Externment order cannot be on non-existent criminal complaint: Bombay high court

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Published on Oct 27, 2020 12:34 AM IST
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ByK A Y Dodhiya

The Bombay high court (HC) set aside an externment order issued by the police on the grounds that the decision was vitiated, as the authority did not take cognisance of the acquittal of the externee. The court observed that as the externment order was based on a case that did not exist against the externee, it was not valid.

The division bench of justice SS Sinde and justice MS Karnik, was hearing a plea challenging an externment notice issued to Ganesh Bajantri by the deputy commissioner of police (DCP) zone 7. The notice issued on October 8, 2019, stated that Bajantri had been externed from Mumbai and Thane for some months for a crime he had committed eight months ago in Mulund, stated the externee’s lawyer advocate Ganesh Gupta.

Gupta informed the court that the DCP’s externment order was confirmed by the division commissioner on December 2, 2019. He further submitted that though his client had responded to the show-cause notice before the externment notice was issued in his name, the externment was not paid heed to. He further submitted that while no reason was stated for the externment, Bajantari was acquitted of the crime. However, the authority did not take cognisance of these facts nor did it follow due process, and hence the externment order deserved to be quashed.

The additional government pleader said that the externment order was justified as there were three other complaints registered against Bajantari that were pending investigation.

After hearing the arguments, the court observed that the externment authority had overlooked facts and not followed due procedure, and hence it was set aside the order.

“The externing authority has proceeded on the footing that the offences are registered against the petitioner under Chapter 16 and 17 of the IPC (Indian Penal Code), when as a matter of fact, there is no offence registered against the petitioner under Chapter 17 of the IPC, which shows total non-application of mind in passing the impugned order. The learned counsel for the petitioner argued that the externment order is also vitiated on the ground that live nexus between his activities and the necessity of externing him has snapped.”

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