Darshan S/O Arun Barhanpure vs State Of Maharashtra Thr. Its ...
2021 Latest Caselaw 3127 Bom

   Judgment                               1                         Cri.W.P.599.2020.odt



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR.

                   CRIMINAL WRIT PETITION NO. 599 OF 2020


          Darshan S/o. Arun Barhanpure,
          Aged about 34 years, Occu. - Private,
          R/o. Kathipura, Surji Anjangaon,
          Taluka - Anjangaon Surji,
          District - Amravati.
                                                              .... PETITIONER

                                   // VERSUS //

 1)       State of Maharashtra, Through it's
          Secretary, Home Department,
          Mantralaya, Mumbai.

 2)       Deputy Collector & Sub-Divisional
          Magistrate, Daryapur, Amravati.

 3)       Police Station Officer,
          Police Station, Anjangaon Surji,
          Taluka - Anjangaon Surji,
          District - Amravati.

 4)       Assistant Police Superintendent,
          Anjangaon Surji, Taluka - Anjangaon Surji,
          District - Amravati.
                                               .... RESPONDENTS
  ______________________________________________________________
      Shri Jasprit Singh Chilotra counsel for the petitioner.
      Ms H. N. Jaipurkar, A.P.P. for the respondents.
 ______________________________________________________________

                           CORAM : SUNIL B. SHUKRE AND
                                   AVINASH G. GHAROTE, JJ.

DATED : 17.02.2021.

ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)

1. Heard. Rule. Rule made returnable forthwith.

Judgment 2 Cri.W.P.599.2020.odt

2. Heard finally by consent of the learned counsel appearing

for the parties.

3. The petitioner has questioned the legality and correctness

of the order dated 14.10.2010, passed by respondent No.2 thereby

externing the petitioner from the limits of Amravati district for a period

of two years. This order has been passed in exercise of the power

conferred upon respondent No.2 under Section 56(1)(b) of the

Maharashtra Police Act. Learned counsel for the petitioner submits that

this order not just infringes on the fundamental freedom of movement

guaranteed to the petitioner but, does it so in an arbitrary manner

without there being available any sufficient material warranting such

externment of the petitioner. This is the reason why he submits that the

petitioner is justified in directly approaching this Court by invoking

Article 226 jurisdiction, instead of filing statutory appeal before the

Divisional Commissioner.

4. Ms Jaipurkar, learned A.P.P. submits that the petitioner

ought to have approached to the Divisional Commissioner and even

otherwise, the order can be considered to be properly passed, as there

is at least a criminal history created against the petitioner which would

show that his activities are dangerous and are required to be brought

under control by passing an externment order.

5. As regards the failure of the petitioner to avail of the

alternate remedy, the learned counsel for the petitioner has relied upon

Judgment 3 Cri.W.P.599.2020.odt

a view taken by Division Bench of this Court in the case of Umar

Mohamed Malbari Vs. K. P. Gaikwad, Dy. Commissioner of Police &

Anr., 1988 MH.L.J. 1034. Learned A.P.P. submits that although the

Division Bench has taken a view that in spite of failure to avail of

alternate remedy, a writ Court can entertain such a grievance under

Article 226 of the Constitution of India it has to be understood in the

context of the facts and circumstances of each case. She further

submits that generally, there is affected fundamental freedom of

movement whenever an order of externment is passed but, it is not the

case that every time this happens, the externee must not avail of the

alternate remedy and may come directly before the High Court by

invoking its jurisdiction under Article 226 of the Constitution of India.

After all, she further submits that it is in the discretion of the High

Court as to in which cases such an exercise be permitted and in which

cases it be refused. According to her, this is a fit case wherein such an

exercise must not be permitted.

6. In case of Umar Mohamed Malbari (Supra), it has been

held that the rule about the failure to exercise an alternate remedy

when one is an existence is basically a rule which relates to the

discretion of the Court and therefore, such rule would never barr the

jurisdiction of the High Court to entertain and grant the petition filed

under Article 226 of the Constitution of India. The relevant

observations as they appear in paragraph No.9 are reproduced thus :-

Judgment 4 Cri.W.P.599.2020.odt

"In our judgment, there is no merit in this contention inasmuch as 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 petition. Therefore, the fact that the petitioner has not exhausted all his remedies does not bar the jurisdiction of the Court to entertain and dispose of the petition but, is a factor to be taken into account for the purpose of considering whether the discretion should or should not be exercised in favour of the petitioner. 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 this 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 act viz. an appeal to the State Government against the order. In view of the fact that the petitioner has been externed out of the areas covering three Districts as also Greater Bombay, it will have to be held that his fundamental right to move freely throughout the territory of India which is guaranteed under Article 19(1)(d) of the Constitution has been infringed. In this view of the matter, the very fact that the petitioner has not exhausted his alternative remedy of an appeal or merely because he has come here after undue delay can be no hurdles in the matter of entertaining this petition."

So, what learned A.P.P. submits regarding the discretion of this Court in

such matters, we must say, we are in agreement with her. Now, the

question would be whether or not this is a fit case for exercising the

discretion of this Court as it is an admitted fact that the petitioner has

directly approached this Court and did not consider it appropriate to

resort to the alternate remedy available in filing of the statutory appeal

Judgment 5 Cri.W.P.599.2020.odt

before the Divisional Commissioner. We are of the view that the answer

has to be been given as in the affirmative and in favour of the

petitioner. The reason being that this is a case which goes beyond the

arena of mere taking away of fundamental freedom and enters into a

field where one can see that the whole process adopted by the

respondent No.2 in passing the impugned order is vitiated. In a case

where the arbitrariness is writ large and glaringly noticeable without

any great difficulty, violation of principle of due process of law

guaranteed under Article 21 would become discernible and the case

would involve not only breach of Article 19 but also of Article 21,

requiring intervention by this Court under Article 226 of the

Constitution of India. This petition involves these questions and,

therefore, we find that in spite of existence of an alternate remedy, this

petition is maintainable, in the context of the facts and circumstances

noted above.

7. On going through the impugned order, we find that it is

replete with arbitrariness. This could be seen from the fact that the

respondent No.2 has considered as many as 10 crimes registered

against the petitioner from the year 2012 to the year 2020 as being

relevant for reaching his subjective satisfaction that the petitioner is

engaged or is about to be engaged in the commission of an offence

involving force or violence or any offence punishable under Chapter

12, 16 and 17 of the Indian Penal Code and that there are no witnesses

Judgment 6 Cri.W.P.599.2020.odt

who are willing to come forward to give evidence against the petitioner

in public, because of the apprehension on their part as regards their

safety. But, it is noticed that out of these 10 crimes 9 of the crimes

could not have been considered at all by the respondent No.2 in

reaching such a conclusion. This is because of the fact that out of 10

crimes, 7 crimes were registered for offences which were not

contemplated under Section 56(1)(b) of the Maharashtra Police Act. In

2 of the remaining crimes, the petitioner was acquitted. So, there was

left only one offence, registered vide Crime No.130 of 2016, under

Sections 353, 294 and 143 read with Section 135 of the Indian Penal

Code, which could have been considered by respondent No.2. But,

even this crime having been registered way back in the year 2016 could

not have been considered in any manner because, there was a huge

gap of about four years between the registration of the crime and

issuance of show cause notice on 09.07.2020. This crime of the year

2016 with it's antiquity did not provide any live link to the so called

dangerous activities of the petitioner as of 09.07.2020 and therefore,

this crime had lost all its relevance and ought to have been ignored.

But, that has not happened and the result is that the whole process

adopted by the respondent No.2 in reaching his subjective satisfaction

as required under Section 56(1)(b) of the Maharashtra Police Act has

been vitiated. In other words, there was no material whatsoever

available on record for recording a satisfaction as required under

Judgment 7 Cri.W.P.599.2020.odt

Section 56(1)(b) of the Maharashtra Police act and as such, the

impugned order cannot stand the scrutiny of law. The impugned order

is illegal.

8. In the result, we are inclined to allow the petition and it is

allowed accordingly. The impugned order is hereby quashed and set

aside.

Rule is absolute in these terms.

            (AVINASH G. GHAROTE, J.)                   (SUNIL B. SHUKRE J.)




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