Person Against Whom Externment Order Is Passed Must Be Supplied 'Report' Leading To Such Decision: Karnataka High Court

The Karnataka High Court has made it clear that under Section 58 of the Karnataka Police Act, the report based on which a person is to be externed must be mandatorily supplied to such person along with the notice so issued.

A single judge bench of Justice M Nagaprasanna allowed the petition filed by T Roopeshkumar @ Roopi and said “The provision makes it mandatory for grant of reasonable opportunity and also permits the person against whom order of externment is to be passed to call any witness and examine him by filing an application.”

It added “If this is the right conferred upon a person under Section 58, the report on which he is to be externed must be mandatorily supplied which would include the notice so issued to the person against whom externment order is pending issuance. There cannot be any other interpretation of the aforesaid provision as it is in the realm of grant of a reasonable opportunity before taking away the fundamental right of any person.”

The petitioner had approached the court questioning order of Assistant Commissioner externing him from Kunigal Taluk. It was argued that the notice issued to the petitioner did not contain the report and without calling for explanation of the petitioner on the basis of the report, the order of externment was passed contrary to Section 58 of the Act.

Further, it was averred that out of 6 cases that were registered against the petitioner, in three of them he is acquitted and three of them are pending consideration in which also he is hopeful of getting acquitted. Thus the order of externment suffers from the vice of illegality, petitioner said.

The bench noted that Section 58 makes it mandatory for grant of reasonable opportunity and also permits the person against whom order of externment is to be passed to call any witness and examine him by filing an application.

Then relying on the Supreme Court order in the case of Deepak Vs State of Maharashtra, 2022 SCC OnLine SC 99, wherein the court has held 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, the bench held ,

“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.”

It added “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.”

Further the bench expressed that “Section 58 (supra) directs grant of reasonable opportunity. The Authorities must remember that what is being taken away from the citizen is a 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?.”

Noting that in this case admittedly 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, the bench held,

“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.”

Accordingly it allowed the petition and quashed the externment order and said “Petitioner is declared entitled to all consequential benefits that would flow from quashment of the orders.”

Case Title: T Roopeshkumar @ Roopi And State of Karnataka

Case No: WRIT PETITION No.392 OF 2023

Citation: 2023 LiveLaw (Kar) 126

Date of Order: 21-03-2023

Appearance: Advocate Satisha D J for petitioner.

AGA M Vinod Kumar for respondent.