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2008 Supreme(Bom) 500
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH ; NAGPUR.
S.R.DONGAONKAR, J
Shri Milind Hiraman Meshram — PETITIONER
VERSUS
The State of Maharashtra — RESPONDENTS.
CRIMINAL WRIT PETITION NO. 412 OF 2006
Decided on : 3 rd APRIL, 2008
Shri Raspal Singh Renu, Advocate, for the Petitioner,
Shri A.S.Fulzele, A.P.P.for Respondents
The main legal point established is that an externment order must consider acts prejudicial to the community as required by law and must not be passed with a total lack of application of mind.
Headnote:
Cr.P.C. - Challenge to Externment Order - Section 59, Section 56 of Bombay Police Act - [SUMMARY]
Fact of the Case:
The petitioner challenged the externment order passed against him by the Deputy Commissioner of Police, Nagpur City, under Section 482 of Cr.P.C. The petitioner claimed to be a law-abiding citizen with properties in Nagpur and challenged the show cause notice issued under Section 59 of the Bombay Police Act and the final externment order.
Finding of the Court:
The court found that the show cause notice and final order did not sufficiently consider the acts prejudicial to the community as required under Section 56(1)(bb)(2) of the Bombay Police Act and the explanation to Section 3 of the Prevention of Black Marketing. The court also noted the inordinate delay in passing the order, indicating no immediate need for externment.
Issues: The issues revolved around the validity of the show cause notice, the authority of the issuing officer, the consideration of relevant acts, and the delay in passing the externment order.
Ratio Decidendi: The court held that the show cause notice and final order lacked proper consideration of the acts prejudicial to the community as required by law and were passed with total lack of application of mind. The inordinate delay in passing the order indicated no immediate need for externment.
Final Decision: The court allowed the application and quashed the externment order.
1. Heard Shri Renu, Advocate, for the petitioner and Shri Fulzele, A.P.P. for respondents.
2. In this petition under Section 482 of Cr.P.C., the petitioner is challenging the order of externment passed against him by Deputy Commissioner of Police, Circle 3, Nagpur City, by which he was externed from the area of Nagpur City and Nagpur District for the period of two years. This order was passed on 13.7.2007. The petitioner seeks to challenge that order.
3. Adverting to the facts of the petition, it is the case of the petitioner that he is resident of Nagpur City. He is peace loving and law abiding citizen. He has movable & immovable properties in Nagpur. It is his claim that on 23.3.2006 a show cause notice was issued to him under Section 59 of the Bombay Police Act by Assistant Police Commissioner, Kotwali Division, Nagpur. The same was served through Senior P.S.I., Police Station, Lakadganj, Nagpur. This notice was issued under Section 59 of the Bombay Police Act in pursuance to the proposed action under Section 56(1)(bb)(2) of the Bombay Police Act. It was mentioned in the said show cause that he had committed four offences under Section 3 r/w Section 7 of the Essential Commodities Act. The said crime numbers were (1) 3043/01 of Police Station Lakadganj, (2) 3164/03 of Police Station Lakadganj, (3) 3167/05 of Police Station Lakadganj and (4) 3342/05 of Police Station Lakadganj. The latter two offences were allegedly under investigation, whereas in the first two offences, the charge-sheets were submitted. It was also alleged that there were several other offences under Arms Act and the Indian Penal Code, besides Bombay Police Act, registered against him. It was also alleged that preventive actions were taken against him, but there was no improvement. He was not doing any business, but he was indulged in committing offences with the weapons as well as by forming unlawful assemblies. It was also specifically alleged that he was indulged in black-marketing of blue kerosene, which was for the distribution to the ration card holders. Besides this, it was also alleged that because of his terror, nobody was coming forward to lodge any report or for leading evidence in the Courts. This show cause notice under Section 59 of the Bombay Police Act was issued on 23.03.2006 seeking his explanation as to why he should not be externed for two years out of Nagpur District and city.
4. The petitioner then filed this Criminal Writ Petition No. 412/2006 to challenge the said show cause notice. It may be mentioned that the externment proceedings against the petitioner, despite the filing of writ petition were continued. However, it remained pending for considerably long time. It needs to be further mentioned that because this petition was pending, presumably, the authority concerned did not conduct 5 further proceedings in that matter and they remained as they were for quite a long time. Thereafter, this petition was dismissed sometime on 20.6.2007 in default. After the said petition was dismissed, in the externment proceedings which were against the petitioner, the order came to be passed on 13.7.2007. Thereafter, on 23rd July, 2007, the order of dismissing the petition in default was set aside and the petition was restored. As the order of externment was already passed against the petitioner, the petitioner was allowed to amend this petition to make him keep challenge alive to the show cause notice as well as to the final order passed in externment proceedings against him. That is how, the petitioner is challenging the order of externment passed against him on 13.7.2007.
5. It is also necessary to mention that though it was out of scope of this petition, the petitioner had also sought, quashing and setting aside of F.I.Rs 3167/05 of Police Station Lakadganj and 3342/05 of Police Station Lakadganj in this petition. He also sought stay of those investigations. However, considering the totality of the circumstances, those prayers were not
