30 Jun 2023 4:30 AM GMT
The Bombay High Court has held that externing authority under the Maharashtra Police Act does not have any power to direct the police to approach the executive magistrate for a show cause notice under section 110 (security for good behaviour from habitual offenders) of the CrPC against a person.Justice Sarang V Kotwal observed that once process is issued against a person under section 59 of...
The Bombay High Court has held that externing authority under the Maharashtra Police Act does not have any power to direct the police to approach the executive magistrate for a show cause notice under section 110 (security for good behaviour from habitual offenders) of the CrPC against a person.
Justice Sarang V Kotwal observed that once process is issued against a person under section 59 of the Maharashtra Police Act, no other order except an externment order or an order dropping externment proceedings can be passed by the externing authority.
“Once the proceedings were initiated by issuing process under Section 59 of the said Act, the only logical conclusion could be either issuance of externment order or dropping the proceedings. The operative part directing initiation of proceedings under Section 110 of Cr.P.C. is not contemplated under Section 56(1) of the said Act at all”, the court held.
The court quashed an order passed by Deputy Commissioner of Police, Kherwadi, Mumbai, directing initiation of proceedings under section 110 CrPC against one Gautam Daima as well as the resulting show-cause notice under section 110(g) of the CrPC issued by the Special Executive Magistrate to him.
Section 110(g) of the CrPC pertains to an Executive Magistrate receiving information that in his local jurisdiction, there is a person so dangerous that him being at large without security is hazardous to the community. Such Magistrate may issue a notice to the suspect requiring him to show why he should not be ordered to execute a bond with sureties for his good behaviour for up to three years.
On March 1, 2018, Daima was served a notice under section 59 of the Police Act, asking him to show why he should not be externed from Mumbai City, Mumbai Suburban, Navi Mumbai and Thane Districts. Daima participated in the inquiry and the DCP, who was the externing authority under section 56(1) (removal of persons engaged or about to be engaged in an offence) of the Police Act passed an order.
In the order, the DCP observed that Daima’s externment was not necessary. However, he directed the Senior Inspector of Nirmal Nagar police station to initiate proceedings against Daima under section 110 of the CrPC. Pursuant to this order, the SEM issued show cause notice to Daima under section 110(g) of the CrPC. Daima filed the present petition challenging the DCP’s order and the show cause notice.
The court noted that the DCP, while recording his subjective satisfaction in the order, accepted that Daima’s behaviour was good and he was working as a driver. The DCP also recorded a subjective satisfaction that similar steps were taken against Daima recently and his externment would not be proper. However, instead of passing an order regarding whether or not to extern Daima, the DCP directed to initiate proceedings under section 110 of the CrPC, the court noted.
The court opined that the DCP’s subjective satisfaction is quite different from the operative part of his order, showing non-application of mind.
The DCP's order is beyond the scope of section 56(1) of the Police Act, the court held. Since the DCP’s order itself in unsustainable, the consequent steps taken under that order, i.e., the show cause notice under section 110(g) of CrPC, also cannot survive, the court added.
Even otherwise, the court noted, the show cause notice order was issued in 2018, despite no stay operating on it, no further steps have been taken. Therefore, there is no urgency and necessity for initiating proceedings under section 110 of the CrPC, the court opined.
Case no. – Criminal Writ Petition No.709 of 2019
Case Title – Gautam Shantilal Daima v. State of Maharashtra and Ors.
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