Rajendran Nallusamy
(Advocate)
06 May 2008
EXTERNMENT
Prakash Sitaram Shelar, Vs.
The State of Maharashtra & Others *
Facts
The petitioner in each one of these petitions was served with a notice under Section 59 of the Bombay Police Act, informing him that it was proposed to extern him from Thane and Bombay Districts for a period of two years on the grounds mentioned in the said notice. In the first place, each one of the petitioners was informed that he was indulging in criminal actions within the jurisdiction of the Waggle Estate Police Station by forming a gang of unsocial elements. He was also told that he was indulging in beating without any reason the poor leper patients in the area. Each petitioner was also told that he was, along with other, causing loss to the properties of the people. After narrating the said facts, it was stated that people are unwilling the come forward to give evidence against him, being afraid of danger to their lives and properties. Thereafter, each one of them was told that a case was registered against him for the offences punishable under Chapter XVII of the Indian Penal Code. Having said this, however, the notice did not mention that in respect of the case registered against each of the petitioners, witnesses were not willing to depose against him.
Held
The notice, in our opinion, contains several defects. In the first place, the petitioner in each of the petitions was not informed the period during which he was indulging in anti-social activities. On an allegation that the petitioner have been indulging in anti-social activities without mentioning the period during which those activities took place, no person can reasonably put up a defence. If the activities had happened 10 years ago, he could easily persuade the authorities to the effect that there has been a lull activities on his part and no order of externment is called for, We are also of the opinion that the allegations of beating people, causing loss to the people’s properties are somewhat vague. Such order of externment is illegal and liable to be set aside.
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*1991 Cr.L.J. 1251(Bombay)
Sirajkhan vs State of Maharastra**
Facts
The present Criminal Writ Petition is directed against the order of externment passed by the Sub-Divisional Magistrate, Amravati, vide order dated 03.04.1998 whereby under Section 56(!)(2) of the Bombay Police Act, 1951, the application was externed for a period of one year from the Amravati District.
The learned counsel for the petitioner concerned that in the instant case, respondent No.2 issued notice under Section 51 of the Bombay Police Act on 31.12.1996. It is further contended that the necessary enquiry was conducted by the respondent and thereafter respondent o.1 issued the impugned order dated 03.04.1998 by which the petitioner is externed. It is the contention of the learned counsel that the grounds mentioned in the above referred show cause notice are scale and old and, therefore, the impugned order which is based on such grounds is not sustained in law.
Held
The externed is entitled to know only the material particulars of the crime in question and not the details as alleged by the learned counsel for the petitioner. If the details are required to be supplied by the authorities to the externee before passing of the Externment order then the very purpose will be frustrated. It must be borne in mind that taking recourse to the provisions of the Act is an exception and it is only in an emergent situation that such remedies are expected to be resorted to by the authorities in the interest of the society. Hence, the above referred contention raised by the learned counsel for the petitioner cannot be accepted.
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*1999 Cr.LJ. 2959 (Bombay)
Sh.Rambhai alias Ramlo Khimchand Vs.
The State of Gujarat & anothers*
Facts
The petition approached the Bombay High Court for quashing the externment order dated 11.04.1989, externing the petitioner from the limits of Janabadh, Rajkot and Amrelli districts for a period two years. The sub-Divisional Magistrate, Veaval issued notice on 05.12.1988 under Section 56(a) (b) of the Bombay Police Act, 1951 alleging the following acts committed by the petitioner in Hudco Cokny, Viviekanand Colony and on the way leading to Hudco Colony situated at the sim of village Dari which are within the limits of Prabhaspatan Police Station.
1. You are forcibly collecting money form the innocent persons by detaining them those who are living in the aforesaid area or persons passing through the way and if they do not money, you give threat to kill them.
2. You are consuming liquor and under the influence of liquor in public, you are picking up quarrels and committing offences in relation to property and undue liberty with women.
3. If any person lodges a case against you, you pressuring him to enter into compromise by giving threat of killing the person concerned and create tense situation and as a result of which no body is ready to give evidence against you in public.
Held
While passing an order of externment the nature of the offences would not be the sole criteria and the authority will have to go into the other pertinent question as to whether the of ending activity of the individual concern has reached the degree of harm to the society that the interest of the society of even of that particular locality requires that this individual who has become public menace should be externed from the locality. Therefore, where the externing authority has taken into consideration the incident which has not been stated in the notice issued to the externee u/s 56 of Bombay Police Act, the failure on the part of externing authority to put on notice to the externee regarding this particular circumstances vitiates the order of externment and offends to principle of fair play and justice. No doubt, the show cause notice is able to give the area in which the externee was committing the offence and also the period during which such offences were committed. The notice also states the particulars of offences committed by the externee which is clear from the averment to the effect that is a dangerous and fierce person and that the
witnesses are not coming forward to depose against him due to the fear to their life and property. The instances which have been enumerated in the show cause notice no doubt make out a case for externement; nevertheless, the order of extrernement adds one more instance to the effect that “it is also stated in the complaint that the persons those who are having status and means have shifted from it so that they may not become victim of such torts by the externee though it finds place in the externment order. Natural justice requires that the person affected should have notice of the relevant material on which the authority concerned bases its conclusion.
It cannot be said that unsubstantiated or non-existent ground has been taken into consideration, but a ground which is germane for the purpose of externing a particular person has been taken into consideration by the externing authority without putting the externee on notice as regards that ground. If that be so, the Court cannot substitute objective judicial test for the subjective satisfaction of the executive authority and come to the conclusion that the executive authority, dehors the said ground which has not been put on notice to the externee was able to arrive at a decision for the purpose of externing the person concerned in that particular case.
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*1991 Cr.L.J 3159 (Gujrat)
Sitaben M.Thakore Vs.
Commissioner of Police, Ahmedabad *
Facts
In the instant case, the show cause notice was issued on 25/02/1994 and externment order was passed on 13/07/1995 i.e. after a long delay of 1 year and 4 months. Even if this delay was on account of externee, it cannot be denied that the authority holding the enquiry failed to regulate the proceedings in true spirit of the provisions of Section 59 of the Act.
Held
The long delay on the facts in present case alone is sufficient to vitiate the impugned order of externment.
The inquiry under Section 59 of the Act, being of urgent nature should be held as expeditiously as possible, and in particular, only a short notice of 3 to 7 days may be given for submitting the written statement, and immediately the date should be fixed for examination of witnesses, and once examination of witnesses begun, the same should be continued, unless the authority finds the adjournment of the same beyond the following day to be necessary for the reasons to be recorded. It is not necessary to record each and everything whatever being stated, if in the opinion of the authority, the same is not relevant. No adjournments should be granted on the filmsy grounds of the lawyer or that the externee is busy in other Court matters. These are not the grounds for adjournment. No definite period of inquiry can be provided. It depends upon the facts of each case. If there is a long delay in passing the order of externment after the issuance of show cause notice, the externment authority cannot reasonably come to conclusion that the movement or the acts of the externee are causing or calculated to cause alram, danger or harm to person or property, so as to prevent him to moving himself from certain areas.
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* 1997 Cr.L.J. 4511 ( (Gujarath)
Hussainmiya alias Razakmiya Qadri Vs.
State of Gujarat *
Facts
In the instant case there is apparent contradiction between the show cause notice and the externment order. In the show cause notice, it was shown that the action is proposed to be taken under S.56-A of the Bombay Police Act, whereas the externment order shows that the power was exercised under S.56-B of the Bombay Police Act.
Held
1. These contradictions, if taken at their face value can be said to have given rise to a situation of non-application of mind by the externing authority not only to the material on record viz., to the show cause notice but also to the provisions of S.56-A and S.56-B of the Bombay Police Act. Non-application of mind to the legal provisions and to the material on record will also render the order of externment bad in law.
2. If the externment is proposed from the contiguous districts, it must be disclosed in the show cause notice why such externment is proposed and the same should be repeated in the externment order. further, if it is not disclosed in the show cause notice but is disclosed in the final order, the final order would be rendered invalid.
3. There is no prohibition against the externing authority to pass externment order against the externee to extern him from contiguous districts. But for that he has to give opportunity to the externee to show cause why he should not be externed from the contiguous districts.
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*1999 Cr.L.J. 2401 (Gujrat)
Dafer Gafar Suleman Vs.
The State of Gujarath & others
Facts
Brief facts are that show cause notice (Annexure A) was issued by the Externing Authority to the petitioner to show cause why, in view of five criminal cases one under Indian Penal Code and four under the Prohibition Act and other serious anti-social and criminal activities, order for externment be not passed against him. The petitioner appeared, submitted reply to the show cause notice. After considering the evidence and submissions of the petitioner the Externing Authority vide order contained in Annexure B directed and ordered externment of the petitioner from four districts, viz., Jamnagar, Rajkot, Kutch and Junagadh or a period of two years. The petitioner preferred an Appeal, which was dismissed by the Appellate Authority on 29/8/1998, vide Annexure C. It is, therefore, this writ petition seeking quashing of the aforesaid order and the show cause notice.
Held
1. There is no prohibition or bar in any law preventing the Externing Authority from passing order of externment without considering lesser drastic remedy. The Externing Authority, if satisfied, could have passed the order of externment.
2. Where on the one hand the mind of the Externing Authority was influenced by another case in as much as he observed that thus within a period of three years two offences punishable under the provisions of the Indian Penal Code have been registered against the petitioner, the petitioner was also deprived of opportunity to meet against this belated allegation quoted in the Judgement of the Externing Authority. If the mind of the Externing Authority was influenced from extraneous factor about which the petitioner was not given an opportunity to meet, it will render the entire order invalid as well as illegal.
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*1999 Cr.L.J. 3471 (Gujarat)
