the petitioner, most of which are under Section 107 of the Cr.P.C. Out of the 18 cases, the learned counsel for the petitioner submits that 11 of them have ended in acquittal and the remaining 7 are all under Section 107 of the Cr.P.C. While it is no law that proceedings under Section 107 cannot lead to passage of an order of externment, the procedure adopted to pass such orders, should be in strict consonance with law, as the effect of the order of externment would be taking away fundamental rights of the person against whom such an order is passed. The procedure admittedly has not been followed in the case at hand. The effect of its violation need not detain this Court for long or delve deep into the matter, as this court following the judgment of the Hon'ble Apex Court in the case of DEEPAK VS. STATE OF MAHARASHTRA reported in 2022 - 4 - NC: 2024:KHC:14196 WP No. 10418 of 2024 SCC ONLINE SC 99, in the case of SRI.T.ROOPESH KUMAR @ ROOPI VS. STATE OF KARNATAKA in Writ Petition No.392/2023 dated 21.03.2023 considering the entire spectrum of the Act has held as follows: “10. The afore-narrated facts are cases where the petitioner was an accused. What is pending consideration is necessary to be noticed. Three cases where the petitioner is an accused two cases - C.C.No.3607 of 2022 and C.C.No.3610 of 2022 - are for offences punishable under Section 87 of the Act, a non-cognizable offence. The only case pertaining other than the aforesaid non-cognizable offence is C.C.No.132 of 2022 for offences punishable under Sections 341, 504, 323, 363 and 34 of IPC which is pending trial. The petitioner in the past had got himself embroiled in three other cases which have all been acquitted and therefore, is unnecessary. Substantially what remains as an offence against the petitioner is C.C.No.132 of 2022 and for a solitary case whether the order of externment would stand the test of law is what is necessary to be answered. The answer to this issue need not detain this Court or delve deep into the matter as the Apex the case of DEEPAK v. STATE OF MAHARASHTRA1 has considered the purport of the order of externment and its impact upon the fundamental right of the person. The Apex Court considers the Maharashtra Police Manual which is in pari materia with the Act and holds as follows: those cases reference "6. We have given careful consideration to the submissions. Under clause (d) of Article 19(1) of the Constitution of India, there is a fundamental right conferred on the citizens to move freely throughout the territory of India. In view of clause (5) of Article 19, State is empowered to make a law enabling the 2022 SCC OnLine SC 99 imposition of reasonable restrictions on the exercise of the right conferred by clause (d). An order of externment passed under provisions of Section 56 of the 1951 Act imposes a restraint on the person against whom the order is made from entering a particular area. Thus, such orders fundamental right guaranteed under Article 19(1)(d). infringe - 5 - NC: 2024:KHC:14196 WP No. 10418 of 2024 Hence, the restriction imposed by passing an order of externment must stand the test of reasonableness.

7. Section 56 of the 1951 Act reads thus: "56. Removal of persons about to commit offence- (1) Whenever it shall appear in Greater Bombay 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 State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate specially empowered by the State 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 Penal Code, 1860, 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 [(bb) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Antisocial and other Dangerous Activities Act, 1980 or (2) in any manner prejudicial to the maintenance or supplies of commodities essential to the community as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, 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 such prejudicial act], or the outbreak or spread of such disease or [notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the officer or not and whether contiguous or not), by such route, and within such time, as the officer may specify and not to enter or return to the area or areas specified (hereinafter referred to as "the specified area or areas") from which he was directed to remove himself. - 6 - NC: 2024:KHC:14196 WP No. 10418 of 2024 (2) An officer directing any person under sub-section (1) to remove himself from any specified area or areas in the State may further direct such person that during the period the order made against him is in force, as and when he resides in any other areas in the State, he shall report his place of residence to the officer-in-charge of the nearest police station once in every month, even if there be no change in his address. The said officer may also direct that, during the said period, as and when he goes away from the State, he shall, within ten days from the date of his departure from the State send a report in writing to the said officer, either by post or otherwise, of the date of his departure, and as and when he comes back to the State he shall, within ten days, from the date of his arrival in the State, report the date of his arrival to the officer-in-charge of the police station nearest to the place where he may be staying. (underline supplied)

8. A perusal of sub-section (1) of Section 56 shows that there are distinct grounds specified under sub-section (1) of Section 56 for passing an order of externment. The said grounds are in clauses (a), (b), (bb), and (c). In the present case, clauses (a) and (b) of sub-section (1) of Section 56 of the 1951 Act have been invoked. The ground in clause (a) is that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to a person or property. The ground in clause (b) is 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 in IPC, or the abetment of any such offence. Clause (b) is qualified by a condition that the competent authority empowered to pass such order should be of the opinion that 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. Obviously, the opinion must be formed on the basis of material on record.

9. As observed earlier, Section 56 makes serious inroads on the personal liberty of a citizen guaranteed under Article 19(1)(d) of the Constitution of India. In the case of Pandharinath Shridhar Rangnekar v. Dy. Commr. of Police, State of Maharashtra1 in paragraph 9, this Court has held that the reasons which necessitate or justify the passing of an extraordinary order of externment arise out of extraordinary circumstances. In the same decision, this Court held that care must be taken to ensure that the requirement - 7 - NC: 2024:KHC:14196 WP No. 10418 of 2024 of giving a hearing under Section 59 of the 1951 Act is strictly complied with. This Court also held that the requirements of Section 56 must be strictly complied with. record

10. There cannot be any manner of doubt that an order of externment is an extraordinary measure. The effect of the order of externment is of depriving a citizen of his fundamental right of free movement throughout the territory of India. In practical terms, such an order prevents the person even from staying in his own house along with his family members during the period for which this order is in subsistence. In a given case, such order may deprive the person of his livelihood. It thus follows that recourse should be taken to Section 56 very sparingly keeping in mind that it is an extraordinary measure. For invoking clause (a) of sub-section (1) of Section 56, there must be objective material on record on the basis of which the competent authority must its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to persons or property. For passing an order under clause (b), there must be objective material on the basis of which the competent authority must record subjective satisfaction 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 offences punishable under Chapter XII, XVI or XVII of the IPC. Offences under Chapter XII are relating to Coin and Government Stamps. Offences under Chapter XVI are offences affecting the human body and offences under Chapter XVII are offences relating to the property. In a given case, even if multiple offences have been registered which are referred in clause (b) of sub-section (1) of Section 56 against an individual, that by itself is not sufficient to pass an order of externment under clause (b) of sub- section (1) of Section 56. Moreover, when clause (b) is sought to be invoked, on the basis of material on record, the competent authority must be satisfied that witnesses are not willing to come forward to give evidence against the person proposed to be externed by reason of apprehension on their part as regards their safety or their property. The recording of such subjective satisfaction by the competent authority is sine qua non for passing a valid order of externment under clause (b). - 8 - NC: 2024:KHC:14196 WP No. 10418 of 2024

11. On 2nd June 2019, the Police Inspector of Badnapur Police Station, District Jalna submitted a proposal to the Judicial Magistrate, First Class at Badnapur for permitting detention of the appellant for a period of 15 days by invoking provisions of sub-section (3) of Section 151 of Cr.PC (as inserted by the Maharashtra Act No. 7 of 1981). In the said proposal, reliance was placed on the same six offences registered against the appellant, which were made a part of the show-cause notice dated 7th July 2020 on the basis of which the impugned order of externment was passed. The police arrested the appellant and produced him on 2nd June 2020 before the learned Judicial Magistrate, First Class along with the aforesaid proposal. By the order dated 2nd June 2020 (Annexure P-4), the learned Judicial Magistrate rejected the said proposal to detain the appellant and directed his immediate release subject to the condition of attending the concerned Police Station between 10 am to 1 pm till 9th June 2020.

12. The power under sub-section (3) of Section 151 as amended for the State of Maharashtra is to arrest a person on the basis of an apprehension that he is likely to continue the design to commit, or is likely to commit a cognizable offence after his release and that the circumstances of the case are such that his presence is likely to be prejudicial to the maintenance of public order. The learned Judicial Magistrate rejected the proposal to keep the appellant in detention for 15 days. There is nothing placed on record to show that the said order was challenged by the police. After having failed to satisfy the learned Judicial Magistrate about the necessity of detaining the appellant for 15 days, the Sub-Divisional Police Officer initiated action of externment against him by issuing a show-cause notice on 7th July 2020. It is not the case made out in the show cause notice dated 7th July 2020 that after release of the appellant on 2nd June 2020, the appellant indulged in the commission of any offence or any other objectionable activity.

13. Considering the nature of the power under Section 56, the competent authority is not expected to write a judgment containing elaborate reasons. However, the competent authority must record its subjective satisfaction of the existence of one of the grounds in sub- section (1) of Section 56 on the basis of objective material placed before it. Though the competent authority is not required to record reasons on par with a judicial order, when challenged, the competent authority must be in a position to show the application of mind. The Court while testing the order into the question of of externment cannot go - 9 - NC: 2024:KHC:14196 WP No. 10418 of 2024 sufficiency of material based on which the subjective satisfaction has been recorded. However, the Court can always consider whether there existed any material on the basis of which a subjective satisfaction could have been recorded. The Court can interfere when either there is no material or the relevant material has not been considered. The Court cannot interfere because there is a possibility of another view being taken. As in the case of any other administrative order, the judicial review is permissible on the grounds of mala fide, unreasonableness or arbitrariness.

14. In the facts of the case, the non-application of mind is apparent on the face of the record as the order dated 2nd June 2020 of the learned Judicial Magistrate is not even considered in the impugned order of externment though the appellant specifically relied upon it in his reply. This is very relevant as the appellant was sought to be detained under sub-section (3) of Section 151 of Cr.PC for a period of 15 days on the basis of the same offences which are relied upon in the impugned order of externment. As mentioned earlier, from 2nd June 2020 till the passing of the impugned order of externment, the appellant is not shown to be involved in any objectionable activity. The impugned order appears to have been passed casually in a cavalier manner. The first three offences relied upon are of 2013 and 2018 which are stale offences in the sense that there is no live link between the said offences and the necessity of passing an order of externment in the year 2020. The two offences of 2020 alleged against the appellant are against two individuals. The first one is the daughter of the said MLA and the other is the said Varsha Bankar. There is material on record to show that the said Varsha Bankar was acting as per the instructions of the brother of the said MLA. The said two offences are in respect of individuals. There is no material on record to show that witnesses were not coming forward to depose in these two cases. Therefore, both clauses (a) and (b) of subsection (1) of Section 56 are not attracted.

15. As the order impugned takes away fundamental right under Article 19(1)(d) of the Constitution of it must stand the test of reasonableness India, contemplated by clause (5) of Article 19. Considering the bare facts on record, the said order shows non- application of mind and smacks of arbitrariness. Therefore, it becomes vulnerable. The order cannot be sustained in law.

16. Section 58 of the 1951 Act reads thus: - 10 - NC: 2024:KHC:14196 WP No. 10418 of 2024 "58. Period of operation of orders under section 55, 56, 57 and 57A - A direction made under section 55, 56, 57 and 57A not to enter any particular area or such area and any District or Districts, or any part thereof, contiguous thereto, or any specified area or areas as the case maybe, shall be for such period as may be specified therein and shall in no case exceed a period of two years from the date on which the person removes himself or is removed from the area, District or Districts or part aforesaid or from the specified area or areas as the case may be".

17. On a plain reading of Section 58, it is apparent that while passing an order under Section 56, the competent authority must mention the area or District or Districts in respect of which the order has been made. Moreover, the competent authority is required to specify the period for which the restriction will remain in force. The maximum period provided for is of two years. Therefore, an application of mind on the part of the competent authority is required for deciding the duration of the restraint order under Section 56. On the basis of objective assessment of the material on record, the authority has to record its subjective satisfaction that the restriction should be imposed for a specific period. When the competent authority passes an order for the maximum permissible period of two years, the order of externment must disclose an application of mind by the competent authority and the order must record its subjective satisfaction about the necessity of passing an order of externment for the maximum period of two years which is based on material on record. Careful perusal of the impugned order of externment dated 15th December 2020 shows that it does not disclose any application of mind on this aspect. It does not record the subjective satisfaction of the respondent no. 2 on the basis of material on record that the order of externment should be for the maximum period of two years. If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount fundamental right guaranteed under clause (d) of Article 19(1) of the Constitution of India." imposing unreasonable restrictions on (Emphasis supplied) The Apex Court clearly holds that externment is not an ordinary measure and must be resorted to sparingly, only in extraordinary circumstances, as an order of externment takes away the fundamental right of movement under Article 19(1)(d) of the Constitution of India. Therefore, the Apex Court has clearly held that it must stand the test of - 11 - NC: 2024:KHC:14196 WP No. 10418 of 2024 reasonableness as contemplated in Clause (5) of Article 19 of Constitution of India. Since the interpretation of the Apex Court of the provisions of the Maharashtra Police Act are in pari materia with the Act, it would become applicable to the case at hand. The crux of the provision is that there should be minimum proximity or necessity for passing an order of externment against any person, in the case at hand the petitioner. The description of cases against the petitioner are all noticed hereinabove, all of which would lead to an unmistakable conclusion that, on a solitary case of offences under the IPC, fundamental right of the petitioner could not be taken away and in the considered view of this Court it would not stand the test of reasonableness as obtaining under Article 19(5) of the Constitution of India. If the facts of the case on hand are considered on the bedrock of the principles laid down by the Apex Court in the case of DEEPAK (supra), the order impugned would lose its legal legs to stand and would be rendered unsustainable. is a the citizen

11. Yet another factor that is to be noticed is that the order being contrary to the mandate of Section 58. Section 58 (supra) directs grant of reasonable opportunity. The Authorities must remember that what is being taken away fundamental right. Therefore, reasonable opportunity that is mandated under Section 58 must be scrupulously adhered to, and if such adherence is to be discernible at the bare minimum furnishing of a report against the person against whom the order of externment is pending issuance to the said person. The petitioner or the like is entitled to know as to why an order of externment is being passed and on the basis of what? It is an admitted fact, in the case at hand, no report was even made available to the petitioner at the time of issuance of show cause notice nor was he provided with such report at the time when he appeared before the 2nd respondent in answer to a notice. Since Section 58 mandates examination of witnesses also as a right of the 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 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.

12. It is admitted fact in the case at hand that none of immediate order of those situations have arisen - 12 - NC: 2024:KHC:14196 WP No. 10418 of 2024 externment to be passed against the petitioner. Even on that score the order of externment passed against the petitioner is rendered unsustainable. On both these counts - one being no circumstance warranting curtailment of fundamental right of the petitioner in terms of what is laid down by the Apex Court in the case of DEEPAK (supra) and the other, being the order in gross violation of Section 58 of the Act - the petition deserves to succeed.”

4. This Court following the judgment of the Hon'ble Apex Court the case of DEEPAK VERSUS STATE OF MAHARASHTRA, has held that the procedure as stipulated under the Act cannot be violated in passing the orders of externment.

5. If the facts obtaining in the case at hand are considered on the touchstone of what is laid down by the Hon'ble Apex Court of this court supra, the impugned order is rendered unsustainable. The show cause notice is issued to the petitioner noticing 18 crimes, which are an amalgam of cases where the petitioner has already been acquitted and some of them pending. Therefore, the show cause notice that also takes into account the cases which the petitioner has been acquitted would undoubtedly suffer from want of application of mind, as it is loosely issued by the second respondent against the - 13 - NC: 2024:KHC:14196 WP No. 10418 of 2024 petitioner. On all the aforesaid grounds including the one of non-application of mind, the petition deserves to succeed.

6. For the aforesaid reasons, the following: ORDER (i) The petition is allowed. (ii) The impugned order dated 01.04.2024, Maj/GaPaRu/Low.Chu/10/2023-24, passed by the second respondent - Assistant Commissioner, Madikeri Sub-Division, Kodagu , Annexure-A is hereby quashed. (iii) Liberty is reserved to the respondent to act strictly in consonance with law and if wanting to act, shall bear in mind observations made it in the course of the order Sd/- JUDGE SS List No.: 1 Sl No.: 31