Sirajkhan S/O Hayatkhan Vs. State of Maharashtra Another - Court Judgment

Excerpt:
the case debated on the necessity to supply the grounds in an externment order - the externment was challenged on the ground that it was related to the old complaints and that the detailed particulars of the crimes were not given - it was held that the externee was entitled to know the material particulars of the crimes and not the details - the externee was said to have been involved in the crime - therefore, his contentions that the stale instances were relied upon or that he ought not to have been externed from the entire district were not held tenabl - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 5. i have considered the arguments advanced by the learned counsel and perused the notice dated 31-12-1996 as well as the impugned order dated 3-4-1998. the contention of the learned counsel that the respondents were under obligation to supply details in respect of the crime in the said show cause notice is not proper. in that view of the matter, this contention raised by the learned counsel for the petitioner also must fail.orderd.d. sinha, j.1. heard shri daga, learned counsel for the petitioner andshri chawda, learned a.p.p. for the state.2. the present criminal writ petition is directed against the order ofexternment passed by the sub-divisional magistrate, amravati, vide orderdated 3-4-1998 whereby under section 56(1)(2) of the bombay police act,1951, the applicant was externed for a period of one year from the amravatidistrict.3. the learned counsel for the petitioner contended that in the instant case, respondent no. 2 issued notice under section 59 of the bombay police act on 31-12-1996. it is further contended that the necessary enquiry was conducted by the respondent and thereafter respondent no. 1 issued the impugned order dated 3-4-1998 by which the petitioner is externed. it is the contention of the learned counsel that the grounds mentioned in the above referred show cause notice are stale and old and, therefore, the impugned order which is based on such grounds is not sustainable in law. it is submitted that though the alleged activities of the petitioner were located in some of the areas of city of amravati, the petitioner came to be externed from the entire district of amravati which, according to the learned counsel, is not permissible in law. it is further submitted that the criminal cases shown and described in the show cause notice and relied on by the externment authority, while passing the impugned order, are not only old but the petitioner is also acquitted in most of these criminal cases. it is also contended that in the show cause notice, no details are mentioned such as time, place and month in respect of the crimes alleged to have been committed by the petitioner. the learned counsel, therefore, contended that in the absence of such details, the petitioner could not defend himself properly before the authorities concerned. the learned counsel, therefore, contended that the impugned order is illegal and liable to be set aside.4. heard shri chawda, learned additional public prosecutor for the state-respondent no. 1, who has supported the impugned order.5. i have considered the arguments advanced by the learned counsel and perused the notice dated 31-12-1996 as well as the impugned order dated 3-4-1998. the contention of the learned counsel that the respondents were under obligation to supply details in respect of the crime in the said show cause notice is not proper. the externee is entitled to know only the material particulars of the crime in question and not the details as alleged by the learned counsel for the petitioner. if the details are required to be supplied by the authorities to the externee before passing of the externment order then the very purpose will be frustrated. it must be borne in mind that taking recourse to the provisions of the act is an exception and it is only in an emergent situation that such remedies are expected to be resorted to by the authorities in the interest of the society. hence, the above referred contention raised by the learned counsel for the petitioner cannot be accepted.6. the recitals in the notice shows that the petitioner is constantly involved in the criminal activities since 1985 onwards till 1996 and, therefore, it is difficult for me to accept that the externment authority placed reliance on the stale grounds for issuing the order of externment. since illegal criminal activities of the petitioner though located in some of the areas of the city of amravati, it was necessary for the externment authority to extern the petitioner from the entire district in order to snap the nexus between the petitioner and his illegal activities which he was carrying on in the city of amravati. in that view of the matter, this contention raised by the learned counsel for the petitioner also must fail. even otherwise, the petitioner has already suffered the major period of punishment imposed by the impugned order. the petitioner was externed for a period of one year from the date of order and he has already suffered the punishment for about 9 to 10 months.7. looking to the facts and circumstances of the case and also after considering the scheme of the act, i see no reason to interfere. the impugned order is just and proper. the criminal writ petition is dismissed8. criminal writ petition dismissed.

Judgment:
ORDER

D.D. Sinha, J.

1. Heard Shri Daga, learned Counsel for the petitioner andShri Chawda, learned A.P.P. for the State.

2. The present criminal writ petition is directed against the order ofexternment passed by the Sub-Divisional Magistrate, Amravati, vide orderdated 3-4-1998 whereby under section 56(1)(2) of the Bombay Police Act,1951, the applicant was externed for a period of one year from the AmravatiDistrict.

3. The learned Counsel for the petitioner contended that in the instant case, respondent No. 2 issued notice under section 59 of the Bombay Police Act on 31-12-1996. It is further contended that the necessary enquiry was conducted by the respondent and thereafter respondent No. 1 issued the impugned order dated 3-4-1998 by which the petitioner is externed. It is the contention of the learned Counsel that the grounds mentioned in the above referred show cause notice are stale and old and, therefore, the impugned order which is based on such grounds is not sustainable in law. It is submitted that though the alleged activities of the petitioner were located in some of the areas of city of Amravati, the petitioner came to be externed from the entire District of Amravati which, according to the learned Counsel, is not permissible in law. It is further submitted that the criminal cases shown and described in the show cause notice and relied on by the Externment Authority, while passing the impugned order, are not only old but the petitioner is also acquitted in most of these criminal cases. It is also contended that in the show cause notice, no details are mentioned such as time, place and month in respect of the crimes alleged to have been committed by the petitioner. The learned Counsel, therefore, contended that in the absence of such details, the petitioner could not defend himself properly before the authorities concerned. The learned Counsel, therefore, contended that the impugned order is illegal and liable to be set aside.

4. Heard Shri Chawda, learned Additional Public Prosecutor for the State-respondent No. 1, who has supported the impugned order.

5. I have considered the arguments advanced by the learned Counsel and perused the notice dated 31-12-1996 as well as the impugned order dated 3-4-1998. The contention of the learned Counsel that the respondents were under obligation to supply details in respect of the crime in the said show cause notice is not proper. The externee is entitled to know only the material particulars of the crime in question and not the details as alleged by the learned Counsel for the petitioner. If the details are required to be supplied by the authorities to the externee before passing of the Externment order then the very purpose will be frustrated. It must be borne in mind that taking recourse to the provisions of the Act is an exception and it is only in an emergent situation that such remedies are expected to be resorted to by the authorities in the interest of the society. Hence, the above referred contention raised by the learned Counsel for the petitioner cannot be accepted.

6. The recitals in the notice shows that the petitioner is constantly involved in the criminal activities since 1985 onwards till 1996 and, therefore, it is difficult for me to accept that the Externment Authority placed reliance on the stale grounds for issuing the order of externment. Since illegal criminal activities of the petitioner though located in some of the areas of the City of Amravati, it was necessary for the Externment Authority to extern the petitioner from the entire District in order to snap the nexus between the petitioner and his illegal activities which he was carrying on in the city of Amravati. In that view of the matter, this contention raised by the learned Counsel for the petitioner also must fail. Even otherwise, the petitioner has already suffered the major period of punishment imposed by the impugned order. The petitioner was externed for a period of one year from the date of order and he has already suffered the punishment for about 9 to 10 months.

7. Looking to the facts and circumstances of the case and also after considering the Scheme of the Act, I see no reason to interfere. The impugned order is just and proper. The criminal writ petition is dismissed

8. Criminal writ petition dismissed.