“To Be Heard” In Externment Proceedings Is Of Paramount Consideration; Bypassing Such Provisions Vitiates Entire Exercise: Bombay High Court

The High Court was hearing a criminal writ petition challenging orders of the Sub Divisional Magistrate and the Divisional Commissioner, Amravati Division, which had externed him from two districts for six months.

A Bench comprising Justice M.M. Nerlikar, while deciding the matter, emphasised: “To be heard in the proceeding like externment is of paramount consideration and violation of such amounts to violation of Constitutional values enshrined in the Constitution of India.”

Advocate P.N. Lakhani appeared for the petitioner, while S.V. Kolhe, Additional Public Prosecutor, represented the respondents.

Background

The petitioner had been externed under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, based on seven cases registered against him. While one of the cases ended in acquittal, others were either pending or pertained to incidents as far back as 2000.

Challenging the externment order, the petitioner argued that principles of natural justice had been violated as notice of hearing was not duly served on the petitioner as mandated by Section 59 of the Act.

Court’s Observations

The Bombay High Court held that Section 59 of the Act is the “heart and soul” of externment proceedings, as it ensures that the externee is informed in writing of the general nature of allegations against him and is given a reasonable opportunity to respond.

The Bench, while holding that bypassing this provision vitiated the entire process, noted: “Though the Sub Divisional Magistrate has issued notice and called explanation of the petitioner, before issuance of order under Section 56 the petitioner appeared and filed his say. This is not sufficient for the reason that if the mandatory provision provided under Section 59 is not followed, then the entire proceeding would stand vitiated.”

The Bench further underscored that the right to be heard is part of the constitutional guarantee of personal liberty under Article 19. It noted that although a notice under Section 59 had been issued, it was not duly served on the petitioner. This omission, the Bench stated, resulted in “gross violation of the fundamental right of the petitioner.”

The Court also found that the Sub Divisional Magistrate, while passing the order, had relied on stale cases from 2000, 2009, 2010, and 2013, without considering that the petitioner had either been acquitted or discharged in most of them.

The Bench also noted that the Divisional Commissioner, acting as appellate authority, had dealt with the matter “mechanically and casually” without addressing specific pleas raised by the petitioner. “It needs to be remembered that the very object of Section 60 is to prefer appeal would be of no use if such appeals are rejected or dismissed without going into their merits, and by not applying mind”, the Court highlighted.

Expressing concern over personal liberty being put in peril on such grounds, the Bench observed that “before exercising the powers under Sections 55, 56 and 59 of the Act, the concerned officers should bear in mind that they are dealing with personal liberty guaranteed under Article 19 of the Constitution.”

The Court concluded that both the Sub Divisional Magistrate and the Divisional Commissioner had failed to apply their minds or record sufficient reasons, thereby rendering the orders unsustainable.

Conclusion

Allowing the writ petition, the Court quashed the orders passed by the Sub Divisional Magistrate and the Divisional Commissioner, holding that the externment proceedings stood vitiated for non-compliance with Section 59 of the Maharashtra Police Act, violation of natural justice, and infringement of the petitioner’s fundamental right to personal liberty.

The Criminal Writ Petition was accordingly allowed and disposed of.

Cause Title: Bharat Shatrughana Bhosale v. The Divisional Commissioner Amravati & Ors (Neutral Citation: 2025:BHC-NAG:9199)

Appearances

Petitioner: Advocate P.N. Lakhani

Respondents: S.V. Kolhe, Additional Public Prosecutor

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