Case Note & Summary
The petitioner, Shanno @ Shamali Jafar Pathan, a 32-year-old woman agriculturist from Bhikanwada, Pathardi, Ahmednagar, challenged the externment order passed by the Sub Divisional Magistrate, Pathardi, on 12 January 2017, which was confirmed by the Divisional Commissioner, Nashik, on 17 March 2017 in Appeal No.5/2017. The externment order directed her to remove herself from the limits of Pathardi Sub Division for a period of two years under Section 56 of the Maharashtra Police Act, 1951. The petitioner contended that the order was passed without issuing any show cause notice, without giving her an opportunity of hearing, and without considering that she was acquitted in most of the criminal cases cited against her. The State argued that the externment was necessary to prevent her from committing offences and to maintain public order. The High Court examined the record and found that no show cause notice was served on the petitioner before initiating the externment proceedings, which is a mandatory requirement under Section 56. The court also noted that the in-camera statements of witnesses did not disclose any specific instances of danger to public order, and the petitioner had been acquitted in 7 out of 8 cases cited. The court held that the authorities failed to consider less restrictive measures available under the Code of Criminal Procedure, 1973. Consequently, the court quashed the externment order and allowed the petition, setting aside both the orders of the Sub Divisional Magistrate and the Divisional Commissioner.
Headnote
A) Maharashtra Police Act - Externment - Section 56 - Procedural Compliance - Show Cause Notice - The externment order was quashed as the Sub Divisional Magistrate failed to issue a show cause notice to the petitioner before initiating proceedings, violating principles of natural justice. The court held that the absence of notice vitiates the entire proceeding. (Paras 5-7) B) Maharashtra Police Act - Externment - Section 56 - Sufficiency of Material - The court found that the material relied upon, including in-camera statements and previous offences, did not justify the externment as the petitioner was acquitted in most cases and the statements lacked specific details of danger to public order. (Paras 8-10) C) Maharashtra Police Act - Externment - Section 56 - Less Restrictive Measures - The court held that the authorities must consider whether less restrictive measures under the Code of Criminal Procedure, 1973 would suffice before resorting to externment. Failure to do so renders the order disproportionate. (Para 11)
Issue of Consideration
Whether the externment order passed under Section 56 of the Maharashtra Police Act, 1951 against the petitioner is sustainable in law, considering the procedural irregularities and lack of sufficient material.
Final Decision
The petition is allowed. The judgment and order dated 12 January 2017 passed by the Sub Divisional Magistrate, Pathardi in Externment Case No.S.R. No.103/2016 and the judgment and order dated 17 March 2017 passed by the Divisional Commissioner, Nashik in Appeal No.5/2017 are quashed and set aside. Rule made absolute accordingly.
Law Points
- Externment order must be based on credible material
- show cause notice is mandatory
- less restrictive measures must be considered
- order must be proportionate
- appellate authority must give reasons
