[Karnataka Police Act] Mandatory To Provide Hearing, Materials Relied Upon By Authority Before Passing Externment Order Against Accused: High Court

The Karnataka High Court has held that under Section 58 of the Karnataka Police Act (Act), it is mandatory to grant reasonable opportunity and also to provide necessary material relied on by the authority to an accused along with the show cause notice issued against whom an externment order is pending issuance.

A single judge bench of Justice M Nagaprasanna allowed the petition filed by Sachin M R and quashed the externment order dated 20.03.2024, passed by the Assistant Commissioner.

It said “There are several safeguards for passage of an order of externment upon the person against whom it is sought to be passed. These are procedural safeguards. It is trite that procedural safeguards are the lifeblood of liberty, which cannot be treated or taken away in the manner that it is done in the case at hand.”

The petitioner had questioned the order dated 20.03.2024 passed by the Assistant Commissioner/Sub-Divisional Magistrate, externing him from Mysore to Davangere with effect from 20.03.2024 up to 10.06.2024.

The Deputy Superintendent of Police submitted a report to the 2nd respondent recommending the passage of an order under the Act and externing the petitioner. It was stated that a show cause notice came to be issued by the 2nd respondent upon the petitioner seeking to show cause as to why an order of externment should not be passed against him and directed him to appear.

It was stated that the petitioner appeared on 20.03.2024 only to receive an order of externment, externing him from Mysore to Davangere. The petitioner challenged this order before the Court after which a corrigendum was issued, moving the petitioner from Davangere to Tumkur.

Petitioner argued that his fundamental right was taken away completely contrary to the Act and that the show cause notice issued did not contain the report that was against him, which was mandatory in law. It was stated that though he was issued a show cause notice to appear before the 2nd respondent, even before he could submit anything, the order was passed.

The bench noted that regarding externment orders, Section 58 mandates that an opportunity of hearing should be rendered to the person against whom the order is to be passed under Sections 54, 55 or 56. It stated that Section 59 permits any person aggrieved by orders passed under Sections 54, 55 or 56 to appeal to the Government within 30 days from the date of such order. 

Section 58 mandates that the Officer acting under Sections 54, 55 and 56 shall inform the person in writing of the general nature of material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such a person makes an application for examination of any witness the officer shall grant such application, unless for reasons to be recorded in writing the Officer is of the opinion that the application is filed for the purpose of vexation or delay.

Noting that the notice calling for the petitioner's appearance did not append the report by respondent No.3 and that the impugned order was passed on the same day that the petitioner was directed to appear, the Court said:

“The 2nd respondent has blatantly and blissfully ignored the rigour of the statute. It is trite that an order of externment takes away the fundamental right of a citizen. Merely because crimes are pending against a person, he does not become a convict unless he is convicted, therefore, all the rigour of the statute must be complied with before any order of externment can be passed against any citizen. The show cause notice issued to the petitioner appears to be a farce and issued only for the purpose of a make believe compliance of the statute, not to afford any opportunity, in real time, to the petitioner.”

"What is more shocking is after the passage of the order of externment against the petitioner, externing him from Davangere to Mysore, on 20.03.2024 a corrigendum is issued, modifying the externment from Davangere to Tumkur, on 28.03.2024, the petitioner is treated as a chattel in the hands of the 2nd respondent and his personal liberty is eroded in a cavalier manner,” it added.

The Court stated that the 2nd respondent cannot treat his office as his personal fiefdom and misuse the power conferred upon him under the Act, since he is bound by the rule of law.

Admonishing the action of the respondents, it said that any repetition of the kind of the orders that were passed in deliberate defiance to the orders passed by the Apex Court could be on the borders of contempt. 

Then it directed the Chief Secretary of the State, to take note of the situation, and issue a circular for appropriate passage of the orders of externment, bearing in mind the observations made in the course of the order.  

Accordingly, the Court allowed the plea. 

Appearance: Advocate K.V. Sateeshchandra for Petitioner.

AGA K.P. Yoganna for Respondents

Citation No: 2024 LiveLaw (Kar) 169

Case Title: Sachin M R AND State of Karnataka

Case No: WRIT PETITION NO. 9727 OF 2024

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