Case Note & Summary
The petitioner, Shri Perumal Arsan Madrasi, challenged an externment order dated 07.09.2010 passed by the Deputy Commissioner of Police, Zone-IV, Ulhasnagar (Externing Authority) under Section 56(1)(a)(b) of the Mumbai Police Act, 1951, and the appellate order dated 03.11.2010 confirming it. The externment was proposed based on allegations that the petitioner was involved in activities of assault, extortion, rioting, and offences under Chapters XVI and XVII of the Indian Penal Code, and that witnesses were afraid to come forward. A show cause notice under Section 59 of the Act was issued on 22.03.2010 by the Assistant Commissioner of Police, Ambernath Division. The petitioner contended that the show cause notice was not issued by the Externing Authority (DCP) but by an Assistant Commissioner, who lacked jurisdiction. The court examined the provisions of Section 59, which requires the Externing Authority to issue the notice or authorize another officer in writing. The court found that the notice was issued by the Assistant Commissioner, Ambernath Division, who was not the Externing Authority, and there was no evidence that he was authorized by the DCP. The court held that this defect vitiated the entire proceedings, as the notice is the foundation of the externment process. Consequently, the externment order and the appellate order were quashed, and the rule was made absolute.
Headnote
A) Criminal Procedure - Externment - Show Cause Notice - Section 59 Mumbai Police Act, 1951 - Show cause notice under Section 59 must be issued by the Externing Authority himself or by an officer duly authorized by him - In the present case, the notice was issued by the Assistant Commissioner of Police, Ambernath Division, who was not the Externing Authority (Deputy Commissioner of Police, Zone-IV) and there was no material to show that he was authorized - Held that the notice is invalid and consequently the externment order and appellate order are quashed (Paras 6-8).
Issue of Consideration
Whether the externment order passed under Section 56(1)(a)(b) of the Mumbai Police Act, 1951 is valid when the show cause notice under Section 59 was issued by an Assistant Commissioner of Police who is not the Externing Authority.
Final Decision
The externment order dated 07.09.2010 passed by the Deputy Commissioner of Police, Zone-IV, Ulhasnagar and the appellate order dated 03.11.2010 are quashed and set aside. Rule is made absolute.
Law Points
- Externment order
- Show cause notice
- Section 56 Mumbai Police Act
- Section 59 Mumbai Police Act
- Jurisdiction of Assistant Commissioner
- Natural justice
Case Details
2011 LawText (BOM) (04) 79
Criminal Writ Petition No.3265 of 2010
Mr. H.M. Inamdar i/b Mr. A.R. Pitale for Petitioner, Mrs. P.P. Bhosale, A.P.P. for State
Shri Perumal Arsan Madrasi
Deputy Commissioner of Police, Zone – IV, Ulhasnagar and Another
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Nature of Litigation
Criminal writ petition challenging externment order and appellate order
Remedy Sought
Quashing of externment order dated 07.09.2010 and appellate order dated 03.11.2010
Filing Reason
Petitioner was externed under Section 56(1)(a)(b) of Mumbai Police Act based on allegations of criminal activities; show cause notice was issued by Assistant Commissioner instead of Externing Authority
Previous Decisions
Externment order passed by DCP, Zone-IV on 07.09.2010; confirmed by Appellate Authority on 03.11.2010
Issues
Whether the show cause notice under Section 59 of the Mumbai Police Act, 1951 was validly issued by the Assistant Commissioner of Police, Ambernath Division, who was not the Externing Authority.
Whether the externment order and appellate order are liable to be quashed due to the defect in the show cause notice.
Submissions/Arguments
Petitioner argued that the show cause notice was issued by the Assistant Commissioner of Police, Ambernath Division, who is not the Externing Authority under Section 56, and there is no material to show that he was authorized by the Externing Authority.
Respondent/State argued that the notice was valid and the externment order was properly passed.
Ratio Decidendi
The show cause notice under Section 59 of the Mumbai Police Act, 1951 must be issued by the Externing Authority himself or by an officer duly authorized in writing by him. In the present case, the notice was issued by the Assistant Commissioner of Police, Ambernath Division, who was not the Externing Authority, and there was no evidence of authorization. This defect vitiates the entire externment proceedings, and the externment order and appellate order are liable to be quashed.
Judgment Excerpts
The show cause notice under Section 59 of the Mumbai Police Act, 1951 must be issued by the Externing Authority himself or by an officer duly authorized in writing by him.
In the present case, the notice was issued by the Assistant Commissioner of Police, Ambernath Division, who is not the Externing Authority, and there is no material to show that he was authorized by the Externing Authority.
The defect in the show cause notice vitiates the entire proceedings, and consequently the externment order and the appellate order are quashed.
Procedural History
The Senior PI, Amboli police station submitted a proposal to DCP, Zone-IV for externment under Section 56(1)(a)(b) of Mumbai Police Act. Show cause notice under Section 59 was issued by Assistant Commissioner, Ambernath Division on 22.03.2010. After hearing, the Externing Authority (DCP, Zone-IV) passed externment order on 07.09.2010. The petitioner appealed, and the Appellate Authority confirmed the order on 03.11.2010. The petitioner then filed the present writ petition.
Acts & Sections
- Mumbai Police Act, 1951: 56(1)(a)(b), 59
