Dhananjay Manohar Sapkal vs State Of Maharashtra And Anr.
2004 Latest Caselaw 1341 Bom

JUDGMENT

K.J. Rohee, J.

1. Heard.

2. Rule. Rule returnable forthwith. Heard finally at this stage with the consent of the parties.

3. By this petition, the petitioner seeks to quash and set aside the externment order passed by respondent No. 2 the Sub-Divisional Magistrate, Bhandara on 10-8-2004 directing the petitioner to keep outside the limits of Bhandara district for one year from the date of Order.

4. The learned Additional Public Prosecutor raised an objection to the very tenability of the petition on the ground that the petition cannot be entertained because an appeal is provided Under Section 60 of the Bombay Police Act against the Order passed Under Section 56 and the petitioner has not availed of the said alternate remedy.

5. It is true that the petitioner has not challenged the impugned Order passed by Sub-Divisional Magistrate, Bhandara, by preferring an appeal before the State Government or the competent authority. However, the petitioner has alleged that his fundamental right of freedom of movement is affected because of the impugned order and as such he can directly approach the High Court Under writ jurisdiction. In support of this, the learned counsel for the petitioner relied on Umar Mohamed Malbari v. K. P. Gaikwad, Dy. Commissioner of Police and Anr., 1988 Mh. L. J. 1034 (Placitum C) wherein it is laid down as Under:--

"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 the petition. 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 the High 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 Bombay Police Act viz. an appeal to the State Government against the Order. "

6. It is thus obvious that though the petitioner has not preferred appeal against the impugned Order, he is entitled to challenge the same by writ petition.

7. The learned counsel for the petitioner pointed out that the show cause notice dated 29-5-2004 as well as the externment Order dated 10-8-2004 show that 13 offences are pending against the petitioner and out of them, the offence at Sr. No. 1 alone relates to Indian Penal Code. The rest of the offences are either Under the Bombay Prohibition Act or under the Bombay Prevention of Gambling Act. The provisions of Section 56 of the Bombay Police Act would be attracted only in certain circumstances as mentioned in that Section which are as follows:

"(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or 'an offence punishable under Chapter XII (Offences relating to coin and Government stamps), XVI (offences affecting the human body and life) or XVII (offences against property of theft) of the Indian Penal Code or in the abetment of any such offence. "

8. In the instant case, it is clear from the show cause notice as well as the impugned Order of externment that except one offence under Indian Penal Code, all other offences are either under Bombay Prohibition Act or Bombay Prevention of Gambling Act. As such show cause notice issued to the petitioner as well as the externment order passed on the basis of the said notice cannot be sustained in the eyes of law Hence the Order :--

The petition is allowed. The externment Order passed by Sub-Divisional Magistrate, Bhandara in Criminal Case No. 5/04 Under Section 56-A of the Bombay Police Act on 10-8-2004 is hereby quashed and set aside. The rule is made absolute in the above terms.