Dhondiram Appa Hatkar vs State of Maharashtra & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1987 Supreme(Bom) 306

IN THE HIGH COURT OF BOMBAY
C.S. Dharmadhikari, Acg. C.J. V.P. Tipnis, J.
Dhondiram Appa Hatkar.... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Criminal Writ Petition No. 129 of 1987, decided on 19-9-87.
Advocates appeared :
Mrs. N.S. Kasture, for petitioner.
J.A. Barday, P.P., for respondents.

Headnote:Sections 56 and 57-In the case of externment the notice under Section 59 mentional that petitioner bad been convicted three times in the past under Section 12-A of Prevention of Gambling Act. It was observed that there was large gap of period between three convictions and there was no material in the notice which could give a cause to believe that person was again likely to engage himself in similar offences-Held that for the reasons. Externment order was vitiated and same was quashed and set aside.
       Held, that the mere fact that the person bas been convicted is not enough but the competent authority empowered to extern the person must have reason to believe that such person is likely again to engage himself in the commission of an offence similar to the one for which be was convicted. It is also clear that it notice under Section 59 in this behalf is to be worth while, then, at least general indication in the notice bas to be given regarding the material in possession of the Externing Authority upon which his satisfaction is based. It may be that the fact that the person is persistently engaged in certain kind of offences or bas been previously convicted itself may be the material or the ground which may enable the authority to come to the conclusion that such person is likely to engage himself again in the commission of similar offence obviously depending upon the propensity, gravity, and magnitude of the crime and activities involved. It will all depend on the facts of each case and no general rule can be laid down in that behalf.
       In the instant case the notice under Section 59, issued on 15th October, 1986, mentions that the petitioner bas been convicted on 5th July, 1980 under Section 12-A of the Prevention of Gambling Act. Then be bas been convicted for the same offence on 9th October, 1984 and again on 18th May, 1985. The last sentence in the notice merely mentions as follows :
       "And it is felt that you will again participate in the offences for which you have been convicted in the past."
       In the final order of externment dated 8th November, 1986, after cataloging the said offences, it is mentioned that:-
       "......... I am satisfied that the said person bas convictions mentioned above and I am further convicted that he is likely to engage himself in the commission of a similar offence."
       Firstly, it is observed that the first conviction is on 5th July, 1980, thereafter, till 9th October, 1984 there is not a single conviction. The last conviction was on 18th May, 1985 and the notice under Section 59 was issued on 15th October, 1986. In these circumstances, it is difficult to hold, that on the basis of these convictions alone, which were not proximate, any reasonable man could have come to the conclusion that the petitioner is again likely to engage himself in the commission of similar offence. Secondly the notice under Section 59 does not indicate at all any other material which could give the authority a cause on believe that the person is again likely to engage himself in similar offences. Even the final order of externment does not disclose, even remotely, any such material. The notice and the final order of externment merely reproduce the relevant words from Section 57. In view of this, it is difficult to hold that the order passed under Section 57 is lawful, valid, or in accordance with the law. For these reasons, the impugned externment order is vitiated and, accordingly, the same is quashed and set aside. The rule is made absolute.

JUDGMENT - V.P. TIPNIS, J.:---The petitioner was externed by the order dated 8th November, 1986, passed by the Sub-Divisional Magistrate, Phaltan Division, Phaltan, under section 57 of the Bombay Police Act, 1961. The petitioner has challenged the said order on several grounds.

2. Before going into the facts of the case, it may be worthwhile to refer to the provisions of the Act and certain authorities which lay down certain principles relevant to the passing of valid and lawful orders as also indicating what caution and circumspection has to be exercised while considering the validity of the orders of externment passed under section 56 or 57 of the Bombay Police Act.

3. In (State of Bombay v. Vishnu Ramchandra)1. A.I.R. 1961 S.C. 307, the Supreme Court has observed :---

"An externment order, however, to satisfy the requirements of section 57 of the Bombay Police Act, must be made bona fide, taking into account a conviction which is sufficiently proximate in time. Since no absolute rule can be laid down, each case must depend on its own facts."

In the case of (Pandharinath v. State of Maharashtra)2, A.I.R. 1973 S.C. 630, the Supreme Court observed :

"It is true that the provisions of section 56 make a serious inroad on personal liberty but such restraints have to be suffered in the larger interests of society. This Court in (Gurbachan Singh v. The State of Bombay)3, 1952 S.C.R. 737 had upheld the validity of section 27(1) of the City of Bombay Police Act, 1902, which corresponds to section 56 of the Act. Following that decision, the challenge to the constitutionality of section 56 was repelled in 1956 S.C.R. 533 . We will only add that care must be taken to ensure that the terms of sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the proposed externee."

In the case of (Premchand v. Union of India)4, A.I.R. 1981 S.C. 613, the Supreme Court was considering the scope of sections 47 and 50 of the Delhi Police Act which are similar to the provisions of the Bombay Police Act. The Supreme Court observed :---

"The provisions of the statute ostensibly have a benign purpose and in the context of escalation of crimes, may be restrictions which, in normal times might appear unreasonable, may have to be clamped down on individuals. We are conscious of the difficulties of detection and proof and the strain on the police in tracking down criminals. But fundamental rights are fundamental and personal liberty cannot be put at the mercy of the Police. Therefore, sections 47 and 50 have to be read strictly. Any police apprehension is not enough. Some ground or other is not adequate. There must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence. Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety. We are clear that the easy possibility of abuse of this power to the detriment of the fundamental freedoms of the citizen persuades us to insist that a stringent test must be applied. We are further clear that natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Articles 14, 19 and 21 of the Constitution as expounded by this Court in (Meneka Gandhi Union of India)5, (1978)1 S.C.C. 248."

In (Dhanabhai Bhalabhai v. State)6, 1985(1) G.L.R. 194, a Division Bench of the Gujarat High Court considered the scope and requirements under section 57(a), (b) and (c) of the Bombay Police Act. The learned Judges observed as follows :---

"The sale of liquor by a person or illicit manufacture or consumption of liquor may not by itself be objectionable to such a degree as to invite the extreme measure of externing a person from an area for a fairly long time. Such extern

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