'Proximate Incident' Necessary For Passing Externment Order: Karnataka High Court

The Karnataka High Court has quashed an externment order passed by the authorities against one Mahantayya, who was externed from Bailhongal Subdivision to Bagalkot for a period of three months.

A single judge bench of Justice M Nagaprasanna sitting at Dharwad said,

“Provisions of law which empower externment of a person would undoubtedly mean that there should be minimum proximity or necessity for passing an order of externment. There is no proximate incident that is narrated in the impugned order. Without any foundation the order projects the petitioner as a bane to the society or the surrounding area.”

It added “Therefore, in the considered view of this Court, the order impugned would not stand the test of reasonableness as obtaining under Article 19(5) of the Constitution of India.”

The petitioner had approached the court questioning the order dated 28.07.2023 passed by the Assistant Commissioner cum-Sub-Divisional Magistrate, Bailhongal, under Sections 55, 56 of the Karnataka Police Act. It was argued that the fundamental right of the petitioner is taken away for offences which are non-cognizable and have all been closed by imposition of fines.

The prosecution opposed the plea saying that the petitioner had become dangerous to the society and therefore, action had to be taken. Further, all the necessary procedures in law are followed prior to the order of externment, State claimed.

The bench referred to the cases registered against the petitioner and observed that as on date petitioner is not embroiled in any crime and the crimes that were pending against the petitioner were all for non-cognizable offences. It said,

“In terms of Section 56(g) externment can be passed, if one gets involved for offences under Sections 78, 79 & 80 of the Karnataka Police Act, but it has to be thrice within three years, this is not the situation in the case at hand. In the teeth of the aforesaid provisions of law and the fact that the petitioner is not now involved in any crime.”

Perusing the externment order, the court said, “What is projected is that the petitioner is a dreaded criminal and has the capacity to disturb peace of the surrounding area and has in no way reformed himself from out of the crimes that he has committed and therefore, the order of externment is passed...If the order is read on the bedrock of the offences and the statute, it would become a classic case of misuse of power for curtailment of the fundamental right of a person.”

It added, “It is not in dispute that what is taken away by externing a person is his fundamental right and such power of taking away fundamental right is not to be passed as a matter of course, but will have to be resorted to, sparingly in extraordinary circumstances, as right to movement is what is provided to a citizen under Article 19(1)(d) of the Constitution of India.”

Relying on the Apex court judgment in Deepak v. State of Maharashtra (2022), Court said “If the facts of the case are considered on the bedrock of the statute and 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. Unsustainability of the order would lead to its obliteration.”

Accordingly, it allowed the petition.

Case Title: Mahantayya And State of Karnataka & Others

Case No: Writ Petition No. 104804/2023

Citation: 2023 LiveLaw (Kar) 318

Date of Order: 08-08-2023

Appearance: Advocate Shriharsh A Neelopant for Petitioner.

HCGP V S Kalasurmath for Respondents.

Click Here To Read/Download Order