Offences Under Investigation Cannot Be Considered Basis For An Externment Order Against Accused: Bombay High Court

The Bombay High Court held recently that alleged offences which are under investigation, and for which a chargesheet has not been filed cannot be considered for passing an externment order against the accused.

Justice NJ Jamadar quashed and set aside an externment order against one Imtiyaz Hussain Sayyad observing that the externing authority considered two crimes against him even though the charge sheets had not been filed yet.

“the externing authority had noted pendency of two cases which did not satisfy the requirement of class of cases stipulated by clause (b) and also considered the crimes which were under investigation and chargesheet had not been filed. It is trite, the crimes which are still under investigation cannot be taken into consideration as depending upon the outcome of the investigation, the investigating agency may or may not send the accused for trial.”

The order had been issued by the Deputy Commissioner of Police Zone XII, Mumbai, and partly upheld by the Divisional Commissioner, Konkan Division.

The petitioner challenged the externment order dated January 24, 2023, passed under Section 56(1) of the Maharashtra Police Act, 1951.

Seven crimes were registered against the petitioner at Samta Nagar Police Station, Mumbai, under various sections of IPC, POCSO Act, Arms Act, and Maharashtra Police Act. A show cause notice was issued against him on July 9, 2022. The notice alleged that his movements and acts were causing or calculated to cause harm to persons or property. It also referred to confidential in-camera statements of witnesses expressing fear for their safety.

The externing authority, Deputy Commissioner of Police Zone XII, Mumbai, passed the externment order directing him to remove himself from districts Mumbai City, Mumbai Suburban, Thane, Vasai, Palghar, Dahanu Taluka of Palghar District, and Panvel, Karjat Taluka of Raigad District, for two years. The Divisional Commissioner, Konkan Division, partly allowed the petitioner's appeal, reducing the externment period to 18 months. He approached the high court challenging these orders.

The court observed that the order of externment must strictly adhere to the statutory provisions. Under Section 56(1)(a) of the Maharashtra Police Act, the authority must be satisfied that the movements or acts of the person are causing or calculated to cause harm. Under Section 56(1)(b), there must be objective material leading to subjective satisfaction that the person is engaged or about to be engaged in offenses involving force or violence.

The court emphasized that two of the seven crimes considered by the externing authority involved alleged offences that did not fall within the ambit of Section 56(1)(b) of the Act, which requires offenses under Chapters XII, XVI, or XVII of IPC.

The court noted a lack of a live link between the crimes and the externment order and questioned the relevance of two of these cases as there was a considerable time lapse between the registration of the crimes and the initiation of externment proceedings.

When the notice was issued, two of the crimes were under investigation and the chargesheet had not been lodged. On the date of the externment order also, one of the crimes for offences punishable under Sections 354, 354BD, 509, 323, 504 of IPC was under investigation, the court noted.

“It is true, in one of the crimes, subsequently chargesheet came to be filed. However, a submission could be advanced that the chargesheet was filed with a view to justify and support the order of externment”, the court observed.

The court pointed out the absence of reasons provided by the externing authority for imposing the maximum two-year externment period.

Thus, the court concluded that the externing authority's order suffered from non-application of mind and, consequently, quashed the externment order.

Advocate Ganesh Gupta represented the Applicant while APP Geeta P Mulekar represented the State.

Case no. – Writ Petition No. 2805 of 2023

Case Title – Imtiyaz Hussain Sayyad v. State of Maharashtra and Ors.