Mangesh S. Patil JUDGMENT
Mangesh S. Patil, J.
1. Rule. Rule is made returnable forthwith. With the consent of the parties heard finally.
2. In this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure the petitioner is impugning the order passed by the Sub-Divisional Magistrate, Bhusawal dated 20.01.2017 passed under Section 56 (1) (b) of the Maharashtra Police Act, 1951 (hereinafter referred to as the Act), thereby externing him from Jalgaon and Dhule districts and also being aggrieved by dismissal of his Externment Appeal No. 19 of 2017 by the Divisional Commissioner-respondent No. 4 on 28.04.2017, confirming the externment to the extent of Jalgaon district.
3. The Police Inspector, Bazarpeth Police Station, Bhusawal submitted the externment proposal against the petitioner through the Superintendent of Police on 29.07.2016 before the respondent No. 2 Sub-Divisional Magistrate, Bhusawal on the ground that he is engaged or is about to engage in commission of offences involving force or violence. The respondent No. 3 who is the Sub-Divisional Police Officer, Bhusawal was authorised under Section 59 of the Act by the order dated 04.08.2016 to conduct an inquiry and to submit a report in respect of such proposal. Accordingly, he submitted the report on 03.09.2016 with his recommendation. Respondent No. 2 in pursuance of Section 59 (1) informed the petitioner general nature of allegations by the notice dated 05.08.2016. The petitioner submitted his written statement and after conducting necessary inquiry, the respondent No. 2 by the impugned order directed the petitioner to be externed out of Jalgaon and Dhule districts for a period of two years under the provisions of Section 56 (1) (b) with certain conditions.
4. The ground for passing the externment orders under Section 56 (1) (b) of the Act is as under :
"There are reasonable grounds for believing that the person is engaged or is about to be engaged in the commission of an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code or in the abetment of such offence and in the opinion of such officer witnesses are not willing to come forward to give evidence due to apprehension."
5. In arriving at such conclusion, following circumstances are referred to by the respondent No. 2 to justify his inference.
"(i) Crime Register No. 148 of 2014 for the offence punishable under Section 324 of the Indian Penal Code of Bazarpeth Police Station, Bhusawal is pending.
(ii) Crime Register No. 268 of 2014 for the offence punishable under Section 307, 323 r/w 34 of the Indian Penal Code of Bazarpeth Police Station, Bhusawal is pending.
(iii) Crime Register No. 138 of 2015 for the offence punishable under Section 326, 352, 504 r/w 34 of the Indian Penal Code of Bazarpeth Police Station, Bhusawal is pending."
In addition, it was found that the in-camera statements of couple of witnesses were recorded as they were not willing to come forward in public. In the light of such material and grounds, by the impugned order the respondent No. 2 directed the petitioner to be externed from the two districts i.e. Jalgaon and Dhule for a period of two years.
6. The petitioner's appeal under Section 60 of the Act preferred before the respondent No. 4-Divisional Commissioner has been allowed vis a vis the order directing externment from Dhule District but has been maintained to the extent of Jalgaon district. Hence this writ petition.
7. We have heard the learned Advocate for the petitioner. According to him, there are no justifiable grounds even to maintain the impugned order externing the petitioner from Jalgaon district. The impugned order has been passed without any substance. There is no discussion of any objective material for drawing inference that the petitioner's liberty is dangerous to the safety of any person or property. There is also no material to show that he is engaged or about to be engaged in the commission of some offences. The case arising out of Crime No. 138 of 2015 has already been decided by the learned Judicial Magistrate First Class, Bhusawal and the petitioner has been acquitted on 26.05.2017. Thus, according to him, the impugned orders are not sustainable in law and have been passed just to deprive the petitioner of an opportunity of participating in Municipal Elections. Even in the notice under Section 59 of the Act there is not even a cursory reference to the material being relied upon by the authorities while passing the impugned orders. The learned Advocate has also placed reliance upon the decisions of the Division Benches of this Court in the case of Yashwant Damodar Patil v. Hemant Karkare, Dy. Commissioner of Police, Thane and Anr; MANU/MH/0430/1989 : 1989 Mh.L.J. 1111, and Rajendra Karbhari Kale v. State of Maharashtra and Ors; MANU/MH/0075/2017 : 2017(1) Mh.L.J 479 and also upon the decision of the Supreme Court in the case of Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, The State of Maharashtra; MANU/SC/0200/1972 : (1973) 1 SCC 372.
8. The learned A.P.P. submitted that the impugned orders have been passed on the objective material available before the respondent Nos. 2 and 4 and the petition does not have any merit.
9. Before going to the facts, it would be apposite to refer to the legal pronouncements which have culled down the scope and ambit of powers conferred on the authorities under Section 56 of the Act. But before that let us examine the legal provision. Section 56 reads thus:
"56. Removal of persons about to commit offence -
(1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf -
(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or
(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or,
(bb).......................
(c)..........
to remove himself outside such area or areas in the State of Maharashtra....
(2) ............. "
After going through these provisions, it is apparent that the whole purpose of empowering District Magistrate of Sub-Divisional Magistrate to exercise the powers under Section 56 is to enable them to maintain peace/order by driving out the person whose movements in the area are likely to cause or calculated to cause harm to any person or property. Needless to state that being a drastic provision which seeks to create an embargo on the life and personal liberty of a person guaranteed under the Constitution of India by Article 21, it is expected that the authorities who are to exercise powers under Section 56 of the Act are conscience and conscious that there has to be some strong and objective material which would justify any order passed under Section 56. Any lapse in this respect would result in curtailment of personal liberty of citizen and will have to be struck down.
10. In the case of Yashwant Damodar Patil v. Hemant Karkare (supra), this Court has considered the scope of provisions of Section 56 (1) (a) & (b) of the Act. Paragraph No. 3 of the judgment reads thus:
"3. Section 56 (1) of the Bombay Police Act visualises three situations in which the order of externment could be passed by the designated officer. We will, however, ignore, for the purpose of the disposal of this petition, the third type of situation and only analyse the two situations which are covered by clauses (a) and (b) of Section 56 (1) of the Act. An order of externment can be passed against a person whose movements or acts are causing or calculated to cause alarm, danger or harm to person or property. This is what is provided in clause (a). The order of externment can also be passed against a person if there are reasonable grounds for believing that such a person is engaged or is about to be engaged in the commission of an offence involving force or violence. It is so provided in the first part of clause (b) of Section 56 (1) of the Act. An order of externment can also be passed against a person if that person is engaged or about to be engaged in the commission of an offence punishable under Chapter XII, or Chapter XVI, or Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause (b) of Section 56 (1) of the Act. But it is not enough that these conditions alone are satisfied. In addition to this, the designated officer should be of the opinion that witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property."
It is clear that the designated officer has to record an opinion when the witnesses are not willing to come forward to give evidence in public because of the apprehension as regards their safety because of the person to be externed. The designated officer necessarily has to record such opinion based on some objective material.
11. In the case of Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police (supra), the Supreme Court had an opportunity to examine the scope of Section 56 and the powers of authority in passing externment orders. It has been observed inter alia that although Section 56 makes a serious inroad on personal liberty but such restraint has to be suffered in the general interest of the society. However, care must be taken to ensure that the terms of Section 56 and 59 are strictly complied with. It has also been laid down that the externee is entitled before an order of externment is passed to know the material allegations against him and the general nature of those allegations. He need not be informed all specified particulars since the full and complete disclosure is likely to frustrate the very purpose of the externment. Lastly, it has been laid down that it is primarily for the externing authority to decide how best an externment order can be made effective so as to substantiate its real purpose. He should consider for how much period out of statutory limit of two years and from which territories he has to be externed, after consideration of all the material and data and there can be no general formulation. Any excessive order can be struck down.
12. Bearing in mind the legal proposition discussed herein-above and law, one will have to examine as to whether while passing the impugned orders the respondent Nos. 2 and 4 have formed an opinion with some objective material and have taken into consideration all the necessary pre-conditions for passing orders.
13. At the outset, it is necessary to observe that in both the impugned orders, passed by respondent Nos. 2 and 4 respectively, they have invoked specifically the ground contained in clause (b) of Sub-section (1) of Section 56, however, while passing the order the wording used at places demonstrates that perhaps in addition to clause (b) they were also considering the material under clause (a) of Sub-Section (1) of Section 56. They have specifically mentioned at places that the movements or acts of the petitioner are likely to cause alarm to person or property which wording clearly demonstrates such inference. This clearly indicates that the respondents while passing the impugned orders have clearly lost sight of the distinction between the two grounds (a) and (b) of Sub-Section (1) of Section 56.
14. Perusal of the notice dated 05.08.2016 issued under Section 59 of the Act reveals that it was informed to the petitioner that from the kind of offences registered against him, it was apparent that he did not have any work and was criminal by nature, obstructing peace of the village by threatening people and because of his terror nobody was coming forward to openly give statement. He was habituated of committing such offences and in spite of registration of offences, there was no change in his behaviour. Ex facie, there is absolutely no reference about statements of any witnesses having been recorded in-camera to justify such inference. It is true that the very purpose of taking such preventive action would be frustrated, if the names of the witnesses or persons are not disclosed and it is also therefore not expected that in this notice under Section 59 no such disclosure should have been made. However, as is observed above and as is laid down in the case of Pandharinath (supra) at least a general reference should have been made informing the petitioner that some persons have been entertaining such apprehension about his behaviour and their statements have been recorded in camera. For want of such reference, it cannot be said that the petitioner was extended an opportunity to meet such ground. Simultaneously, it also cannot be said that respondent Nos. 2 and 4 have applied their mind before drawing the opinion justifying their inference.
15. On the contrary, a perusal of the record and proceedings reveals that in fact the respondent No. 3 recorded statements of couple of witnesses which read that, though, these witnesses were aware about pending criminal cases against the petitioner, there was no danger or harm to the person or property of anybody from the petitioner. The impugned orders apparently ignore both these statements and this circumstance can easily be resorted, to draw an inference that the impugned orders have been passed without application of mind. The witnesses whose statements are favourable to the petitioner have been overlooked and the statement of nobody has been recorded even in-camera who is entertaining any apprehension from the petitioner.
16. We therefore have no hesitation in concluding that both the impugned orders suffer from grave illegality and have been passed without understanding seriousness of exercising the powers under Section 56 of the Act. Merely because few criminal cases are pending against the petitioner out of which, in one of the cases he has already been acquitted and which cases have been filed almost two years prior to initiation of the externment proceedings, could be no sufficient ground per se to extern the petitioner.
17. We allow the petition. Both the impugned orders are quashed and set aside. The Rule is made absolute.
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