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Judgment
B.P. Dharmadhikari, J.—Heard.
Challenge is to an Order of Externment dated 27th April, 2016, passed by the Deputy Police Commissioner, Zone-1, Nagpur City, by which the petitioner has been externed from the Nagpur City for a period of one year. This order has been passed after a Show-cause-Notice dated 8th March, 2016. There was earlier Order of Externment passed on 14th October, 2015. It was questioned in Criminal Writ Petition No. 913 of 2015. On very limited grounds, the petition was allowed by this Court on 18th December, 2015. Thereafter, the fresh order after issuance of a fresh notice has been passed.
Learned Adv. Mr. Vyas for the petitioner submits that in-camera statements do not appear to have been looked into by the authority, as there is no mention of its perusal or then of any discussion with the officer who has recorded those statements, or with the authority who has verified the same. He has relied upon a Division Bench Judgment in Criminal Writ Petition No. 660 of 2015 delivered on 29th February, 2016 [Ravindrasing @ Mullasing Sarwansing Gour v. Commissioner of Police, Nagpur & another] for this purpose.
A reported judgment in Akram Ajij Shaikh v. State of Maharashtra & others [2013 ALL MR (Cri) 3999], particularly paragraphs 13 and 14 thereof, is also relied upon by him to show that in view of pendency of several Court cases against the petitioner in the Nagpur Courts, appropriate arrangement for his entry within the City to attend those matters ought to have been made. Failure to note this factor and to make any arrangement is non-application of mind, which vitiates the order.
Learned Addl. Public Prosecutor, Mrs. Joshi, submits that in the Show-cause-Notice, two in-camera statements are reproduced and the records looked into by the externing authority specifically show that those in-camera statements have been verified by Asstt. Commissioner of Police. The perusal of record by the said authority while passing the Externment Order on 24th July, 2014, therefore, by implication, also shows that said remark by Asstt. Commissioner of Police is looked into and the authority was satisfied about its correctness. She submits that the Judgment dated 29th February, 2016 in Criminal Writ Petition No. 660 of 2015 is in detention matter and, therefore, has no application.
Our attention is invited to the provisions of Section 63 of the Maharashtra Police Act to submit that the authorities have been given ample powers to provide for contingencies, like appearing in Court cases. Last paragraph of the impugned order is also relied upon to show that there the petitioner has been permitted to enter city with the permission of the externing authority or with the permission of State Govt.
Perusal of paragraphs 13 and 14 of the Division bench judgment of this Court in Akram Ajij Shaikh [supra] shows that non-consideration of pending Court cases and not providing for appearance therein is an instance of non-application of mind which vitiates the order of externment. In paragraph 13, in opening part, Division bench has found that fact of pendency of cases and the effect of externment order on pending cases must be considered by externing authority before taking a decision to pass externment order. In paragraph 14, in opening part, it is emphasized that pending prosecutions against such person cannot be considered as secondary or unimportant matters so that effect of externment order on pending prosecution would be of no consequence at all. Even in paragraph 11 of the said reported judgment, Division Bench has found that the externing authority would not be justified in not taking into consideration the consequences of externment order in relation to criminal cases pending against the petitioner therein.
After hearing respective counsel, we find that a decision whether to extern a particular person or not is to be reached independently and need of attending pending Court cases against him cannot be a relevant circumstance for that. After a decision to extern him is reached, question of evolving appropriate arrangement for his attendance in such proceedings may arise. If the authority, after independent application of mind, finds it not necessary to extern such person, said question will not arise at all. We, therefore, find that first or predominant question to be looked into is the need to extern. The impact of that order cannot be looked into to consider whether externment should be ordered or not.
During arguments, it was also suggested once that such orders externing the person must be read as impliedly subject to Court proceedings or orders which warrant attendance of the person sought to be externed, before it on a particular date. Our attention was also invited to Section 63 (1) of the Maharashtra Police Act to urge that there authorities have been given a power to pass general or special orders for facilitating such presence. Adv. Mr. Vyas has submitted that Court proceedings cannot be subjected to the orders either under Section 56 (1) or then under Section 63 (1) of the Maharashtra Police Act. He points out that in trials and prosecutions, as a rule, on each date, accused has to remain present or then he has to apply for personal exemption under Section 205 of Criminal Procedure Code.
As we prima facie are not in a position to agree with the view reached by the Division Bench in the decision of Akram Ajij Shaikh [supra], we find it proper to direct the Registry of this Court to place the matter before the Hon''ble the Chief Justice for placing the controversy before a Larger Bench.
At this stage, Adv. Mr. Vyas points out that the child of the petitioner, aged about eight years, is about seventy per cent disabled and needs some attention. He seeks interim orders, so as to enable the petitioner to enter the City to look after his needs.
Learned APP points out the provisions of Section 63 (1) of the Maharashtra Police Act.
We grant the petitioner leave to apply under Section 63 (1) of the Maharashtra Police Act. If such application is moved within one week from today, the concerned authority shall consider it independently within next one week.