Case Note & Summary
The petitioner, Vishwambhar S/o Jyotiram Sawant, aged 66, an agriculturist residing in Bolegaon, Tq. Chakur, Dist. Latur, filed a Criminal Writ Petition under Articles 226 and 227 of the Constitution of India before the High Court of Judicature at Bombay, Bench at Aurangabad. The petition challenged the legality, propriety, and correctness of two orders: (1) an order dated 15th September 2016 passed by the SubDivisional Magistrate, Ahmedpur in Case No.2016/MMG/CR01, and (2) an order dated 28th December 2016. The petitioner was represented by Mr. T.M. Venjane, Advocate, while the respondents (State of Maharashtra, Superintendent of Police Latur, and SubDivisional Magistrate Ahmedpur) were represented by Mrs. P.V. Diggikar, APP. The case was heard by a Division Bench comprising S.S. Shinde and K.K. Sonawane, JJ., and judgment was delivered on 22nd February 2017 by S.S. Shinde, J. The core issue was whether the externment order under Section 56(1)(b) of the Maharashtra Police Act, 1951 was sustainable when the authority did not consider whether proceedings under Section 110 of the Criminal Procedure Code, 1973 would be sufficient to prevent the alleged harmful activities. The petitioner argued that the externment order was passed without considering less restrictive measures. The court, after hearing both sides, found that the impugned order did not reflect any consideration of whether proceedings under Section 110 Cr.P.C. would be adequate. The court held that the authority must consider less restrictive alternatives before resorting to externment, which is a more drastic measure. Consequently, the court quashed and set aside the externment order and directed the petitioner to appear before the SubDivisional Magistrate, Ahmedpur on 13th March 2017 at 11:00 a.m. for further proceedings in accordance with law. The court also directed the authority to consider the applicability of Section 110 Cr.P.C. and pass appropriate orders after hearing the petitioner. The petition was disposed of accordingly.
Headnote
A) Maharashtra Police Act - Externment - Section 56(1)(b) - Requirement to Consider Less Restrictive Measures - The externment order was challenged on the ground that the SubDivisional Magistrate did not consider whether proceedings under Section 110 of the Criminal Procedure Code, 1973 would be sufficient to prevent the alleged harmful activities. The court held that the authority must consider less restrictive alternatives before passing an externment order. Since the order did not reflect such consideration, it was quashed and set aside. (Paras 3-5) B) Criminal Procedure Code - Preventive Action - Section 110 - Alternative Remedy - The court noted that Section 110 Cr.P.C. provides for taking security from persons likely to commit breach of peace or disturb public tranquility. The externment order under Section 56 of the Maharashtra Police Act is a more drastic measure and should be resorted to only when other remedies are inadequate. (Para 4)
Issue of Consideration
Whether the externment order passed under Section 56(1)(b) of the Maharashtra Police Act, 1951 is sustainable when the authority did not consider whether proceedings under Section 110 of the Criminal Procedure Code, 1973 would be sufficient to prevent the alleged harmful activities.
Final Decision
The externment order dated 15th September 2016 and the order dated 28th December 2016 are quashed and set aside. The petitioner is directed to appear before the SubDivisional Magistrate, Ahmedpur on 13th March 2017 at 11:00 a.m. The authority shall consider the applicability of Section 110 Cr.P.C. and pass appropriate orders after hearing the petitioner. The petition is disposed of accordingly.
Law Points
- Externment order must be based on material showing that less restrictive measures are inadequate
- Section 56 of Maharashtra Police Act
- 1951 requires consideration of alternative remedies
- Writ jurisdiction under Articles 226 and 227 of Constitution of India
