Bombay High Court
Mrs. Marry Kutty Thomas vs State Of Maharashtra And Others on 24 February, 1987
Equivalent citations: 2001(2)BOMCR196
Author: P.B. Sawant
Bench: P.B. Sawant
JUDGMENT Sawant, J.
1. These five writ petitions have raised one common point besides some other points which are exclusive to Writ Petition No. 531 of 1986. We, therefore, first dispose of the point which is common to all these petitions.
The common point arises out of the fact that the notice issued to the externees in all the petitions, under S. 59 of the Bombay Police Act, 1951 (hereinafter referred to as the Act), did not give any indication about the order which was proposed to be passed against them in as much as it did not state either the action proposed to be taken against them viz., whether they were only to be directed to so to conduct themselves as shall seem necessary in order to prevent violence and alarm or the prejudicial activities complained against them or whether they were to be ordered to remove themselves outside the local limits of the jurisdiction of the officer passing the order or the other specified area or areas in the State and the duration of such externment. It is, therefore, contended that in the absence of the indication of such proposed order the externees were prejudiced in their defence. The impugned externment orders therefore were bad in law. In order to appreciate the point raised, it is enough if we reproduce relevant portion of the specimen order in Criminal Writ Petition No. 531 of 1986.
"(Proposal under S. 56(a)(b) of the Bombay Police Act, 1951).
Notice under S. 56 of the Bombay Police Act, 1951.
To, (1) Shri P. Thomas S/o. Kurian alias Khajabhai Ch. 52 yrs. Occ : Nil, Res : B.M.C. Building, No. 8/2, Room No. 19, 3rd Floor, Sion Koliwada, Bombay-400037.
Present address :-
(2) Housing Society Bldg. No. 1, Room No. 4, Sardar Nagar No. 4, Sion Koliwada, Bombay-400037.
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Under S. 59 of the Bombay Police Act, 1951 (Bom. XXII of 1951) you are hereby informed that the allegations mentioned hereunder are made against you in proceeding against you under S. 56(a)(b) of the said Act.
In order to give you opportunity of tendering your explanation regarding the said allegations, I have appointed 11.00 a.m./p.m. on 16-7-85 to receive your explanation and to hear you and your witnesses if any, in regard to the said allegations. I, Shri M. D. Naik, Asstt. Commissioner of Police, Matunga Division. Gr. Bombay, having been authorised by the Deputy Commissioner of Police, Zone IV, Gr. Bombay, to hold an enquiry, therefore, require you to appear before me at my office at Dadar, Bombay-400028, on the said date viz., 16-7-1985 at 11 a.m. for said purpose and to pass a bond in the sum of Rs. 500/- for your attendance during the enquiry of the proceedings. Should you fail to appear before me and to pass a bond as directed, I shall proceed with the enquiry in your absence."
"III. That the witnesses including the complainants to your above described acts and movements are not willing to come forward and depose against you and your aforesaid associates in public by reason of apprehension on their part as regards the safety of their persons and property, in the apprehension that they would be assaulted and their property would be damaged by you and your aforesaid associates, if they do so.
Bombay, the 12th day of July, 1985 at 11 a.m."
This contention is countered on behalf of the respondent-State and the externing authority mainly relying upon the provisions of sub sec. (1) of S. 59 which states that all that is necessary to be informed to the person against whom the action is proposed is the general nature of the material allegations against him and to give him a reasonable opportunity of tendering an explanation regarding them. Since the statute does not require anything more to be stated in the notice, both the notice and the subsequent order, are valid and not assailable on the ground urged by the petitioners.
2. In order to appreciate the merits of the respective contentions, it is necessary to refer to the relevant provisions of the Act. Chapter V in which the relevant provisions are incorporated deals with, as its heading shows, special measures for maintenance of public order and safety of State. It has four sections. Section I deals with employment of additional Police, recovery of cost thereof and of riot compensation - Its assessment and recovery. Section II in which provisions immediately under consideration are found, deals with dispersal of gangs and removal of persons convicted of certain offences, and of certain beggars. Section III deals with control of camps, etc. and uniforms and S. IV deals with village defence parties.
Sections 55 to 63AA are in S. II which, as stated earlier, deals with the dispersal of gangs and removal of persons convicted of certain offences and of certain beggars. Section 55 deals with dispersal of gangs and bodies of persons. Section 56 deals with removal of persons about to commit offence. Section 57 deals with removal of persons convicted of certain offences and S. 57-A with removal of certain persons declared to be beggars. Section 58 then states that the directions if made under sections 55, 56, 57 and 57-A not to enter any particular area shall be for such period as may be specified therein and the period shall in no case exceed two years. Section 59 then makes a provision for hearing to be given to the person concerned before order under sections 55, 56, 57 or 57-A as the case may be is passed. Section 60 provides for an appeal to the State Government against the order made under sections 55, 56, 57 or 57-A. Section 61 delares that the order passed under the aforesaid sections or in appeal by the State Government shall not be called into question in any Court except on the ground that the procedure laid down in sub-section (1) of S. 59 was not followed or that there was no material before the authority concerned upon which it could base its order or that the authority concerned was not of the opinion that the witnesses were unwilling to come forward to give evidence in public against the person concerned in respect of whom an order under S. 56 was made. Section 62 then deals with the procedure to be followed on a failure of person to leave the area or on his entry therein after his removal. Section 63 deals with a temporary permission given to the externee to enter or return to the area from which he is externed. Section 63-AA deals with the powers of externment entrusted to the State Government or any officer specially empowered by the State Government to exercise the power exercisable by the officers otherwise entrusted with the power under sections 55, 56, 57 and 57-A with this exception that when such powers are exercised by the State Government or the specially empowered officer under sections 55 and 57-A it is lawful for them to direct the persons concerned to remove themselves also from area or areas which may not be contiguous to the local area from which they are ordered to be removed.
3. In all the present cases, the impugned orders of externment have been passed under S. 56 of the Act. We may therefore reproduce the provisions of S. 56 which are as follows :-
"56(1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under S. 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 specially 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 Chapt. 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) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Anti-social and other Dangerous Activities Act, 1980, or (2) in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in the Explanation to sub-section (1) of S. 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or such prejudicial act or the outbreak or spread of such disease or (notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the Officer or not and whether contiguous or not), by such route, and within such time, as the officer may specify and not to enter or return to the area or areas specified (hereinafter referred to as "the specified area or areas") from which he was directed to remove himself.) (2) An officer directing any person under sub-section (1) to remove himself from any specified area or areas in the State may further direct such persons that, during the period the order made against him is in force, as and when he resides in any other areas in the State, he shall report his place of residence to the officer in charge of the nearest police station once in every month, even if there be no change in his address. The said officer may also direct that, during the said period, as and when he goes away from the State, he shall, within ten days from the date of his departure from the State send a report in writing to the said officer, either by post or otherwise, of the date of his departure, and as and when he comes back to the State, he shall within ten days, from the date of his arrival in the State, report the date of his arrival to the officer in charge of the police station nearest to the place where he may be staying."
What has to be noted for our purpose from the aforesaid provisions is that the officer taking action under this section can either direct the person concerned so to conduct himself as shall seem necessary in order to prevent violence and alarm or such prejudicial acts or the outbreak or spread of such disease as is apprehended at his hands or to remove himself outside such area or areas in the State whether within the local limits of the jurisdiction of the officer or not and whether contiguous or not, by such route and within such time as the officer may specify and not to enter or return to the area or areas specified in the order. In addition, the officer concerned may also direct the externee to report his place of residence to the officer in charge of the nearest police station once in a month as and when he resides in any other areas in the State during the period of his externment. Further, he may also direct that during the period of his externment when the externee goes away from the State he shall within 10 days from the date of his departure send a report in writing to the said officer either by post or otherwise of the date of his departure and as and when he comes back to the State he shall likewise within ten days from the date of his arrival in the State report to the officer in charge of the police station nearest to the place where he is staying. These latter directions are in their very nature optional and not obligatory to be stated in the order. Read with the provisions of S. 58 the order has also to state the period for which the person has to remove himself from the specified area or areas and not to enter the same. In other words, the order under S. 56 may either direct the person concerned only to conduct himself in a particular manner without leaving his present place or direct him to remove himself from the said place. If however, it is the latter, the order has to specify (i) the area or areas from which, (ii) the period for which, (iii) the route by which and (iv) the time within which he has to remove himself. It is in the light of these mandatory provisions of S. 56 read with the provisions of S. 58 of the Act, that we have to examine the provisions of S. 59 which are the subject matter of controversy in the present case.
4. In order to appreciate the contentions, it is necessary to reproduce the provisions of S. 59 -
"59. (1) Before an order under S. 55, 56, 57 or 57-A 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 that officer shall inform the person in writing of the general nature of the material allegations against him and give 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 the 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 under this section by an advocate or attorney for the purpose of tendering his explanation and examining the witness produced by him.
(2) The authority or officer proceeding under sub-section (1) may, for the purpose of securing the attendance of any person against whom any order is proposed to be made under S. 55, (56, 57 or 57-A) 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."
As is clear from the aforesaid provisions, the procedure of hearing as laid down therein is mandatory. Before an order is passed under any of the Sections 55, 56, 57 or 57-A, the officer has to inform the person concerned in writing of the general nature of the material allegations against him and to give him a reasonable opportunity of tendering an explanation regarding them. Section 59 further provides that the person concerned may also examine any witnesses in his defence and the officer has to permit examination of such witnesses unless for reasons to be recorded in writing he is of the opinion that the application for examination of the witnesses is made for the purpose of vexation or delay. The section also states that any written statement put in by the person shall be filed with the record of the case. What is more, the person is entitled to be represented before the officer by an Advocate or attorney both for the purposes of tendering his explanation and of examining the witnesses produced by him.
As is evident from sub-section (2) of S. 59, the officer concerned may secure the attendance of the person by asking him to pass a security bond with or without sureties. If for any reasons the person fails to pass the security bond or to appear during the enquiry, the officer is empowered to proceed with the enquiry and to pass such orders as was proposed to be passed against him.
5. As has been pointed out earlier, under S. 56 two alternative actions are contemplated against the person concerned. He is either to be directed to conduct himself in a particular manner or to remove himself from an area or areas for a specified period. Which of the two actions will be taken finally and the precise particulars thereof may be decided upon by the officer on the basis of the material that may come before him in the enquiry held under S. 59(1). However, when the notice is issued under S. 59(1), it is to inform him not only that an enquiry is to be held into the allegations stated therein but that the same is being held with a view to take either of the two actions against him. If the purpose of the enquiry is not stated in the notice, the person concerned need not even appear in the enquiry at all, as he is entitled to presume that nothing of any consequence would happen to him even if he does not appear. Precisely for the same reason, the purpose has to be stated in clear and detailed terms. For just as the person may disregard a notice which gives him no inkling of the object of the enquiry, he may also ignore a notice which proposes an action which to him may not appear harmful to his interests. The Act does not contemplate a purposeless enquiry into the conduct of a person. The fact that the precise particulars of the action proposed against the person should be communicated to him is made clear by the provisions of S. 59(1) itself, when it states that "Before an order under sections 55, 56, 57 or 57-A is passed against any person the officer shall inform the person ......." etc. This language of the section implies that the person concerned must at least know that the order proposed is under either of the said section. It therefore legitimately follows that he should also know the kind or the nature of the order and its essential particulars. The ultimate order that may be passed may not in all respects be the same as was proposed. But that may be because after applying his mind to the material which comes before him in the enquiry, the officer may come to the conclusion that the action proposed is not warranted in the circumstances of the case. But this eventuality also enjoins upon the officer that he should intimate the person concerned the extreme action that is proposed against him. The person concerned is entitled not only to tender his explanation for the allegations but also for the action proposed against him. It is after taking into consideration all that the person has to say not only against the allegations but also against the proposed action, that the officer has to pass his final order under the respective section. It is, not open for the officer to take an action which the person concerned had no opportunity to defend or on grounds which were not intimated to him.
6. But there is yet another provision in S. 59 itself which makes it obligatory to give the person concerned an adequate idea of the action proposed against him. That provision is in sub-section (2) thereof. It says that if the person fails to pass the security bond, as required, to secure his attendance in the enquiry or fails to appear before the officer during the enquiry, it shall be lawful for the officer to proceed with the enquiry and to pass such order "as was proposed to be passed against him." This makes it all the more necessary that the person concerned must know in advance the precise nature of the order proposed to be passed against him. Unless he knows the precise penalty which his failure will visit him with, he cannot be saddled with it. In the face of this provision of sub-sec. (2), it is all the more difficult to appreciate the contention to the contrary viz., that the notice under S. 59(1) need not state the nature of the order proposed to be passed. What is further of importance to note is that since under S. 56 under which the orders in the present cases are passed, it is open for the authority to take either of the two actions stated therein, a mere mention of S. 56 in the notice will not be sufficient. This is apart from the fact that the precise manner in which the person concerned is to conduct himself or the specified area or areas from which and the period for which he is to remove himself cannot be guessed by mere mention of S. 56 in the notice. Hence the notice issued under S. 59(1) must not only state the general nature of material allegations against the person concerned but also the precise nature of the action proposed to be taken against him. It is true that S. 59(1) does not explicitly lay down that such will be the contents of the inquiry, under that section. But the very wording of that section leaves no manner of doubt that such is the implication of the said provisions. The reliance placed on the explicit provisions contained in that section viz., "that the officer shall inform the person in writing of the general nature of the material allegations against him" to exclude the implicit requirement as stated above, is not well founded. The explicit requirements in the circumstances have to be construed as pertaining to the allegations to be communicated to him and which are only a part of the contents of the notice. They are not exhaustive of its contents nor do they refer to its other contents and their nature and particulars which have to be stated as an inherent requirement of the provisions themselves. The explicit provisions of the notice therefore cannot be read to exclude its implicit and mandatory contents. According to us, this is the only way that the provisions of S. 59(1) can be read for reasons more than one, as explained above. In case of a proposed externment therefore, the notice should mention the area or areas from which and the period for which the person is proposed to be so externed. As regards the route by which the person should remove himself and the time within which he should so remove, though they are necessary to be stated in the order, they are not mandatory requirements of the notice. It has further to be borne in mind that the ultimate order that may be passed cannot in any way be in excess of the order proposed in the notice under S. 59(1) for in that case the person concerned will have a legitimate grievance that he had no opportunity to plead against such order.
7. We must however add that although these are the requirements of law as ordained by the principles of natural justice, the non-compliance thereof may not be fatal in every case. It is well settled, that it is not enough that an individual shows a breach of any of the principles of natural justice. He must also show that the breach has in fact prejudiced him in one or the other manner. The principles of natural justice are not a ritual to be followed as an empty formality. They are propounded to give an adequate and reasonable opportunity to the person concerned to defend himself against the action proposed against him. If as in one of the present cases, it is found that in fact the person concerned had all the opportunities and had done everything which he could, to defend himself and had at no time made any grievance that he was in any way prejudiced in his defence, it is not necessary to interfere with the order passed against him though technically or on paper there appears a breach of one or the other principle of natural justice. That is why although in the present case it is admitted that in notices issued to none of the petitioners the order proposed against the petitioners was intimated to them, it has become necessary to investigate whether and in what respect the petitioner in each case was prejudiced. This has also become imperative because we are informed across the Bar that although in the rest of the State the notice issued under S. 59(1) intimates the person concerned the proposed action, the practice followed by the officers in this city is not uniform. In most of the cases, the notice does not intimate the proposed order. This practice is in vogue here ever since the enactment and hundreds of orders have been passed hitherto, on the basis of such notices, and today many such orders are in force. So far, although, the externment orders have been challenged up to the Supreme Court on several grounds, no order was challenged on the present ground. Hence the officers so went the argument, were entitled to presume that the notices issued by them were valid.
Courts cannot be unmindful of the reality and should not be technical and mechanical in their approach. If it is possible to reconcile the rights of the citizens with the requirements of the society and of the larger interests of justice, the Courts should try and seek to do it. It is for this reason that we propose to examine individual cases to find out if the non-intimation of the proposed action in the notices issued, had in fact prejudiced the petitioners.
8. In Criminal Writ Petitions Nos. 531/86, 722/86 and 723/86 all the externees had submitted their written explanations and thereafter had examined their witnesses pursuant to the notice under section 59(1). It also further appears that the Deputy Commissioner of Police who passed the final order had also given notices to the externees of personal hearing after the enquiry by the Asstt. Commissioner of Police was over. Neither in the written statement filed before the Asstt. Commissioner of Police nor in the personal hearing given thereafter, by the Deputy Commissioner of Police, it was contended that any prejudice was caused to the externees because they did not know the nature of the proposed action against them. On the other hand, the written statements filed by them before the Asstt. Commissioner of Police proceeded on the footing that externment orders were proposed against them. However, in the appeals filed before the Government under S. 60 of the Act, it was specifically contended that although the notice did not specify the area from which the externee was to be externed, the impugned externment order specified the area of as many as three districts and therefore the order was illegal. Although in the appeal against the externment order in Writ Petition No. 531 of 1986 the appellate authority reduced the area from the original three districts of Greater Bombay, Thane and Raigad to the district of Greater Bombay only, the appellate authority did not deal with the said contention and did not give any reasons for its order. In Criminal Writ Petitions Nos. 722 and 723 of 1986, the appellate authority retained the original area of all the said three districts again without dealing with the question of the illegality of the order on account of the non-mentioning of area in the notice. It must be remembered that the State Government which is the appellate authority under S. 60 exercise co-extensive powers with the authority or officer passing the original orders under sections 55, 56, 57 and 57-A. Hence, the contentions which can be urged before the authority or officer under the said sections can also be raised before the State Government in appeal and the order passed by the officer or authority merges into the appellate order. The appellate order therefore may suffer from the same infirmities as the order passed by the officer or the authority under the said sections. Although the State Government has powers to confirm, cancel or set aside the order appealed against and to make its own order instead in law both the authorities are clothed with the same powers and their powers can be challenged on the same grounds and for the same reasons. Hence, if there is any defect in the original order, the same can be cured by the State Government by following the same procedure as the original authority. In spite of the grievance made before the State Government, however, the State Government did not choose to set aside the order and direct a fresh notice to be issued according to the requirements of S. 59(1) as interpreted by us above, It will therefore, have to be held that in those cases the externees were prejudiced because they did not get an opportunity to show cause as to why they should not be externed from the concerned areas, though the grievance was not made before the officer concerned. On that count the contention that the externees in these three petitions were prejudiced will have to be upheld, and the impugned orders of externment will have to be set aside.
9. The same however cannot be said of the externment order impugned in Criminal Writ Petition No. 535 of 1986. In this case even at the appellate stage no grievance was made by the externee that he was prejudiced because the area or any other particulars required to be stated in the notice were not mentioned therein. Hence, the impugned order need not be quashed for technical reasons. The externee urged all that he could on the basis that the externment order was to be passed against him. Nor was his case at any stage that he could not defend himself properly because of the absence of the particulars of the area or other details.
10. As far the impugned externment order in Criminal Writ Petition No. 148 of 1987 is concerned, the petitioner in para 5 of his petition has specifically alleged that it was contended before the Asst. Commissioner of Police who was the inquiring officer that the notice was bad in law since it did not mention "about the externment of the petitioner" and also the locality from which the petitioner was sought to be externed. In other words, it was contended by the externee that the notice did not give him an intimation as to whether he was to be externed at all and if so the locality from which he was to be externed and, therefore, the externment proceedings were bad ab initio. In reply to these contentions the Deputy Commissioner of Police who passed the impugned order has in para 6 of his counter stated that no written explanation was filed by the externee at all in reply to the notice and the externee only examined 7 witnesses in his support. However, it is not controverted that such a contention was required by the externee before the Asst. Commissioner of Police. What is more, as it transpires in this Court, in fact the petitioner had filed his written statement on 20-8-85. This means that the Deputy Commissioner of Police before passing the impugned order on April 2, 1986 was not even aware of the written statement filed by the externee and had thus obviously passed the order in complete ignorance of the same. This also shows a non-application of mind on the part of the externing authority to the material on record which vitiates his subjective satisfaction. The impugned order of externment therefore, is liable to be set aside on that count also.
11. In Criminal Writ Petition No. 535 of 1986 Mr. Shetty, the learned Counsel appearing for the externee had also tried to argue on merits that the testimonials which the externee had produced in the inquiry were not given any weight by the externing authority and he was also not given an opportunity to examine the signatories to the said testimonials. It should therefore be held, according to Shri Shetty, that the impugned order was bad in law. In the first instance, S. 59 does not contemplate two injuries. Admittedly, the externee was given an opportunity to examine and he had examined all the witnesses that he wanted to in the inquiry and it is not his case that the Asst. Commissioner of Police who conducted the inquiry had not given him an opportunity to examine the said signatories. The Deputy Commissioner of Police, as stated earlier also heard the externee personally. In para 10 of his affidavit in reply to this contention, the Deputy Commissioner of Police has stated as follows :
"10. With reference to para 11 of the petition it is true that the petitioner had submitted some testimonials before me in support of his contentions. However, the truth of the said testimonials could not be accepted at its face value unless the said testimonials are subjected to minute scrutiny. Moreover, the said certificates did not rule out the possibility of the petitioner engaging in illegal activities. I submit that many factors weigh while issuing such certificates. Sometimes, the issuing authority or the person issues such certificates to please the person and without knowing the antecedent of such persons. Sometimes, the true colour of such person is not known to the person issuing such certificates. Therefore mere holding of such certificates would not lead to the conclusion of the petitioner being of clean character and being not involved in criminal activities. I, therefore, did not place reliance on the said certificate."
We are of the view that this explanation given by the Deputy Commissioner of Police in answer to the present grievance cannot therefore be said to be irrelevant or unreasonable. Hence, we find no substance in the said contention.
12. The result therefore is that we allow Petitions Nos. 531, 722 and 723 of 1986 and Petition No. 148 of 1987, set aside the impugned orders of externment for the reasons stated above and make the rule absolute. We dismiss Petition No. 535 of 1986 and discharge the rule granted therein.
13. Mr. Vakil for the Respondent in Petitions Nos. 531, 722 and 723 of 1986 and Mr. Kachare for Respondents in Petition No. 148 of 1987 and Mr. Shetty for the Petitioner in Petition No. 535 of 1986 apply for leave to appeal to the Supreme Court. According to us, there is no important question of law involved in these cases which requires to be determined by the Supreme Court. Hence, the applications for leave are rejected. However, the operation of the orders passed by us in Writ Petitions Nos. 531, 722 and 723 of 1986 and 148 of 1987 is stayed for four weeks from the date the certified copy of this judgment is made available.
14. Order accordingly.