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Judgment
A.H. Joshi, J.—Heard learned Advocates for the parties.
The petitioner is challenging the order of externment passed on 22nd June, 2007, and the order dated
23rd July, 2007 passed by the Appellate Authority in the statutory appeal [Annexs.P-3 and P-4 respectively].
In all fourteen offences were noted by the Authority while issuing Show-cause-Notice. The list of those offences and dates of commission thereof is as follows:-
Sr. No.
Date of Commission of offence
Sections
Crime No.
1.
6th May, 2000
481, 380 and 411 of IPC.
84/2000
2.
5th Aug. 2005
504, 506, IPC.
438/05.
3.
19th Aug.2000
379 of IPC.
133/2000
4.
28th Oct. 2000
461, 380 read with 34 of IPC.
175/2000
5.
13th to 16th Nov., 2001.
461 and 380, IPC.
227/2001
6.
4th to 8th Aug.,2002.
381, 411 read with 34 of IPC.
99/2002
7.
8th Aug., 2002
124, Bom. Police Act.
5/2002
8.
23rd June, 2004.
379, IPC.
158/2004
9.
20th Sept.,2004
392 read with 34 of IPC.
193/2004
10.
---
406, 411 read with 34, IPC.
57/05
11.
29th Dec., 2005
341, 294, 323 read with 34 of IPC.
332/2005
12.
22nd June, 2006
294, 506-B, IPC.
3054/06
13.
7th Jan., 2007
294, 506-B, 323 read with 34, IPC.
196/06
14.
7th Jan.,
2007 294, 506-B, 323 read with 34, IPC.
332/07
The order of externment was passed and petitioner preferred the statutory appeal. In the appeal, the petitioner had raised a ground that out of fourteen crimes, he was already acquitted in four cases, interalia, other grounds.
Petitioner had raised the point of acquittal in four cases, however, he had failed to file certified copies on record. No effort was made by the Sub-Divisional Magistrate as well the Appellate Authority to ascertain the truthfulness of the claim of the petitioner about acquittal in those four offences.
As is noticed by the Appellate Authority that though the petitioner claims that he was acquitted well before issuance of notice of show cause in four offences, he had failed to furnish the copies of judgments of acquittal.
Last amongst the cognizable offences alleged against the petitioner, was registered on 7th January, 2007.
Though various grounds have been urged in support of petition, the point, which goes to the root of the case, is delay in issuance of notice.
According to the petitioner, this point vitiates the action in its commencement and ultimately the final order too.
In order to substantiate the point as regards the delay, the petitioner has relied upon the following judgments:�
[a] Santosh Ramprasad Sharma Vs. Dy. Commissioner of Police, Crime Branch and Another, ,
[b] Shabbirbhai Bookwala & another Vs. State of Mah. & others [2011 ALL MR (Cri) 2553], and
[c] Shaikh Dayan Shaikh Lukman Vs. State of Maharashtra & others [Criminal Appeal No. 1851 of 2011, decided on 23rd September, 2011 by Hon''ble Supreme Court].
The offence at Sr. No.11 in the chart quoted in para no.3 is dated 29th December, 2005, and offences under Sections 294, 506-B and 323 read with Section 34 of IPC at Sr. Nos. 13 and 14 are of 7th January, 2007.
It is seen that no action, whatsoever, was taken by the police during the period from December, 2005 to January, 2007, i.e., for one year and one month, and till the notice of show cause [Annex.P-1] dated 27th February,
2007 was issued.
After considering the matter and all points involved, this Court is satisfied that the point as regards delay in issuance of notice goes to the root of the case and the petition can be decided solely on this point.
The alarm as contemplated by Section 56(1) of the Bombay Police Act and threat to the public life was not perceived by the authority to be imminent till the date of issuance of notice. It is not clear as to how suddenly in January, 2007 the threat got aggravated.
This petition was admitted and interim relief byway of stay was granted by this Court on 1st August, 2007.Nothing untoward, if happened during the intervening period, is brought on record of this Court by the respondents.
In the given situation, on account of delay in taking action u/s 56 of the Bombay Police Act, the action stands vitiated.
When authorities lost time either in initiation or completing the action, it results in adversely affecting the genuineness of urgency of preventive action. Thus, when the judicial dictum is to ensure the urgency, it was the duty of authorities to translate into action the said urgency, with all punctualness.
As observed by Hon''ble Supreme Court in case of Shaikh Dayan Shaikh Lukman Vs. State of Mah. & others [unreported], the orders ought not be passed leisurely.
It is seen from all other judgments relied upon by the petitioner that:�
The preventive action has to be initiated and completed with same degree of urge and punctualness and without any lousiness. Subsistence of urgency or emergency has to persist through, it being a preventive measure.
In the present case, the initiation of preventive action was delayed and the last amongst alerting the cause, i.e., the offences were registered on7th January, 2007. Taking into consideration the offences which date back to 2000 in itself result in destroying the urgency of preventive action.
In the result, petition has to succeed only on the ground of delay.
Rule is made absolute in terms of Prayer Clause [a].