Case Note & Summary
The case involved two writ petitions challenging externment orders under the Bombay Police Act, 1951. The learned Single Judge referred the issue of whether the Appellate Authority under Section 60 of the Act has power to grant interim relief pending appeal to a larger Bench, noting that the Division Bench in Shamkumar Arjun Dalvi v. State of Maharashtra (1988 Mh.L.J. 95) had held that no such power exists. The Full Bench considered the language of Section 60, which provides for an appeal to the State Government against an externment order, and noted that the section does not expressly confer power to grant interim relief. However, the court held that the power to grant interim relief is inherent in the appellate jurisdiction to prevent the appeal from becoming infructuous. The court distinguished externment orders from sentences of imprisonment, observing that externment is a preventive measure and the period of externment may expire before the appeal is decided. The court held that the Appellate Authority may grant interim relief, such as stay of the externment order, subject to recording reasons and considering the prima facie case. The decision in Shamkumar Arjun Dalvi was overruled to the extent it held that no interim relief can be granted. The court directed that the appeals be decided expeditiously, preferably within six months.
Headnote
A) Bombay Police Act - Externment - Interim Relief in Appeal - Section 60 - Power of Appellate Authority to grant interim relief - The Full Bench held that the Appellate Authority under Section 60 of the Bombay Police Act, 1951 has the power to grant interim relief, including stay of the externment order, pending appeal. The authority must record reasons and consider prima facie case. The earlier Division Bench decision in Shamkumar Arjun Dalvi v. State of Maharashtra (1988 Mh.L.J. 95) was overruled to the extent it held otherwise. (Paras 1-13)
Issue of Consideration
Whether the Appellate Authority under Section 60 of the Bombay Police Act, 1951 has the power to grant interim relief (stay or suspension) of an externment order pending disposal of the appeal.
Final Decision
The Full Bench held that the Appellate Authority under Section 60 of the Bombay Police Act, 1951 has the power to grant interim relief, including stay of the externment order, pending appeal, subject to recording reasons and considering prima facie case. The decision in Shamkumar Arjun Dalvi v. State of Maharashtra (1988 Mh.L.J. 95) was overruled to the extent it held otherwise. The appeals are to be decided expeditiously, preferably within six months.
Law Points
- Appellate authority under Section 60 of Bombay Police Act has power to grant interim relief
- including stay of externment order pending appeal
- subject to recording reasons and prima facie case
- externment order is not a sentence of imprisonment but a preventive measure
- interim relief may be granted to prevent appeal from becoming infructuous.
Case Details
2016 LawText (BOM) (06) 62
Writ Petition No.1507 of 2007 and Writ Petition No.1508 of 2007
A.S. Oka, A.K. Menon, P.D. Naik
Mr. Gajendra Jadhav for the Petitioners, Mr. S.K. Shinde, Public Prosecutor a/w Mr. K.V. Saste, APP for the Respondents – State, Mr. Murtaza Najmi, Amicus Curiae
Shri Sachin Yeshwant Pokre and Shri Naresh Heralal Rathod
Shri Jayprakash M. Jadhav, Shri Ashok Deshparkar, State of Maharashtra
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Nature of Litigation
Writ petitions challenging externment orders under the Bombay Police Act, 1951, with a reference to a larger Bench on the power of the Appellate Authority to grant interim relief.
Remedy Sought
The petitioners sought quashing of externment orders and interim relief staying the orders pending appeal.
Filing Reason
The petitioners were externed under the Bombay Police Act and challenged the orders, raising the issue of whether the Appellate Authority under Section 60 can grant interim relief.
Previous Decisions
The learned Single Judge referred the matter to a larger Bench, noting the Division Bench decision in Shamkumar Arjun Dalvi v. State of Maharashtra (1988 Mh.L.J. 95) which held that no interim relief can be granted.
Issues
Whether the Appellate Authority under Section 60 of the Bombay Police Act, 1951 has the power to grant interim relief (stay or suspension) of an externment order pending appeal.
Submissions/Arguments
The petitioners argued that the Appellate Authority has inherent power to grant interim relief to prevent the appeal from becoming infructuous.
The State argued that Section 60 does not expressly confer power to grant interim relief and that externment orders are preventive measures which should not be stayed.
Ratio Decidendi
The power to grant interim relief is inherent in the appellate jurisdiction to prevent the appeal from becoming infructuous. The Appellate Authority under Section 60 of the Bombay Police Act, 1951 can grant stay or suspension of an externment order pending appeal, provided reasons are recorded and a prima facie case is made out.
Judgment Excerpts
Even otherwise, it is well settled in law that an interim relief or stay order is required to be granted on the basis of a prima facie case to succeed in the appeal.
The externment period normally varies from one to two years and it is common experience that appeals before the State Government remain pending even upto one year and in this process if the externee is granted interim relief pending the appeal, the order of externment may become infructuous or the efficacy of the externment order itself may be in peril.
Procedural History
The writ petitions were filed in 2007 challenging externment orders. The learned Single Judge, by order dated 17th August 2007, referred the issue of power to grant interim relief to a larger Bench. The Full Bench heard submissions on 18th March 2016 and pronounced judgment on 14th June 2016.
Acts & Sections
- Bombay Police Act, 1951: Section 60
