Externment; Sachin Yeshwant Pokre Vs. Jayprakash M. Jadhav [Bombay High Court, 14-06-2016]

Bombay Police Act, 1951 – Section 60 – Whether in an Appeal against an order of externment, an order of interim stay of the operation of the impugned order of externment should be granted as a matter of course? Held, the decision of the Division Bench of Shamkumar Arjun Dalvi Case does not lay down an absolute proposition of law that in every case where an Appeal under Section 60 of the said Act is preferred against an order of externment, stay has to be granted as a matter of course. There is a power vesting in the Appellate Authority to grant ad-interim and interim relief of stay/ suspension of the impugned order of externment depending upon the facts of each case. The prayer for ad-interim relief or interim relief cannot be mechanically rejected without any application of mind.

# Externment


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CORAM : A.S. OKA, A.K. MENON & P.D. NAIK, JJ.

14th JUNE, 2016

WRIT PETITION NO.1507 OF 2007

Sachin Yeshwant Pokre Vs.  Jayprakash M. Jadhav

WITH WRIT PETITION NO.1508 OF 2007

Naresh Heralal Rathod Vs. Jayprakash M. Jadhav

Mr. Gajendra Jadhav for the Petitioners; Mr. S.K. Shinde, Public Prosecutor a/w Mr. K.V. Saste, APP for the Respondents – State; Mr. Murtaza Najmi, Amicus Curiae.

JUDGMENT

(PER A.S. OKA, J.):-

1. By order dated 17 August, 2007, the learned Single Judge of this Court made a reference to the larger Bench on the issue of the power of the Appellate Authority to grant interim relief in an Appeal under

# Section 60 of the Bombay Police Act, 1951

(for short “the said Act”) against an order of externment passed under the said Act. The learned Single Judge referred to a decision of a Division Bench in the case of

# Shamkumar Arjun Dalvi Vs. State of Maharashtra and Another, 1988 Mh.L.J. 95

After considering the said decision, in paragraph 4 of his order, the learned Single Judge observed thus :-

“4. Even otherwise, it is well settled in law that an interim relief or stay order is required to be granted on the basis of a prima facie case to succeed in the appeal. In an appeal arising from an order of conviction and sentence, granting of bail is not automatic and reasons are required to be set out to suspend the order of sentence so as to grant bail to the appellant. The externment period normally varies from one to two years and it is common experience that appeals before the State Government remain pending even upto one year and in this process if the externee is granted interim relief pending the appeal, the order of externment may become infructuous or the efficacy of the externment order itself may be in peril. In my considered opinion, the view expressed by the Division Bench in Shamkumar’s case cannot be made applicable as a matter of routine in every appeal against the order of externment and for clarifications or to resolve the legal position with further clarity, the issue that an interim stay must follow, per se, during the pendency of the appeal, requires reconsideration by a larger Bench of three Judges and, therefore, I hereby report these two petitions to the Hon’ble the Chief Justice under Rule 7 of Chapter-I of the Appellate Side Rules, 1960, for constituting a Full Bench.”

(Underline supplied)

2. By order dated 6th January, 2016, the Hon’ble the Acting Chief Justice directed that the matter should be placed before this Full Bench.

3. The question which arises for our consideration is as under :-

“Whether in an Appeal under Section 60 of the Bombay Police Act, 1951 against an order of externment, an order of interim stay of the operation of the impugned order of externment should be granted as a matter of course?”

4. The learned counsel appearing for the Petitioner submitted that as an order of externment affects liberty of an individual, pending the statutory appeal involving a challenge to the said order, in normal course, interim stay has to be granted. He urged that an order directing externment not to enter certain cities or certain districts is a very drastic order and unless the issue of the validity of the said order is decided on merits by the Appellate Authority, the same cannot be allowed to be implemented. He pointed out that the order of externment is of a limited duration starting from six months onwards. He pointed out that it is a common experience that Appeals preferred under Section 60 for challenging the order of externment are not heard for several months and externees are required to approach this Court for a direction to expedite the Appeals. He pointed out that the Appellate Authorities are not at all hearing the applications for grant of interim relief in such Appeals. He submitted that in many cases, the Appeals have become infructuous as a result of the failure of the Appellate Authority to hear the Appeals.

5. The learned Public Prosecutor urged that in the case of Shamkumar Arjun Dalvi, the Division Bench has not laid down as an absolute proposition of law that in every case where an Appeal is preferred under Section 60, stay should be granted to the operation of the order of externment in a routine manner. He invited our attention to the provisions of Section 60 of the said Act. He urged that prior to the amendment of Section 60 of the said Act perhaps there was no specific power conferred on the Appellate Authority to grant stay and, therefore, the observations made in the case of Shamkumar Arjun Dalvi are in that context.

6. We have carefully considered the submissions. There is a power conferred by Sections 55, 56, 57 and 57A of the said Act of passing an order of externment. The Authorities under the said Act are empowered to direct a person to remove himself from a particular area, district or districts for the period provided in the order. The said order is certainly of a drastic nature as it affects liberty of the person against whom the same has been made.

7. An Appeal against the orders of externment passed under Sections 55 to 57 and 57A of the said Act is provided under Section 60 which reads thus :-

# 60. Appeal

(1) Any person aggrieved by an order made under section 55, 56, 57 and 57A may appeal to the State Government or to such other Officer as the State Government may by order specify (hereinafter referred to as “the specified Officer” within thirty days from the date of such order.

(2) An appeal under this section shall be preferred in duplicate in the form of a memorandum, setting forth concisely the grounds of objection to the order appealed against, and shall be accompanied by that order or a certified copy thereof.

(3) On receipt of such appeal the State Government or the specified Officer may, after giving a reasonable opportunity to the appellant to be heard either personally, or by a pleader, advocate or attorney and after such further inquiry, if any, as it may deem necessary, confirm, vary or cancel, or set aside the order appealed against, or remand the case for disposal with such directions as it or he thinks fit, and make its or his order accordingly:

Provided that the order appealed against shall remain in force pending the disposal of the appeal, unless the State Government or the specified Officer otherwise directs.

Explanation. – For the purposes of this sub-section the power to vary the order appealed against shall include, and shall be deemed always to have included, the power to hold such order in abeyance and to make conditional order permitting the person to enter or return to the area or such areas and any contiguous districts or part thereof, or to the specified area or areas, as the case may be, from which he was directed to remove himself.

(4) In calculating the period of thirty days provided for an appeal under this section, the time taken for granting a certified copy of the order appealed against shall be excluded.”

(Underline added)

8. The explanation to Sub-Section (3) is incorporated by Maharashtra Act No.3 of 1995. The explanation is by way of clarification which makes it clear that the Appellate Authority shall have a power to hold such order in abeyance pending an Appeal. Proviso to Sub-Section (3) lays down that the order of externment appealed against shall remain in force pending the disposal of the Appeal, unless the Appellate Authority otherwise directs. Thus, the first proviso as well as the explanation to it makes it clear that there is a power vesting in the Appellate Authority to pass an interim order during the pendency of an Appeal. Interim orders which can be passed by the Appellate Authority may be of different nature depending upon the facts of each case. Only by way of illustration, we are setting out certain categories of interim orders which can be passed by the Appellate Authority.

a] An interim order staying or suspending operation of the impugned order of externment till the disposal of Appeal;

b] The Suspension or stay of operation of order of externment in relation to a part of the area covered by the order of externment;

c] Interim order permitting the Appellant to enter a particular area covered by order of externment on such conditions as the Appellate Authority may deem fit; or d] Interim order permitting the Appellant to enter the area subject matter of order of externment for a limited duration.

These are only illustrations and not an exhaustive list of the interim orders which could be passed by the Appellate Authority.

9. We may now turn to the decision in the case of Shamkumar Arjun Dalvi. The Paragraphs 2 and 3 of the said Judgment read thus :-

“2. Against the impugned externment order, the petitioner has preferred appeal to the State Government. Stay was, however, declined. Hence this petition.

3. Now, when an appeal is provided by the statute and the same is filed, it is then, in a matter of externment, but just and fair that pending the appeal, the externment is stayed. Refusal in that behalf may, in a given case, as well render the appeal itself infructuous. We are informed that stay is not granted as a matter of policy. If that is so, it is rather unfortunate. It tends to defeat justice. The need for externment should be balanced with the requirement to be just, fair and reasonable to the externee. If a life convict can be released on bail or a preventive detenue on parole or one accused of serious economic offence granted even anticipatory bail, what is so extraordinary qua an externee that in no case he should be given stay? Besides, discretion vested in an appellate authority must be exercised not blindly as a matter of policy but rationally depending upon the facts and facts of each case. In all the circumstances, we are inclined to grant stay pending the appeal with direction to decide the same expeditiously.”

(Underline added)

10. It is true that if the first sentence of paragraph 3 is read in isolation, it may appear that the Division Bench has observed that when an Appeal is preferred against an order of externment, pending the Appeal, the order should be stayed as a matter of course. The second sentence of paragraph 3 records that refusal to grant stay in a given case, will render the Appeal infructuous. The next sentence records that the Bench was informed that stay is not granted as a matter of policy by the Appellate Authority. Therefore, the Division Bench observed that if the stay is not being granted as a matter of policy, it is very unfortunate.

Thereafter, the Division Bench observed that need for externment should be balanced with the requirement to be just and fair to the externee. If the entire paragraph No.3 and especially the underlined portion is considered, it becomes very clear that the first sentence is in the context of the fact subsequently noted in paragraph 3 that the Appellate Authorities are not granting stay as a matter of policy. In further part of paragraph 3, the Division Bench observed that discretion vested in the Appellate Authority must be exercised not blindly as a matter of policy but rationally depending upon the facts of each case.

Thus, in our considered view, the decision of the Division Bench in the case of Shamkumar Arjun Dalvi cannot be read to mean that the Division Bench has held that in an Appeal under Section 60 of the said Act against the order of externment, stay should be granted to the operation of the impugned order of externment as a matter of course.

Therefore, there cannot be a policy that in no case, pending an Appeal under Section 60, stay should not be granted to the operation of the order of externment. As there is a power vesting in the Appellate Authority to pass an interim order as indicated above, it is the duty of the Appellate Authority to hear the application for interim relief expeditiously. While considering the application for interim relief, firstly the Appellate Authority has to apply its mind to the question whether prima facie there is any illegality associated with the impugned order of externment. If the Appellate Authority is satisfied that prima facie, the impugned order of externment is illegal, the Appellate Authority will have to grant appropriate interim relief. The Appellate Authority can always mould the relief for the purposes of balancing the need for externment with the requirement to be just, fair and reasonable to the externee. Thus, the legal position is very clear. As a matter of rule, interim relief of stay cannot be denied in Appeal against externment. At the same time, it cannot be laid down as an absolute proposition of law that in every such Appeal, till the final disposal of the Appeal, interim stay of the impugned order of externment should be granted as a matter of course. The prayer for interim relief has to be decided after considering the facts of each case.

12. All the Appeals arising under Section 60 have an element of urgency. Considering the fact that externment order affects liberty of an individual, a prayer for stay has to be taken up for hearing immediately or at least within one week from filing of the Appeal. If interim relief is not granted, it is all the more necessary to finally hear the Appeal as expeditiously as possible. If stay is granted, it is also necessary to dispose of the Appeal expeditiously. The reason is that the order of externment ceases to have effect on the day specified in the order. The learned Single Judge of this Court in the case of

# Sharad Chandanlal Jaiswal Vs. State of Maharashtra and Anr., 1992 Mh.L.J. 1233

has held that grant of stay to the order of externment either by the State Government or by this Court has no effect of extending the outer limit fixed of the operation of the order of externment.

13. We may note here that large number of Petitions are filed in this Court as either the Appeal under Section 60 is not heard expeditiously or application for stay is not at all heard. The State of Maharashtra in its Revenue Department has issued a Government Resolution dated 17th December, 2015 which lays down elaborate procedure for filing of Appeals, registration thereof. It lays down the manner in which the notice should be issued. It also lays down the outer limit within which final order should be pronounced from the date of conclusion of the hearing. It also provides that application for interim relief will be disposed of within a period of 30 days. There is a need to set down similar procedure for filing and hearing of Appeals under Section 60 of the said Act. After the hearing of this reference was concluded, the learned Public Prosecutor has placed on record, a copy of the Government Resolution dated 26 th April, 2016 issued by the Ministry of Home which takes care of this need. It sets down a detailed procedure for filing and dealing with such Appeals. It contains a provision that application for interim relief shall be decided within thirty days of filing of an Appeal. We may clarify here that even a prayer for grant of ad-interim relief of stay should be decided by the Appellate Authority preferably within seven working days from the date of filing of Appeal.

14. Accordingly, we answer the reference as under :-

(i) The decision of the Division Bench of Shamkumar Arjun Dalvi (Supra) does not lay down an absolute proposition of law that in every case where an Appeal under Section 60 of the said Act is preferred against an order of externment, stay has to be granted as a matter of course. There is a power vesting in the Appellate Authority to grant ad-interim and interim relief of stay/ suspension of the impugned order of externment depending upon the facts of each case. We also hold that the prayer for ad-interim relief or interim relief cannot be mechanically rejected without any application of mind. The question of grant of interim relief will be considered by the Appellate Authority in the light of the facts of each case after taking into consideration the observations made by this Court;

(ii) As the main Writ Petitions have been disposed of, there is no need to place the Petitions before the learned Single Judge.

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