The High Court directed that an externment order be stayed during the pendency of an appeal against it and mandated the Commissioner to decide the appeal within 90 days under Article 226.
Stay on the externment order during appeal pendency and a direction to decide the appeal within 90 days.
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Neutral Citation No. - 2023:AHC:177295
Court No. - 80
Case :- CRIMINAL MISC. WRIT PETITION No. - 13980 of 2023
Petitioner :- Saheb Alam @ Mitthi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Md. Nuruddin Khan,Md Zakir Husain Counsel for Respondent :- G.A.
Hon'ble Subhash Chandra Sharma,J.
None appeared for the petitioner except learned A.G.A. for the State.
The present writ petition under Article 226 of the Constitution of India has been moved with following prayers :-
I- To issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 15.06.2023 passed by Commissioner, Gorakhpur Division, Gorakhpur in Case No.618 of 2023, Computerized Case No. C202305000000618 (Saheb Alam @ Mitthi vs. Additional District Magistrate, Administration, Deoria) under Section 6 of U.P. Control of Goondas Act, 1970, Police Station Salempur, District Deoria.
II- To issue a writ, order or direction in the nature of Mandamus directing the respondent no.2 i.e. Commissioner, Gorakhpur Division, Gorakhpur to decide the appeal filed by the petitioner bearing Appeal No.618 of 2023, Computerized Case No.C202305000000618 (Saheb Alam @ Mitthi vs. Additional District Magistrate, Administration, Deoria) under Section 6 of U.P. Control of Goondas Act, 1970, Police Station Salempur, District Deoria pending before him expeditiously within the stipulated period.
It is submitted by learned counsel for the petitioner that an order for externment under Section 3/4 U.P. Control of Goondas Act, 1970 was passed by the Additional District Magistrate, Deoria in Case No.1825 of 2022 vide order dated 15.04.2023 on the basis of report dated 18.11.2022 against which an appeal was filed before the Commissioner, Gorakhpur Division, Gorakhpur which was admitted and is still pending though stay application of the petitioner was rejected by the appellate court. In this way, during
the pendency of appeal, if the affect of order in question is not stayed the purpose of appeal would be defeated, therefore, requested to direct the court concerned not to take any coercive action against the petitioner in pursuance of externment order dated 15.04.2023 during the pendency of appeal and to decide the appeal as expeditiously as possible.
Learned A.G.A. urged that in this case order was passed by the Additional District Magistrate, Deoria on the basis of material on record and against which appeal was filed but he has nothing to object about the stay of operation of order for externment during the pendency of appeal.
Considering the facts and circumstances of the case, submissions made by learned counsel for both the parties, perusal of record and the order passed by the Commissioner at the time of admission of appeal, it appears that though the appeal has been filed and is still pending before the court of Commissioner for final hearing but no order for staying the implementation of externment was passed which cannot be said to be lawful.
As a result, it is directed that the order dated 15.04.2023 passed by the Additional District Magistrate, Deoria for externment and under challenge in appeal shall remain in abeyance during the pendency of appeal.
It is also directed that Commissioner, Gorakhpur Division, Gorakhpur shall make his endeavour to decide the appeal of the petitioner as expeditiously as possible preferably within a period of 90 days from the date of production of certified copy of this order.
Accordingly, this writ petition is disposed of finally.
Order Date :- 13.9.2023 Ashok Gupta
Digitally signed by :- ASHOK KUMAR GUPTA High Court of Judicature at Allahabad
2 issues framed by the court
Whether an appeal lies pending prevents coercive action under an externment order absent a specific stay.
Whether the appellate court must decide an externment appeal with a specified time limit.
3 provisions across 2 enactments
Saheb Alam @ Mitthi
State Of U.P.
Hon'ble Subhash Chandra Sharma,J.
Ashok Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
