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2023 DIGILAW 106 (KAR)

Baba v. State of Karnataka

2023-01-18

K.NATARAJAN

body2023
JUDGMENT/ORDER 1. This petition is filed under Articles 226 and 227 of Constitution of India read with Sec. 482 of Cr.P.C. for quashing the order passed by the Deputy Commissioner cum Sub-Divisional Magistrate, Tumakuru Sub-Division, Tumakuru in MAG:24/2022 by passing the order of deportation of the petitioner for six months. 2. Heard Sri S.A. Nishad, the learned counsel for the petitioner and Sri Kiran S. Javali, learned SPP-I along with Sri. Rohith B.J., learned High Court Government Pleader for the respondents. 3. The case of the petitioner is that the Deputy Commissioner, Tumakuru District passed an externment order dtd. 1/12/2022 under Ss. 55 and 56 of the Karnataka Police Act, 1963 (for short 'K.P. Act') for six months on the ground that as per the report of the Deputy Superintendent of Police and the Inspector of Police, Thilak Park Police Station, Tumakuru, the petitioner is involved in four criminal cases and FIR has been registered against him for the offences punishable under Ss. 4, 9, 11 of Karnataka Prevention of Cow Slaughter and Cattle Prevention Act, 1964 and Ss. 4, 7, 12(1)(2) of the Karnataka Prevention of Slaughter and Preservation of Cattle Ordinance, 2020. It is contended that when the Bhajarangdal people filed a complaint against the petitioner and when the complainant and others came out of the police station, the petitioner and son of the petitioner attacked them in order to commit murder. A case under Sec. 307 of IPC also registered against the son of the petitioner. Therefore, the petitioner was disturbing the peace and tranquility in the area and involved in illegal activities. Therefore, in order to prevent the further commission of offence, the impugned order has been passed by the Sub-Divisional Magistrate which is under challenge. 4. The learned counsel for the petitioner has contended that there is no offence committed by the petitioner in order to say that he has involved in disturbing the public peace and tranquility, the same police registered a false case against the petitioner which are under investigation and there is no offence committed by this petitioner which is punishable under Sec. 307 of IPC. If the son of the petitioner committed any offence, he has to face the consequences but the petitioner cannot be punished. Learned counsel further contended that the petitioner is a layman running a hotel and he has made as scapegoat. If the son of the petitioner committed any offence, he has to face the consequences but the petitioner cannot be punished. Learned counsel further contended that the petitioner is a layman running a hotel and he has made as scapegoat. The cases were pending before the Division Bench in respect of Sec. 5 of the Karnataka Prevention of Cow Slaughter and Cattle Prevention Act and an interim order has also been granted. The order passed by respondent No.2 is of non application of mind. All the FIRs were registered within a span of three months. Therefore, the order of deportation is not sustainable under the law. Hence, prayed for quashing the impugned order. 5. Per contra, learned SPP-I has raised preliminary objection contending that the order passed by respondent No.2 is appealable order. The petitioner can approach the Appellate Authority under Sec. 59 of the K.P. Act and filing petition before this Court is not correct. He has to approach the First Appellate Authority and this Court cannot appreciate the fact of the case by sitting as an Appellate Authority. It is the Appellate Authority to re- appreciate the facts, when the alternative statutory remedy is available, the petition is not maintainable. Hence, prayed for dismissing the petition and further contended that if respondent No.2 has not followed the principles of natural justice, these are all the facts, which is the burden on the petitioner to raise those grounds before the Appellate Authority and not before this Court. He further contended that the son of the petitioner attacked the complainant, a case in Crime No. 63/2022 has been registered against the son of the petitioner. Therefore, prayed for dismissing the petition. 6. In reply arguments, the learned counsel for the petitioner has contended that there is no bar for filing the Writ Petition before this Court without approaching the Appellate Authority by filing an appeal. The learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court as well as High Court. Learned SPP also relied upon the unreported orders passed by this Court. 7. Having heard the arguments and on perusal of the records, the learned counsel for the petitioner has contended that the Deputy Commissioner passed the impugned order without giving proper opportunity to the petitioner, though filed the objections, but no proper enquiry has been made. Learned SPP also relied upon the unreported orders passed by this Court. 7. Having heard the arguments and on perusal of the records, the learned counsel for the petitioner has contended that the Deputy Commissioner passed the impugned order without giving proper opportunity to the petitioner, though filed the objections, but no proper enquiry has been made. On the very next day, the order has been passed by deporting the petitioner and even has not followed the principles of natural justice etc. Per contra, learned SPP objected the petition mainly on the ground that if these grounds are argued, then the petitioner has to go before the Appellate Authority under Sec. 59 of the K.P. Act. This Court cannot appreciate the facts in respect of giving proper opportunity and principles of natural justice. On the other hand, the petitioner counsel has contended that there is no bar for the petitioner to approach this Court under Writ Petition without seeking alternative remedy before the Appellate Authority. In this regard, the learned SPP has relied upon the unreported judgments of the Co-ordinate Benches of this High Court in the case of Ibrahim Khaleel vs. the State and others in W.P.No.2197/2018 dtd. 19/1/2018, in the case of Yogish vs. State and others in W.P.No.36901/2018 (GM-POLICE) dtd. 5/11/2018 and in the case of Saleem @ Sherva Sallem vs. State and others in W.P.No.102340/2022 dtd. 30/6/2022. In all these three cases, the Co-ordinate Bench of this Court has held that when the alternative remedy is available under Sec. 59 of the K.P. Act, petition filed before the Court is not maintainable. Hence dismissed the writ petitions. 8. However, the learned counsel for the petitioner has relied upon the judgment of the Co-ordinate Bench of this Court in the case of M.Harish Reddy @ Harish vs. Assistant Commissioner and others in Crl.R.P.No.1097/2019 dtd. 16/9/2019, has held that even the petitioner can approach the High Court without seeking remedy before the Appellate Authority and set aside the order of externment. In another judgment in the case of Ambadas vs. State of Karnataka reported in ILR 1987 Kar. 1481, in similar case, the Single Bench of this Court has taken similar view that even though the alternative remedy is available, the petitioner can approach this Court under the writ jurisdiction. 9. In another judgment in the case of Ambadas vs. State of Karnataka reported in ILR 1987 Kar. 1481, in similar case, the Single Bench of this Court has taken similar view that even though the alternative remedy is available, the petitioner can approach this Court under the writ jurisdiction. 9. The learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of Deepak S/o. Laxman Dongre vs. State of Maharashtra reported in AIR 2022 SC 1241 , where the Hon'ble Supreme Court has held that the Authority while passing the order under Sec. 56 of K.P. Act is not expected to write a judgment containing elaborate reasons, but, they have to analyse the material placed for subjective satisfaction which has been recorded and that can be reviewed by the Court. In the said case, the parties have approached the Appellate Authority under Sec. 59 of the K.P. Act, thereafter approached the High Court and thereafter, approached the Hon'ble Supreme Court. The Hon'ble Supreme Court in the case of Authorised Officer, State Bank of Travancore and Another vs. Mathew K.C . in Civil Appeal No.1281/2018 (Arising out of SLP(C)No.24610/2015 has held that when the alternative remedy is available, the party shall approach the appropriate forum. Therefore, in view of the judgment of the Hon'ble Supreme Court stated supra, the petitioner is required to approach the Appellate Authority under Sec. 59 of the K.P. Act as the matter requires appreciation of facts and the opportunity said to be not accorded to the petitioner by the Deputy Commissioner before passing the impugned order, which is against the principles of natural justice. Therefore, I am of the view, the petition is liable to be dismissed. 10. Accordingly, the petition is dismissed. The petitioner is at liberty to approach the Appellate Authority under Sec. 59 of the K.P. Act.