High Court of Bombay

Nagesh Gangadhar Vibhute Vs. State of Maharashtra and Ors.

MANU/MH/1651/2017

02.08.2017

Criminal

Proposed externee is entitled, before an order of externment is passed under Section 56 of Bombay Police Act, 1951, to know material allegations against him

Present Petition is filed with prayer that, externment order passed by Respondent No. 3 - Sub-Divisional Magistrate, and order passed by Divisional Commissioner in Appeal No. CR-02 dated 30th May, 2017 be quashed and set aside. It was submitted that, Petitioner was acquitted of from four offences even prior to issuance of show-cause notice by respondents.

As per contents of show-cause notice dated 19th December, 2016 issued by Respondent No. 2, it is nowhere mentioned that, witnesses are not willing to come forward to give evidence in public against Petitioner by reason of apprehension on their part as regards safety of their person or property. It is true that, it is not expected from authority that, names of such witnesses or date of such incident or other material particulars should be mentioned in show cause notice. However, Supreme Court in case of Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra, held that, proposed externee is entitled, before an order of externment is passed under Section 56 of Act, to know material allegations against him and general nature of those allegations.

According to provisions of Section 56 of Act of 1951, 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). 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 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 commission of an offence punishable under Chapter XII, or Chapter XVI, or Chapter XVII of Indian Penal Code. But in addition to above, concerned Officer, who is dealing with externment proceedings, should be of 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 safety of their person or property.

In view legal position, it was incumbent upon Respondent No. 3, who dealt with an externment proceedings, to arrive at 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 safety of their person or property. Authorities have not made discussion in impugned orders showing live link and proximity in between initiation of externment proceedings by Respondent Nos. 2 and 3, and offences from which Petitioner stands already acquitted even prior to issuance of show-cause notice. Further, though all offences mentioned in show-cause notice and also in impugned order passed by Respondent No. 3 are registered at Dharmabad Police Station, Dist. Nanded, Petitioner was externed by Respondent No. 3 from Latur, Hingoli and Parbhani districts, without assigning any reasons why his externment was necessary for abovesaid districts.

Though Appellate Authority i.e. Respondent No. 4 has restricted implementation and operation of order of externment passed by Respondent No. 3 from the boundaries of Nanded District, nevertheless Appellate Authority did not consider procedural irregularities and illegalities committed by Respondent No. 3 while passing impugned order, and also by Respondent No. 2 while initiating proposal for externment of Petitioner from four Districts. Impugned orders passed by Respondent Nos. 3 and 4 cannot legally sustain, hence both orders are quashed and set aside.

Relevant

Pandharinath Shridhar Rangnekar vs. Dy. Commr. of Police, The State of Maharashtra MANU/SC/0200/1972

Tags : Externment order Initiation Legality

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