B. YERRISWAMY S/O SHANKARAYYA vs STATE OF KARNATAKA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT DHARWAD
TH
DATED THIS THE 6 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL PETITION NO. 102412 OF 2026
(482(Cr.PC)/528(BNSS))
BETWEEN:
B. YERRISWAMY
S/O SHANKARAYYA
AGE: 43 YEARS, OCC: COOLIE,
R/O. WARD NO.5,
RADHA KRISHNA OIL MILL,
INDIRANAGAR, BALLARI-583101.
…PETITIONER
(BY SRI R. M. JAVED, ADVOCATE AND
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH
COURT OF
KARNATAKA
DHARWAD
SRI ANWAR BASHA B., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY SECRETARY,
DEPT OF HOME AFFAIRS,
VIDHANA SOUDHA,
BENGALURU-560001.
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2. SUPERINTENDENT OF POLICE AND
SPECIAL EXECUTIVE MAGISTRATE,
BALLARI-583101, REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD-580001.
3. POLICE INSPECTOR
APMC P.S, BALLARI - 583 101.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD-580001.
…RESPONDENTS
(BY SRI JAIRAM SIDDI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF
BNSS (U/S 482 OF CR.P.C.) PRAYING TO CALL FOR THE RECORDS
AND QUASH THE ORDER PASSED BY THE RESPONDENT NO.2 IN
NO.10/MAG/GADIPARU/2026, DATED 12.08.2026, PASSED BY THE
SUPERINTENDENT POLICE AND SPL. EXECUTIVE MAGISTRATE,
BALLARI (ANNEXURE-C).
THIS PETITION, COMING ON FOR FURTHER ARGUMENTS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VENKATESH NAIK T
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ORAL ORDER
The petitioner has filed this petition seeking to quash the
order dated 12.08.2026 passed in No.10/MAG/GadiPaaru/2026
by respondent No.2/the Superintendent of Police and Special
Executive Magistrate, Ballari. Consequently, the petitioner
seeks for a declaration that the impugned order is non-est and
seeks for quashing of the order of externment dated
12.08.2026 vide Annexure-C.
2. Learned counsel on record, namely Sri R. M. Javed,
submits that the Superintendent of Police, Ballari lacks
jurisdiction to exercise powers under Section 55 of the
Karnataka Police Act, 1963(for short 'Act 1963').
3. Before examining the competence of the
Superintendent of Police to invoke Section 55 of the Act, 1963,
it would be appropriate to first ascertain the legislative intent
underlying the incorporation of the said provision. Section 55 of
-
the Act, 1963 reads as under:
“ 55. Removal of persons about to commit offences.-
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Whenever it shall appear in the City of 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
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(c) that an outbreak of epidemic disease is likely to
result from the continued residence of an
immigrant, 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.”
(emphasis supplied)
4. A plain reading of the provision extracted supra makes
the legislative scheme abundantly clear. The legislature, in its
wisdom, has specifically identified the authorities competent to
exercise jurisdiction under Section 55 of the Act, 1963. Within
the City of Bangalore and other areas for which a Commissioner
has been appointed under Section 7 of the Act, 1963, the
power is vested in the Commissioner. In other areas, the power
may be extended by the Government, by notification in the
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Official Gazette, only to the District Magistrate or the Sub-
Divisional Magistrate having jurisdiction and specially
empowered by the Government in that behalf.
5. Hence, it would also be appropriate to extract Section
56 of the Act, 1963, which reads as under:
“ 56. Removal of persons convicted of certain
offences: If a person has been convicted at any
time either before or after the commencement
of this Act, —
(a) of an offence under Chapter XII, XVI or XVII of
the Indian Penal Code (Central Act 45 of 1860); or
(b) of an offence under section 6 of 13 of the Mysore
Mines Act, 1906 (Mysore Act 4 of 1906); or
(c) of an offence under section 86 of the Karnataka
Forest Act, 1963 (Karnataka Act 5 of 1964); or
(d) twice of an offence under section 19 of the
Mysore Prohibition of Beggary Act, 1944 (Mysore Act
33 of 1944) or any other corresponding law in force
in any area of the State; or
(e) twice of an offence under the Suppression of
Immoral Traffic in Women and Girls Act, 1956
(Central Act 104 of 1956); or
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(f) twice of an offence under the Untouchability
(Offences) Act, 1955 (Central Act 22 of 1955); or
(g) thrice of an offence within a period of three years
under section 78, 79 or 80 of this Act; or
h) thrice of an offence within a period of three years
under sections 32, 34, 37 or 38A of the Karnataka
Excise Act 1965, (Karnataka Act 21 of 1966),
the Commissioner, the District Magistrate, or any
Sub-divisional Magistrate specially empowered by the
Government in this behalf, if he has reason to
believe that such person is likely again to engage
himself in the commission of an offence similar to
that for which he was convicted, may direct such
person to remove himself outside the area within the
local limits of his jurisdiction or such area or 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 place from which he was directed to remove
himself.
Explanation.—For the purpose of this
section “an offence similar to that for which a
person was convicted” shall mean,—
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(i) in the case of a person convicted of an
offence mentioned in clause (a), an offence falling
under any of the Chapters of the Indian Penal Code
mentioned in that clause; and
(ii) in the case of person convicted of an
offence mentioned in clauses (e) and (f), an offence
falling under the provisions of the Acts mentioned
respectively in the said clauses.”
(emphasis supplied)
6. A conjoint reading of Sections 55 and 56 of the
Act, 1963, leaves no manner of doubt that the power
contemplated under the said provisions can be exercised
only by the authorities expressly identified therein. Section
55 further contemplates that, in areas other than those
falling within the jurisdiction of a Commissioner appointed
under Section 7, the power may be extended by the
Government only by issuing a notification in the Official
Gazette to the District Magistrate or the Sub-Divisional
Magistrate having jurisdiction and specially empowered in
that behalf. Thus, the statutory scheme itself identifies the
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permissible authorities and the manner in which the power
can be extended.
7. Learned HCGP, has sought to sustain the conferment
of powers upon the Superintendent of Police under Sections
55 and 56 of the Act, 1963, relying upon the notification
dated 18.11.2025, which has been produced before this
Court. The said notification consists of two parts. The first
part purports to exercise powers under Section 15 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short,
“BNSS, 2023”), while the second part purports to appoint
Additional District Magistrates and Special Executive
Magistrates and, consequentially, to confer upon the
Superintendent of Police powers under various provisions of
the Act, 1963, including Sections 55 and 56 of the aforesaid
Act. Therefore, the State has to publish a notification in the
Official Gazette purporting to confer powers under Sections 55
and 56 of the Act 1963 and the question would still arise as to
whether such a notification could validly designate a
Superintendent of Police as the authority competent to exercise
those powers. Therefore, this question requires examination
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with reference to the express language employed by the
legislature in Section 55 of the Act, 1963. Therefore, the
statutory classification is clear and unambiguous. The
Superintendent of Police does not fall within either of the
categories expressly contemplated by Section 55 of the Act,
1963. The office or cadre of Superintendent of Police cannot be
equated with that of a District Magistrate or a Sub-Divisional
Magistrate. The statutory authority identified by the Legislature
cannot be substituted by another authority merely by an
executive act of delegation.
8. It follows that even a notification published in the
Official Gazette cannot cure the inherent lack of statutory
competence of the Superintendent of Police. The power to
extend the operation of Section 55 is itself circumscribed by
the statute.
9. It is a well-settled principle of statutory
interpretation that where a statute prescribes the authority,
mode, and manner of exercise of power, the executive
cannot, by administrative instruction, circular, or
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notification, confer such power upon an authority not
contemplated by the statute. Executive instructions may
supplement statutory rules where there is a gap, but they
cannot override, amend, or run contrary to the express
provisions of the parent statute. This principle has been
consistently affirmed by the Hon'ble Supreme Court and
various High Courts, including the proposition that statutory
rules and designations cannot be superseded by executive
orders.
10. The Hon’ble Supreme Court in State of U.P. v.
Singhara Singh, AIR 1964 SC 358 as well as in Vijay
Singh v. State of U.P., (2001) 9 SCC 363 has observed
that where a statute confers a power and prescribes the
manner and the authority by whom it is to be exercised, the
same must be exercised only in the manner prescribed and
by the authority designated, any departure, including
performance by an unauthorised person, renders the Act
invalid. Further, in Sangeeta Suryavanshi v. State of
Chhattisgarh AIR 1991 SC 772 , the Hon’ble Apex Court
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has held that the executive instructions or notifications
cannot amend, supersede or run contrary to the express
provisions of the parent statute. Applying this to Section 55
of the Karnataka Police Act, 1963, the Superintendent of
Police, not being a Commissioner, District Magistrate or
Sub-Divisional Magistrate as contemplated by the statute, is
not a competent authority, any order of externment passed by
him is without jurisdiction.
11. This conclusion is also fortified by the principle
recognised in the decision of the Allahabad High Court in Sri
KedarNath v. Mool Chand, reported in AIR 1953 All
62 , wherein the expression “District Magistrate” was
considered in the context of the statutory authority
conferred upon such officer. The statutory description of an
authority cannot be enlarged by an executive notification so
as to include an officer who does not fall within the
statutory class contemplated by the legislature.
12. Tested on the touchstone of the aforesaid
statutory scheme, the notification dated 18.11.2025, which
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is now placed on record by learned HCGP, cannot withstand
judicial scrutiny. The second part of the notification, insofar as
it purports to confer powers under Sections 55 and 56 of the
Act, 1963, upon the Superintendent of Police, is contrary to the
express mandate of Section 55 of the Act, 1963.
13. For the foregoing reasons, this Court is of the
considered view that the conferment of powers under
Sections 55 and 56 of the Act, 1963, upon the
Superintendent of Police under the notification dated
18.11.2025 is without jurisdiction and contrary to the
express scheme of the Act, 1963. The notification, insofar
as it purports to confer such jurisdiction upon the
Superintendent of Police, is therefore liable to be declared
non-est and a nullity. Consequently, all consequential
proceedings founded upon such exercise of jurisdiction
cannot be sustained.
14. For the aforesaid reasons, this Court proceeds to
pass the following:
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ORDER
1. The criminal petition is allowed .
2. The notification dated 18.11.2025 is declared non-est and
a nullity, insofar as the second part thereof purports to
appoint/confer powers upon the Superintendent of Police
as the authority competent to exercise powers under the
Karnataka Police Act, 1963, including Sections 55 and 56
of Karnataka Police Act, 1963, thereof.
3. Consequently, the order of externment dated 12.08.2026
passed by respondent No.2, vide Annexure-C, is hereby
quashed.
4. It is clarified that this order shall not preclude the
competent statutory authority from taking such action as
may be permissible in law, strictly in accordance with the
provisions of the Karnataka Police Act, 1963.
Sd/-
(VENKATESH NAIK T)
JUDGE
MN /CT-SK
List No.: 1 Sl No.: 17