Externment Order Cannot Be Recorded On The Basis Of A Crime In Which Accused Was Acquitted: Bombay High Court

Justice G. A. Sanap sitting at Nagpur quashed an externment order observing –

“The reliance upon the crimes in which the petitioner was acquitted would indicate that the inquiry was flawed. It needs to be emphasized that the subjective satisfaction for passing such an order must be arrived at on the basis of the objective material. In the present case, the material, which could not have been taken into consideration at all, has been stated to be objective material to arrive at subjective satisfaction”.

The writ petitioner challenged the order passed by Deputy Commissioner of Police, Amravati directing his externment from Amravati city as well as Amravati district.

The DCP passed the order under Section 56(1)(b) of the Maharashtra Police Act. Nine crimes registered in Frazerpura police station as well as two preventive actions under section 110 of CRPC were relied on for the order. Four of the crimes were for offences under the IPC. Four other crimes were for offence under the Maharashtra Prohibition Act. The remaining crime was for offences under the Maharashtra Police Act.

The court relied on Dhananjay Manohar Sapkal v. State of Maharashtra and said that offences under the Maharashtra Prohibition Act and Maharashtra Prevention of Gambling Act cannot be considered for the purpose of passing an externment order.

The petitioner had been acquitted in the four crimes registered under IPC. APP for the justified reliance on these crimes by contending that petitioner didn’t respondent to the show-cause notice and hence the DCP did not know that he was acquitted in those crimes.

The court said that APP’s submission is contradictory to the subjective satisfaction recorded in the externment order. “This submission would indicate that the respondent No.1 was not supposed to make an inquiry whether the cases are pending or the cases have been disposed of. It is to be noted that in all the crimes, the petitioner was released on bail. The respondent No.1 (DCP) was, therefore, required to make a thorough inquiry and that too by perusing the bail orders in those matters, to come to a definite conclusion that the activities of the petitioner are in all respect covered by Section 56(1)(b)”, the court held.

The court said that the crime registered in 2017 is a stale crime and could not have been taken into consideration. It would not be sufficient to establish the Live link for passing the order.

The confidential statements were not recorded by the DCP. Therefore, the DCP had to verify those statements. The court noted that they were verified by the Assistant Commissioner of Police instead of the DCP. The court further noted that though the statements were verified before the issuance of show cause notice, they have not been mentioned in the notice.

The court further noted that no reason has been given for ordering externment for two years from the entire Amravati District even though all the registered crimes were within the jurisdiction of Frezarpura Police Station, Amravati City.

Thus, the court said that the order of externment suffers from the “virus of excessiveness” as the Divisional Commissioner confirmed it despite recording the fact of the petitioner’s acquittal in four of the crimes.

“The order of externment apart from making inroads on the personal liberty guaranteed under the Constitution of India, makes the said person live separate from his family members. Similarly, the externment order can deprive the said person of his livelihood. In the given case, depending upon the financial position of the person, it can make the dependents of the said person to starve”, the court observed.

Case no. – Criminal Writ Petition No. 908 of 2022

Case Title – Harikesh @ Guddu Madan Kattilwar v. Deputy Police Commissioner

Citation: 2023 LiveLaw (Bom) 90