Sachin Yeshwant Pokre vs Jayprakash M. Jadhav And Ors
2016 Latest Caselaw 2801 Bom

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    pmw
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURISDICTION




                                                                               
                                    WRIT PETITION NO.1507 OF 2007




                                                       
           Shri Sachin Yeshwant Pokre
           Age 27 years, Occupation - Service,
           Residing at Dvikrupa Building
           6th Floor, Room No.601, Ghatkopar




                                                      
           Pantnagar, Mumbai                                    ... Petitioner


                    Versus
           1.       Shri Jayprakash M. Jadhav




                                              
                    Asst. Commissioner of Police
                    Worli Division, Mumbai
                                   
           2.       Shri Ashok Deshparkar
                    Deputy Commissioner of Police
                                  
                    Zone - III, Mumbai.

           3.       State of Maharashtra                        ... Respondents

WITH WRIT PETITION NO.1508 OF 2007

Shri Naresh Heralal Rathod Age 26 years, Occ. Service Residing at Musa Brothers

Chawl No.77, Room No.36/1 Sitaram Jadhav Marg, Lower Parel Mumbai - 400 013. ... Petitioner

Versus

1. Shri Jayprakash M. Jadhav Asst. Commissioner of Police Worli Division, Mumbai

2. Shri Ashok Deshparkar Deputy Commissioner of Police Zone - III, Mumbai.

           3.       State of Maharashtra                        ... Respondents

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Mr. Gajendra Jadhav for the Petitioners.

Mr. S.K. Shinde, Public Prosecutor a/w Mr. K.V. Saste, APP for the

Respondents - State.

Mr. Murtaza Najmi, Amicus Curiae.

CORAM : A.S. OKA, A.K. MENON &

P.D. NAIK, JJJ.

DATE ON WHICH SUBMISSIONS WERE HEARD ON : 18th MARCH, 2016

DATE ON WHICH JUDGMENT IS PRONOUNCED : 14th JUNE, 2016

JUDGMENT (PER A.S. OKA, J.):-

1 th By order dated 17 August, 2007, the learned Single Judge

of this Court made a reference to the larger Bench on the issue of the

power of the Appellate Authority to grant interim relief in an Appeal

under Section 60 of the Bombay Police Act, 1951 (for short "the said

Act") against an order of externment passed under the said Act. The

learned Single Judge referred to a decision of a Division Bench in the

case of Shamkumar Arjun Dalvi Vs. State of Maharashtra and Another 1.

After considering the said decision, in paragraph 4 of his order, the

learned Single Judge observed thus :-

"4. Even otherwise, it is well settled in law that an interim relief or stay order is required to be granted on the basis of a prima facie case to succeed in the appeal. In an appeal arising from an order of conviction and sentence,

1. 1988 Mh.L.J. 95

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granting of bail is not automatic and reasons are required to be set out to suspend the order of sentence

so as to grant bail to the appellant. The externment period normally varies from one to two years and it is

common experience that appeals before the State Government remain pending even upto one year and in this process if the externee is granted interim relief

pending the appeal, the order of externment may become infructuous or the efficacy of the externment

order itself may be in peril. In my considered opinion, the view expressed by the Division Bench in

Shamkumar's case cannot be made applicable as a matter of routine in every appeal against the order of

externment and for clarifications or to resolve the legal position with further clarity, the issue that an interim stay must follow, per se, during the pendency of the

appeal, requires reconsideration by a larger Bench of

three Judges and, therefore, I hereby report these two petitions to the Hon'ble the Chief Justice under Rule 7 of Chapter-I of the Appellate Side Rules, 1960, for

constituting a Full Bench."

(Underline supplied)

2 By order dated 6th January, 2016, the Hon'ble the Acting

Chief Justice directed that the matter should be placed before this Full

Bench.

3 The question which arises for our consideration is as

under :-

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"Whether in an Appeal under Section 60 of the Bombay Police Act, 1951 against an order of externment, an order

of interim stay of the operation of the impugned order of externment should be granted as a matter of course?"

4 The learned counsel appearing for the Petitioner submitted

that as an order of externment affects liberty of an individual, pending

the statutory appeal involving a challenge to the said order, in normal

course, interim stay has to be granted. He urged that an order directing

externment not to enter certain cities or certain districts is a very drastic

order and unless the issue of the validity of the said order is decided on

merits by the Appellate Authority, the same cannot be allowed to be

implemented. He pointed out that the order of externment is of a

limited duration starting from six months onwards. He pointed out that

it is a common experience that Appeals preferred under Section 60 for

challenging the order of externment are not heard for several months

and externees are required to approach this Court for a direction to

expedite the Appeals. He pointed out that the Appellate Authorities are

not at all hearing the applications for grant of interim relief in such

Appeals. He submitted that in many cases, the Appeals have become

infructuous as a result of the failure of the Appellate Authority to hear

the Appeals.

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     5                 The   learned   Public   Prosecutor   urged   that   in   the   case   of 

Shamkumar Arjun Dalvi, the Division Bench has not laid down as an

absolute proposition of law that in every case where an Appeal is

preferred under Section 60, stay should be granted to the operation of

the order of externment in a routine manner. He invited our attention to

the provisions of Section 60 of the said Act. He urged that prior to the

amendment of Section 60 of the said Act perhaps there was no specific

power conferred on the Appellate Authority to grant stay and, therefore,

the observations made in the case of Shamkumar Arjun Dalvi are in that

context.

6 We have carefully considered the submissions. There is a

power conferred by Sections 55, 56, 57 and 57A of the said Act of

passing an order of externment. The Authorities under the said Act are

empowered to direct a person to remove himself from a particular area,

district or districts for the period provided in the order. The said order is

certainly of a drastic nature as it affects liberty of the person against

whom the same has been made.

7 An Appeal against the orders of externment passed under

Sections 55 to 57 and 57A of the said Act is provided under Section 60

which reads thus :-

"60. Appeal. - (1) Any person aggrieved by an order made

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under section 55, 56, 57 and 57A may appeal to the State Government or to such other Officer as the State

Government may by order specify (hereinafter referred to as "the specified Officer" within thirty days from the

date of such order.

(2) An appeal under this section shall be preferred in duplicate in the form of a memorandum, setting forth

concisely the grounds of objection to the order appealed against, and shall be accompanied by that order or a

certified copy thereof.

(3) On receipt of such appeal the State Government or the

specified Officer may, after giving a reasonable opportunity to the appellant to be heard either

personally, or by a pleader, advocate or attorney and after such further inquiry, if any, as it may deem necessary, confirm, vary or cancel, or set aside the order

appealed against, or remand the case for disposal with

such directions as it or he thinks fit, and make its or his order accordingly:

Provided that the order appealed against shall remain

in force pending the disposal of the appeal, unless the State Government or the specified Officer otherwise directs.

Explanation. - For the purposes of this sub-section the power to vary the order appealed against shall include, and shall be deemed always to have included, the power to hold such order in abeyance and to make conditional order permitting the person to enter or return to the area or such areas and any contiguous

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districts or part thereof, or to the specified area or areas, as the case may be, from which he was directed

to remove himself.

(4) In calculating the period of thirty days provided for an

appeal under this section, the time taken for granting a certified copy of the order appealed against shall be excluded."

(Underline added)

8 The explanation to Sub-Section (3) is incorporated by

Maharashtra Act No.3 of 1995. The explanation is by way of

clarification which makes it clear that the Appellate Authority shall have

a power to hold such order in abeyance pending an Appeal. Proviso to

Sub-Section (3) lays down that the order of externment appealed

against shall remain in force pending the disposal of the Appeal, unless

the Appellate Authority otherwise directs. Thus, the first proviso as well

as the explanation to it makes it clear that there is a power vesting in

the Appellate Authority to pass an interim order during the pendency of

an Appeal. Interim orders which can be passed by the Appellate

Authority may be of different nature depending upon the facts of each

case. Only by way of illustration, we are setting out certain categories of

interim orders which can be passed by the Appellate Authority.

a] An interim order staying or suspending operation of the impugned order of externment till the disposal of Appeal;

                b]    The Suspension or stay of operation of order of externment 


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in relation to a part of the area covered by the order of externment;

c] Interim order permitting the Appellant to enter a particular area covered by order of externment on such conditions as

the Appellate Authority may deem fit; or d] Interim order permitting the Appellant to enter the area subject matter of order of externment for a limited

duration.

These are only illustrations and not an exhaustive list of the

interim orders which could be passed by the Appellate Authority.

9 We may now turn to the decision in the case of Shamkumar

Arjun Dalvi. The Paragraphs 2 and 3 of the said Judgment read thus :-

"2. Against the impugned externment order, the petitioner

has preferred appeal to the State Government. Stay

was, however, declined. Hence this petition.

3. Now, when an appeal is provided by the statute and the same is filed, it is then, in a matter of externment, but

just and fair that pending the appeal, the externment is stayed. Refusal in that behalf may, in a given case, as well render the appeal itself infructuous. We are

informed that stay is not granted as a matter of policy. If that is so, it is rather unfortunate. It tends to defeat justice. The need for externment should be balanced with the requirement to be just, fair and reasonable to the externee. If a life convict can be released on bail or a preventive detenue on parole or one accused of

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serious economic offence granted even anticipatory bail, what is so extraordinary qua an externee that in no case

he should be given stay? Besides, discretion vested in an appellate authority must be exercised not blindly as a

matter of policy but rationally depending upon the facts and facts of each case. In all the circumstances, we are inclined to grant stay pending the appeal with direction

to decide the same expeditiously."

(Underline added)

10 It is true that if the first sentence of paragraph 3 is read in

isolation, it may appear that the Division Bench has observed that when

an Appeal is preferred against an order of externment, pending the

Appeal, the order should be stayed as a matter of course. The second

sentence of paragraph 3 records that refusal to grant stay in a given

case, will render the Appeal infructuous. The next sentence records that

the Bench was informed that stay is not granted as a matter of policy by

the Appellate Authority. Therefore, the Division Bench observed that if

the stay is not being granted as a matter of policy, it is very unfortunate.

Thereafter, the Division Bench observed that need for externment

should be balanced with the requirement to be just and fair to the

externee. If the entire paragraph No.3 and especially the underlined

portion is considered, it becomes very clear that the first sentence is in

the context of the fact subsequently noted in paragraph 3 that the

Appellate Authorities are not granting stay as a matter of policy. In

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further part of paragraph 3, the Division Bench observed that discretion

vested in the Appellate Authority must be exercised not blindly as a

matter of policy but rationally depending upon the facts of each case.

Thus, in our considered view, the decision of the Division Bench in the

case of Shamkumar Arjun Dalvi cannot be read to mean that the

Division Bench has held that in an Appeal under Section 60 of the said

Act against the order of externment, stay should be granted to the

operation of the impugned order of externment as a matter of course.

Therefore, there cannot be a policy that in no case, pending

an Appeal under Section 60, stay should not be granted to the operation

of the order of externment. As there is a power vesting in the Appellate

Authority to pass an interim order as indicated above, it is the duty of

the Appellate Authority to hear the application for interim relief

expeditiously. While considering the application for interim relief,

firstly the Appellate Authority has to apply its mind to the question

whether prima facie there is any illegality associated with the impugned

order of externment. If the Appellate Authority is satisfied that prima

facie, the impugned order of externment is illegal, the Appellate

Authority will have to grant appropriate interim relief. The Appellate

Authority can always mould the relief for the purposes of balancing the

need for externment with the requirement to be just, fair and

reasonable to the externee. Thus, the legal position is very clear. As a

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matter of rule, interim relief of stay cannot be denied in Appeal against

externment. At the same time, it cannot be laid down as an absolute

proposition of law that in every such Appeal, till the final disposal of the

Appeal, interim stay of the impugned order of externment should be

granted as a matter of course. The prayer for interim relief has to be

decided after considering the facts of each case.

12 All the Appeals arising under Section 60 have an element of

urgency. Considering the fact that externment order affects liberty of an

individual, a prayer for stay has to be taken up for hearing immediately

or at least within one week from filing of the Appeal. If interim relief is

not granted, it is all the more necessary to finally hear the Appeal as

expeditiously as possible. If stay is granted, it is also necessary to

dispose of the Appeal expeditiously. The reason is that the order of

externment ceases to have effect on the day specified in the order. The

learned Single Judge of this Court in the case of Sharad Chandanlal

Jaiswal Vs. State of Maharashtra and Anr. 2 has held that grant of stay to

the order of externment either by the State Government or by this Court

has no effect of extending the outer limit fixed of the operation of the

order of externment.

13 We may note here that large number of Petitions are filed

in this Court as either the Appeal under Section 60 is not heard 2 1992 Mh.L.J. 1233

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expeditiously or application for stay is not at all heard. The State of

Maharashtra in its Revenue Department has issued a Government

Resolution dated 17th December, 2015 which lays down elaborate

procedure for filing of Appeals, registration thereof. It lays down the

manner in which the notice should be issued. It also lays down the

outer limit within which final order should be pronounced from the

date of conclusion of the hearing. It also provides that application for

interim relief will be disposed of within a period of 30 days. There is a

need to set down similar procedure for filing and hearing of Appeals

under Section 60 of the said Act. After the hearing of this reference was

concluded, the learned Public Prosecutor has placed on record, a copy

of the Government Resolution dated 26 th April, 2016 issued by the

Ministry of Home which takes care of this need. It sets down a detailed

procedure for filing and dealing with such Appeals. It contains a

provision that application for interim relief shall be decided within

thirty days of filing of an Appeal. We may clarify here that even a prayer

for grant of ad-interim relief of stay should be decided by the Appellate

Authority preferably within seven working days from the date of filing

of Appeal.

14 Accordingly, we answer the reference as under :-

(i) The decision of the Division Bench of Shamkumar Arjun

Dalvi (Supra) does not lay down an absolute

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proposition of law that in every case where an Appeal

under Section 60 of the said Act is preferred against an

order of externment, stay has to be granted as a matter

of course. There is a power vesting in the Appellate

Authority to grant ad-interim and interim relief of stay/

suspension of the impugned order of externment

depending upon the facts of each case. We also hold

that the prayer for ad-interim relief or interim relief

cannot be mechanically rejected without any application

of mind. The question of grant of interim relief will be

considered by the Appellate Authority in the light of the

facts of each case after taking into consideration the

observations made by this Court;

(ii) As the main Writ Petitions have been disposed of, there

is no need to place the Petitions before the learned

Single Judge.

(A.S. OKA, J.)

(A.K. MENON, J.)

(P.D. NAIK, J.)

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