Case Note & Summary
The Bombay High Court, Nagpur Bench, heard a criminal writ petition filed by Aleem Khan Salim Khan challenging an externment order dated 8 March 2011 passed by the Sub-Divisional Magistrate, Morshi, under Section 56(a) and (b) of the Bombay Police Act, 1951. The petitioner, a businessman, was externed from Amravati district for two years on allegations of being a gang lord of thieves and facing 14 criminal cases. The proceedings commenced with a proposal from the Police Station Officer, Morshi on 16 November 2010. On 7 December 2010, the SDM directed an inquiry under Section 59 and issued a show cause notice. The petitioner filed multiple replies between 14 December 2010 and 14 February 2011, claiming acquittal in four cases, discharge in one, and no connection with others. He alleged conspiracy due to his anti-corruption protests. He was allowed to examine only two defence witnesses. The SDM passed the externment order without considering the acquittals, leading the petitioner to file the writ petition under Article 226 of the Constitution. The petitioner argued that the order violated natural justice by relying on material not in the show cause notice, ignoring acquittals, and arbitrarily restricting witness count. He cited precedents to show that externment orders must be based on material in the notice and that acquittals must be considered. The respondents contended that there was no breach of natural justice and that the petitioner should have exhausted the alternative remedy under Section 60. Justice A. P. Bhangale held that non-consideration of the acquittals, where prosecution witnesses had attended court, amounted to violation of fair play and natural justice. The show cause notice was defective because it listed cases as "court pending" without disclosing acquittals and contained vague allegations. The order considered extraneous material not mentioned in the notice, offending the principles of fair play. Additionally, restricting the petitioner to only two witnesses was unreasonably restrictive and arbitrary. The court emphasized that externment is an exceptional remedy requiring the authority to assess present danger and harm to society; mechanical orders without application of mind are invalid. On the issue of alternative remedy, the court held that when an order is passed in violation of natural justice, the petitioner need not exhaust the remedy under Section 60 before approaching the High Court. Consequently, the impugned externment order was quashed and set aside, and the rule was made absolute with no costs.
Headnote
A) Criminal Law - Externment - Natural Justice - Bombay Police Act, 1951, Sections 56, 59 - The externing authority must consider material evidence placed by the proposed externee including acquittals; failure to do so violates principles of natural justice and fair play, rendering the externment order invalid. Held that non-consideration of acquittals where prosecution witnesses had attended court amounted to violation (Paras 12-13). B) Criminal Law - Externment - Show Cause Notice - Bombay Police Act, 1951, Sections 56, 59 - An externment order must be based on the material contained in the show cause notice; reliance on extraneous circumstances not put to the externee violates the right to hearing and vitiates the order. Held that if the order takes into account incidents not stated in the notice, it offends fair-play and justice (Paras 8-9, 13). C) Criminal Law - Externment - Prophylactic Action - Bombay Police Act, 1951, Section 56 - Externment is an exceptional remedy to be used only in emergent situations; the authority must inquire whether the present activity of the individual poses such degree of harm that externment is necessary and not pass a mechanical order. Held that vague allegations and pending cases without substantiation do not justify externment (Para 13). D) Criminal Law - Externment - Right to Defence - Bombay Police Act, 1951, Section 59 - Restricting the proposed externee to adducing evidence of only two defence witnesses is unreasonably restrictive and arbitrary, violating the principles of natural justice. Held that such restriction offends fair-play and justice (Paras 10, 13). E) Constitutional Law - Writ Jurisdiction - Alternative Remedy - Constitution of India, Article 226 - Availability of an alternative remedy under Section 60 of the Bombay Police Act does not bar the High Court from entertaining a writ petition when the impugned order is passed in violation of natural justice. Held that the petitioner can approach the High Court without exhausting the statutory remedy (Para 11).
Issue of Consideration
Whether the externment order passed under Section 56 of Bombay Police Act, 1951 was vitiated due to violation of principles of natural justice, non-consideration of acquittals, reliance on material not in show cause notice, and arbitrary restriction of defense witnesses.
Final Decision
The impugned externment order dated 08/03/2011 is quashed and set aside. Rule is made absolute accordingly. No order as to costs.
Law Points
- externment order must be based on material in show cause notice
- non-consideration of acquittals violates natural justice
- restriction of defence witnesses is arbitrary
- alternative remedy not a bar in case of violation of natural justice
- externment is exceptional remedy requiring assessment of present danger
