1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE4H DAY OF FEBRUARY, 2016 BEFORE THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA CRIMINAL REVISION PETITION NO.1433 OF2015BETWEEN: AHAMED @ MUDASSIR, S/O. LATE ABDUL RASHEED, AGED ABOUT30YEARS, RESIDING AT NO.65/2B, 10TH CROSS, RAJENDRA NAGAR, MYSURU CITY- 570 001. …PETITIONER THE SPECIAL EXECUTIVE MAGISTRATE AND DEPUTY COMMISSIONER OF POLICE, LAW AND ORDER
, MYSURU CITY – 570 010. THE POLICE INSPECTOR, NARASIMHARAJA POLICE STATION, MYSURU CITY – 570007. (BY SRI.A.S.KULKARNI, ADV.) AND:
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3. THE ASSISTANT COMMISSIONER OF POLICE, NARASIMHARAJA SUB-DIVISION, MYSURU CITY – 570 007. (BY SRI.RACHAIAH, HCGP) …RESPONDENTS2THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION397R/W401CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE EXTERNMENT ORDER
DATED1612.2015 PASSED BY THE RESPONDENT NO.1 U/S55A) OF KARNATAKA POLICE ACT IN MAG(2) NO.275/2015-16 VIDE ANNEXURE-B. THIS CRIMINAL PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Heard the learned counsel Sri.A.S.Kulkarni, representing the petitioner and Sri.Rachaiah, learned HCGP representing the respondent.
2. Present petition is filed under Section 397 r/w 401 of Cr.P.C challenging the order dated 16.12.2015 passed by the Special Executive Magistrate and Deputy Police Commissioner, Mysuru, against this petitioner under Section 55-A of the Karnataka Police Act, 1963. By virtue of the order dated 16.12.2015 petitioner is directed externed from the limits of Mysuru city for a 3 period of six months from 16.12.2015. Facts leading to the filing of this present petition are as follows: Petitioner is a permanent resident of Rajendra Nagar, Mysuru city. He is married and has one school going female child aged about 7 years. Allegation against him is that he is indulging in several criminal activities relating to illegal filling up of gas cylinders and causing danger to the neighbours. In this regard two cases have been registered against him by the Narasimharaja Police Station, Mysuru in Crime No.10/2014 under Section 41(1)(d) r/w Section 102 of Cr.P.C., and another in Crime No.166/2015 for offences punishable under Section 3(1)(b) and (c) of the Essential Commodities Act, 1955 and a case in Crime No.358/2014 under Sections 3 and 7 of the Essential Commodities Act, 1955. One more case is registered in 4 Crime No.176/2015 by the same police station under Section 110(f) and 110(g) of Cr.P.C.
3. The petitioner had been asked to show cause as to why he should not be externed for a period of six months from Mysuru in view of his involvement in several criminal cases and apprehended danger to the society. He had shown his cause in detail by filing written objections along with 11 documents before the respondent-Commissioner. After hearing him, the respondent-Commissioner has chosen to pass the impugned order and it is this order which is called in question in this petition.
4. The point that arises for consideration in the present case is as follows: “Whether respondent No.1 is justified in passing the externment order under Section 55-A of the Karnataka Police Act, 1963 inspite of the 5 petitioner executing a bond pursuant to the registration of case against him in Crime No.176/2015 under Section 110(f) and 110(g) of Cr.P.C. ?.” 5. The fact that petitioner is a permanent resident of Rajendra Nagar, Mysuru, is not in dispute. He is married and has a daughter, aged 7 years. She is a school going child. Both his wife and child are dependent upon him for their livelihood. It is true that a case is registered against him with regard to illegal filling up of gas cylinder in Crime No.166/2015 dated 5.7.2015 by the Narasimharaja police station. Insofar as the first case in Crime No.358/2014 dated 26.11.2014 is concerned, it is also in regard to illegal filling up of gas cylinders. Crime No.10/2014 is registered by the same police on 13.1.2015 under Section 41(1)(d) and section 102 of Cr.P.C. Section 41 is found in Chapter-V of Cr.P.C. This Section enables 6 any police officer to arrest any person if he commits any cognizable offence, in the presence of police officer or against whom a reasonable complaint has been made or credible information has been received or reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine. It does not speak of registration of a case for any violation of the penal provisions. It provides for further investigation into the complaints and if ultimately same is found to be true, a criminal case may be registered.
6. Before the impugned order was passed, Narasimharaja Police Station had requested the Deputy Police Commissioner, Mysuru to initiate proceedings under Section 110(f) and 110(g) of Cr.P.C. which is found at page 22 of the records submitted by the 7 learned HCGP. Notice issued to the petitioner is found in page 25 and the said notice is dated 22.7.2015.
7. It is submitted by learned HCGP that pursuant to the receipt of notice dated 22.7.2015, petitioner has executed a bond undertaking himself not to indulge in any criminal activities for a period of three years. Section 110 empowers the Executive Magistrate to call upon a person to show cause as to why he should not be made to execute a bond to keep a good behaviour, provided such person is a habitual offender. Section 110(f) also can be invoked if there is violation of Essential Commodities Act, 1955. It is true that two cases had already registered for violation of some of the provisions of Essential Commodities Act, 1955. Subsection (g) of Section 110 also invests in the Executive Magistrate to call upon a person if he is found to be dangerous or hazardous to the community. 8 8. In the decision in the case of Goplanachari –v- State of Kerala reported in AIR1981SC674 the Hon’ble Apex Court has held that an order under Section 110 could be passed by the Executive Magistrate only when an inference could be reached that petitioner, by confirmed habit, would commit offenses mentioned, if not held captive.
9. On receipt of show cause notice, petitioner has executed a personal bond undertaking himself to keep good behaviour. It is not the case of the 1st respondent or other respondents that pursuant to the execution of bond under Section 110 of Cr.P.C., the petitioner is involved himself in any criminal activities or his behaviour has become so dangerous or hazardous to the community, so as to extern him from his ordinary place of residence. In the light of specific undertaking being given by the petitioner herein in terms of Section 9 110 of Cr.P.C., there is no reason as to why he has been externed for a period of six months. Taking into consideration the facts narrated supra, this is a fit case to hold that the approach adopted by the Executive Magistrate is incorrect and improper and calls for clear interference by this Court in terms of Section 397 of Cr.P.C. Accordingly, the impugned order has to be set- aside. Hence the following: ORDER
The Revision Petition is allowed. The impugned order dated 16.12.2015 is set-aside and it is made clear that the petitioner will have to strictly comply with the undertaking given in terms of Section 110(f) and 110(g) of Cr.P.C. ln Sd/- JUDGE