Andhra HC (Pre-Telangana)
Mohd. Ayub Khan vs The Government Of A.P. Rep. By The ... on 31 March, 2000
Equivalent citations: 2000(1)ALD(CRI)906, 2000(1)ALT(CRI)520, 2000CRILJ3228
ORDER V. Eswaraiah, J.
1. The Court made the following Order:
This Writ Petition is filed seeking a Writ of Mandamus to declare the final orders of externment passed under Section 26(1)(a) of Hyderabad City Police Act,1348 Fasli ( for short 'the Act') by the second respondent in No. SB(1) No.1/Ext/S-1/99, dated 31-5-1999 as illegal and for a consequential direction to quash the same.
2.The learned counsel for the petitioner submitted that the petitioner never indulged in any of the offences alleged by the police. Though the police booked the petitioner falsely in the cases, he was acquitted by the competent Court of law. Crime No. 22 of 1998 on the file of Shah-ali-banda Police Station is registered against the petitioner, however, the police did not file charge sheet till today. Another Crime No. 19 of 1999 on the file of the II Metropolitan Magistrate, Hyderabad is pending against the petitioner and the petitioner was released on bail with a condition to attend the Police Station daily between 5.00 and 6.00 P.M. It is further submitted that a rowdy sheet was opened against the petitioner without any justification and final order dated 31-5-1999 was passed by the Commissioner of Police for removal of the petitioner, himself, immediately from the limits of Hyderabad City for a period of six months from the date of said order. It is further submitted that the said final order is illegal and tantamounts to invasion of the fundamental rights of freedom of movement and liberty guaranteed under Article 21 of the Constitution of India. It is further submitted that the said notice does not stand on sound reasoning. As per Section 26(9) of the Act, an appeal is provided to the government within thirty days from the date when such order is made. However the same was served on the petitioner on 26-6-1999, i.e. after 26 days from the date of impugned order and thus the right of appeal is taken away. It is further submitted that no reasons are given in the impugned order; that no witness has come forward and that no affidavit has been filed in support of the allegations made by the Commissioner of City Police and, therefore, the order of the Commissioner of City Police is illegal and is liable to be set aside.
3.The learned Government Pleader for Home based on the counter affidavit filed by the Commissioner of Police, Hyderabad City submitted that the petitioner is not a law abiding citizen; is a communal rowdy sheeter and indulged in a number of unlawful activities and caused breach of peace and tranquility in the area. He also maintains a gang of unsocial elements and commits communal offences, murders, attempt to murders, robberies, extortions etc., under Police Station limits of Kalapather, Hussaini Alam, Kamatipura and Shah ali-Banda.
4.It is further submitted that despite several warnings, the petitioner failed to rectify his attitude. As such on 30-4-1991 a rowdy sheet against the petitioner was opened at Kalapather Police Station as he was involved in six cases including two murders and one attempt to murder. It is further submitted that apprehending conviction in all the cases, he resorted to distortion of evidence by threatening complainants and witnesses due to which they turned hostile during the trials and therefore, five cases ended in acquittal while Crime No. 22/98 on the file of Shah Ali Banda Police Station is still under investigation. As the petitioner was acquitted in five cases, he along with his associates committed another two offences in the city and on 10-5-1999, the petitioner and others brutally killed one Nazeer Mohammed. Therefore, a crime was registered against the petitioner vide Cr.No. 19/99 of Kamatipura Police Station. In the way, another Crime No. 115/99 of Hussaini Alam Police Station is also registered against the petitioner. Thus it is submitted that the contention of the petitioner is without any justification. After following the due procedure prescribed under law only, the impugned order under Section 26(1)(a) of the act dated 31-5-1999 was came to be passed and served on the petitioner on 26-6-1999. Further it is submitted that the impugned order does not violate the fundamental rights guaranteed under Article 21 of the Constitution of India and prohibits the freedom of the petitioner. Though the order is passed on 31-5-1999, as the petitioner was absconding nearly for two months, the impugned order could not be served on him. It is further submitted that the petitioner has not filed any explanation to the show cause notice and, therefore, the impugned order dated 31-5-1999 is passed and served on the petitioner. Show cause Notice dated 1-4-1999 for imposition of externment and the impugned order dated 31-5-1999 were issued under the signature of the Police Commissioner, Hyderabad City, i.e. S.R.Sukumara, and, therefore, the contention of the petitioner that two different police officers issued the notice and final order is incorrect. Under Section 26(9) of the Act, appeal is provided and the petitioner without availing the appeal remedy questioned the show cause notice in Writ Petition No. 17290 of 1999. However the said Writ Petition was dismissed. Further, the petitioner without availing alternative remedy of appeal to the Government against the impugned order, this Writ petition is filed questioning the same. Hence it is prayed for dismissal of the writ petition.
5. The Commissioner of Police, Hyderabad city, second respondent herein issued show cause notice dated 1-4-1999 to the petitioner in exercise of the powers conferred on him under Section 26(7) of the Act to show cause as to why the petitioner should not be ordered to be removed himself from the limits of Hyderabad City. Though service of said notice was effected on the petitioner, he did not file any explanation or produced any witnesses in his defence before the Commissioner of Police within the stipulated time to deny the charges levelled against him. Thereafter the Commissioner of Police, Hyderabad city in exercise of the powers conferred on him under Section 26(1)(a) of the Act issued the impugned order against the petitioner and the same was served on him on 26-6-1999. Admittedly no representation or explanation has been made and opportunity provided has not been availed by the petitioner. On the other hand, the mother of the petitioner filed Writ Petition No. 17290 of 1999 questioning the said show cause notice. However the said Writ Petition was dismissed at the admission stage itself. Even after the dismissal of the said Writ petition also, no steps have been taken by the petitioner to file explanation before the concerned authorities and, therefore, final order of externment was passed on 31-5-1999. Even against the impugned order also, though an efficacious alternative remedy of appeal is provided to the Government under Section 26(9) of the act, the petitioner failed to avail the said remedy. The impugned order also clearly states that if the petitioner is aggrieved by the order, he is at liberty to prefer an appeal to the Government of A.P. within thirty days from the date of receipt of this order. The petitioner received the impugned order on 26-6-1999. However, no appeal has been filed by the petitioner. On the other hand, the petitioner has chosen to file the present Writ Petition. The Writ Petition is, therefore, liable to be dismissed on the ground that the petitioner failed to avail the alternative remedy.
6.With regard to the merits of the impugned order, both the learned counsel argued to consider the validity of the final order. When ever it appears to the Commissioner of City Police, Hyderabad that the movements or acts of any person residing in the city of Hyderabad causing or likely to cause danger, alarm or harm to the life or property of any person or that there are reasonable grounds to believe that such person is engaged or is about to be engaged in the commission of offence necessitating the use of force or violence or an offence punishable under Chapters XII,XVI & XVII of the IPC or is about to abet such offences and when in the opinion of the Commissioner of City Police, Hyderabad, no witness is willing to give evidence in public against such person by reason of apprehension of harm to his life and property, the Commissioner may direct such person, to prevent such acts and pass orders requiring such person to remove himself such places for such time. A reading of the said Section reveals that it is subjective to the satisfaction of the Commissioner and if it is in the opinion of the Commissioner, passing of such order is warranted against such person. The Commissioner of city police after issuing the show cause notice as contemplated under Section 26(7) of the Act, has passed the impugned order. There are no reasons or grounds in support of the contention of the petitioner. I do not see any illegality or irregularity in the order passed by the Commissioner of City Police.
7. With regard to the contentions of the learned counsel for the petitioner that there was no substantive material before the Commissioner of City Police disclosing the names of witnesses for giving evidence against the petitioner, the learned Government Pleader for Home placed reliance on the decision of this court rendered in SAYEED BALU VS. THE COMMISSIONER OF POLICE, HYDERABAD (1), wherein it is held that the High Court has no power to go into in sufficiency of the material before the Commissioner of city Police. Non disclosure of the names of the witnesses who were not forthcoming to give evidence against the petitioner cannot make the impugned order bad. I am fully in agreement with the said decision of this Court. Viewed from any angle, I do not find any merit in the Writ Petition and, however, it is made clarified that the externment order will be subject to fulfillment of the conditions of the bail orders.
8.The Writ Petition is accordingly dismissed. No costs.