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 :-