Unexplained Inordinate Delay In Issuing Externment From Date Of Last Offence Amounts To Denial Of Fundamental Right Under Art 19(1)(D): Bombay HC

Finding that Section 55 (1) of the Maharashtra Police Act, 1951 encroaches on the right guaranteed under Article 19(1) following the externment of the Petitioners under the impugned order was challenged as it violated Fundamental rights guaranteed under the law of the land, the Bombay High Court allowed the Prayer of the Petitioners.

While allowing the prayer of the Petitioners, the High Court observed that “There is no reference in the impugned order to any incident, alleged crime or activity of the petitioners between the date of the last arrest on 06.05.2021 in Crime No.163/2021 concerning petitioner No.1 or in the case of the petitioner No.2, wherein was released on bail on 05.08.2021 in Crime No.166/2021 in which he was last arrested on 17.06.2021. There is also no mention in the impugned order, of the fact that since the above-referred date, there has not been any fresh incident or criminal activity of the nature which required action under Section 55 against the petitioners, as members of a gang”.

The Division Bench of Justice Vinay Joshi and Justice Valmiki SA Menezes stated that “the respondents have not explained the inordinate delay in filing the proposal for externment dated 15.12.2022 more than a year after the last alleged offence. Without any explanation, the impugned order on the face of it, suffers from arbitrariness and the authority lacked the jurisdictional facts, to proceed in exercising its jurisdiction under Section 55 of the Act. There is no live nexus shown on the face of the record between the last act allegedly committed by the petitioners as a part of a gang on 06.05.2021, and the notice dated 13.08.2022. The impugned order is therefore, in total violation of Section 55 as also in violation of the petitioner's fundamental rights under Article 19(1)(d) of the Constitution of India”.

Advocate Amite Bhate appeared for the Petitioners, whereas APP S.S. Doifode appeared for the Respondent.

The Brief facts of the case are that the Petitioners seek to challenge the order of externment passed on Aug 13, 2022, by the first respondent in terms of the provisions of Section 55(1) of the Maharashtra Police Act, 1951, on the ground that the same was issued fourteen months ago after the incident alleged against the petitioners. Since no nexus can be drawn between the offence alleged against the Petitioners and the notice issued under Section 55(1) of the Act, as no crime was reported against the Petitioners when they were last arrested, the Petitioners claimed that said externment order directly infringes fundamental right guaranteed under Article 19(1) of the Constitution of India.

After considering the submission, the Bench found out that there is no reference in the impugned order to any incident, alleged crime, or activity of the petitioners between the date of the last arrest.

The Bench also found that there is no mention in the impugned order, of the fact that since the above-referred date, there has not been any fresh incident or criminal activity of the nature which required action under Section 55 against the petitioners.

While elaborating that the externment order encroaches jurisdictional limit vested in the authority under section 55 of the 1951 Act, the Bench stated that said order extended the area of operation to three districts beyond its prescribed limit whereas the crime registered against the Petitioner involved only in one Rural Police Station.

Accordingly, the High Court concluded that the Petitioner’s fundamental rights guaranteed under Article 19 of the Constitution have been violated by section 55 of the 1951 Act which clearly states jurisdictional facts in existence before the authority can proceed with presupposition of eminent danger which requires immediate action.

Cause Title: Narayan Sitaram Pawar & Anr v. Superintendent of Police and Ors.

Click here to read/download the Judgment