Case Note & Summary
The petitioner, Saimudkhan son of Sardarkhan, challenged an externment order passed under Section 56(1) of the Bombay Police Act, 1951, by the Assistant Commissioner of Police, Ambazari Division, Nagpur, and the subsequent appellate order dismissing his statutory appeal. The externment was proposed on the basis of fourteen criminal cases registered against the petitioner between the years 2000 and 2007, involving offences under various sections of the Indian Penal Code and Section 124 of the Bombay Police Act. The last two offences were registered on 7th January 2007. The show cause notice was issued on 27th February 2007, and the externment order was passed on 22nd June 2007. The petitioner's appeal was dismissed by the Deputy Commissioner of Police on 23rd July 2007. The petitioner then filed Criminal Writ Petition No. 426 of 2007 before the Bombay High Court, Nagpur Bench, contending that the externment order was vitiated by delay and that he had been acquitted in four of the fourteen cases. The High Court noted that there was a gap of more than one year between the offence registered on 29th December 2005 and the next offences on 7th January 2007, during which no preventive action was taken. The show cause notice was issued only in February 2007, and the externment order was passed in June 2007. The Court observed that the authorities failed to explain the delay and that the required urgency under Section 56(1) was not demonstrated. Relying on the Supreme Court's judgment in Shaikh Dayan Shaikh Lukman v. State of Maharashtra and other precedents, the Court held that preventive action must be initiated and completed with the same degree of urge and punctualness; the subsistence of urgency must persist throughout. The inclusion of stale offences dating back to 2000 further diluted the urgency. Consequently, the externment order was vitiated by inordinate delay. The writ petition was allowed, and the externment order dated 22nd June 2007 and the appellate order dated 23rd July 2007 were quashed.
Headnote
A) Criminal Law - Preventive Detention/Externment - Delay Vitiates Externment - Bombay Police Act, 1951, Section 56(1) - The externment order was passed based on fourteen criminal cases, the latest being registered on 7th January 2007, but the show cause notice was issued only on 27th February 2007, and no action was taken for over a year between December 2005 and January 2007. Held that preventive action must be initiated and completed with urgency and punctualness; the subsistence of urgency must persist throughout. Inordinate delay, especially when offences date back several years, destroys the genuineness of urgency and vitiates the order. The petition was allowed and the externment order quashed. (Paras 8-20)
Issue of Consideration
Whether the externment order passed under Section 56(1) of the Bombay Police Act, 1951 was vitiated due to inordinate delay in initiating preventive action, thereby destroying the urgency required for such orders.
Final Decision
The High Court allowed the writ petition and quashed the externment order dated 22-06-2007 and the appellate order dated 23-07-2007. Rule made absolute in terms of prayer clause [a].
Law Points
- preventive action must be initiated and completed with urgency and punctualness
- delay vitiates externment
- subsistence of urgency must persist
- externment order vitiated by inordinate delay
- requirement of imminent threat under Section 56(1) of Bombay Police Act
- 1951
Case Details
2011 LawText (BOM) (12) 108
Criminal Writ Petition No. 426 of 2007
Mr. R.M. Daga for petitioner; Mr. D.L. Dharmadhikari, Additional Public Prosecutor for respondents
Saimudkhan son of Sardarkhan
The State of Maharashtra through Assistant Commissioner of Police, Ambazari Division, Nagpur City, Nagpur; Deputy Commissioner of Police, Zone-I, Nagpur City, Nagpur; Secretary, Govt. of Maharashtra, Home Department, Mantralaya, Mumbai-32
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Nature of Litigation
Challenge to externment order passed under Section 56(1) of the Bombay Police Act, 1951.
Remedy Sought
Petitioner sought quashing of externment order dated 22-06-2007 and appellate order dated 23-07-2007.
Filing Reason
Petitioner contended that the externment order was passed without due regard to the delay in initiating proceedings and that he had been acquitted in four of the fourteen cases relied upon by the authority, and that the order lacked urgency.
Previous Decisions
Externment order passed by Assistant Commissioner of Police on 22-06-2007; statutory appeal dismissed by Deputy Commissioner of Police on 23-07-2007.
Issues
Whether the externment order under Section 56(1) of the Bombay Police Act, 1951 is vitiated due to inordinate delay in taking preventive action, thereby destroying the urgency required for such an order.
Submissions/Arguments
Petitioner argued that he was acquitted in four cases but the authorities ignored this; that the externment order was vitiated by delay as no action was taken between December 2005 and January 2007, and the show cause notice was issued only in February 2007; that the urgency required under Section 56 was not established; and that the appellate authority failed to consider these grounds.
Respondent State defended the externment order as validly passed based on the petitioner's criminal record and the need to maintain public order.
Ratio Decidendi
An externment order under Section 56(1) of the Bombay Police Act, 1951, being a preventive measure, must be based on an imminent threat to public life. The authorities must initiate and complete the action with urgency and punctualness. Inordinate delay in taking such action, especially when the last alleged offences occurred months earlier and no explanation for the gap is provided, vitiates the genuineness of the urgency and renders the order invalid.
Judgment Excerpts
The alarm as contemplated by Section 56 (1) of the Bombay Police Act and threat to the public life was not perceived by the authority to be imminent till the date of issuance of notice.
The preventive action has to be initiated and completed with same degree of urge and punctualness and without any lousiness. Subsistence of urgency or emergency has to persist through, it being a preventive measure.
Taking into consideration the offences which date back to 2000 in itself result in destroying the urgency of preventive action.
In the result, petition has to succeed only on the ground of delay.
Procedural History
Assistant Commissioner of Police issued show-cause notice dated 27-02-2007 to the petitioner proposing externment based on fourteen criminal offences. Externment order was passed on 22-06-2007. Petitioner filed a statutory appeal, which was dismissed by the Deputy Commissioner of Police on 23-07-2007. Petitioner then filed Criminal Writ Petition No. 426 of 2007 before the Bombay High Court, Nagpur Bench. The High Court admitted the petition and granted interim stay on 01-08-2007. The petition was finally heard and allowed on 01-12-2011.
Acts & Sections
- Bombay Police Act, 1951: 56, 124
- Indian Penal Code, 1860: 294, 323, 341, 379, 380, 381, 392, 406, 411, 461, 481, 504, 506, 506-B, 34
