Shailendrasingh Alias Litil ... vs State Of Maharashtra And Anr.
2001 Latest Caselaw 387 Bom

JUDGMENT

R.K. Batta, J.

1. The petitioner was ordered to be externed vide order dated 13-11-1999, passed by the Deputy Commissioner of Police, Zone-II, Nagpur City, Nagpur, for a period of two years. The petitioner filed an appeal before the State Government Under Section 60 of the Bombay Police Act against the said externment order and the said appeal was dismissed by the Principal Secretary (Appeals and Security) to the Government of Maharashtra, Home Department, vide order dated 24th July, 2000. The petitioner assails the said order of dismissal of appeal in this writ petition on various grounds.

2. Heard learned Advocate for the petitioner and learned APP for the respondents.

3. It is not necessary to go into all the challenges raised by the petitioner in this petition since, in my view, after hearing learned Advocate for the petitioner and learned APP, the petition is going to succeed on account of denial of opportunity to the petitioner of hearing by the appellate authority.

4. The appeal was fixed for hearing on 18-1-2000 before the Principal Secretary and the learned Advocate for the appellant sought adjournment and requested that the next date of hearing be given as 8-2-2000. The matter was not fixed on 8-2-2000 as requested by the learned advocate for the appellant. In fact, it is clear from the affidavit filed by the Deputy Secretary to the Government of Maharashtra, Home Department that this application for adjournment vide which learned Advocate for the petitioner sought adjournment to 8-2-2000 was never placed before the appellate authority, namely, the Principal Secretary. Accordingly, the appellate authority closed the case for orders and finally the appellate authority passed the order rejecting the appeal vide order dated 24-7-2000. In this order, the appellate authority stated that he had carefully examined the arguments advanced by the learned Advocate during the hearing and considered the points mentioned in the appeal memo. It is rather interesting and amusing to notice as to how the State Government changes its stand conveniently by filing an affidavit by the Deputy Secretary, Government of Maharashtra, Home Depart. I have not be able to understand as to how this affidavit can be filed by the Deputy Secretary to the Government of Maharashtra since the order in question was passed by the Principal Secretary. If any affidavit in respect of any clarification of the order passed by the Principal Secretary was to be filed, it was only Principal Secretary who should have filed the affidavit. The fact that the Principal Secretary has been transferred is no ground or justification to file an affidavit of Deputy Secretary, Government of Maharashtra. I fail to understand as to how Deputy Secretary to the Government of Maharashtra, Home Department can explain the quasi judicial order passed by the Principal Secretary. Even the explanation given by Shri K.M. Patil, Deputy Secretary, Government of Maharashtra, Home Department is apparently false. In para 7 of the affidavit filed by Shri K.M. Patil, Deputy Secretary, Government of Maharashtra, it is stated that in the body of order, it was inadvertently mentioned, "the argument advanced by the learned Advocate during the hearing" instead of words "arguments advanced by the learned Advocate in the appeal memo". It is pertinent to note that the appellate authority had mentioned that it has carefully examined the arguments advanced by learned Advocate during the hearing and considered the points mentioned in the appeal memo. Thus, the appellate authority has categorically stated in the order that not only arguments advanced by the learned advocate during the hearing were considered but also the points mentioned in the appeal memo. The explanation given by Shri K.M. Patil, Deputy Secretary to the Government of Maharashtra, therefore, cannot be accepted on the face of it and it appears that this affidavit has been filed to mislead this Court.

5. It is thus crystal clear that no opportunity at all of hearting has been given in this case by the State Government as stratutorily required Under Section 60 of the Bombay Police Act, 1951. This Court has repeatedly held that opportunity of hearing Under Section 60 of the Bombay Police Act is a must.

6. In Banas Domnic Miranda v. A.K. Ankola reported in 1982 Cri LJ 2059 (Bombay) it was laid down by the Division Bench of this Court that having regard to the scheme of the legislation it cannot be said that the right of appeal conferred Under Section 60 of the Bombay Police Act is any way illustory. It was specifically pointed out in para 13 of the said judgment that by Section 60 of the Act appeal is provided in general terms and the State Government is expected to apply its independent mind to the material placed before it and that too after giving a reasonable opportunity to the appellant of being heard either in person or through Advocate. This judgment was followed by the Division Bench of this Court in Criminal Writ Petition No. 61 of 1989 (Tassu alias Taskand Tulsiram Narhare v. Deputy Commissioner of Police, East Zone, Nagpur). However, in spite of this, it appears that message has not reached the State Government. The case under consideration shows the callous manner in which the matter has been handled by the office of the Principal Secretary. (Appeals and Security), Home Department Government of Maharashtra. Though it appears the application for adjournment was received in time, yet it was not placed before the appellate authority on 18-1-2000 and the appellate authority on 18-1-2000 closed the case for orders. The order rejecting the appeal was passed by the appellate authority on 24-7-2000 without giving proper and effective opportunity to the petitioner as required Under Section 60 of the Act. The order dated 24-7-2000 in question is, therefore, liable to be quashed as also the externment order dated 13-11-1999. The submission made by the learned APP that the matter be remanded back to the appellate authority for proper hearing is without any merit since the appellate authority failed to provide proper and sufficient opportunity to the petitioner of hearing and the appeal was decided way back on 24-7-2000 and at this stage to order the remand as requested by the learned APP would be nothing but abuse of process of law. Hence, in my opinion, there is no merit in the submission of learned APP.

7. For the aforesaid reasons, externment order dated 13-11-1999 as also dismissal of appeal by the appellate authority vide order dated 24-7-2000 are hereby quashed. The petitioner shall be set at liberty forthwith in case he is not required in any other matter. The petition is allowed in aforesaid terms Rule is made absolute in aforesaid terms. Copy of the order shall be sent to the State Government for taking appropriate action against Shri K.M. Patil, Deputy Secretary. Home Department, Government of Maharashtra.