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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.J.Jamadar, J.
Ateeq Ahmed Kamal Ahmed – Appellant
Versus
State of Maharashtra – Respondent
Writ Petition No. 632 of 2022, 633 of 2022
Decided On : 26-04-2022
Sec. 144 of the Code of Criminal Procedure - Municipal Councilors' Externment - Sec. 144 of the Code
Fact of the Case:
Dispute arose over the change of user of the land bearing City Survey Nos.1049 and 1051 situated at Malegaon. The petitioners, who are Municipal Councilors, objected to proposed developments and were externed from the city by the respondent No.2 invoking sec. 144 of the Code.
Finding of the Court:
The court found that the orders externing the petitioners were in excess of the authority vested in respondent No.2 and violated the petitioners' personal liberty and fundamental freedoms. The impugned orders were declared illegal and void, and the petitioners were not to suffer any consequences based on these orders.
Issues: The legality, propriety, and correctness of the impugned orders passed by respondent No.2 were questioned, as they entailed civil consequences and exposed the petitioners to further actions and disqualifications.
Ratio Decidendi: The court interpreted sec. 144 of the Code and held that it does not empower the District Magistrate to extern a person from a place where he ordinarily resides. The court also referenced previous judgments to support the interpretation that sec. 144 does not allow externment from one's native place.
Final Decision: The petitions were allowed, the impugned orders were quashed and set aside, and the petitioners were not to suffer any consequences based on the void orders.
JUDGMENT
1. As the challenge in both the petitions is of identical nature, the petitions are taken up for hearing together.
2. Rule. Rule made returnable forthwith and with the consent of the learned counsels for the parties, heard fnally at the stage of admission.
3. The petitioner in Writ Petition No. 632 of 2022 is a Municipal Councilor of Malegaon Municipal Corporation. A dispute arose over the change of user of the land bearing City Survey Nos.1049 and 1051 situated at Malegaon. The petitioner objected to the proposal of Public Works Department to construct a jogging track running alongwith the periphery of the said land. Instead of dealing with the objections of the petitioner in an objective manner, the respondent No.2 passed an order on 17/2/2022 externing the petitioner from the city of Malegaon for a period of one month, in fagrant violation of the principles of natural justice, purportedly invoking the provisions of sec. 144 of the Code of Criminal Procedure, 1973 ('the Code'), which were wholly inapplicable. Hence, this petition.
4. The petitioner in Writ Petition No. 633 of 2022 is also a Municipal Councilor of Malegaon Municipal Corporation. The petitioner had also objected to the proposed development at City Survey Nos.1049 and 1051, as it would render the open space inadequate for use as "Idgaah". To blunt out his objection, the petitioner was served impugned order, directing him to extern himself from the limits of Malegaon City and Taluka, by unjustifably invoking the provisions contained in sec. 144 of the Code. Hence, this petition.
5. Though, the period of one month has expired, Mr.Bubna, the learned counsel for the petitioner urged that the legality, propriety and correctness of the impugned orders passed by respondent No.2 are required to be examined as they entail civil consequences, and expose the petitioner to further actions and disqualifcations.
6. Mr.Bubna urged that the petitions are required to be allowed on the sole ground that the provisions contained in sec. 144 of the Code do not empower the District Magistrate to extern a person from a place where he ordinarily resides. Sec. 144 of the Code does not vest the District Magistrate with the authority to extern a person, as the object of sec. 144 is to empower the Magistrate to arrest urgent cases of nuisance or apprehended danger.
7. Mr.Bubna further submitted that a Division Bench of this Court, in the cases of Narendra Parshuram Patil & Anr. Vs. The State of Maharashtra & Ors.,Cri.Writ Petition (Aurangabad Bench) No.1575 of 2018 dt. 24/7/2019. has explicitly ruled that a person cannot be externed from his native place by invoking the provisions of sec. 144 of the Code. Reliance was also placed on a judgment of Division Bench of this Court in the case of Nilesh Dnyaneshwar Desale Vs. The State of Maharashtra, Cri.Writ Petition (Aurangabad Bench) No.71-2021 with Cri. Writ Petition No.1744-2019 dt.20/1/2021. wherein an identical action was set aside.
8. The aforesaid submission of Mr.Bubna appears well founded. On a plain reading of sec. 144 of the Code, it becomes abundantly clear that the District Magistrate is specially empowered to direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray. The condition precedent for exercise of this power is the subjective satisfaction of the District Magistrate that such action is necessary for immediate prevention of a nuisance or apprehended danger or speedy remedy of such a situation. The power to direct "any person to abstain from a certain act" cannot be construed as the authority to direct a person to remove himself from the place where he ordinaril
The court held that the provisions of Section 144 CrPC are attracted only in an emergency and that the initial judge of the emergency is the District Magistrate.
The court emphasized that an externment order must be based on valid and relevant material as required by the law, and the absence of such material renders the order illegal.
Externment orders under the Maharashtra Police Act must be supported by objective evidence and cannot infringe upon the fundamental right to free movement without justifiable grounds.
The court upheld the powers of the District Magistrate to extern a person from a particular area/district or districts under section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990, and found ....
Order of externment is an extraordinary measure – As in case of any other administrative order, judicial review is permissible on the grounds of mala fide, unreasonableness or arbitrariness.
The main legal point established in the judgment is the requirement for subjective satisfaction and reasonableness in passing externment orders, emphasizing the need for application of mind and the n....
An externment order under the Maharashtra Police Act must include specific justifications for the duration imposed, ensuring no unreasonable restrictions on fundamental rights occur.
The impugned order was passed without jurisdiction and in violation of the principles of natural justice, and it infringed upon the Petitioner's fundamental rights under Article 19(1), Articles 25 an....
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