Quashed

Shyam Laxman Mahajan v. the State of Maharashtra and Anr.

Bombay HC4 Dec 2012WP/2980/2012

Case brief

AI extract

What is this about?

The High Court of Bombay quashed an order of externment passed against the petitioner under the Bombay Police Act, 1951. The Court held that the passing of such a drastic order affecting liberty without providing adequate time to produce evidence after the show cause notice violated the principles of natural justice.

What did the court decide?

Rule is made absolute quashing the order of externment passed by the Deputy Commissioner of Police.

Shyam Laxman Mahajan Vs the State of… — Pension and Retirement Benefits | Bombay HC (2012)

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Dixit

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WP-2980-12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.2980 OF 2012

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Shyam Laxman Mahajan,	]
Aged about 19 Years,	]
Having address at Hirawadi,	]
Panchvati, Nashik	]
Presently residing out of Nashik	]
due to Externment Order	]	… Petitioner
Versus
1) The State of Maharashtra,	] ]
2) The Dy. Commissioner of Police, Parimandal 1, Nashik	] ]	… Respondents

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Mr. Prashant Gavai for the Petitioner.

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Mrs. M.M. Deshmukh, A.P.P., for the Respondents.

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Mr. Sahebrao Patil, D.C.P. - Zone I, Nasik City, is present.

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CORAM : A.S. OKA & S.S. SHINDE, JJ.

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DATE : 4 TH DECEMBER, 2012.

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ORAL JUDGMENT : {Per A.S.OKA, J.}

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By this Petition, under Article 226 of the Constitution of India, the Petitioner has challenged the order of externment dated 13^th February, 2012 passed by the Deputy Commissioner of Police, Nasik and order of confirmation thereof in the Appeal. By the order of externment, the Petitioner has been ordered to be externed from the Nasik City and from Nasik Rural District for a period of two years.

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We have called upon the learned A.P.P. to produce the record. We have heard the learned Counsel appearing for the Petitioner and the learned A.P.P. for the Respondents.

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Apart from the contentions raised on merits, the learned Counsel appearing for the Petitioner submitted that the Deputy Commissioner of Police issued notice to the Petitioner calling upon him to remain present on 13^th February, 2012 and called upon him to show cause as to why order of externment should not be passed. He pointed out that, on that day, the Petitioner appeared along with his Advocate and sought time for producing the copies of the orders of acquittal and other evidence. He pointed out that in the impugned order, it is recorded that as Polling of the General Ward Election of the Municipal Corporation of the City of Nasik, was fixed on 16^th February, 2012, there is a likelihood of danger from the Petitioner and, therefore, without granting time, on the same day, order of externment was passed. His submission is that the order is, thus, in breach of principles of natural justice.

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The learned A.P.P. invited our attention to the file of proceedings. The learned A.P.P. pointed out that a notice under Section 59(1) of the Bombay Police Act, 1951, (hereinafter referred to as “the said Act”) , was issued by the Assistant Commissioner of Police, Nasik, calling upon the Petitioner to remain present for preliminary enquiry. The learned A.P.P. states that the Assistant Commissioner of Police granted time to the Petitioner to produce evidence and after completing the enquiry, on 10^th February, 2012, submitted a Report to the Externing Authority i.e. the Deputy Commissioner of Police. Her submission is that compliance with requirements of Section 59(1) of the said Act was made and, therefore, the

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Petitioner cannot complaint about breach of principles of natural justice. She submitted that even after order of externment was passed, the Petitioner has committed another offence.

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After having perused the record, we find that, in terms of Section 59(1) of the said Act, after giving an opportunity of producing evidence, the Assistant Commissioner of Police submitted a Report before the Deputy Commissioner of Police and recommended that order of externment be passed against the Petitioner. The perusal of the record shows that on the day on which Report was submitted, the Deputy Commissioner of Police thought it fit to issue a show cause notice to the Petitioner to remain present before him on 13^th February, 2012 at 11 a.m. The notice specifically records that the Petitioner shall show cause as to why he should not be externed for a period of two years. The show cause notice specifically records that either the Petitioner can remain present in person or he can engage an Advocate. The Roznama of the proceedings before the Deputy Commissioner of Police records that the Petitioner appeared before him along with his Advocate and sought time to produce copies of the Judgments, under which the Petitioner was acquitted. In the impugned order as well as in the Roznama of the proceedings, it is stated that the General Ward Election of the Municipal Corporation of the City of Nasik was scheduled on 16^th February, 2012 and, therefore, there was likelihood of danger from the Petitioner. The Deputy Commissioner did not grant even a day's time to the Petitioner and on the very day, i.e. on 13^th February, 2012, immediately proceeded to pass an order of externment.

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The learned Deputy Commissioner of Police (Externing Authority) thought it fit to give a show cause notice to the Petitioner before passing an order of

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externment. The show cause notice was issued on 10^th February, 2012 calling upon the Petitioner to remain present on 13^th February, 2012 to show cause. We may note here that 11^th and 12^th February, 2012 were holidays being second Saturday and Sunday. The impugned order itself records that, though time was sought to produce the documents, even a day's time was not granted by the Deputy Commissioner of Police on the ground that Election was to be held on 16^th February, 2012. He could have always granted at-least couple of days time to enable the Petitioner to produce the documents. As we have pointed out earlier, the Deputy Commissioner of Police, after considering the Report of the Assistant Commissioner of Police, was of the view that an opportunity of being heard should be granted to the Petitioner. After having served the notice to the Petitioner to remain present along with an Advocate to show cause, without granting any time, he proceeded to pass the impugned order.

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The action of passing an order of externment is a very drastic action, which affects liberty of individual without there being any trial held against the individual. Therefore, breach of principles of natural justice vitiates the order of externment. Only on this ground, the impugned order of externment deserves to be quashed and set aside.

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8. Accordingly, we pass following order :

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“O R D E R”

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Rule is made absolute in terms of prayer clause (c).

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Shyam Laxman Mahajan v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Shyam Laxman Mahajan v. the State of Maharashtra and Anr.

Case brief

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