Case Note & Summary
The petitioner, Ashok @ Aau s/o Pitambar Choudhary, filed a Criminal Writ Petition under Articles 14, 21, 226, and 227 of the Constitution of India challenging the externment order dated 05.12.2011 passed by the Sub-Divisional Magistrate, Bhusawal (respondent No.3), and the appellate order dated 19.04.2012 passed by the Officer on Special Duty (respondent No.2) confirming the externment. The petitioner was externed from Jalgaon District for a period of two years under Section 57 of the Bombay Police Act, 1950. The petitioner contended that he was an active member of the Rashtravadi Congress Party (N.C.P.) in Bhusawal Municipal Council and that certain offences were registered against him at the instance of political rivals. He further submitted that earlier externment proceedings under Section 56(B) of the Bombay Police Act were dropped on 07.08.2007 for lack of sufficient grounds. The petitioner argued that the impugned orders were illegal and violative of the principles of natural justice as the authorities failed to comply with Section 59 of the Bombay Police Act, 1950, which requires the authority to consider whether less drastic measures would suffice and to provide an opportunity of hearing to the proposed externee. The State respondents opposed the petition, supporting the externment orders. The court, after hearing both sides, examined the provisions of Section 57 and Section 59 of the Bombay Police Act, 1950. The court noted that Section 59 imposes a mandatory duty on the externment authority to consider whether the proposed externee can be controlled by other means and to give him an opportunity of showing cause. The court found that the impugned orders did not reflect any such consideration or compliance with Section 59. Consequently, the court held that the externment orders were illegal and unsustainable. The court quashed and set aside both the order dated 05.12.2011 passed by the Sub-Divisional Magistrate, Bhusawal, and the order dated 19.04.2012 passed by the Officer on Special Duty. The petition was allowed, and rule was made absolute.
Headnote
A) Bombay Police Act, 1950 - Externment - Section 57 read with Section 59 - Validity of Externment Order - The petitioner challenged the externment order dated 05.12.2011 passed by the Sub-Divisional Magistrate, Bhusawal, and the appellate order dated 19.04.2012 confirming the same. The court held that the externment order was illegal as the authority failed to comply with Section 59 of the Bombay Police Act, 1950, which mandates that before passing an externment order, the authority must consider whether less drastic measures would suffice and must provide an opportunity of hearing to the proposed externee. The impugned orders were quashed and set aside. (Paras 1-10) B) Bombay Police Act, 1950 - Section 59 - Mandatory Requirements - Opportunity of Hearing and Consideration of Less Drastic Measures - The court observed that Section 59 of the Bombay Police Act, 1950 imposes a mandatory duty on the externment authority to consider whether the proposed externee can be controlled by other means and to give him an opportunity of showing cause. The failure to adhere to these requirements vitiates the externment order. (Paras 5-10) C) Constitutional Law - Articles 14, 21, 226, 227 - Right to Life and Personal Liberty - The court noted that externment orders directly affect the personal liberty of a citizen and must be passed strictly in accordance with law. Any deviation from the statutory safeguards renders the order unconstitutional. (Paras 2, 10)
Issue of Consideration
Whether the externment order passed under Section 57 of the Bombay Police Act, 1950 and confirmed in appeal, is valid and legal, particularly in light of non-compliance with Section 59 of the said Act.
Final Decision
The court allowed the petition, quashing and setting aside the impugned order dated 05.12.2011 passed by respondent No.3 and the order dated 19.04.2012 passed by respondent No.2. Rule made absolute.
Law Points
- Externment order under Section 57 of Bombay Police Act
- 1950 must comply with Section 59
- which requires consideration of less drastic measures and providing an opportunity of hearing
- failure to do so renders the order illegal and unsustainable.
