2011 ALL MR (Cri) 3103
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.P. BHANGALE, J.

Aleem Khan Salim Khan Vs. Sub-Divisional Officer & Ors.

Criminal Writ Pprtition No. 210 of 2011

11th August, 2011

Petitioner Counsel: Shri. V. NAVLANI
Respondent Counsel: Shri. A.S. PARIHAR

Bombay Police Act (1951) Ss.56(a), (b) - Externment order - Cannot be passed mechanically without application of judicial mind - The externment order can have devastating effect on the dependants such as parents, wife and children of the proposed externee as it can make them vagrant and destitute for loss of only earning member of family - Held, fair play and justice require adequate opportunity of hearing.

Fair-play and Justice require adequate opportunity of hearing. The Authority, in such a case, before passing the order of externment, must satisfy itself about the sufficient reason to believe that there is clear and present danger based upon credible information that the externee may, by alarming or dangerous acts, cause hazards to safety in the locality unless externed. In the present case, in all the four cases in which the accused/petitioner was acquitted, the concerned witnesses did attend the Court to depose their version. This important fact ought to have been considered by the Authority. Non-consideration of material placed by the proposed externee does amount to violation of fair-play and justice.

Powers are vested in the Authority concerned to take prophylactic action to protect the society from imminent dangers. But such action must be fair and reasonable. The notice, contains vital defects. In the first place, it is the remarks in respect of the list of "Court Pending" cases. If petitioner is acquitted in majority of cases listed, he could easily persuade the Authorities to the effect that there has been a complete stoppage of activities on his part and no order of externment is called for. Held, the allegations of beating people, causing loss to the people's properties are somewhat vague. Such order of externment is illegal and liable to be set aside. Cases that "court pending" were suggestive of want of inquiry and non-application of mind when Judgments of acquittals were brought to the notice of the Authority concerned. The allegations made in the notice must be substantiated. It must be borne in mind that taking recourse to the provisions of the Bombay Police Act is an exception and it is only in an emergent situation that such remedy is expected to be resorted to by the Authority in the larger interest of the society. Passing an order of externment in view of the nature of the offences would not be the sole criteria and the Authority will have to inquire into the other pertinent question as to whether the present activity of the individual concerned has reached to such degree of harm to the society that in the interest of the society and the people of that particular locality it is necessary that the person proposed to be externed who has become public menace should be externed from the locality. Therefore, where the externing Authority has taken into consideration the incident which has not been stated in the notice issued to the externee u/s.56 of the Bombay Police Act, the failure on the part of the externing authority to put on notice to the externee regarding this particular circumstances vitiates the order of externment and offends to principle of fair play and justice. The petitioner was called upon and permitted to adduce evidence of only two defence witnesses. This again is unreasonably restrictive and arbitrary on the part of the Authority. This offends fair play and Justice. The externment order cannot be passed mechanically without application of judicious mind. The externment order can have devastating effect on the dependants such as parents, wife and children of the proposed externee as it can make them vagrant and destitute for loss of only earning member of family. 2007 ALL MR (Cri) 1677 and 2007 ALL MR (Cri) 3147 - Ref. to. [Para 12,13]

Cases Cited:
Ganpat @ Ganesh Tanaji Katare Vs. Assistant Commissioner of Police and Ors., 2005 ALL MR (Cri) 2717 [Para 8]
Ramrao Jairam Rathod Vs. Sub-Divisional Officer, Murtizapur, Distt. Akola, 2007 ALL MR (Cri) 1677 [Para 8]
Sanjay Pandurang Nagpure Vs. State of Maharashtra and another, 2007 ALL MR (Cri) 3147 [Para 9]
Dhananjay Vs. State of Maharashtra, 2005 ALL MR (Cri) 971=2005(2) Mh.L.J. 384 [Para 11]


JUDGMENT

JUDGMENT :- Rule. Taken up for hearing and Heard by consent at the stage of admission .

2. The petitioner by this Writ Petition under Article 226 of the Constitution of India has questioned the order dated 08/03/2011 passed by the Sub Divisional Magistrate, Morshi, District Amravati, who, in exercise of the power under Section 56 (a) and (b) of the Bombay Police Act , 1951 ordered externment of the Petitioner for the period of two years from the District on the ground that the Petitioner is indulging in various types of cases and due to which, the life and properties of the people of Morshi area have been put to danger and social fabric of the society has become disturbed .

3. The facts, briefly stated, are as under :

A proposal was moved from the Police Station Officer, Morshi dated 16/11/2010 through the Superintendent of Police (Rural), Amravati for externment of the Petitioner on the ground that there were cases registered at different Police stations against the Petitioner as follows:-

4. On 07/12/2010, the Sub Divisional Police Officer was directed by the Sub-Divisional Magistrate, Morshi to conduct inquiry Under Section 59 of The Bombay Police Act, 1951 and to submit report within 7 days. On the same day, a show cause notice was issued to the Petitioner by the SDM Morshi stating therein that the Petitioner is facing 14 cases and he was called upon to show cause as to why he shall not be externed from the boundaries of the Amravati District for a period of two years.

5. The Sub-Divisional Police officer had called upon the Petitioner to appear with two witnesses and give reply / explanation to the charges on 10/12/2010. The Petitioner gave reply on 14/12/2010 stating that he was acquitted in four of the cases long before. It is submitted that the contentions in the reply were not properly considered and an arbitrary order for externment came to be passed in violation of the principles of natural Justice .

6. The proposal was made on the ground that the externee was doing the business of the scrap goods and is gang lord of theives and leading a luxurious life. He is facing criminal cases for theft, housebreaking, instigating children to commit theft, assault on Government employees and no body dares to give evidence against him.

7. The Petitioner responded by reply that he was acquitted in the first four listed cases and was discharged in case at serial No.10. He claimed that he has no concern with the cases at Serial Nos. 12 and 14. The Petitioner claimed that there was no sufficiently strong reason to take externment action against him according to law. He alleged that he had tried to unveil the corrupt civic employees and protested by resorting to fast unto death for to fight against corruption, but the Officers conspired to implicate the Petitioner in false cases. The Petitioner also claimed that he is a law abiding citizen having respect for the society and the law.

8. The learned Advocate for the petitioner placed reliance on the ruling in the case of Ganpat @ Ganesh Tanaji Katare Vs. Assistant Commissioner of Police and Ors. reported in 2005 ALL MR (Cri) 2717 to submit that if, in the externment order, reliance is placed on extraneous material in terms of prejudicial activities of externee, the order of externment deserves to be set aside on the ground of violation of principles of natural justice. The learned Advocate for the petitioner further placed reliance on the ruling in the case of Ramrao Jairam Rathod Vs. Sub-Divisional Officer, Murtizapur, Distt. Akola reported in 2007 ALL MR (Cri) 1677 and submitted that before the externment order is issued, it is mandatory to issue a show cause notice under Section 59 of the Bombay Police Act. As a necessary corollary, therefore, the externment order must be passed on the basis of material referred to in the show cause notice else the show cause notice itself would be meaningless.

9. Further reliance is placed by the learned Advocate for the petitioner on the ruling in the case of Sanjay Pandurang Nagpure Vs. State of Maharashtra and another reported in 2007 ALL MR (Cri) 3147. He submitted that in the said case it is held by this Court that the order of externment should be based upon the material which is present in the show cause notice and where the said order suffers from infirmity, it is liable to be set aside.

10. The learned Advocate for the Petitioner submitted that no order of externment can be passed on the grounds which did not form the part of show cause notice. Secondly, the contentions raised in reply to the show cause notice ought to be considered so that an individual shall not be deprived of his personal liberty. The Petitioner gave three replies dated 20/12/2010, 10/01/2011 and 14/02/2011 and had examined two witnesses. But the learned Sub Divisional Magistrate has completely ignored the evidence put forward by the Petitioner before passing the impugned order, which is violative of the principles of natural justice and therefore, deserves to be set aside. The Petitioner was also arbitrarily restricted to bring only two witnesses during an inquiry under Section 59 of the Bombay police Act. The Sub-Divisional Magistrate failed to note that many allegations made by the Sub-Divisional Police Officer were not substantiated by any evidence.

11. The learned APP submitted in support of the impugned order that there was no breach of the principles of natural Justice and the Applicant could have availed of the alternative remedy to challenge the impugned order. Regarding the availability of the alternative remedy, the learned Advocate for the Petitioner is quick to point out that the Petitioner is entitled to approach the High court without exhausting the remedy under Section 60 of the Bombay Police Act. Reliance is placed upon the ruling in the case of Dhananjay Vs. State of Maharashtra, 2005 (2) Mh.L.J. 384 : [2005 ALL MR (Cri) 971].

12. Considered the contentions canvassed by the Advocates appearing on behalf of the respective parties. It is true that fair-play and Justice require adequate opportunity of hearing. The Authority, in such a case, before passing the order of externment, must satisfy itself about the sufficient reason to believe that there is clear and present danger based upon credible information that the externee may, by alarming or dangerous acts, cause hazards to safety in the locality unless externed. In the present case, in all the four cases in which the accused/petitioner was acquitted, the concerned witnesses did attend the Court to depose their version. This important fact ought to have been considered by the Authority. Non-consideration of material placed by the proposed externee does amount to violation of fair-play and justice.

13. Powers are vested in the Authority concerned to take prophylactic action to protect the society from imminent dangers. But such action must be fair and reasonable. The notice, in my opinion, contains vital defects. In the first place, it is the remarks in respect of the list of "Court Pending" cases. If petitioner is acquitted in majority of cases listed, he could easily persuade the Authorities to the effect that there has been a complete stoppage of activities on his part and no order of externment is called for. I am also of the opinion that the allegations of beating people, causing loss to the people's properties are somewhat vague. Such order of externment is illegal and liable to be set aside. Cases that "court pending" were suggestive of want of inquiry and non-application of mind when Judgments of acquittals were brought to the notice of the Authority concerned. The allegations made in the notice must be substantiated. It must be borne in mind that taking recourse to the provisions of the Bombay Police Act is an exception and it is only in an emergent situation that such remedy is expected to be resorted to by the Authority in the larger interest of the society. Passing an order of externment in view of the nature of the offences would not be the sole criteria and the Authority will have to inquire into the other pertinent question as to whether the present activity of the individual concerned has reached to such degree of harm to the society that in the interest of the society and the people of that particular locality it is necessary that the person proposed to be externed who has become public menace should be externed from the locality. Therefore, where the externing Authority has taken into consideration the incident which has not been stated in the notice issued to the externee u/s.56 of the Bombay Police Act, the failure on the part of the externing authority to put on notice to the externee regarding this particular circumstances vitiates the order of externment and offends to principle of fair play and justice. The petitioner was called upon and permitted to adduce evidence of only two defence witnesses. This again is unreasonably restrictive and arbitrary on the part of the Authority. This offends fair play and Justice. The externment order cannot be passed mechanically without application of judicious mind. The externment order can have devastating effect on the dependants such as parents, wife and children of the proposed externee as it can make them vagrant and destitute for loss of only earning member of family.

14. For the reasons stated hereinabove, the impugned order is indefensible and must be quashed. It is hereby quashed and set aside. Rule is made absolute accordingly. No order as to costs.

Petition allowed.