Case Note & Summary
The petitioner, Ganesh Murgesh Bajantri, challenged an externment order dated October 18, 2019 passed by the Deputy Commissioner of Police, Zone VII, Mulund (West), Mumbai under Section 56(1)(a) and (b) of the Mumbai Police Act, 1951, and the appellate order dated December 2, 2019 confirming the externment. The externment order directed the petitioner to be externed from Mumbai, Mumbai Suburban and Thane districts. The petitioner was a resident of Mulund, Mumbai. The Senior Inspector of Police, Mulund Police Station initiated the proposal for externment, and a show cause notice was issued on August 7, 2019 under Section 59 of the Act. The petitioner replied on October 17, 2019. The externing authority passed the impugned order without considering that the petitioner was acquitted in Crime No.100/2019 registered under Sections 326, 324, 323, 337, 384, 504, 506 read with 34 IPC, which was a major case relied upon. The authority also relied on stale offences from 2014, 2015, 2016, and 2017, and non-cognizable offences. The appellate authority confirmed the order. The High Court, exercising jurisdiction under Article 226 of the Constitution, held that the externment order suffers from non-application of mind and is unsustainable. The court quashed and set aside both the externment order and the appellate order, and allowed the petition.
Headnote
A) Mumbai Police Act - Externment - Section 56(1)(a) and (b) - Non-application of mind - The externing authority passed an order externing the petitioner from Mumbai, Mumbai Suburban and Thane districts without considering that the petitioner was acquitted in Crime No.100/2019 under Sections 326, 324, 323, 337, 384, 504, 506 read with 34 IPC, which was a major case relied upon. The authority also relied on stale offences and non-cognizable offences. Held that the order suffers from non-application of mind and is unsustainable (Paras 5-8).
B) Mumbai Police Act - Externment - Section 56(1)(a) and (b) - Reliance on stale and non-cognizable offences - The show cause notice and externment order relied on offences from 2014, 2015, 2016, and 2017, which are stale, and also on non-cognizable offences. Held that such reliance vitiates the externment order (Paras 5-8).
Issue of Consideration
Whether the externment order passed under Section 56(1)(a) and (b) of the Mumbai Police Act, 1951 is sustainable when the externing authority failed to consider the acquittal of the petitioner in a key criminal case and relied on stale and non-cognizable offences.
Final Decision
The petition is allowed. The impugned order dated October 18, 2019 passed by respondent No.2 and the order dated December 2, 2019 passed by respondent No.3 are quashed and set aside. Rule is made absolute accordingly.
Law Points
- Externment order must be based on subjective satisfaction
- consideration of acquittal
- non-application of mind vitiates order
- reliance on stale offences invalid
- non-cognizable offences cannot be basis for externment
Case Details
2020 LawText (BOM) (10) 66
Criminal Writ Petition No. 374 of 2020
Mr. Ganesh Gupta i/b. G.G. Legal Associates for the petitioner, Smt. A.S. Pai, APP for State
The State of Maharashtra, Deputy Commissioner of Police, Zone – VII, Mulund West, Mumbai, Divisional Commissioner, Konkan Division, Mumbai
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Nature of Litigation
Criminal writ petition challenging externment order under Mumbai Police Act
Remedy Sought
Quashing of externment order dated October 18, 2019 and appellate order dated December 2, 2019
Filing Reason
Externment order passed without considering acquittal in key case and relying on stale and non-cognizable offences
Previous Decisions
Externment order by Deputy Commissioner of Police on October 18, 2019; confirmed by Divisional Commissioner on December 2, 2019
Issues
Whether the externment order suffers from non-application of mind for not considering the acquittal of the petitioner in Crime No.100/2019?
Whether reliance on stale offences and non-cognizable offences vitiates the externment order?
Submissions/Arguments
Petitioner argued that the externing authority failed to consider his acquittal in Crime No.100/2019, which was a major case relied upon.
Petitioner argued that the show cause notice and order relied on stale offences from 2014, 2015, 2016, 2017 and non-cognizable offences, showing non-application of mind.
Ratio Decidendi
An externment order under Section 56(1)(a) and (b) of the Mumbai Police Act, 1951 must be based on proper application of mind. Failure to consider the acquittal of the externee in a key criminal case and reliance on stale and non-cognizable offences renders the order unsustainable.
Judgment Excerpts
The learned counsel for the petitioner assailing the order of externment submits that the impugned order suffers from non application of mind in as much as though he was acquitted in respect of Crime No.100/2019 registered under Sections 326, 324, 323, 337, 384, 504, 506 read with 34 of the Indian Penal Code, the Externing Authority has placed reliance on the said C.R.
We find considerable substance in the submissions of the learned counsel for the petitioner. The impugned order suffers from non application of mind. The externing authority has not considered the acquittal of the petitioner in Crime No.100/2019. The show cause notice and the impugned order also rely on stale offences and non-cognizable offences. Hence, the impugned order is unsustainable.
Procedural History
Senior Inspector of Police, Mulund Police Station initiated proposal for externment. Show cause notice issued on August 7, 2019 under Section 59 of Mumbai Police Act. Petitioner replied on October 17, 2019. Externing authority passed externment order on October 18, 2019. Petitioner appealed to Divisional Commissioner, who confirmed the order on December 2, 2019. Petitioner filed Criminal Writ Petition No.374 of 2020 before Bombay High Court under Article 226 of Constitution.
Acts & Sections
- Mumbai Police Act, 1951: 56(1)(a), 56(1)(b), 59
- Indian Penal Code, 1860: 326, 324, 323, 337, 384, 504, 506, 34
- Constitution of India, 1950: 226
