Case Note & Summary
The petitioner, Gorakh Gajabapu Karande, filed a Criminal Writ Petition under Article 226 of the Constitution of India before the Bombay High Court, Aurangabad Bench, challenging the inaction of the appellate authority in deciding his stay application. The petitioner had been externed by an order of the SubDivisional Magistrate, Ahmednagar, under the Bombay Police Act. He filed an appeal under Section 60 of the Act along with an application for stay of the externment order on 31.10.2013. The grievance was that the appellate authority had not decided the stay application, which effectively amounted to its rejection without considering merits. The court found substance in the petitioner's contention, observing that the procedure adopted by the appellate authority of not passing any order on the stay application could not be called fair, just, or reasonable. The court noted that such an application needs to be decided on merits expeditiously, especially if the appeal itself cannot be heard quickly. Since the procedure was unfair, the court exercised its constitutional jurisdiction and directed that the operation, execution, and implementation of the externment order be stayed until the stay application is decided by the appellate authority. The petition was allowed to that extent, and rule was made absolute in the aforesaid terms.
Headnote
A) Criminal Procedure - Externment - Stay Application - Bombay Police Act, 1951, Section 60 - The petitioner challenged an externment order and filed an appeal along with a stay application. The appellate authority did not decide the stay application, which the court held to be unfair and unjust. The court directed that the operation of the externment order be stayed until the stay application is decided on merits by the appellate authority. (Paras 2-7)
Issue of Consideration
Whether the appellate authority's failure to decide the stay application filed along with an appeal under Section 60 of the Bombay Police Act is fair, just, and reasonable.
Final Decision
The petition is allowed. The operation, execution, and implementation of the externment order shall remain stayed until the application for stay of the impugned order, as made before the appellate authority, is decided by the said authority. Rule is made absolute in the aforesaid terms.
Law Points
- Stay application must be decided expeditiously
- Failure to decide stay application amounts to unfair procedure
- Appellate authority must consider stay on merits
Case Details
2013 LawText (BOM) (12) 36
Criminal Writ Petition No. 1178 of 2013
Mr. N.V. Gaware for Petitioner, Mr. V.P. Kadam APP for Respondents
Gorakh S/o Gajabapu Karande
The State of Maharashtra, The SubDivisional Magistrate, Nagar Division, Ahmednagar, The SubDivisional Police Officer, Nagar Rural SubDivision, Ahmednagar
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Nature of Litigation
Criminal Writ Petition challenging the failure of the appellate authority to decide a stay application filed along with an appeal against an externment order.
Remedy Sought
The petitioner sought a direction to the appellate authority to decide the stay application or to stay the externment order pending decision.
Filing Reason
The appellate authority did not decide the stay application filed on 31.10.2013, which the petitioner claimed amounted to unfair rejection.
Previous Decisions
The SubDivisional Magistrate, Ahmednagar, passed an externment order against the petitioner. The petitioner filed an appeal under Section 60 of the Bombay Police Act along with a stay application, which remained undecided.
Issues
Whether the appellate authority's failure to decide the stay application is fair, just, and reasonable.
Submissions/Arguments
The petitioner argued that not deciding the stay application effectively amounts to rejection without considering merits.
The court found substance in the petitioner's contention.
Ratio Decidendi
The procedure adopted by the appellate authority of not passing any order on the stay application cannot be called fair, just, or reasonable. Such an application needs to be decided on merits expeditiously, particularly if the appeal itself cannot be heard and disposed of expeditiously.
Judgment Excerpts
The procedure adopted by the appellate authority, namely: of not passing any order at all on the application for stay can not be called as fair, just or reasonable.
From the very nature of the application, such an application needs to be decided on merits, expeditiously, particularly if the appeal itself cannot be heard and disposed of expeditiously.
Procedural History
The SubDivisional Magistrate, Ahmednagar, passed an externment order against the petitioner. The petitioner filed an appeal under Section 60 of the Bombay Police Act on 31.10.2013 along with a stay application. The appellate authority did not decide the stay application. The petitioner then filed the present Criminal Writ Petition before the High Court.
Acts & Sections
- Bombay Police Act, 1951: 60
