HASANALLI MOHOMEDHUSSEIN SHARIFFI Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution in regard to a person foe whose externment an order has been made by the Commissioner of Police of the City of Bombay under the provisions of Section 27 (1) of the City of Bombay Police Act, 1902. The order is challenged on various grounds but the only one which it is necessary to state for the purpose of the present application is that Section 27 (1) of the City of Bombay Police Act, 1902, makes it incumbent upon the Police Commissioner, when the externee is not called upon to remove himself outside the Province, to call upon him to go to such a place within the Province and by such route as the Commissioner of Police shall prescribe. It is said that in this case the order, which has been passed, does not call upon the externee to remove himself to a particular place nor was called upon to go to that place by a particular route.

(2.) NOW, it is not in dispute that the order does not call upon the applicant to go to a particular place inside the Province nor does it call upon him to go to that place by any particular route. But the learned Government Pleader, who appears for the State, explains that the practice, which is followed, when it is proposed to extern any one outside Greater Bombay is to leave it to the externee to go to any place he likes outside Greater Bombay and to choose the route which he would like to take. It has to be remembered that if an order under Section 27 (1) is passed, it is not incumbent upon the externee to wait. He may, immediately he is informed that an order has been passed, remove himself outside Greater Bombay and unless the order directs him to go to any particular place, at any rate, he can go anywhere he likes outside Greater Bombay and by such route as he likes. It is in case he fails to remove himself as directed then under Section 27 (3) the Commissioner of Police may cause him to be arrested and removed in police custody to such place outside Greater Bombay as he may in each case prescribe. The learned Government Pleader says that usually it is left to the discretion of the externee to go to the place he likes outside Greater Bombay because as he says if he fails to go to any particular place even if the place were to be named in the order of the Commissioner action cannot be taken against the externee. That is a point upon which we shall express no opinion and we have no doubt that in many cases the order does not tell the externee where he should go and by what route as the Commissioner of Police is not concerned where he goes or what route he takes so long as he leaves Greater Bombay. We do not say as a matter of fact, that the Commissioner of Police should depart from the present practice of leaving it to the externee where he should go if he is to be externed. Bat the question before us is not whether the Commissioner of Police should not leave it to the externee to go where he likes. He can do that and after ascertaining from him the place and the route mention them in his order. The question before us is whether an order which he passes under Section 27 (1) should not mention, when the Commissioner of Police does not call upon the externee to go outside the Province, as to where he should go and by what route. If we look at the section itself, it is obvious that the order should mention that. It is not contended on behalf of the State before us that the order is a perfectly regular order. It is contended, however, that the mistake is merely an irregularity and does not render the order illegal.

(3.) THE learned Government Pleader says in the first instance that the mistake is not a mistake of procedure which could be called in question under the provisions of Section 27 (7 ). In the second instance, if it is not a mistake of procedure, but if the order is illegal on the ground that the Police Commissioner did not do what the section calls upon him to do, namely, to specify the place and the route, then the order cannot be called in question because of the provisions of Section 27 (7) of the Act.