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IN THE HIGH COURT OF BOMBAY AT NAGPUR
SUNIL B. SHUKRE, AVINASH G. GHAROTE, JJ.
Aniuddin Shamsuddin Solanki - Petitioner
Versus
The Superintendent of Police, Yavatmal, District Yavatmal & Others - Respondent
Criminal Writ Petition No. 346 of 2020
Decided On : 15-09-2020
Natural Justice - Externment Order - The Maharashtra Police Act,1951, Section 56(b), Section 59 - The court discussed the violation of principles of natural justice and the mandate of Section 59 of The Maharashtra Police Act, 1951 in the context of an externment order. The court highlighted the requirement of a pre-decisional hearing and the need to provide a reasonable opportunity of being heard, as mandated by Section 59. The court also emphasized the importance of making documents available to the person against whom an externment order is proposed, as per the provisions of Section 59. The judgment cited relevant legal provisions and their interpretations, emphasizing that any violation of the mandate of Section 59 would vitiate the entire matter.
Fact of the Case:
The petitioner challenged an externment order on the grounds of violation of natural justice principles, citing the imposition of a general lockdown due to COVID-19, which prevented the petitioner and his counsel from attending the proceedings. The court noted the lack of opportunity in the matter and the failure to provide documents to the petitioner.
Finding of the Court:
The court found that the externment order violated the principles of natural justice and the mandate of Section 59 of The Maharashtra Police Act, 1951. The court emphasized that the imposition of the general lockdown should have prompted an adjournment of the proceedings, and the failure to provide documents to the petitioner further contributed to the lack of opportunity.
Issues: The issues revolved around the violation of natural justice principles, the impact of the general lockdown on the petitioner's ability to attend the proceedings, and the failure to provide necessary documents for the defense.
Ratio Decidendi: The court's decision was based on the clear violation of the mandate of Section 59 of The Maharashtra Police Act, 1951, and the principles of natural justice. The court emphasized the importance of a pre-decisional hearing and the need to provide a reasonable opportunity of being heard, as well as the availability of documents for formulating an effective defense.
Final Decision: The court quashed and set aside the impugned externment order, ruling in favor of the petitioner.
JUDGMENT :
Avinash G. Gharote, J.
1. Rule. Rule made returnable forthwith. Heard learned counsel for the parties finally.
2. The present petition challenges the order of externment passed by the Respondent no.2 dated 31/7/2020, externing the petitioner from Yavatmal District for a period of two years on the ground that the same violates the principles of natural justice, as no reasonable opportunity of being heard was granted nor the documents sought for, supplied.
3. Mrs. Kalyani Deshpande, the learned Additional Public Prosecutor for the respondents/State opposes the same and contends that the petitioner had been given ample opportunity, as the adjournment sought by the petitioner and his counsel on 23/7/2020 was granted and the matter was posted on 30/7/2020. However, as on the said adjourned date, neither the petitioner nor his counsel turned up, the Authority had no other choice than to, adjourn it to the next date and to pass the impugned order on the adjourned date, externing the petitioner.
4. The fact position can be summarized as under :
| 14/05/2020 | The proposal for externment of the petitioner for 2 years from Yavatmal District was received by the respondent no.1. |
| 16/06/2020 | Enquiry was directed with a direction that the enquiry report be filed within a week. |
| 23/06/2020 | A show cause notice was issued to the petitioner, as to why action under Section 56(b) of The Maharashtra Police Act,1951, should not be initiated against him. |
| 29/06/2020 | Petitioner filed his reply opposing the show cause contending that the matters as stated in the show cause were pending. |
| 14/07/2020 | Report was submitted by respondent no.3. |
| 20/07/2020 | A show cause notice was issued to the petitioner asking him to appear on 23/7/2020 before the respondent no.2. |
| 23/07/2020 | The petitioner and his counsel appeared and sought an adjournment. An application was also made stating that the entire record and documents prepared by the SDPO/respondent no.3 be also made available to the petitioner so as to enable the petitioner to prepare an effective reply. |
|
| The respondent no.2 granted an adjournment and posted the matter on 30/7/2020. |
| 25/7/2020 to 31/7/2020 | Lockdown imposed in Pandharkawda District on account of Covid-19. |
| 30/07/2020 | Petitioner and his counsel absent on account of lockdown. No application seeking adjournment sent. Matter adjourned to 31/07/2020 |
| 31/07/2020 | Order passed by the respondent no.2 externing petitioner from Yavatmal District for a period of 2 years. |
5. It is not in dispute, that a general lock down on account of Covid 19, virus was declared in the entire Taluk of Pandharkawda for the duration of 25/7/2020 to 31/7/2020. The proceedings were being held in the town of Pandharkawda, which falls in Yavatmal District. Due to the general lockdown which was in effect, neither the petitioner nor his counsel were able to attend the office of the respondent no.2, nor were in a position to send in an application for adjournment, as a result of which the respondent no.2, recording the absence of the petitioner and his counsel on 30/7/2020, posted the matter to 31/7/2020. The imposition of the General Lockdown in itself ought to have prompted the respondent no.2, on his own, to adjourn the matter on 30/7/2020 to some other date beyond the lock down period. The respondent no.2, however instead of doing so, proceeded ahead to pass the impugned order immediately on 31/7/2020 itself. This clearly spells out a complete lack of opportunity in the matter.
6. The requirement of a pre-decisional hearing in all matters which lead to the restriction put up on the movement or liberty of an individual, is a sine qua non and is in-built in the inherent principles of natural justice, even though the statute in this regard may not say so. In the prese
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