Bombay High Court
Nasir Beg S/O Sabdar Beg Mirza vs The State Of Maharashtra, Through Its ... on 30 January, 2008
Author: S.R. Dongaonkar
Bench: S.R. Dongaonkar
JUDGMENT S.R. Dongaonkar, J.
1. Rule.
Rule made returnable forthwith.
Heard finally with the consent of the parties.
The petitioner herein is challenging the order of Sub Divisional Magistrate, Mangrulpir dated 25.10.2007 in Criminal Case No. Bombay Police Act 56/Karanja/10/ 2006 by which he externed the petitioner for the period of one year from Washim District.
2. Facts leading to this petition can be stated thus. It is alleged that petitioner is facing Criminal cases arising out of Crime No. 34/2001 for the offence under Section 354, 380 of the Indian Penal Code, Crime No. 2/2005 for the offence under Section 461 and 380 of the Indian Penal Code, Crime No. 122/2005 for the offence under Section 353, 504 of the Indian Penal Code, and Crime No. 30/2006 for the offence under Section 380 of the Indian Penal Code. In show cause notice issued to the petitioner, it was stated that there are four offences registered against him. His conduct was not improved and his tendency to commit offences was increasing day by day and to check his criminal activities and for seeking improvement in his criminal conduct, notice under Section 56 and 57 of the Bombay Police Act to show cause as to why he should not be externed for two years from district - Washim, was issued. This notice was issued on 15.1.2007. Later on one another notice was issued on 18.6.2007 which precisely contained same allegations. The petitioner then filed his say, whereby he contended that in first case i.e. in crime No. 24/2001 he was acquitted and though rest of the cases were pending against him, he was falsely implicated therein. It was also contended by him that whenever there used to be theft in Karanja town, he used to be arrested and after taking P.C.R.s he used to be discharged. According to him, he was never convicted for any offence. His behavior was certified to be good by the Municipal Councillor Abdul Nazir Mohammad Umar. According to him, he is a poor labour, he had minor children and old parents and he has never committed any offence. According to him, his behaviour was good and police had prepared false record against him to ensure success in externment proceedings. He had filed a character certificate of Police Patil of Karanja Town. Shri Bhoyar and also of the above mentioned Municipal Councillor Abdul Nazir. He had along with his reply also filed certificate signed by some persons to show that the petitioner is labourer and he did not give any troubles to them.
3. Learned S.D.M. however passed impugned order dated 25.11.2007 by which he externed him out of Washim District for one year.
4. This order is challenged in this petition by the petitioner.
5. Learned Counsel for the petitioner Shri Mirza, by relying on some authorities contended that the show cause notice issued by the respondent i.e. Sub Divisional Magistrate, Mangrulpir, was not sufficient enough to invite action under Section 56 of the Bombay Police Act. There was no application of mind by S.D.M. Mangrulpir and as such the final order impugned in this petition was bad. According to him, the acquittal in the first offence mentioned in the show cause notice clearly shows the non application of mind by the S.D.M. to the case of the petitioner. According to him, the learned S.D.M. had passed the order without considering the fact that there were no sufficient cases against the petitioner either pending or disposed of to show that any action under Section 56 of the Bombay Police Act is warranted. It is further his case that contention that the witnesses are not coming forward to depose against the petitioner is incorrect. He has relied on the observations of this Court in 1989 Mh.L.J. 1111 [Yashwant Damodar Patil v. Hemant Karkare Deputy Commissioner of Police and Anr.] to contend that the allegations against the petitioner were not informed properly. He has specifically referred to paragraph 5 and 9 of that Judgment to submit that in every case of acts involved on the part of the proposed externee where an order of externment is proposed to be passed, it is necessary that the officer concerned must be satisfied that the witnesses are not willing to come forward to give evidence against him. Notice of such satisfaction must also necessarily be given to the proposed externee under Section 59 of the Bombay Police Act. According to him, if all the material is not made available to the proposed externee, while issuing show cause, there is clear breach of the rule of natural justice which has been incorporated in Section 59 of the Bombay Police Act and therefore, the order of externment will have to be set aside. It is also his submission that the fact that externing authority had formed an opinion that the witnesses are not coming forward, has to appear in show cause notice, if it is not, order is likely to be vitiated, relying on [Mohd. Sajid Iqbal @ SK. Imam v. State of Maharashtra]. He has further pressed into service the observations of this Court in [Sanjay Pandurang Nagpure v. State of Maharashtra and Anr.], wherein it has been held that the concerned authority cannot rely on the extraneous material. The show cause notice should clearly define what is the material against proposed externee. The reliance on extraneous material for passing externment order will make the relevant order invalid. Learned Counsel has further relied on the decision of this Court in [Umar Mohammed Malbari v. K.P. Gaikwad and Anr.] to contend that the writ petition is maintainable even though there is alternate remedy of appeal available under Section 60 of the Bombay Police Act. It is also his contention that when show cause notice contains certain allegations, not related to the passing of the order of externment, it would make the order invalid as it may misdirect the proposed externee. Thus in short his submission is that although the remedy of appeal is available, the writ petition in the present case would be maintainable, inasmuch as there is violation of fundamental right of the petitioner and the show cause notice is bad for non mentioning of the material details of the allegations against the petitioner and there is no application of mind by the authority to the matter of petitioner, consequently the final order of externment passed against him is vitiated.
6. Learned A.P.P. relied on judgment of Apex Court in State N.C.T. of Delhi and Anr. v. Sanjeev @ Bittoo to contend that when the remedy of appeal is available, writ petition would not be tenable. It is also contended by learned APP that the order passed by S.D.M. impugned in this writ petition is a matter of administrative satisfaction, therefore, it is not liable to be interfered. Learned APP contends that the petitioner should have filed an appeal before the concerned authorities in view of [State of Maharashtra and Anr. v. Salem Hasan Khan]. On merits, he has tried to justify the order of the S.D.M. Mangrulpir by contending that the offences against the petitioner, would clearly make out a case of his externment under Section 56 of the Bombay Police Act. It is also his contention that the S.D.M. Mangrulpir has rightly relied upon the report of the P.S.O. Karanja to passed an order of externment against the petitioner as such there was no non-application of mind. So the petition needs to be dismissed.
7. As regards the interference of the orders of the authorities under Section 56 of the Bombay Police Act, the law appears to be fairly settled. In view of the decision in [Umar Mohammed Malbari v. K.P. Gaikwad and Anr.] wherein it has been held in paragraph 9 as under:
9-Shri Kothari, however, submitted that this petition does not call for interference in exercise of the jurisdiction under Article 226 of the Constitution inasmuch as the petitioner has not exhausted the remedy of an appeal to the State Government. He further submitted that the present petition suffers from the vide of latches inasmuch as the petitioner has approached this Court about 15 months after the passing of the impugned order. In our judgment, there is no merit in this contention inasmuch as the rule about the failure to exercise an alternative remedy when one is in existence is a rule relating to the discretion of the court and that rule does not act as a bar to the jurisdiction of the court to entertain and grant petition. Therefore, the fact that the petitioner has not exhausted all his remedies does not bar the jurisdiction of the court to entertain and dispose of the petition but, is a factor to be taken into account for the purpose of considering whether the discretion should or should not be exercised in favour of the petitioner. The rule that the High Court will not issue a prerogative writ when an alternative remedy is available does not apply when a petitioner comes to the court with an allegation that his fundamental rights have been infringed. When an order of externment is passed against the petitioner, he can undoubtedly come to this Court with a writ petition on the ground that his fundamental right of freedom of movement is affected and this he can do without exhausting the other remedy provided for in the act viz. an appeal to the State Government against the order. In view of the fact that the petitioner has been externed out of the arrears covering three districts as also Greater Bombay, it will have to be held that his fundamental right to move freely throughout the territory of India which is guaranteed under Article 19(1)(d) of the Constitution has been infringed. In this view of the mater, the very fact that the petitioner has not exhausted his alternative remedy of an appeal or merely because he has come here after undue delay can be no hurdles in the matter of entertaining this petition.
8. Merely because the petitioner has not preferred an appeal to challenge the impugned order, before the government that fact will not dis-entitle to him from seeking the remedy in this Court for violation of fundamental right. It is needless to mention that in view of judgment in [Harbanslal Sahnia and Anr. v. Indian Oil Corporation Limited and Ors.] wherein it held:
The rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, inspite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i)where the writ petition seeks enforcement of any of the fundamental rights; (ii)where there is failure of principles of natural justice; or (iii)where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
Non filing of an appeal against the impugned order will not dis entitle him from claiming relief as claimed in this petition if failure of principle of natural justice is established.
9. The fact of the case which needs to be noted while deciding this petition, whether the impugned order is correct or not, is that allegations recorded in second show cause notice are quite similar to that were mentioned in first show cause notice, which was issued on 15.1.2007. Second notice was issued on 18.6.2007. It does appear on close perusal of these two show cause notices that there was no change in the second notice except non mentioning of Section 57 of the Bombay Police Act (in the second notice). Even in the second notice the offence in crime No. 34/2001 under Section 380 read with Section 34 of I.P.C. was mentioned. It is categorical statement of the petitioner that he was acquitted in that case. There appears no evidence to show that the case arising out of this crime was pending in the court. When there was specific denial of the petitioner in his reply to show cause notice about the pendency of this case, it was duty of the P.S.O. to make it clear as to whether that trial was pending or not. As this was not done, and the final order was passed on the strength of this fact, would clearly show non application of the mind by the concerned authority. Even, in final order, it is mentioned that the offence crime No. 34/2007 was pending against him. All this will show that the proceedings were conducted by S.D.M. Mangrulpir in casual manner.
10. Final order depicts that after second show cause notice was issued, the matter was fixed for recording the defence, i.e. evidence of the noticee and sufficient time was granted to him, but still the petitioner did not attend and the matter was proceeded exparte assuming that the petitioner was not willing to lead any evidence. It is further mentioned that finally the matter was fixed for written arguments, but the petitioner was absent. Thus, the matter was finally proceeded exparte presuming that the petitioner was not willing to lead any defence.
11. In the circumstances, of the case, even assuming that the petitioner had not attended the proceedings after filing of his reply, in my opinion, it was duty of the S.D.M. to verify as to what offences were really pending against the petitioner and whether it warranted action under Section 56 of the Bombay Police Act. On perusal of the final order, it would be seen that it was report of S.D.P.O. Karanja that proposed externee was not afraid of legal action and nobody was coming forward to adduce evidence against him and therefore, he was often acquitted in the cases. It is also alleged that the likelihood of any serious offence cannot be said to be impossible, if he is allowed to remain in the area of Karanja town because of his vagabond nature and conduct of committing offence. Admittedly only 3 offences of theft appear to have been alleged to be pending against him. In one case he was acquitted. In other two cases, it appears; the allegations were that the accused had committed theft of some grocery articles and when there was noise and shouts, thieves left the stolen articles on the spot and ran away. In one case, an offence was registered against unidentified person. The details of allegations and evidence available against the petitioner in these cases is not available for appreciation.
12. Respondent has not produced any material on record to show that the witnesses are not coming forward to depose against the petitioner. In fact such averment is not made in both the show cause notices. Therefore, in view of the authorities referred to above, it would be clear that when the show cause notices did not contain the allegations that the witnesses are not coming forward to depose against the petitioner and therefore, he has been acquitted, the final order passed consequent to that would not sustain.
13. Even otherwise, when there is no material on record to show that the basis on which the final order was passed was supported by the evidence, the same would not sustain. There would be clear violation of principles of natural justice inasmuch as the final order would then be on the basis of extraneous material, which the petitioner was not made aware of when show cause notice was issued. Hence the final order i.e. impugned in this petition will have to be quashed and set aside.
14. Ordinarily, the matter would have been remanded in the present case, inasmuch as, the final order itself contains the statement that the proceedings were exparte, because petitioner did not attend. It would have been necessary to grant opportunity to the petitioner to lead evidence in his defence. However, in the present case as the show cause notice does not demonstrate clear material to invite proceedings for externment, against the petitioner, I do not think it necessary to set aside the impugned order with direction of remand to allow the petitioner to lead evidence in his defence. In this view of the matter, therefore, the petition will have to be allowed. As such the petition is allowed. Impugned order passed by the Sub Divisional Magistrate, Mangrulpir dated 25.10.2007 is hereby quashed and set aside. Rule is made absolute in the aforesaid terms.