S.M. Gavhane JUDGMENT
Sambhaji Shiwaji Shinde, J.
1. Rule. Rule made returnable forthwith, and heard finally with the consent of the parties.
2. This Petition is filed with the following prayer:-
"B. The Externment order passed by the respondent No. 3 - Sub-Divisional Magistrate, Dharmabad dated 17.01.2017 and the order passed by the Divisional Commissioner in appeal No. CR-02 dated 30.05.2017 may kindly be quashed and set aside."
3. The learned counsel appearing for the petitioner submitted that, respondent No. 2 issued notice to him on 21st September, 2016 stating therein that, why externment proceedings should not be initiated against him. In the said proceedings, four offences were mentioned. However, the petitioner was already acquitted of from the said offences even before issuance of such notice. He further submits that, while conducting the proceedings by respondent No. 3, there is no compliance of mandate of provisions of Section 56(1)(a) and (b) of the Maharashtra Police Act, 1951. He further submits that, the petitioner was externed from Nanded, Latur, Hingoli and Parbhani districts by respondent No. 3, however, the offences from which he was already acquitted, were registered with Police Station, Dharmabad. He submits that, the appellate authority relied upon Crime No. 438 of 2014 registered with Police Station, Dharmabad under section 107 of the Code of Criminal Procedure dated 9th October, 2016, though the said crime is not mentioned in the show-cause notice. He submits that, though the appellate authority partially modified the order passed by respondent No. 3 and made it enforceable restricting to Nanded district only, nevertheless, the other legal aspects, as agitated by the petitioner, have not been considered by the said authority. The learned counsel appearing for the petitioner pressed into service the exposition of law in the cases of Mahesh Bajrang Dalvi Vs. The State of Maharashtra MANU/MH/1613/2016 : 2017 All MR (Cri) 777, Balaji S/o. Ganpati Chame Vs. The State of Maharashtra and others MANU/MH/0029/2017 : 2017 All MR (Cri) 719, and Sopan Satappa Kore Vs. The State of Maharashtra and others MANU/MH/0103/2017 : 2017 All MR (Cri) 764, and submits that the Petition may be allowed.
4. On the other hand, the learned A.P.P. appearing for respondent/State, relying upon the reasons assigned by respondent Nos. 3 and 4 in the impugned orders, submits that, the authorities have adhered to the proper procedure and have passed the appropriate orders.
5. We have carefully considered submissions of the learned counsel appearing for the petitioner, and the learned APP appearing for the respondent - State. With their able assistance, we have carefully perused the grounds taken in the petition, annexures thereto and also the original record maintained by the office of Respondent No. 3, and the reasons assigned by respondent Nos. 3 and 4 in the impugned orders.
6. The contention of the learned counsel appearing for the petitioner that, the petitioner was acquitted of from four offences even prior to issuance of the show-cause notice by the respondents deserves acceptance, in as much as, there is no discussion in the impugned orders passed by respondent Nos. 3 and 4 about the contention of the petitioner that, he was acquitted from all those offences mentioned in the show-cause notice even prior to issuance of the said notice, and therefore, no reliance can be placed on said offences. In the show-cause notice as well as in the impugned order passed by respondent No. 3, Crime Nos. 77/2013, 80/2014 06/2014 and 93/2014 are shown pending for trial before the Court.
7. Upon careful perusal of contents of the show-cause notice dated 19.12.2016 issued by the Respondent No. 2, it is nowhere mentioned that, the witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension on their part as regards the safety of their person or property. It is true that, it is not expected from the authority that the names of such witnesses or date of such incident or other material particulars should be mentioned in the show cause notice. However, the Supreme Court in the case of Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra MANU/SC/0200/1972 : AIR 1973 SC 630, held that, proposed externee is entitled, before an order of externment is passed under Section 56, to know the material allegations against him and general nature of those allegations.
8. At this juncture, it would be apt to make reference to the provisions of Section 56 of the Act of 1951, which reads thus:
56. Removal of persons about to commit offence
(1). ...
(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 Chapters 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
[Underlines are added]
9. Upon careful perusal of the aforesaid provisions, 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 as 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 as provided in clause (b). 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. But in addition to the above, the concerned Officer, who is dealing with externment proceedings, should be of opinion that the 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.
Keeping in view the above legal position, it was incumbent upon respondent No. 3, who dealt with an externment proceedings, to arrive at the opinion that the 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.
10. Upon careful perusal of the discussion by respondent No. 3 in the impugned order, it appears that, there is no reference of recording in camera statements of the witnesses. The Division Bench of the Bombay High Court [at Principal seat] in the case of Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police & another MANU/MH/0430/1989 : 1989 (3) Bom. C.R. 240 had occasion to consider the scope of provisions of Section 56[1][a] and [b] of the Bombay Police Act. It would be gainful to reproduce herein below para 3 of the said judgment:
3. Section 56(i) 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(i) 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. That 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(i) 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, of Chapter XVI, or Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause (b) of section 56(i) 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.
[Underlines added]
11. It appears that, the authorities have not made discussion in the impugned orders showing live link and proximity in between the initiation of externment proceedings by respondent Nos. 2 and 3, and the offences from which the petitioner stands already acquitted even prior to the issuance of the show-cause notice. Further though all the offences mentioned in the show-cause notice and also in the impugned order passed by respondent No. 3 are registered at Dharmabad Police Station, Dist. Nanded, the petitioner was externed by respondent No. 3 from Latur, Hingoli and Parbhani districts, without assigning any reasons why his externment was necessary for the abovesaid districts.
12. Though the Appellate Authority i.e. respondent No. 4 has restricted the implementation and operation of the order of externment passed by respondent No. 3 from the boundaries of Nanded District, nevertheless the Appellate Authority did not consider the procedural irregularities and illegalities committed by respondent No. 3 while passing the impugned order, and also by respondent No. 2 while initiating the proposal for externment of the petitioner from four Districts.
13. In that view of the matter, we are of the considered view that, the impugned orders passed by respondent Nos. 3 and 4 cannot legally sustain, hence both the orders are quashed and set aside. Rule is made absolute on above terms. The petition stands disposed of accordingly. No order as to costs.
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