Umar Mohammed Malbari vs K. P. Gaikwad & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1988 Supreme(Bom) 72

IN THE HIGH COURT OF BOMBAY
D.N. Mehta Ashok Agarwal, JJ.
Umar Mohammed Malbari ..... Petitioner.
Versus
K.P. Gaikwad another..... Respondents.
Criminal Writ Petition No. 1253 of 1987, decided on 17-2-1988.
Advocates appeared :
M.S. Mohite with S.R. Chitnis, for petitioner.
C.M. Kothari, P.P., for respondents.

Headnote:Section 56-Constitution of India, 1950-Articles 19 and 226-Validity of externment order – Externee-externed to place beyond 100 miles distance-Held, externment order exercise liable to be set aside as no greater restraint on perusal liberty permitted than reasonable-- High Court has power to correct such excessive order in exercising writ jurisdiction. Case relied on 71 BLR 29 and 54 BLR 513.
       Although a show cause notice under Section 59 of the Bombay Police Act may contain amongst others allegations not relevant to the passing of an order of externment either under Section 56 or 57 of that Act, that would not by itself vitiate that order unless it is shown that those irrelevant allegations had influenced the minds of the externing authority while passing that order. This can only be done by a reference to the order of externment and not by reference to the show cause notice.
       The fact that the petitioner has not exhausted all his remedies does not bar the jurisdiction of the Court to entertain all dispose of the petition but, is a factor to be taken into account for the purpose of considering whether the discretion should or should not be exercised in favour of the petitioner. The rule that the High Court will not is sue a prerogative writ when an alternative remedy is available does not apply when a petitioner comes to the Court with an allegation that his fundamental rights have been infringened. When an order of externment is passed against the petitioner, he can undoubtedly come to this Court with a writ petition on ground that his fundamental right of freedom of movement is affected and this he can do without exhausting the other remedy provided for in the act viz., an appeal to the State Government against the order. In view of the fact that the petitioner has been externed out of the areas covering three Districts as also Greater Bombay, it will have to be held that his fundamental right to move freely throughout territory of India which is guaranteed under Article 19 (1) (d) of the Constitution has been infringed. In this view of the matter, the very fact that the petitioner has not exhausted his alternative remedy of an appeal or merely because he has come here after undue delay can be no hard less in the matter of entertaining this petition.
       Sections 56 (1) (b) and 59-Validity of externment order-Show cause notice with certain objections not relating to passing of externment order-Order not mentioning those allegations-Held, order not liable to be vitiated.
       Articles 19 and 126.
       See Bombay Police Act, 1951-Section 56.

JUDGMENT - A. AGARWAL, J.:---The order of externment dated the 18th August, 1986 passed by the Deputy Commissioner of Police, Zone-II, Thane is impugned in this petition. By this order which has been passed under section 56(a) and (b) of the Bombay Police Act, the petitioner has been externed out of the limits of Thane Commissionerate, Greater Bombay, Raigad and Nasik Districts. Prior to the passing of the said order of externment a show cause notice under section 59 of that Act was served upon the petitioner. That notice called upon the petitioner to show cause as to why he should not be externed from Greater Bombay, Thane and Nasik Districts for a period of two years. That notice alleged that the petitioner was unemployed, was in the habit of moving about at odd hours in the Company of associates having criminal tendencies. The petitioner by threatening at the point of a pistol was extorting monies from the citizens. On account of the threats yielded by the petitioner, people were afraid to complain against him. There was a reign of terror amongst the citizens of the locality. There was threat to the persons and properties on account of the activities of the petitioner. Criminal prosecutions had been lodged against the petitioner on account of the deadly weapons being carried by him. The petitioner had also been convicted for the offences in respect of which prosecutions had been lodged against him. There was no improvement in the petitioner and there was likelihood of the petitioner again indulging in the said offences. It was, therefore, proposed to extern the petitioner out of the District of Thane and the adjoining Districts. Under the said show cause notice, three offences are mentioned as having been committed by the petitioner, one under section 25(c) of the Indian Arms Act, one under sections 323 and 426 of the Indian Penal Code and the third under section 107 of the Criminal Procedure Code.

2. The order of externment recites that since the 20th of August, 1985 in the localities of Nadinaka, Vanjarpati Naka, Bhiwandi his acts and movements are causing and are calculated to cause alarm, harm and danger to the residents and traders of the aforesaid localities and areas, in fact :---

(a) that he assaults the residents and traders of the aforesaid localities, which are offences punishable under Chapter XVI of the Indian Penal Code.

(b) that normal punitive action has not proved deterrent and he had committed more serious offences and he is likely again to commit similar type of offences and that he commits robberies by extorting money from the residents and the traders of the said localities and areas on threats of assault at the point of deadly weapons which are offences punishable under chapter XVII of the Indian Penal Code.

II. That since 20-8-85 he has committed several Acts of the nature mentioned in sub-paragraph (a) (b) of paragraph above.

III. That the witnesses to the above described acts and movements are not willing to come forward and depose against him in public by reason of apprehension on their parts as regards the safety of their person and property in that they apprehend that they would be assaulted and their property would be damaged by him.

The order further proceeds to recite that after giving a hearing and considering the evidence led by the petitioner and the explanation tendered by him and also the evidence given by the witnesses produced by him, the allegations contained in paragraph 1 of that order had been established against the petitioner. The order further proceeds to extern the petitioner not only from Thane Commissionerate, Greater Bombay and Nasik Districts as proposed in the show cause notice but also the District of Raigad which was not even contemplated in the show cause notice.

3. Shri Mohite, the learned Advocate appearing in support of the petition has submitted that as the show cause notice contains allegations in respect of offences under the Indian Arms Act and of chapter proceedings u

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