Case Note & Summary
The petitioner, Mohammed Zaman Hidayatulla Khan @ Sonu Pathan, challenged an externment order dated 30 March 2013 passed by the Deputy Commissioner of Police, Zone-II, Mumbai, externing him from Brihan Mumbai, Navi Mumbai and Thane for one year, and the appellate order dated 17 June 2013 confirming it. The externment order was issued under Section 57 of the Bombay Police Act, 1951, based on the petitioner's conviction in C.R. No. 198 of 2008 under Sections 307, 326, 341 and 34 of the Indian Penal Code, 1860 and Sections 3 and 25 of the Arms Act. The order also referred to two other criminal complaints (C.R. No. 294 of 2011 and C.R. No. 207 of 2012) in which the petitioner was acquitted. The petitioner argued that the externment order was unsustainable as it relied solely on the conviction without any material to show that he was likely to commit similar offences again. The court agreed, holding that Section 57(a)(i) requires both a conviction and a recorded satisfaction based on cogent material that the person is likely to engage in similar offences. Since the only basis was the conviction and the other cases ended in acquittal, there was no material to support the belief of likely repeat offence. The court quashed both the externment order and the appellate order.
Headnote
A) Criminal Law - Externment - Section 57(a)(i) Bombay Police Act, 1951 - Requirement of Reason to Believe - The section requires both a conviction under Chapters XII, XVI or XVII of IPC and a recorded satisfaction that the person is likely again to commit a similar offence; mere conviction is insufficient - The authority must have cogent material capable of objective testing to form such belief - In this case, the externment order was based solely on a single conviction and two acquittals, with no material to show likelihood of repeat offence - Held that the order cannot be sustained (Paras 6-7).
Issue of Consideration
Whether an externment order under Section 57(a)(i) of the Bombay Police Act, 1951 can be sustained solely on the basis of a prior conviction without any material to show that the person is likely to engage in similar offences again
Final Decision
The court allowed the petition, quashing the externment order dated 30 March 2013 and the appellate order dated 17 June 2013. Rule made absolute.
Law Points
- Externment order under Section 57(a)(i) of Bombay Police Act requires both a prior conviction and a recorded satisfaction based on cogent material that the person is likely to commit a similar offence again
- mere conviction is insufficient
Case Details
2013 LawText (BOM) (09) 102
Criminal Writ Petition No. 2744 of 2013
S.C. Dharmadhikari, G.S. Patel
Mr. Hussen Shaikh (for Petitioner), Mr. K. V. Saste (APP for Respondents-State)
Mohammed Zaman Hidayatulla Khan @ Sonu Pathan
Vineet Agarwal, Nisar Tamboli, B. D. Katakdond
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal writ petition challenging an externment order and appellate order under the Bombay Police Act, 1951
Remedy Sought
Quashing of externment order dated 30 March 2013 and appellate order dated 17 June 2013
Filing Reason
Petitioner was externed from Brihan Mumbai, Navi Mumbai and Thane for one year based on a conviction and two acquittals, without any material showing likelihood of repeat offence
Previous Decisions
Externment order passed by Deputy Commissioner of Police on 30 March 2013; appeal dismissed by Secretary (Special), Home Department on 17 June 2013
Issues
Whether the externment order under Section 57(a)(i) of the Bombay Police Act, 1951 can be sustained solely on the basis of a prior conviction without any material to show that the person is likely to engage in similar offences again
Submissions/Arguments
Petitioner argued that the externment order is unsustainable as it relies only on a conviction and two acquittals, with no material to show likelihood of repeat offence
Respondent-State argued in support of the externment order
Ratio Decidendi
Section 57(a)(i) of the Bombay Police Act, 1951 requires both a conviction under specified chapters of IPC and a recorded satisfaction based on cogent material that the person is likely to commit a similar offence again. Mere conviction is insufficient; the authority must have reason to believe based on objective material.
Judgment Excerpts
The externment order is passed under Section 57(a)(i) of the Bombay Police Act, 1951. That section has two requirements: first, a conviction of the proposed externee under Chapters XII, XVI or XVII of the Indian Penal Code, 1860; and second, a recorded satisfaction that the externing authority 'has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted'.
Both requirements are essential; it is not enough that only one is met. The words 'reason to believe' mean that there must exist some cogent material, capable of being objectively tested, on which the authority can form such belief.
Procedural History
On 11 January 2013, show cause notice under Section 59 of Bombay Police Act was served on petitioner. On 30 March 2013, Deputy Commissioner of Police passed externment order. Petitioner appealed; appeal dismissed on 17 June 2013. Petitioner then filed Criminal Writ Petition No. 2744 of 2013 under Article 226 of Constitution of India.
Acts & Sections
- Bombay Police Act, 1951: 57, 59
- Indian Penal Code, 1860: 307, 326, 341, 34
- Arms Act: 3, 25
- Constitution of India: 226
