Criminal Writ Petition No. 2188 of 2013

12th August, 2013

Petitioner Counsel: Mr. RAHUL KADAM
Respondent Counsel: Mrs. M.H. MHATRE

Cases Cited:
Sabuddin Sheikh Mansur Vs. J.S. Thakar And Anr., AIR 1969 Guj.1 [Para 4]
Hari Khemu Gawali Vs. Deputy Commissioner of Police, Bombay and Anr., AIR 1956 SC 559 [Para 5]

JUDGMENT

K. R. SHRIRAM, J. :- Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.

The order of externment passed by the Sub-Divisional Magistrate, Satara Sub-Division, Satara has been challenged on various grounds.

2. That order which was passed on 20th April 2013 has been confirmed by the Appellate Authority by its order dated 4th June 2013. The Petitioner has been externed from the entire Satara District pursuant to this order for a period of two years.

3. The counsel appearing for the Petitioner took a preliminary objection that the Authority who has passed the externment order is not specifically empowered by the State Government and therefore order is without authority in law and jurisdiction because the Sub-Divisional Officer who has passed the order was not specifically empowered by the State Government by notification and in the official gazette.

4. The counsel for the Petitioner relied on the judgment of Gujarat High Court reported in AIR 1969 Guj.1 in the case of Sabuddin Sheikh Mansur V/s. J.S. Thakar And Anr. in which the Court has dealt with the interpretation of the expression "the Sub Divisional Magistrate specially empowered by the State Government in that behalf" as used in Section 56 of the Bombay Police Act. In that judgment the Gujarat High Court dealt with the interpretation on the basis that the adverb "specially" qualifies the verb "empowered" and went to hold :

"9. Therefore, on the whole, we have come to the conclusion that, the correct interpretation of the expression which we have to construe is that, in order that there may be a special conferment of power under Section 56 aforesaid in regard to a Sub Divisional Magistrate, power must be conferred upon that officer either by his name or by virtue of his office. In either case, Government must have definitely before its mind's eye the particular individual or person who is being selected for the conferment of power. If that is not so, then, the officer is not specially empowered. On the other hand, in our judgment, if power is conferred upon the classes of Sub Divisional Magistrates, which will be the case if more than one particular individual is intended by the Government - and specially so if the Government intends to empower the successors in office of the Sub Divisional Magistrates concerned-(then, it is a general conferment of power,"

5. The counsel for the Petitioner also relied upon a judgment of the Apex Court reported in AIR 1956, SC 559 in the case of Hari Khemu Gawali Vs. Deputy Commissioner of Police, Bombay and Anr. to support his contentions that order of externment can be passed only by a Commissioner of Police or a District Magistrate or a Sub Divisional Officer "specially" empowered by the State Government in that behalf. However, we do not see any reason to consider the issue as both these judgments are not relevant inasmuch as the word "specially" has been deleted by Mah.2 of 1994,s.2.

6. The Petitioner has also raised other grounds of rejection. It is the Petitioner's allegation that show cause notice is vague, principles of natural justice is violated, the Externing Authority has not taken into consideration the averments of the Petitioner, the externment order was passed without formation of opinion of subjective satisfaction, the ingredients of Section 56(1)(a) of the Bombay Police Act is not mentioned in the notice or the order, that externment order is passed by considering extraneous material which are not part of notice and no particulars have been given regarding the in-camera statements etc.

7. In reply, the learned APP submitted that the principles of natural justice is not violated, the externment order was issued as per the provisions of Bombay Police Act and the witnesses are not approaching to give testimony against the Petitioner. According to the impugned order, it was also a preventive action taken to maintain peace in the said area and was of preventive nature and the Externing Authority has relied on four cases before arriving at the decision to extern the Petitioner and they were serious offences namely extortion, dacoity, chain snatching, assaulting, abusing etc. The Petitioner has averred that the Petitioner has been acquitted in one out of the four cases mentioned in the externment order namely CR No.187/2012. The learned APP submitted that assuming that was correct, that would not exonerate the Petitioner because there are still other three cases pending.

8. As regards the other grounds, as submitted by the Petitioner, we find that the Sub-Divisional Officer, Satara has issued show cause notices to the Petitioner on 31.07.2012 and 28.02.2013 under Section 57(A)(1) & 59(1) of the Bombay Police Act. The Petitioner has not even replied to the said show cause notices.

9. It also appears from the impugned order that the Petitioner was given opportunities to defend himself but has not produced any evidence through himself or any of his representatives. It is also alleged by the Petitioner that the Externing Authority has not taken into consideration the submissions of the Petitioner but as stated above, there is no say of the Petitioner even annexed to this Petition nor it is averred that any say in writing was given. Therefore, the ground that no sufficient opportunity of hearing was given to the Petitioner or that the Externing Authority has proceeded on extraneous material, as such, cannot be accepted.

10. At the same time, what we find from the impugned order is that the Petitioner is supposed to be proceeded against on the footing that there are criminal cases registered against him in Satara City Police Station. There are, as it appears from the externment order, no criminal cases registered against the Petitioner in other Police Stations within the Satara District. The externment order does not give reasons as to why, when criminal cases are registered only at Satara City Police Station, the Petitioner be externed from the entire Satara District. Though a general statement is made in the externment order that offences are being committed within the District, it does not even mention in which other Police Stations within the District, cases have been registered against the Petitioner. Power to extern must be exercised with due care and regard of human rights. Mere statement that the Petitioner has committed various offences in Satara District is not sufficient to extern him from the District. The passing of externment order must pass the test of reasonableness and fairness as it is infringing upon the personal liberty of the Petitioner.

11. As a result of the above discussion, we are of the opinion that the Externing Authority has not applied its mind as to why the Petitioner is required to be externed from the entire Satara District. More so, when the cases against him have been registered at Satara City Police Station. Therefore, the impugned orders are clearly excessive and arbitrary. Once they are found to be so, then, they cannot be sustained and are required to be quashed and set aside. They are, accordingly, quashed and set aside.

12. Rule is made absolute in terms of prayer clause [A]. All concerned to act on an authenticated copy of this order.

Ordered accordingly.