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Tuesday, September 28, 2021

The Exile: How the externment rule works

Externment rules — that banish a criminal from a certain geographical area — are meant to stop a person or gang from committing crime. However, the effectiveness of the rule is increasingly being called into question

Written by Sagar Rajput , Jayprakash S Naidu | Mumbai |
Updated: August 23, 2021 12:51:19 pm
The concept of externment was codified in the Bombay Police Act 1951 and subsequently modified in 1956.

In December 2019, Richie Fernandes, a 27-year-old man from Mahim who had committed a series of crimes, was externed from city limits. In spite of the externment rule, which prohibited him from re-entering the city, Fernandes returned to Mumbai and conducted a series of criminal activities including molesting a woman, and in May this year murdered his associate at Sion-Mahim link road over a monetary dispute.

The primary intent of initiating externment proceedings was to keep people like Fernandes away from their familiar environment in which they committed criminal activities. In 2019 Mumbai Police externed 664 criminals, while another 310 and 448 criminals were externed in 2020 and 2021, respectively.

The underlying objective of the externment provision was to protect an area or areas of districts from probable danger of commission of offences by criminals like Fernandes as externment would sever their link with the normal area of their criminal activities.

Police officials in private, however, acknowledge that these days externment orders cannot be enforced because of the huge population and large areas involved. An overburdened and understaffed city police force is finding it increasingly difficult to keep an eye on external criminals and many officials are now calling for a review of the externment law.

How does externment work?

The word ‘extern’ is derived from the Latin root ‘externus’, meaning outward. It is a time-worn method of controlling crime in ancient India, where unwanted elements were banished from a certain geographical area. In modern India, the provisions for providing the power of externment were enshrined in various statutes such as The Bombay Police Act (MPA), 1951, that subsequently changed to Maharashtra Police Act (MPA).

The principle of externment is to protect an area or areas of districts from probable danger of commission of offences by known criminals. The logic being that banishing a criminal from his area of operation would sever his link with the normal area of his criminal activities and reduce his criminal propensity in general. This provision is enacted with a view to ensure that the majority of the people may live in peace and harmony, untrammeled by constant fear or threat of danger to their life or property by habitual criminals.

The concept of externment was codified in the Bombay Police Act 1951 and subsequently modified in 1956.

“Externment is a vast subject, but in simple words any criminal convicted in local acts or booked in more than one FIR can be externed as a preventive measure to stop the person or a gang from committing more crimes,” said Iqbal Shaikh, retired assistant commissioner of police, who is also a law graduate.

Police officials say that externing a criminal is among the last resorts of the force to crack down against habitual criminals.

“In our attempt to improve them, we take them to the police station and make them sign a bond of good behaviour under sections 107 (security for keeping the peace in other cases), 108 (security for good behaviour from persons disseminating seditious matters) and 110 (security for good behaviour from habitual offenders) of the Code of Criminal Procedure. By signing the bonds under these sections of CrPC, the person is promising that he will maintain peace and decorum in society and not indulge in any criminal activities. Even after this, if a person breaks the terms of the bond, then a proceeding to extern him is initiated,” said Deputy Commissioner of Police Balsingh Rajput (Preventive).

Number of criminals externed under sections 55, 56 and 57, Maharashtra Police Act.

Every police station in Mumbai has a designated externment officer who keeps an eye on habitual criminals and initiates a procedure to make a proposal by collecting documents of cases registered against a person who they want to extern.

An officer said that the whole work of making the externment proposal is so secretive that the criminal does not get a hint until he receives a notice from the division ACP asking him to be present for his externment proceedings.

“An externment officer makes a proposal and submits it to the divisional ACP, who then conducts a preliminary enquiry and depending on the merits of the proposal, he acknowledges the documents and forwards it to the deputy commissioner of police for further action,” said an officer.

The proposal submitted by the externment officer includes statements of people who are fearful of the criminal.

In cities, the commissioner of police has the power to extern a criminal while a sub-divisional magistrate is empowered with externment duties in districts.

“In cities, the commissioner of police issues a notice through which he delegates the externment powers to the zonal deputy commissioner of police, who then conducts a proceeding that can sometimes go up to six months,” said an officer.

During the proceeding, both the person in question and the officers who have recommended his externment are called and their statements are recorded.

Accordingly, the DCP pronounces the period of externment that can go up to maximum two years.

“If a criminal is externed from Mumbai, then he is also not allowed to enter adjoining districts like Thane, Raigad and Palghar. After the pronouncement, a team escorts the externed criminal out of the city limits, of which an entry is done in the station house dairy,” said a senior IPS officer. “In externment cases, the appellate authority is a divisional commissioner from revenue department and if that someone is unhappy again then he shall approached High Court.”

How do local cops monitor externed individuals?

In 2021, a total of 450 criminals, who were externed from Mumbai and the adjoining cities, were arrested for returning to the city before their sentenced period got over. These violators are booked under section 142 (Penalty for entering without permission area from which a person is directed to remove himself or overstaying when permitted to, return temporarily) of the Maharashtra Police Act, and then produced in court.

But more often, the police said, these externed criminals are released on bail, after which they are again escorted out of the city. “But they again return and we arrest them, so this cycle goes on,” said another police officer.

Numbers from Mumbai Police

In order to prevent them from re-entering the city limits, the police said that they ask for the location of the criminal where he intends to stay. On the basis of the location, the local police station is informed and requested to keep a tab on their movements.

Also, the officers given the charge of detection at every police station are instructed to ensure that these externed criminals do not enter the city. They have staff while some police stations in Mumbai have a special surveillance staff who continue to get information on externed criminals, absconders and habitual offenders.

“We pay surprise visits at their houses. A list of their close friends is made and checks are conducted at their houses,” said an officer.

In recent years, Mumbai Police has also come up with a system of operation all out, during which they go looking for such externed criminals.

Is externment an effective deterrence solution?

Many court judgments have pointed out that externment proceedings make a serious inroad in personal liberty, with the Bombay High Court in 2013 stating that the drastic step of externment should be rarely taken as the provisions make serious inroads into personal liberty. Over half a century after the law on externment was first codified, legal experts and police officials are now calling for its review.

“These externment laws are archaic and were made under Bombay Police Act back in 1951. They were relevant in those times when criminals had no access to phones or internet. In today’s era of technology, these laws have become meaningless and must be scrapped,” said D Sivanandhan, former Mumbai Police commissioner and Maharashtra DGP.

The officials also claim that earlier the population of Mumbai was far less and people belonging to the externed criminal’s area knew that this person has been externed, but nowadays they are clueless. In many instances, people who are aware that the externed criminal has returned to the society also hide the fact.

Aakash Jadhav, a convict in the Shakti Mill gangrape case, was externed in 2018. However, three months later, the police found him in a hospital in central Mumbai after a member of a rival gang attacked him over previous enmity.

The police said he had come back to celebrate a friend’s birthday party and local residents knew that he was in central Mumbai, but they hid the fact because they were scared.

Another former Mumbai Police commissioner, Julio Ribeiro feels that the externment procedure was effective when he held charge of Mumbai CP. He said, “I cannot comment on the present situation, but back in my days as commissioner, three decades ago, we used the externment action sparingly. Only a few criminals were targeted because they were really very troublesome. It’s an effective method to deal with criminals but you have to be very careful as the criminal can go to another district and commit crimes there too. So, we have to alert the superintendent of police of that district about the criminal. It’s a good law for prevention of crime but you have to use it responsibly and sparingly.”

Officials also claimed that behind externing a criminal there is political vendetta, while on many occasions political parties pressure the police against externing a criminal.

A serving police officer said that he had once externed a party worker out of city limits due to his criminal record, but a local MLA got the externment orders cancelled within a fortnight.

“There are times when a political party contacts superiors after a criminal is served a notice during the externment proceeding, after which the proposals are sent back,” said an officer.

Former police officer and lawyer Y P Singh said that the externment system is often misused by political opponents as too much judicial power is given in the hands of the executive. “They follow the directions from political parties and restrict the movement of a person.”

Officials like former Mumbai Police Commissioner D Shivanandan said that there is a need to look at alternate policing methods to keep an eye on habitual criminals.

“If the police catch and book the externed criminals for violating the order, the court grants them bail. Also, with the ever-growing population in a city like Mumbai, it’s an uphill task for the overburdened police to keep track of these criminals in the absence of any technical help. In such cases, the use of technology is important to track such criminals, for example, putting an electronic anklet on them, otherwise it’s a futile exercise and a waste of time and energy,” Shivanandan said.

Vijay Raghavan, Professor at Centre for Criminology and Justice, School of Social Work, TISS, and Project Director, Prayas, which works on rehabilitation of offenders, said, “This does not really serve the purpose beyond creating nuisance in the life of that person. I believe this should be a facilitative process rather than a punitive process, where the police before pronouncing the externment order should counsel and discuss with the person as to where he or she can settle and help facilitate an environment for the person to settle in the new location. They can take the help of NGOs or social workers in this process. Otherwise the externed person, who has his family and roots in area, is likely to return and illegally stay in the jurisdiction of the district and become liable for rearrest, which ends up further criminalising them. We have worked with the police in specific cases in the past where the externment order was passed in a planned manner and helped in the rehabilitation of the person.”

Proposal for tech to monitor externees pending

K Venkatesham, Director-General of Civil Defence, as former Pune police commissioner in 2020 had implemented a software application to track externed criminals to ensure they do not enter the city until their externment period is over. The Pune police even got a criminal convicted by court for violating the externment order with the help of this mobile application. The magistrate court imprisoned him for six months. Back then a proposal was made to use the application for tracking externed criminals and accused out on parole.

Explaining how it worked, Suhas Bawache, the then DCP in Pune, said, “I had issued an order containing a condition to download ExTra (Externees monitoring and Tracking system) app and send a selfie photo once or twice a day to indicate the accused’s location and timing.

The police could randomly check his location on a regular basis or when they suspected that he was in the city. This saves the physical work of keeping tabs on externees and use of technology provides strong evidence. We got one accused convicted for violating the externment period.”

A police officer requesting anonymity said, “In 2020 the app was used and after the experiment to track externees was successful, a proposal was sent by Police police to DG headquarters and it is under consideration. The app can be used to track accused on parole too.”

A phone call and SMS to Maharashtra DGP Sanjay Pande went unanswered.

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