A Sub-Divisional Magistrate must be specially empowered by the State Government to pass an order of externment under section 57 of the Bombay Police Act, 1951.

JUDGMENT - S.W. PURANIK, J.:---By this petition under Articles 226 and 227 the petitioner challenges the order of externment passed under section 57 of Bombay Police Act against him by the Sub-Divisional Magistrate, Gondia, on 16/7/1985.

2. Under section 57 of the Bombay Police Act, a person can be externed from a specified area if such person has been convicted for an offence under Chapter XII, XVI, XVII of the Indian Penal Code or of any offence under sections 65, 66-A and 68 of the Bombay Prohibition Act or of an offence under sections 3, 4, 5, 6 or 9 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, or of an offence under section 135 of the Customs Act, 1962, or of an offence under section 4, or for accepting bet in any public street or thoroughfare or in any place to which the public have or are permitted to have access, or in any race course under Clause (a) of section 12 or under section 12-A of the Bombay Prevention of Gambling Act, 1887, or if a person has been convicted twice or more of an offence under the Bombay Prohibition Act, 1949 not being an offence under sections 65, 66-A or 68 or twice or more of an offence under section 3 or 4 of the Railway Property (Unlawful Possession) Act, 1966 or thrice or more for an offence under section 122 or 124 of Bombay Police Act. A further rider to this power is that, such order can be passed either by the Commissioner of that area or the District Magistrate of that area or the Sub-Divisional Magistrate of that area who has been specially empowered by the State Government in this behalf. The last rider is that such of the afore-mentioned officers can pass the order of externment if he has reason to believe that such person is likely to again engage himself in the commission of the offence similar to that for which he was convicted.

3. In the facts of the present case, the impugned order of externment has been passed by the Sub-Divisional Magistrate, Gondia on the ground of section 57(b) of the Bombay Police Act viz. that the petitioner has been convicted twice or more for an offence under Bombay Prohibition Act, 1949 not being an offence under sections 65, 66-A or 68 of the Act.

4. The petitioner has made a preliminary challenge to the very validity of this order on the ground that the Sub-Divisional Magistrate, Gondia was not specially empowered as required under section 57 of the Bombay Police Act. In the petition in Ground (G), the petitioner has averred that the impugned order passed by the learned Sub-Divisional Magistrate, Gondia is without jurisdiction and power, as the learned Sub-Divisional Magistrate, Gondia, Shri P.R. Bhalekar is not specially empowered by the State Government to exercise the powers under section 57 of the Bombay Police Act, 1951. The impugned order is, therefore, liable to be quashed and set aside.

5. In the return filed on behalf of the State in para 10 with regard to Ground No. (G), it is submitted that the contentions raised by the petitioner in this ground are not proper and hence denied. They next contend in the return, that the authority being the Sub-Divisional Magistrate, he had jurisdiction and power to decide the case under section 57 of the Bombay Police Act, and therefore, in view of this, the contention raised by the petitioner does not survive.

6. We have gone through the impugned order at Annexure 3 dated 16-7-1985. Perusal of the entire order does not disclose that the Sub-Divisional Magistrate in any way specially empowered to pass an order under section 57 of the Bombay Police Act. He has not referred to any Notification specially empowering him, nor has he made any general averment to that effect.

7. We have already reproduced the relevant portion from section 57 and we have observed that the authorities who can pass an order under section 57 has been stated in the latter part of sub-clause (1) of that section. The authorities are :

(i) The Commissioner of the area, or

(ii) District Magistrate of the area, or

(iii) The

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