Bombay High Court
Prashant S/O. Mahadeorao Bodakhe vs The State Of Maharashtra on 27 June, 2019
Author: T.V. Nalawade
Bench: T.V. Nalawade, K.K. Sonawane
Cri.W.P.No.567/2019
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 567 OF 2019
Prashant s/o. Mahadeorao Bodakhe,
Age 28 years, Occu. Student and Social
Activist for the Right of Tribal people,
R/o. Bramhanwada, Post Savna,
Tq. Shengaon, Dist. Hingoli. ....Petitioner.
Versus
1. The State of Maharashtra,
Through its Divisional Commissioner,
Aurangabad.
2. Sub-Divisional Magistrate,
Kalamnuri.
3. The Sub-Divisional Police Officer,
Sub-Division Hingoli, Dist. Hingoli. ....Respondents.
Ms. Neha B. Kamble, Advocate for petitioner.
Mr. R.D. Sanap, APP for respondents.
CORAM : T.V. NALAWADE AND
K.K. SONAWANE, JJ.
DATED : 27/06/2019.
JUDGMENT :[ PER T.V. NALAWADE, J.]
1) Rule. Rule made returnable forthwith. By consent, heard both the sides for final disposal.
::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 22) The petition is filed to challenge the order of externment made by Sub Divisional Police Officer (Sub Divisional Magistrate) Hingoli on 24.9.2018 in Externment Case No. 3/2018. The order made by the appellate authority, another officer, Divisional Commissioner, Aurangabad is also challenged.
3) The submissions made and the record show that on 25.7.2018 show cause notice was issued under section 59 of Bombay Police Act (hereinafter referred to as 'the Act' for short) against the petitioner and he was informed that externment was proposed against him in respect of Hingoli city and surrounding locality as due to his presence danger is created to the life and property of persons and even after taking preventive measures against him, he has not improved his conduct. The proposal was made to make the order of externment in respect of entire Hingoli district. Specific material was mentioned as C.R. No. 83/2018 registered against him in Kalamnuri Police Station for the offences punishable under section 384 of Indian Penal Code (hereinafter referred to as 'IPC' for short) and Crime No. 242/2017 registered against him for the offences punishable under sections 353, 323, 149 etc. of IPC and one chapter case filed by Kalamnuri police bearing No. 79/2018 under section 107 of Cr.P.C. The chapter case was filed on 12.6.2018 and C.R. No. 83/2018 was under ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 3
investigation. Case was filed only in C.R. No. 242/2017. In the notice dated 25.7.2018, he was asked to appear before the Sub Divisional Police Officer on 2.8.2018. The petitioner filed his reply on 12.9.2018 and he submitted that he is a social worker and is President of Adiwasi Panther Association created for the benefit of triable people and particularly the students of tribes and due to the fact that he has become popular, some persons who want to oppose his activities must have become angry and so, the aforesaid crimes are registered and they want to stop his activities.
4) The order of externment was made by Sub Divisional Magistrate on 24.9.2018. In the externment order, he mentioned aforesaid three specific circumstances appearing against the petitioner and it was also mentioned that confidential witness described as "A" had informed that the petitioner was creating hatred amongst people of Hindu and Muslim communities and he was giving threats to public servants and his associates are having criminal intention and due to his activities nobody is willing to come forward to give evidence against him as they are afraid of harm to their person or property. Though the crimes were registered only in Hingoli and Kalamnuri Police Station of aforesaid nature, the Sub Divisional Magistrate has observed that the contiguous tahsils will be affected due to his activities considering the means of transportation ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 4 and so the order was made in respect of entire Hingoli district and the period given is of two years. This order is confirmed by the Divisional Commissioner, Aurangabad.
5) The petitioner has produced the record in respect of N.G.O. registered under the name of Triable Panther Association and his activities of social work are given by him along with the cuttings of newspaper in which his agitations were published. It was submitted that these activities were not for the interest of the petitioner, but they were in the interest of public at large and particularly, for the interest of triable students and he had unearthed the illegal activities of some authorities and some institutions which were affecting the interest of triable students.
6) This Court feels that it is necessary to first quote the relevant facts of the matter. In show cause notice which is required to be issued under section 59 of the Act, information needs to be given to the proposed externee about the activities informed by police and which in the opinion of the officer exercising powers are covered by the provisions of section 56 of the Act. The submissions made and the record show that "Rasta Case" mentioned in the crime punishable under section 353 of IPC was the case for the villagers of village Malai. The road of these villagers was blocked by ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 5 owners of some agricultural lands and due to that, the students of village Malai and other persons of village Malai were not able to go to village Pedgaon which is a bigger place having facility of education, market etc. The population of village Malai is hardly 500.
Due to this circumstance, application was moved by the villagers of Malai village and the petitioner was helping them and he was also one of the applicants in the application moved before the Tahsildar under Mamlatdars' Court Act. In 7/12 extracts of the lands of the agriculturists, who were opposing the use of the road, the road was not shown, but copies of orders made by authorities under Mamlatdar Courts Act show that long back this road was marked as village road and also State road having No. 22. Thus, the Government record was available to show that such road was in existence and it was necessary for having access to the world to the villagers of village Malai. Initially 18 persons were opposing to use of this road, but 10 of those persons withdrew the objections and then only 8 persons were opposing the removal of obstruction. On 28.4.2017 The Mamlatdar had made order in favour of villagers of village Malai and this order was challenged by aforesaid eight persons by filing proceeding before the appellate authority, Sub Divisional Revenue Officer.
7) The incident quoted in the aforesaid crime took place ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 6 during hearing of the proceeding which was filed before the Sub Divisional Officer. It appears that the date 11.6.2017 was fixed by appellate authority for hearing of the matter and the petitioner and other persons of village Malai had remained present before the Officer. They had not appointed counsel, but counsel was appointed by other side. When the other side's counsel requested for adjournment and the appellate authority expressed inclination to grant adjournment, alleged incident took place. He questioned as to why the adjournment was given when entire village Malai was affected due to obstruction created on the road and the order of removal of obstruction was already passed. Then the alleged incident took place and the crime came to be registered for offence punishable under section 353 of IPC against the petitioner and 10 other persons who include four ladies of village Malai. The nature of the allegation needs to be kept in mind while considering the proposal made by police to make the order of externment.
8) The second crime is registered on the basis of report given by Village Sarpanch of village Amdari, Tahsil Aundha, District Hingoli. Many villagers of Amdari had started agitation against the village Sarpanch due to her inaction in respect of absence of facilities like water and electricity. Some persons were sitting for agitation and they were observing fast. On 26.3.2018 the Tahsildar intervened ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 7 and promised to do something and due to that on 26.3.2018 villagers had temporarily suspended the agitation. It is the allegation of the village Sarpanch that on 27.3.2018 the petitioner approached her and demanded Rs.50,000/- as a ransom and gave threat that agitation will be started again if his demand was not met with. When the alleged incident took place on 27.3.2018 she gave report on 29.3.2018 and the crime on the basis of such allegation is registered for offence punishable under section 384 of IPC.
9) The third case is chapter case filed under section 107 of Criminal Procedure Code. It appears that only after alleged incident dated 27.3.2018 this proceeding was started by police against the petitioner.
10) In show cause notice issued under section 59 of the Act, only the aforesaid three cases were mentioned as material available before the officer exercising powers under section 56 of the Act and powers are invested to police officer of Sub Divisional level. On the basis of aforesaid material, he formed opinion and issued notice for taking action under section 56 (k) and (kh). When only aforesaid circumstances are mentioned in show cause notice, the order of officer dated 10.4.2017 shows that he considered the other circumstances like in the past, order of externment was made ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 8 against the petitioner in respect of Aurangabad district for the period of two years. The statements of two confidential witnesses are also mentioned in the externment order and these two circumstances were not there in show cause notice.
11) It is not disputed that the petitioner had taken lead in many agitations and in raising many issues in the past. He had made complaints against many educational institutions, particularly, against those who were not taking care of triable students. Some other issues were also taken by him through Bhartiya Aadiwasi Panther Sangathna which is headed by him. As per the directions given by this Court, some record of activities of this association was produced. The petitioner had already produced along with the present petition some record like paper cuttings and copies of representations to show that he was raising many issues in public interest and which were mainly in respect of implementation of schemes of the State Government. He had given representations in respect of irregularities noticed in many schools created for triable children and they were from Yawatmal, Parbhani, Nanded, Amrawati, Aurangabad, Beed, Hingoli, Nashik etc. These representations were made from prior to 2012. The record shows that the affected students were agitating on those issues and he was leading those students. The students had taken many processions. They had ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 9 arranged Dharnas and as per the record, the Government had taken action and inquiry was also made against the institutions and even permissions of some institutions were cancelled for the irregularities.
12) There is record in respect of Dharna agitation arranged by villagers of Malai in respect of aforesaid dispute. For similar relief, villagers of village Karwadi had also started agitation in August 2010. The record shows that the villagers had walked the distance of 25 k.m. to reach the district headquarter to give representation.
Similar agitations were made for creation of road, removal of obstruction made on the road of the villagers by villagers from Baralwadi, Sonuli Vasti, Vanjarwadi, Kadkad etc. This record shows that even after many years of the independence, the villagers of these villages were not having proper access road. One can imagine as to how much harassment the students of those villages and the people of those villages must be facing. There is record to show that the villagers of village Amdari were agitating against the Village Sarpanch and when the crime was registered against the petitioner, they had given representation to Sub Divisional Police Officer of Hingoli to see that the crime registered against the petitioner is withdrawn. That representation bears signatures of few members of Village Panchayat also. The submissions show that till today, no case is filed against the petitioner in that crime. The representation was ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 10 of more than 100 villagers to support the petitioner.
13) The record produced shows that the Government and it's authorities had found substance in the allegations made by the petitioner about the irregularities noticed by him. There is specific record in respect of Garden Hill School Kalamnuri, Girish Sarode, (public officer) and there was allegation that there was misappropriation of Rs.56.6 lakh. Irregularities were pointed out by the petitioner in respect of tender published for residential hostels for triable girls in August 2016-17 and against the Head Master Funde of Triable Boys School Aurangabad in respect of which Writ Petition No. 14189/2018 was filed in this Court. Similar record is there of similar five cases.
14) It is a fact that many cases are brought before the High Court by N.G.Os. and irregularities are pointed out to the High Court in respect of functioning of schools and absence of basic facilities to the citizens. Only due to initiative taken by N.G.Os. and social workers, the High Court can come to know the grievances of the people and then the High Court passes some orders against the authorities. It is noticed that routine inspections arranged by the Government and it's authorities are not proving to be helpful and persons who have no backing are not coming forward to express the ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 11 grievances. Thus, only due to the activeness of the social workers and N.G.Os. many times irregularities are detected and in the present matter also, on the basis of record, it can be said that the petitioner had pointed out many irregularities and he was working for the interest of triable people and for villagers where there was population of triable people. He must have made many enemies not only in politics, but in the various departments like revenue and police. Due to the activities of such persons, the politicians and the public servants feel harassed. These circumstances and probabilities need to be kept in mind by the officer empowered under section 56 of the Act as he is expected to act fairly and see that the activities are covered by section 56 of the Act. Against every social workers crimes are registered and so only registration of crime cannot become a ground for externment order.
15) In Criminal Writ Petition No. 699/2019 (Dnyaneshwar s/o. Sopan Gite Vs. The State of Maharashtra and Ors.] decided by this Court on 10.6.2019, this Court had occasion to consider the law developed on externment proceeding under the Act. The discussion about the facts which can be called as relevant and the interpretation of the law can be found at paregraph Nos. 13 to 30.
That discussion is as under :-
"13) The learned APP submitted that the aforesaid ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 12 material was more than sufficient and on that basis, the subjective sanctification of the officer was based and so, this Court is not expected to interfere in the matter. The learned APP placed reliance on observations made by the Full Bench of this Court in Criminal Writ Petition No. 1002/2017 decided with other matters on 8.2.2019 at Nagpur Bench [Sumit s/o. Ramkrishna Maraskolhe and Ors. Vs. Deputy Commissioner of Police and Ors.]. He placed reliance on the observations made by the Apex Court in the case reported as AIR 1973 SC 630 [Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra].
14) In Criminal Writ Petition 1002/2017 the Full Bench of this Court considered two points referred to it and they were as under :-
"(1) Where the activities of externee are confined to specific area of the local limits of the jurisdiction of a police station in a district but the order of internment extends to the entire district, rural areas and even beyond the district or districts (irrespective of the fact that it is contiguous or not) whether such an order needs to show the existence of material - (a) that a larger or additional area so chosen or selected is intimately connected with the actual area of the activities of the externee due to improved or common means of transport and communication system, (b) that the facts or the material warranting externment from a larger or additional area or neighbouring area exist, and (c) that the externing authority has applied its mind to the factors (a) and (b) while passing an order of externment?
(2) Whether it is necessary to state in the show cause notice the details of incamera statements recorded by the externing authority to reach to the satisfaction that the witnesses are not coming forward to give evidence or depose in public against the proposed externee due to fear of alarm, danger or harm to their person or property?"
In paragraph Nos. 26 and 45, the findings are given by the ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 13 Full Bench and they are as under :-
"26. The discussion made so far would lead us to record our conclusions as follows :
(i) The externment order directing externment of a person from a much larger area than the one of his illegal activities, must be based upon some material which provides an objective criteria to the authority for reaching a subjective satisfaction regarding the need for externing a person to an expanisve area though it may not always directly or elaborately refer to that material in the order itself, as it all depends upon facts and circumstances of the case which need be vetted through the judicial process of drawing of legitimate inference following the law of Pandharinath and Sanjeev @ Brittoo (supra).
(ii) The order of externment need not necessarily refer to the details of the material considered by it so as to show independently that larger or additional area chosen by it is intimately connected with the actual area of the activities of the externee due to improved or common means of transport and communication.
(iii) Application of mind to the material present on record by the authority passing the externment order is necessary, but any reflection of application of mind in the externment order in a specific manner, as if to pass a reasoned order, would not be necessary. It would be enough if the order discloses that the subjective satisfaction has been reached by considering the material available on record and it would and should be a matter of legitimate inference that the authority, while considering materials to satisfy itself about the need for the extent of externment to be ordered, also considered all the options available to it and selected in ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 14 it's wisdom the one which it thought to be most appropriate. This would also mean that authority, in this way, can select a larger area for being covered under it's externment order, as one of the options available to it, whether such larger area has within it contiguous or interconnected or intimately connected pockets of ares or not.
Question no. (1) having there aspects enumerated in clauses (a), (b) and (c), is answered specifically though the three conclusions made as above.
45. Having comprehended clearly the issues central to second question of reference, it is time for us to formalize the answer to it and it is as follows :
It is not necessary to state in the showcause notice the details or the particulars of incamera statements recorded by the externing authority and only the general nature of material allegations is all that is necessary to be said in the showcause notice. In other words, it is sufficient compliance with the requirement of law if the show cause notice refers in general terms to the material allegations against the proposed externee and when the action is under Section 56 (1) (b) of the Act, 1951 it also generally says that the witnesses are not coming forward to give evidence in public against the proposed externee due to fear, alarm, danger or harm to the person or property, as the case may be."
The case of Pandharinath cited supra was considered by the Full Bench and other cases of Supreme Court are also considered. There cannot be dispute over the proposition quoted above.
15) The learned Senior Counsel for the petitioner placed reliance on the observations made in the following reported case :-::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 15
(i) 2010(2) Bom.C.R. (Cri.) 778 [Gulshan Arif Tase Vs. Sub Divisional Magistrate, Thane Division],
(ii) 2014(2) Mh.L.J. (Cri.) 194 [Vinayak Dynaneshwar Mainkar Vs. State of Maharashtra and Ors.],
(iii) 1993(1) Mh.L.J. 816 [Prakash Supdu Chaudhari Vs. State of Maharashtra and Ors.],
(iv) 2013(2) Mh.L.J.(Cri.) 329 [Praful Bhausaheb Yadav Vs. K.K. Pathak and Ors.],
(v) 2002 (Supp.) Bom.C.R. (Cri.) 644 (BOMBAY HIGH COURT) [Shailendrasingh @ Litil Sardar Gurucharansingh Lohiya Vs. State of Maharashtra and Anr.],
(vi) 1992 (1) Mh.L.J. 225 [Nanhekhan Gulabkhan Pathan Vs. State of Maharashtra and Ors.].
16) The aforesaid cases cited for the petitioner are on the points of necessity to follow the principles of natural justice and for that mentioning the relevant material available before the officer for passing the order of externment, giving of sufficient opportunity to the proposed externee in the externment proceeding to have his say, in some way to make aware the proposed externee about the material from incamera statements and that may be of general information etc. It is laid down that only pendency of some criminal cases cannot be ground for externment and there needs to be tangible material as mentioned in section 56 of the Bombay Police Act, 1951 (hereinafter referred to as 'the Act' for short) for externment.
17) In the present matter, a person from political party which is not in power, is involved as externee and he has made allegations of malice against the respondents.
There are aforesaid circumstances supporting the allegation of malice. This Court has gone through the law developed on the matter of externment and this Court feels that there is need of reiteration of law already laid down. This is because the officer or the Executive Magistrate and also the appellate ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 16 authority under the Act need to act fairly and they should not get influenced by the persons in power. Though the order of externment is administrative order and detail reasons are not required to be given, considering the nature of rights involved of the externee, the proper care needs to be taken by the concerned so that there is no suppression of opposition by the ruling party and by such order directly or indirectly no harm is caused to the democracy of our country. The facts of the present matter show that the order of externment made by the officer was stayed by the appellate authority and stay was continued till the decision of the appellate authority. However, this Court did not grant stay after filing of the present proceeding and due to that the petitioner could not campaign for his political party for the election to the parliament. So, the following discussion.
18) The externment order is made on the grounds given in section 56(1)(a) and (b) of the Act. That provision is as under :-
"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 of areas to which the State Government may, be 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 ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 17 public against such person by reason of apprehension on their part as regards the safety of their person or property, or "
19) Sections 58 and 59 of the Act are relevant and they provide for the area in respect of which the externment order can be made and maximum period for which the externment order can operate. They also provide for following the principles of natural justice, by providing that hearing needs to be given to proposed externee. The provisions of sections 58 and 59 are as under :-
"58. Period of operation of order under Section 55, 56, 57 and 57 A :
A direction made under Section 55, 56, 57 or 57A not to enter any particular area or such area and any districts, or any part thereof, contiguous there to, or any specified area or areas as the case may be, shall be for such period as may be specified therein and shall in no case exceed a period of two years from the date on which the person removes himself or is removed from the area district or districts or part aforesaid or from the specified area or areas, as the case may be .
59. Hearing to be given before order under Sections 55, 56, 57 or 57A :
(1) Before an order under Section 55, 56,57, or 57A is passed against any person the officer acting under any of the said sections or any officer above the rank of an Inspector authorised by the officer shall inform the person in writing of the general nature of the material allegations against him and given him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such application; and examine such witness, unless for reasons to be recorded in writing, the authority or officer is of opinion that such application is made for the purpose of vexation or delay. Any written-
statement put in by such person shall be filed with the record of the case. Such person shall be entitled to appear before the officer proceeding ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 18 under this Section by an advocate or attorney for the purpose of tendering his explanation and examination the witness produced by his.
(2) The authority or officer proceeding under sub-section (1) may, for the purpose of securing the attendance of the person against whom any order is proposed to be made under Section 55, 56, 57 or 57A require such person to appear before him and to pass a security bond with or without sureties for such attendance during the inquiry. If the person fails to pass the security bond as required or fails to appear before the officer or authority during the inquiry, it shall be lawful to the officer or authority to proceed with the inquiry and thereupon such order as was proposed to be passed against him may be passed."
20) The provisions of sections 56, 58 and 59 of the Act are part of Chapter V of the Act. The title of this chapter is as under :-
"Special Measures for Maintenance of Public order and Safety of State"
The title of section 56 of the Act is as under :-
"56. Removal of persons about to commit offence".
21) The externment puts restraint/restrictions on the enjoyment of fundamental rights as mentioned in Articles 19
(d)(e) of Constitution of India. Such order involves restraint/restriction on enjoyment of life also and the procedure is required to be given to see that the principles of natural justice are followed as per Article 21 of Constitution of India. As such order restraints or put restrictions on fundamental rights, the procedure if that is valid, needs to be strictly followed.
22) When there is law made for externment, every aspect of law including the title of the Chapter in which the provision can be found and also the title of the provision itself need to be given due importance for interpretation of the provision and for ascertaining the object behind the provision. The validity of such law depends on the object behind the law ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 19 and so, ordinarily the Court is expected to go with the presumption that the provision is in accordance with the aforesaid Articles of the Constitution of India and they need to be interpreted that way, in consonance with the fundamental rights guaranteed by aforesaid Articles of Constitution. If the order, determination made by the officer is contrary to the Constitutional mandate mentioned in aforesaid Articles, then such order cannot sustain in law. (Reliance placed on the case reported as AIR 1974 SC 1471 [Nawabkhan Abbaskhan Vs. State of Gujarat].
23) Section 56 (1)(a) can be divided in to following parts :-
(i) Movements or acts (of any person) need to be considered and so many acts of such person need to be available for consideration.
and
(ii) Such acts need to have caused or they are calculated to cause alarm, danger or harm to the person or property.
Thus, even if there is suspicion to cause harm as mentioned in this provision, externment order can be made.
24) Section 56 (1)(b) can be divided as under :-
(i) There must be reasonable ground for believing, the belief of the officer must be based on some material in existence.
(ii) The material needs to be shown to the person, the proposed externee that he is engaged or is about to be engaged in commission of an offence involving force or violence or an offence punishable under Chapte XII, XVI or XVII of the Indian Penal Code.
(iii) When in the opinion of the officer witnesses are not willing to come forward to give evidence in public against such person, the proposed externee, by reason of apprehension on their part as regards the safety of their person or property.::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 20
This provision shows that the existence of material only is not sufficient, but in addition to that there needs to be formation of opinion with regard to the witnesses of the matter as mentioned in the provision. The suspicion is that he is about to be engaged needs to be based on some material and so what kind of offence he intends to commit, he is likely to commit, needs to be spelt out by the officer, both in show cause notice and in order of externment.
25) From the title of Chapter V of the Act in which section 56 is there which is already quoted, it is necessary to infer that the activity of proposed externee should be such that it has already caused harm or his activities have likely to cause harm to public order (underline added).
26) The definition of 'public order' is not given in the Act. The provision is preventive measure. In Maharashtra, there is the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 (hereinafter referred to 'Act of 1981' for short). In this special legislation, giving another preventive measure, meaning of 'public order' and meaning of 'acting in any manner prejudicial to the maintenance of public order' are given. As the object behind both the Acts is similar, preventive measure, the meaning of aforesaid two terms given in the aforesaid legislation made for preventive detention can be used for the present purpose. The meaning of these two terms are there in section 2(a) and explanation to section 2(a) of the Act of 1981 and they are as under :-
"2. Definitions.- In this Act, unless the context otherwise requires.-
(a) "acting in any manner prejudicial to the maintenance of public order" means-
(i) in the case of a slumlord, when he is engaged, or is making preparations of engaging, in any of his activities as a slumlord, which affect adversely, or are likely to affect adversely, the maintenance of public order;::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 21
(ii) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order;
(iii) in the case of a drug-offender, when he is engaged, or is making preparations for engaging, in any of his activities as a drug-
offender, which affect adversely, or are likely to affect adversely, the maintenance of public order;
(iv) in the case of a dangerous person, when he is engaged, or is making preparation for engaging, in any of his activities as a dangerous person, which affect adversely, or are likely to affect adversely, the maintenance of public order."
Explanation given to sub-section (a) of section 2 is applicable to all the definitions given in this section. The explanation is as under :-
"Explanation.- For the purpose of this clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this clause directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof, (underline added) or a grave or widespread danger to life or public health or disturbance in public safety and tranquility or disturbs the day to day life of the community by black-marketing in the essential commodities which is resulting in the artificial scarcity in the supply of such commodities and rises in the prices of essential commodities which ultimately causes inflation or disturbs the life of the community by producing and distributing pirated copies of music or film products thereby resulting in a loss of confidence in administration;"::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 22
27) The meaning of the aforesaid two terms show that the legislature did not expect the order of externment against the person who has dispute with one or two persons or who is having dispute of private nature. This is the main thing which needs to be kept in mind by concerned police while making proposal for externment and also the officer passing the externment order.
28) In view of the aforesaid object behind the provision of section 56 of the Act, the words of expressions used in section 56(1)(a) and (b) like alarm, danger or harm to person or property needs to be read as they are referring to public at large and not to one or two individuals known to the proposed externee (Reliance placed on the observations made in the case reported as AIR 1969 BOMBAY 351 (V 56 C 57) [Balu Shivling Dombe Vs. The Divisional Magistrate, Pandharpur and Anr.]
29) When there is some dispute due to which some crime is committed, motive always plays important part. When the dispute is of private nature, ordinarily maintenance of public order is not involved. In such cases, there are other provisions like chapter case proceedings given in Criminal Procedure Code for taking preventive action. In those cases, it is never desirable to use the provisions of externment as it involves restraint to much extent on the enjoyment of fundamental rights quoted already. It always needs to be kept in mind by officer, making order or even by the Court that externee is virtually cut from the roots by taking him away from the family and the people with whom he was living at a particular place. When the roots of the man are cut, he is more likely to commit offences as there is less possibility of his identification in other area. On the other hand, a person, who is involved in private dispute, but who is living with his family is less likely to commit similar offence as his entire family suffers due to prosecution and such orders. Thus, the order of externment in one way acts against the policy of reformation. In the present matter, it is already mentioned that there was no material available for passing externment order. Even if it is presumed that the aforesaid circumstances like acquittal were not there, it was not possible to pass externment order in view of nature of object behind the externment.
::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 2330) The aforesaid discussion shows that both the police and the officer empowered to pass externment order need to act very cautiously in such matters. From the law developed already on this point and the discussion made above, some requirements for externment order and the effects of not complying the requirements can be given and they are as under :-
(i) There should be material to justify the application of section 56 of the Act even at the time of issuance of show cause notice.
(ii) Before issuing show cause notice, the officer empowered in that regard needs to consider the material made available by police to ascertain as to whether the material is sufficient for prima facie satisfaction. He should also get satisfied that the material is really in existence and the officer is not expected to act on the word, report of the police officer. That degree of satisfaction needs to appear in show cause notice. In other words, the opinion of the officer as mentioned in section 56 of the Act needs to be on the basis of material. Both show cause notice and the final order need to show that this way, there was application of mind.
(iii) If there is error in show cause notice like absence of material, but such material is mentioned in show cause notice, that circumstance will be sufficient to set aside the order of externment. Similarly, if the material could not have been considered under section 56 of the Act, the externment order cannot sustain in law.
Absence of material even at the time of issuance of notice, but mentioning some material affects the right of hearing of proposed externee as ordinarily he does not get sufficient time to collect the material of aforesaid nature to refute the allegations made in show cause notice. Similarly, absence of material or mentioning the material which could not have been used for such proceeding in show cause notice creates a probability of malice.
(iv) The material allegations and general nature of such allegations need to be informed in show cause notice. Only specific particulars which will fix the identity of ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 24 witnesses, who are unwilling to depose in public against proposed externee are not to be made available to the proposed externee. All other particulars which can be used by proposed externee to show that the degree of satisfaction cannot be attended by the officer concerned need to be given to the proposed externee. The proposed externee has right to know all such other material as that right is a part of principles of natural justice and order involves the aforesaid fundamental rights of proposed externee.
(v) If the order of externment is proposed on the grounds mentioned in section 56(1)(a) of the Act, there need to be many acts of proposed externee available for consideration and these acts must have already caused or there must be probability of causing alarm, danger etc. to person or property in future from the proposed externee. Such activity must be in respect of public order.
(vi) If the proposed externment is on the ground given in section 56(1)(b), both the conditions like proposed externee was engaged or was about to engage in commission of offence as mentioned in this ground and further formation of the opinion by the officer that the witnesses are not willing to come forward to give evidence against such person as mentioned in this ground need to be satisfied and fulfillment of only one condition is not sufficient. There should be subjective satisfaction on both the requirements and further, the offences need to have relation with public order.
(vii) There should be material for forming opinion at the time of issuing show cause notice that externment order needs to be made in respect of a particular area, may be entire district or part of district and area contiguous to particular district or part of district and that needs to be reflected in show cause notice. Only reason that the particular area is contiguous area will not be sufficient to cover that contiguous area in externment order. Possibility of activity in that area on the basis of material needs to be made out for subjective satisfaction.
(viii) On the basis of nature of material available, the hearing as mentioned in section 59 of the Act needs to ::: Uploaded on - 03/07/2019 ::: Downloaded on - 21/07/2019 04:14:58 ::: Cri.W.P.No.567/2019 25 be given to proposed externee and in respect of those allegations opportunity needs to be given to the proposed externee to refute the allegations.
(ix) In the externment order, there may not be detail reasons, but mentioning of the material on the basis of which the order is made needs to be there."
16) The relevant facts of the present matter are already quoted. Only two crimes were registered. Some material which is ultimately used in the externment order was not mentioned in the show cause notice. This Court has no hesitation to hold that the activities of the petitioner were in the interest of public at large and they were not affecting the public order as mentioned above. This Court holds that the externment order made against the petitioner cannot sustain in law. In the result, the following order :-
O R D E R I. The petition is allowed.
II. The order made by the learned Sub Divisional Magistrate of externment against the petitioner and order made by the appellate authority are hereby set aside.
Rule made absolute in those terms.
[ K.K. SONAWANE, J.] [T.V. NALAWADE, J.]
ssc/
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