Strong Suspicion Cannot Take The Place Of Proof Beyond Reasonable Doubt: SC
Why offences under investigation cannot be the basis for an externment order against an accused, along with relevant case laws from the Bombay High Court and other courts,
Offences Under Investigation Cannot Be Considered Basis For An Externment Order Against Accused: Bombay HC
What is an Externment Order?
An externment order is a legal directive issued by a competent authority, usually under state laws like the Bombay Police Act or other relevant local laws, which prohibits a person from entering or residing in a particular area or jurisdiction. This is often used as a preventive measure to maintain public order or to curb criminal activities.
Core Legal Principle
The Bombay High Court has consistently held that an externment order cannot be based solely on offences that are still under investigation and where no charge sheet has been filed or no prima facie case has been established. The rationale is that an externment order is a quasi-penal and preventive measure that affects a person’s fundamental right to movement and residence (Article 19(1)(d) of the Constitution of India). Therefore, such orders must be based on credible, established grounds and not on mere allegations or suspicion.
Key Reasons Why Offences Under Investigation Cannot be the Basis
No Conviction or Prima Facie Case
If the offence is only under investigation and no charge sheet has been filed, it implies that the investigation is ongoing and the person is yet to be established as guilty or even accused in a formal manner. Basing externment on mere investigation would be premature and arbitrary.
Violation of Fundamental Rights
Externment affects the right to residence and movement under Article 19(1)(d). Any restriction must be justified by compelling reasons, supported by tangible evidence, and not on speculative grounds.
Preventive vs Punitive
Externment is preventive, not punitive. Preventive action requires reasonable suspicion and material facts. Mere investigation does not amount to reasonable suspicion warranting externment.
Relevant Bombay High Court Judgments
1. Shyam Narayan Mhaske vs State of Maharashtra (2010)
The Bombay High Court held that externment orders cannot be issued based on allegations in a complaint or merely on the fact that a crime is under investigation. The Court emphasized that the authorities must have credible and concrete evidence to believe that the person is likely to disturb public peace.
2. State of Maharashtra vs Praful B. Desai (1998)
Although dealing with preventive detention principles, this judgment was referred to in externment cases where the Court reiterated that preventive measures need to be based on material facts and not on vague or speculative grounds.
Supreme Court Position (While Not Bombay HC, Influential)
3. Kharak Singh vs State of UP (1963)
The Supreme Court highlighted the importance of safeguarding personal liberty and that restrictions must be lawful, reasonable, and justifiable.
4. Maneka Gandhi vs Union of India (1978)
This landmark case expanded the scope of Article 21 and Article 19 rights, underscoring that any restriction on personal liberty or movement must meet the test of reasonableness and procedural fairness.
Practical Application
The police or competent authority investigating a crime cannot issue an externment order solely on the basis of ongoing investigation.
The authority must demonstrate that the person poses a real threat to public peace and order based on concrete material.
The accused must be given an opportunity to be heard before such an order is passed.
If the investigation is inconclusive or no charge sheet is filed, the basis for externment collapses.
Summary
Offences under investigation are not sufficient grounds for issuing an externment order.
Externment orders are preventive measures requiring credible evidence, not mere suspicion or ongoing inquiry.
The Bombay High Court has firmly ruled that such orders must respect the fundamental rights of the individual.
Due process and reasoned basis are essential before restricting a person's right to reside or move freely.
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