Case Note & Summary
The petitioner, Mohd. Najib Mohd. Aslam @ Sheru Kashmiri, challenged an externment order dated 20.09.2010 passed by the Deputy Commissioner of Police, Zone-I, Mumbai under Section 56(1)(a)(b) of the Mumbai Police Act, 1951, and the appellate order dated 22.11.2010 confirming it. The externment order directed the petitioner to remove himself from Mumbai, Thane, Navi Mumbai, Raigad, and Pune districts for a period of two years. The petitioner contended that the show cause notice under Section 59 of the Act was not issued by the Externing Authority (DCP) but by the Assistant Commissioner of Police, Dongari Division, who was not the competent authority. The court examined the proposal submitted by the Senior Police Inspector of J.J. Marg Police Station on 04.08.2010, the show cause notice issued by ACP Dongari Division, and the subsequent externment order by DCP. The court held that Section 59 of the Mumbai Police Act mandates that the show cause notice must be issued by the Externing Authority himself, i.e., the officer empowered to pass the externment order. Since the notice was issued by the ACP, who was not the Externing Authority, the mandatory requirement was not complied with. The court distinguished the case from the decision in Pandharinath Shridhar Karandikar v. State of Maharashtra, where the notice was issued by the same authority. The court also noted that the appellate authority's confirmation cannot cure the initial defect. Consequently, the court allowed the writ petition, quashed the externment order and the appellate order, and set aside the rule.
Headnote
A) Criminal Law - Externment - Show Cause Notice - Section 59 read with Section 56(1)(a)(b) of the Mumbai Police Act, 1951 - The show cause notice under Section 59 must be issued by the Externing Authority himself and not by any subordinate officer - In the present case, the notice was issued by the Assistant Commissioner of Police, who was not the Externing Authority - Held that the externment order is invalid for non-compliance with the mandatory requirement of Section 59 (Paras 7-9).
Issue of Consideration
Whether the show cause notice under Section 59 of the Mumbai Police Act, 1951 must be issued by the Externing Authority himself or can be issued by a delegate, and whether non-compliance vitiates the externment order.
Final Decision
Writ Petition allowed. Externment order dated 20.09.2010 and appellate order dated 22.11.2010 are quashed and set aside. Rule made absolute.
Law Points
- Externment order under Section 56(1)(a)(b) of Mumbai Police Act
- 1951 must be preceded by show cause notice under Section 59 issued by the Externing Authority himself
- not by a delegate
- non-compliance renders order invalid
- appellate authority's confirmation does not cure defect.
