Ambaray vs Assistant Commissioner Cum Sub Divisional Magistrate, Kalaburagi & Others

T G Shivashankare Gowda, J

This petition is filed by the petitioner under Section 397 read with Section 401 of Cr.P.C. (438 of BNSS-2023) questioning the order of Externment passed by the learned Assistant Commissioner cum Sub Divisional Magistrate, Kalaburagi in SAM / KAM / MAG / 2 / 25 / 2024 - 2025.

Heard the arguments of learned counsel for the petitioner and the learned High Court Government Pleader for the State.

It is contended by the learned counsel for the petitioner that the allegations made in the report of the Investigating Officer to the Sub Divisional Magistrate are with respect to the irrelevant matters, which are nothing to do with the learned Sub Divisional Magistrate to exercise the jurisdiction of Externment. It is also submitted that it is a dateless order and it is a stereotype. In the criminal cases which have been registered against the petitioner, some of them have ended in acquittal, some of them are pending for trial and in some of them the petitioner was granted bail. If any grievance in respect of violation of terms and conditions of the bail, the concerned police ought to have approached the jurisdictional Court for cancellation of the bail, instead Sub Divisional Magistrate has mechanically passed the impugned order and sought for allowing the petition.

Per contra, the learned High Court Government Pleader contended that the report of the Police clearly indicates that the petitioner is a rowdy sheeter, he has professionally associated in filing the false criminal cases against the Government officials, forcing them to come to the terms outside the Court for extraneous consideration. The order of the learned Sub Divisional Magistrate is in accordance with law and is argued in support of the impugned order.

I have given my anxious consideration to the arguments addressed by both sides and perused the materials on record.

No doubt, the petitioner is a rowdy sheeter, he has been associated in many cases from the year 2002 to 2024. In these cases, some of them have already ended in acquittal and in some of them the petitioner is facing the trial. The allegations made in the report of the Police that he is misusing the provision of law for extraneous consideration against Government Officials. But no such reference found in the very report.

On perusal of the impugned order, it is pertinent to note that the learned Sub Divisional Magistrate referred the report of the PSI of Naruna Police Station. The report did not explain subjective satisfaction, which is mandatory before exercising a jurisdiction to order for externment of the petitioner, which is going to affect his personal liberty. It is interesting to note that the order did not point out on which day it was pronounced, but the certified copy was issued to the petitioner on 30.08.2024. Hence, the learned Sub Divisional Magistrate has to record the subjective satisfaction before passing any Externment order. Hence, the impugned order could not stand to its reason, hence, petition deserves merits consideration.

In the result, the following:

ORDER

I. The petition is hereby allowed.

II. The impugned order in SAM / KAM / MAG / 2 / 25 / 2024-2025 passed by the Assistant Commissioner Cum Sub Divisional Magistrate, Kalaburagi, is hereby set aside.

III. The matter is remanded back to the Sub Divisional Magistrate to take up the matter and give an opportunity to the petitioner, rehear the matter and only after recording subjective satisfaction, pass an order in accordance with law.