Sandeep S/O Sanjivappa vs. The State Of Karnataka

Heard the petitioner’s counsel and also the learned AGA appearing for the respondents-State.

The present petition is filed praying this Court to quash the externment order passed by the respondents in externing the petitioner from 04.09.2024 to 30.09.2024. 3. The counsel for the petitioner brought to the notice of this Court the requisition is given by the Investigating Officer on 02.09.2024 as per Annexure- B, Annexure-C dated 27.08.2024, wherein enquiry notice was given to appear on 03.09.2024, and NC: 2024:KHC-D:13196 Annexure-D, the order sheet maintained by the respondent dated 03.09.2024. The notice was duly served, is mentioned in the order sheet and the petitioner also present through an advocate and ASI was also present and stated that there are 11 cases in total against him and sought for externment and the matter was posted on the very next day. The counsel appearing to the petitioner would submit that the order is also passed on the very next day and no opportunity is given to the petitioner before passing the externment order, except giving of notice and it is nothing but violation of principles of natural justice.

The counsel for the petitioner in support of his argument relies upon the judgment of the Hon’ble Apex Court passed in Civil Appeal No.5121/2021 and brought to the notice of this Court paragraph No.11, wherein a discussion was made with regard to Section 107 of the CGST Act and instead of availing NC: 2024:KHC-D:13196 of the remedy, the respondent instituted a petition under Article 226. The existence of an alternative remedy is not an absolute bar to the maintenance of writ petition under Article 226 of the Constitution. But a petition can be entertained in exceptional circumstances where there is a breach of fundamental rights, a violation of the principles of natural justice, an excess of juri iction, or a challenge to the vires of the statute or delegated legislation. The counsel referring this judgment, would contend that here is a case of clear violation of principles of natural justice. The counsel submits that, even though 10 cases are mentioned in the order sheet, the petitioner was acquitted in 08 cases. In none of the cases he was convicted and only 02 cases are pending, that is Sl.No.9 and 10. In the absence of any opportunity to the petitioner, the impugned order is not sustainable and the same is an illegal order. NC: 2024:KHC-D:13196

Per contra, learned AGA appearing for the respondents State submits that, this Court already passed an order vide order dated 16.04.2019 in Criminal Revision Petition No.100111/2019, wherein it is categorically held that an appeal lies against the order passed under the Karnataka Police Act, 1963 (‘K.P.Act’, for short) and the petitioner can urge the very ground in the appeal. There is also a clear bar under Section 60 of the K.P.Act. When efficacious remedy is available, the petitioner can approach the appellate juri iction.

Having heard the petitioner’s counsel and also the counsel appearing for the respondents State and having taken note of material on record, no doubt as per Annexure-C notice was given by the Assistant Commissioner on 27.08.2024 asking the petitioner to appear on 03.09.2024. Annexure-B is the representation given to the Assistant Commissioner by the concerned Investigating Officer praying the NC: 2024:KHC-D:13196 Authority to invoke Sections 54 and 55 of the K.P. Act for externment. The order sheet at Annexure-D also discloses that, notice was served and the petitioner also appeared through the counsel on 03.09.2024 and except mentioning that the advocate has filed Vakalath, no opportunity is given to submit reply, except mentioning that there are 11 cases and also mentioning as Ganesha Habba and affecting Law and Order, sought for externment. It is also important to note that, externment is also made for the period from 04.09.2024 to 30.09.2024, for a period of 25 days, merely because there are number of cases registered against the petitioner. According to the petitioner, already he is acquitted in 08 cases and also contended that there is no conviction. The learned AGA also submits that there is no need of any conviction also for externment. There is a force in the contention of learned AGA. NC: 2024:KHC-D:13196

The Hon’ble Apex Court also in the judgment referred supra discussed in detail regarding invoking of juri iction under Article 226 of the Constitution of India. No doubt this Court also held in CRP No.100111/2019 that an appeal lies against the order passed under the K.P.Act. But here is a case of clear violation of principles of natural justice on the date of appearance itself through an advocate, the matter was posted for orders and on the very next day order was passed and the reason assigned by the respondent No.2 is that number of cases are registered against him and there is breach of public peace and hence for a limited period he was ordered to be externed.

Having taken note of the reasons assigned by the respondent No.2 while passing the impugned order and so also the petitioner was already acquitted in 08 cases, and apart from that there is clear violation of the principles of natural justice, and the order was NC: 2024:KHC-D:13196 passed on the very next day without giving any opportunity to him, there is a breach of fundamental right also. When such being the case, the judgment of the Hon’ble Apex Court referred supra is aptly applicable to the case on hand.

In view of the observations made above, I pass the following: ORDER i. Writ Petition is allowed. ii. The impugned order dated 04.09.2024 passed by the respondent No.2 at Annexure-A is a quashed. iii. Having considered that the more cases are registered against the petitioner from 2005 onwards till 2024, the petitioner is also warned not to indulge in such acts in future repeatedly. NC: 2024:KHC-D:13196 iv. Liberty is given to the respondent Authority to proceed against the petitioner, if he indulges in such cases again in spite of this warning. (H.P.SANDESH) JUDGE