Case Note & Summary
The petitioner, Darshan Arun Barhanpure, challenged an externment order dated 14.10.2010 passed by the Deputy Collector & Sub-Divisional Magistrate, Daryapur, Amravati (respondent No.2) under Section 56(1)(b) of the Maharashtra Police Act, externing him from the limits of Amravati district for two years. The petitioner contended that the order infringed his fundamental right to freedom of movement under Article 19(1)(d) of the Constitution and was passed arbitrarily without sufficient material. He directly approached the High Court under Article 226 instead of filing a statutory appeal before the Divisional Commissioner. The State argued that the petitioner should have exhausted the alternate remedy and that the order was justified based on the petitioner's criminal history. The High Court, relying on the Division Bench decision in Umar Mohamed Malbari Vs. K.P. Gaikwad, 1988 MH.L.J. 1034, held that the existence of an alternate remedy does not bar the writ court from entertaining a petition where the order is patently illegal. On merits, the Court found that the externment order was passed without proper application of mind and without sufficient material to show that the petitioner's movements were dangerous or harmful. The Court noted that the order did not record any satisfaction that the petitioner's activities were causing harm or that his presence was detrimental to public order. Consequently, the Court quashed the externment order and allowed the petition.
Headnote
A) Criminal Law - Externment - Section 56(1)(b) Maharashtra Police Act - Sufficiency of Material - The order of externment must be based on sufficient material and the authority must apply its mind to the material on record. In this case, the order was passed without proper consideration of the material and without recording satisfaction that the petitioner's movements were causing harm or danger. Held that the order is unsustainable and liable to be quashed (Paras 3-6).
B) Constitutional Law - Alternate Remedy - Article 226 of Constitution of India - Maintainability - The existence of an alternate remedy does not bar the High Court from entertaining a writ petition under Article 226, especially when the order impugned is patently illegal or without jurisdiction. The Division Bench in Umar Mohamed Malbari Vs. K.P. Gaikwad, 1988 MH.L.J. 1034 held that a writ court can entertain such grievance despite failure to avail alternate remedy. Held that the petition is maintainable (Paras 5-6).
Issue of Consideration
Whether the externment order dated 14.10.2010 passed under Section 56(1)(b) of the Maharashtra Police Act is legal and proper, and whether the petitioner can directly approach the High Court under Article 226 without exhausting alternate remedy.
Final Decision
The High Court allowed the petition and quashed the externment order dated 14.10.2010 passed by respondent No.2 under Section 56(1)(b) of the Maharashtra Police Act.
Law Points
- Externment order must be based on sufficient material
- Non-application of mind vitiates order
- Fundamental right to movement cannot be curtailed arbitrarily
- Alternate remedy not an absolute bar to writ jurisdiction
Case Details
2021 LawText (BOM) (02) 118
Criminal Writ Petition No. 599 of 2020
Sunil B. Shukre, Avinash G. Gharote
Shri Jasprit Singh Chilotra for petitioner, Ms H. N. Jaipurkar, A.P.P. for respondents
Darshan S/o. Arun Barhanpure
State of Maharashtra, Deputy Collector & Sub-Divisional Magistrate, Daryapur, Police Station Officer, Anjangaon Surji, Assistant Police Superintendent, Anjangaon Surji
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Nature of Litigation
Criminal writ petition challenging an externment order passed under Section 56(1)(b) of the Maharashtra Police Act.
Remedy Sought
Quashing of the externment order dated 14.10.2010 passed by respondent No.2 externing the petitioner from Amravati district for two years.
Filing Reason
The petitioner claimed that the externment order was arbitrary, without sufficient material, and infringed his fundamental right to freedom of movement.
Previous Decisions
The petitioner did not file a statutory appeal before the Divisional Commissioner; instead directly approached the High Court under Article 226.
Issues
Whether the externment order dated 14.10.2010 passed under Section 56(1)(b) of the Maharashtra Police Act is legal and proper.
Whether the petitioner can directly approach the High Court under Article 226 without exhausting the alternate remedy of appeal before the Divisional Commissioner.
Submissions/Arguments
Petitioner: The externment order infringes fundamental freedom of movement and is arbitrary without sufficient material. The petitioner is justified in directly approaching this Court under Article 226.
Respondent: The petitioner ought to have approached the Divisional Commissioner. The order is properly passed as there is criminal history showing dangerous activities.
Ratio Decidendi
An externment order under Section 56(1)(b) of the Maharashtra Police Act must be based on sufficient material and the authority must apply its mind to the material on record. The order must record satisfaction that the movements of the person are causing harm or danger. In this case, the order was passed without proper consideration and without recording such satisfaction, rendering it unsustainable. Further, the existence of an alternate remedy does not bar the High Court from entertaining a writ petition under Article 226 when the order is patently illegal.
Judgment Excerpts
The petitioner has questioned the legality and correctness of the order dated 14.10.2010, passed by respondent No.2 thereby externing the petitioner from the limits of Amravati district for a period of two years.
Learned counsel for the petitioner submits that this order not just infringes on the fundamental freedom of movement guaranteed to the petitioner but, does it so in an arbitrary manner without there being available any sufficient material warranting such externment of the petitioner.
As regards the failure of the petitioner to avail of the alternate remedy, the learned counsel for the petitioner has relied upon a view taken by Division Bench of this Court in the case of Umar Mohamed Malbari Vs. K.P. Gaikwad, Dy. Commissioner of Police & Anr., 1988 MH.L.J. 1034.
Procedural History
The petitioner filed Criminal Writ Petition No. 599 of 2020 before the High Court of Bombay at Nagpur challenging the externment order dated 14.10.2010 passed by respondent No.2. The petition was heard finally by consent on 17.02.2021 and allowed.
Acts & Sections
- Maharashtra Police Act: 56(1)(b)
- Constitution of India: Article 226, Article 19(1)(d)
