- 1 - HC-KAR NC: 2025:KHC-D:8688 CRL.P No. 102565 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL PETITION NO. 102565 OF 2025 (482 OF Cr.PC/528 OF BNSS) BETWEEN: SALMAN S/O. MABUSAB, AGE: 32 YEARS, OCC: CAR DRIVER, R/O. 1ST CROSS, RAJYOTSAVA NAGAR, BALLARI DIST.- 583201. …PETITIONER (BY SRI. ANWAR BASHA B., ADVOCATE) AND: 1. THE STATE OF KARNATAKA, REPRESENTED BY SECRETARY, DEPT. OF HOME AFFAIRS, VIDHANA SOUDHA, BENGALURU-560001. 2. ASSISTANT COMMISSIONER AND SUB DIVISIONAL MAGISTRATE, BALLARI 583101. 3. SUPERINDENT OF POLICE, BALLARI DIST. BALLARI-583101. 4. POLICE INSPECTOR, BRUCEPETE P.S, BALLARI-583101, BALLARI DIST. 583223. …RESPONDENTS (BY SRI. JAIRAM SIDDI, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. (UNDER SECTION 528 OF BNSS), SEEKING TO CALL FOR THE RECORD AND SETTING ASIDE ORDER PASSED BY THE RESPONDENT NO.2 IN NO.kam/MAG/GADIPARU/12/2025-2026 DATED 26.06.2025 WHICH DIRECT THE PETITIONER TO BE REMOVED FROM BALLARI TO HULIYURU DURGE PS LIMITS OF TUMKUR DIST. FROM 26.06.2025 TO 26.07.2025 (ANEEXURE-C), IN THE INTEREST OF JUSTICE AND ETC. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by RAKESH S HARIHAR Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:8688 CRL.P No. 102565 of 2025 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T) This petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 praying to quash the externment order passed against the petitioner in No.KAM/MAG/GADIPARU/12/2025-26 dated 12/2025 passed by the Asst. Commissioner and Sub-divisional Magistrate, Ballari District, Ballari–respondent No.2 under Section 55 of the Karnataka Police Act, 1963 (hereinafter referred to as “K.P. Act” for brevity). 2. The petitioner is a driver and he is residing at Rajyosava nagar, Ballari and he alleged to have been involved in various cases under NDPS Act. On 29.05.2025, the Police Inspector, Brucepete Police Station (respondent No.4) by filing petition under Section 55 of the K.P. Act before the Superintendent of Police, Ballari alleging that the petitioner being involved in several cases and being a rowdy sheeter sought externment order. The Assistant Commissioner and Sub-divisional Magistrate, Ballari- - 3 - HC-KAR NC: 2025:KHC-D:8688 CRL.P No. 102565 of 2025 583101 (respondent No.2) issued show cause notices dated 29.05.2025, to the petitioner under Section 58 of K.P. Act seeking reply from the petitioner as to why the petitioner should not be exiled from Ballari. Petitioner has given his reply on 10.06.2025. On 26.06.2025, respondent No.2 has passed externment order against the petitioner directing the Police to send the petitioner out of Ballari for one month from 26.06.2025 till 26.07.2025 to Huliyurudurga Police Limits, Tumkur. The petitioner has sought quashing of the said order in this petition. 3. Learned counsel for the petitioner contended that there are no grounds made out in the entire order passed by respondent No.2 warranting exile of the petitioner or to invoke such stringent measures. There is no allegation against the petitioner of committing any of offences under the Indian Penal Code to attract Section 55 of the K.P. Act. There is no allegation of any danger or harm to persons or property by the petitioner. The order of externment has curtailed movement of the petitioner. - 4 - HC-KAR NC: 2025:KHC-D:8688 CRL.P No. 102565 of 2025 He contends that even though the appeal is provided under Section 59 of the K.P. Act, the petition under Section 482 of Cr.P.C. / 528 of BNSS is maintainable. On these grounds he prayed for quashing of the impugned order of externment passed by respondent No.2 under Section 55 of the K.P. Act. 4. Learned HCGP for the respondents would contend that petitioner is a habitual offender. He is involved in three cases. Considering these said aspects, respondent No.2 has rightly passed the impugned order. He further contended that there is a remedy of appeal available under Section 59 of the K.P. Act and therefore, the present petition under Section 528 of BNSS is not maintainable. Thus, she prayed for dismissal of the petition. 5. Perused the material available on record. The contention of learned HCGP that the petitioner has got appeal remedy under Section 59 of the K.P. Act is required to be rejected in view of position of law declared by Co- - 5 - HC-KAR NC: 2025:KHC-D:8688 CRL.P No. 102565 of 2025 Ordinate Bench of this Court in the case of Ambadas and others vs. State of Karnataka and another1, wherein it has been held as under: “5. No doubt if there is express provision in the statute governing a particular subject matter, there is no scope for invoking or exercising inherent powers of the court; because the court ought to apply the provisions of the statute which are made advisedly to govern the particular subject matter and it being an extraordinary power, has to be sparingly exercised with great care and caution, the power cannot be invoked where another remedy is available and if any matter is covered by express provisions of the statute, the High Court cannot and need not give a go by invoking the provisions of S. 482 because that may amount to evolving new procedure in the grab of exercise of inherent powers, and that is well settled. Although as provided under S. 59 of the Act a remedy by appeal is available to any person aggrieved by such order of externment passed under S. 55 of the Act and the appeal lies to the Government, but from a reading of S. 59 together with S. 60 of the Act, it 1 ILR 1987 KAR 1481 - 6 - HC-KAR NC: 2025:KHC-D:8688 CRL.P No. 102565 of 2025 would appear that there is no bar against the court interfering with such order of externment in the circumstance as enumerated in S. 60 of the Act - (1) where the procedure laid down in sub-section (1) of S. 58 is not followed; (2) there is no material before the authority concerned upon which it could have based its order, and (3) the authority making the order is not of the opinion that witnesses were not willing to come forward to give evidence in public against the persons in respect of whom an order is made under S. 55. Forming of such opinion by the authority as to the willingness of the witnesses to come forward in public to give evidence against the persons sought to be proceeded is a must; because under clause (b) of S. 55, externment order could be made only where it appears there are reasonable grounds for believing that person of parsons in engaged or is about to be engaged in commission of an offence involving force or violence an offence punishable under Chapter XII, XVI or XVII of the Penal Code, or in the abetment of any such offence, and in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. Here in the case on hand, although the - 7 - HC-KAR NC: 2025:KHC-D:8688 CRL.P No. 102565 of 2025 learned Sub Divisional Magistrate appears to have referred to so many criminal cases instituted against the three of the petitioners, but nowhere he is of the opinion that cases against those of the persons had ended in acquittal because of the witnesses unwilling to give evidence for fear of safety of person or property. In fact, no material worth the name has been placed to show that the cases ended in acquittal because of such fear. At one stage, of course the S.D.M. appears to have thought, that may be so, but there is no basis for the same. As pointed but by their Lordships of the Supreme Court in the case of Prem Chand v. Union of India, mere apprehension of the police is not enough for passing an order of externment. Some ground or the other is not adequate for making the order of externment. There must be a clear and present danger based upon credible material which makes the movement and acts of the person in question alarming or dangerous or fraught with violence. Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in the locality or any part thereof is hazardous to the community and its safety. A stringent test must be applied in order to avoid easy possibility of abuse of this power to the detriment of the fundamental - 8 - HC-KAR NC: 2025:KHC-D:8688 CRL.P No. 102565 of 2025 freedoms. Natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Arts. 14, 19 and 21 of the Constitution. The Act permits externment, provided the action is bona fide. All power, including police power, must be informed by fairness if it is to survive judicial scrutiny. It would appear, the learned S.D.M. has been more influenced by the secret report sent by the Circle Inspector of Police about such apprehension and the secret visit to the place, which has not been put to the petitioners. In substance, the S.D.M. has failed to form an opinion on tangible material that witnesses were not willing to come forward to give evidence in public against the petitioners. The latter part of the requirement of Clause (b) of S. 55 having not been fulfilled, the impugned order of externment passed cannot be sustained.” 6. In the light of order being passed for externment of petitioner under Section 55 of the K.P. Act, it is necessary to notice the said provision which reads thus, “55. Removal of persons about to commit offences.— Whenever it shall appear in the City of - 9 - HC-KAR NC: 2025:KHC-D:8688 CRL.P No. 102565 of 2025 Bangalore and other areas for which a Commissioner has been appointed under section 7 to the Commissioner, and in other area or areas to which the Government may, by notification in the official Gazette, extend the provision of this section, to the District Magistrate, or the Sub-Divisional Magistrate having jurisdiction and specially empowered by the Government in that behalf,— (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, - 10 - HC-KAR NC: 2025:KHC-D:8688 CRL.P No. 102565 of 2025 the said officer may, by an order in writing duly served on him, or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts or any part thereof contiguous thereto by such route and within such time as the said officer may specify and not to enter, or return to the said place from which he was directed to remove himself.” 7. On perusal of the report of respondent No.3 and the impugned order passed by respondent No.2, there is no allegation of petitioner involving force or violence or an offence punishable under Chapter XII, XVI or XVII of IPC or in abetment of any such offences. There is also no allegation against the petitioner that respondent No.3 is of the opinion that witnesses are not wiling to come forward to give evidence in public case against petitioner for the reason of apprehension on their part as regards to safety of their persons or property. Therefore, clause (b) of - 11 - HC-KAR NC: 2025:KHC-D:8688 CRL.P No. 102565 of 2025 Section 55 of the K.P. Act is not made out. What is alleged against the petitioner is of committing offence under NDPS i.e., consumption of ganja. There is also no allegation of causing or calculating cause alarm or danger or harm to persons or property. What is alleged against the petitioner is that he consumed ganja. Therefore, clause (a) of Section 55 of the K.P. Act is also not made out. As there is no out break of epidemic decease, clause (c) of Section 55 of the K.P. Act is not attracted. 8. Considering above aspects, on perusal of the impugned order passed by respondent No.2 and report of respondent No.3, clause (a to c) of Section 55 of the K.P. Act are not made out to pass the order of externment. In the light of above impugned order passed by respondent No.2 is not sustainable under law. Accordingly, I proceed to pass the following: ORDER i) The petition is allowed. - 12 - HC-KAR NC: 2025:KHC-D:8688 CRL.P No. 102565 of 2025 ii) The impugned order dated 12/2025 passed against the petitioner in No.KAM/MAG/GADIPARU passed by the respondent No.2 under Section 55 of the K.P. Act is hereby quashed. Pending I.As., if any, stands disposed of. Sd/- (VENKATESH NAIK T) JUDGE HMB CT-AN List No.: 2 Sl No.: 23