Rule. Returnable forthwith. Heard finally with consent of parties.

2. This criminal writ petition challenges the externment order passed by the Deputy Commissioner of Police Nagpur.

3. The present petitioner is a resident of Nagpur and deals in steel material and scrap. He owns movable and immovable property. It is alleged that police machinery is bent upon to harass the petitioner on some or the other pretext. The respondent has registered several criminal cases against the petitioner within a period of 9 days and in almost all those cases the petitioner was discharged. It is alleged that the externment proceedings are being taken up against him due to the fact that he has not paid the amount demanded by the respondents officers.

4. Deputy Commissioner of Police issued a show cause notice to the petitioner on 10.11.05 calling upon him to show cause why he should not be externed from Nagpur city. When a notice was issued to the petitioner it was alleged that he was involved in 7 crimes. The first two crimes related to offences under Section 452, 294, 506 Indian Penal Code, third related to offence under Section 124 Bombay Police Act, while 4, 5, 6, and 7 related to offence under Section 379 Indian Penal Code. Immediately after this notice was served the petitioner filed this writ petition. It is alleged that thereafter several notices were issued to the petitioner but he did not care to appear before the externing authority. Ultimately he appeared. His statement was recorded and the externment authority came to the conclusion that he needs to be externed for a period of one year from Nagpur city as well as Nagpur rural. The petitioner after this order came to be passed amended this petition and sought to challenge the order or externment also besides the notice that was already issued.

5. I have heard the learned counsel for the petitioner and the respondents.

6. The first ground that was raised by the learned APP was that the writ petition was not maintainable since a remedy of appeal was available under Section 60 of the Bombay Police Act. He submitted that equally efficacious remedy was available in the form of an appeal and therefore no writ petition could be filed. The question whether the writ petition would lie when remedy of appeal is available is no more resintegra, particularly when there is an infringement of the fundamental right. The Division Bench of this Court held in a case Umar Mohamed Malbari Vs. K. P. Gaikwad, Dy. Commissioner of Police and another 1988 Maharashtra Law Journal 1034, as follows: .The rule about the failure to exercise an alternative remedy when one is in existence is a Rule relating to the discretion of the Court and that Rule does not act as a bar to the jurisdiction of the Court to entertain and grant the petition. The rule that the High Court will not issue 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 infringed. When an order of externment is passed against the petitioner, he can undoubtedly come to the High Court with a writ petition on the 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 Bombay Police Act viz. An appeal to the State Government against the order.. In view of this decision this petition is certainly maintainable.

7. Learned counsel challenges the order on 3 grounds: 1) Delay in passing the order of externment after notice; 2) Consideration of extraneous material and 3) Malafides in passing the order inasmuch as there is no proof that the witnesses are not coming forward to give statement or to depose.

8. Shri Rizwy, learned counsel for the petitioner submitted that there is unexplained delay in passing the order of externment after the notice was given and that itself vitiates the order. He sought to rely on the decision of this Court in Writ Petit