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2021 DIGILAW 381 (BOM)

Darshan v. State of Maharashtra

2021-02-17

AVINASH G.GHAROTE, SUNIL B.SHUKRE

body2021
JUDGMENT Sunil B. Shukre, J. - Heard. Rule. Rule made returnable forthwith. 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 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) MhLJ 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. 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 :- "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. 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 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. 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 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. 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 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.