High Court of Bombay

Akash Madhukar Patil Vs. The State of Maharashtra and Ors.

MANU/MH/2652/2017

14.11.2017

Criminal

Externee is entitled before an order of externment is passed to know the material allegations against him

In present petition, the Petitioner is impugning the order passed by the Sub-Divisional Magistrate, passed under Section 56 (1) (b) of the Maharashtra Police Act, 1951, thereby externing him from Jalgaon and Dhule districts and also being aggrieved by dismissal of his Externment Appeal by the Divisional Commissioner-respondent, confirming the externment to the extent of Jalgaon district. Issue involved in present petition is whether while passing the impugned orders the Respondents have formed an opinion with some objective material and have taken into consideration all the necessary pre-conditions for passing orders.

The whole purpose of empowering District Magistrate of Sub-Divisional Magistrate to exercise the powers under Section 56 of Act, 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. 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.

In the case of Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, the Supreme Court observed 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.

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.

The notice 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 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.

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.

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. High Court allowed the petition. Impugned 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 Material allegation Information

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