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IN THE HIGH COURT OF BOMBAY
R.A. Jahagirdar P.V. Nirgudkar, JJ.
Yeshwant Damodar Patil.... Petitioner.
Versus
Hemant Karkar, Dy. Commissioner of
Police another.... Respondents.
Criminal Writ Petition No. 324 of 1989, decided on 29-8-1989.
Advocates appeared :
S. R. Chitnis, for petitioner.
C. M. Kothari, Public Prosecutor, for State.
Held: That in every case of acts involved on the part of the proposed externee, where an order of externee is proposed to be passed, it is necessary that the officer concerned must be satisfied that witnesses are not willing to come forward to give evidence against him. Notice of such satisfaction must also necessarily be given to the proposed externee under Section 59 of the Bombay Police Act. In the present case, though notice of the fact that witnesses are not coming forward to give evidence against the proposed externee has been given in so far as the ground mentioned in the rust part of Clause (b) of Section 56(i) is concerned, no such notice has been given in so far as the ground mentioned in the second part of Section 56(i)(b) is concerned. In other words, when the authority proceeded to give notice to the proposed externee on the ground that he is engaged in the commission of offences punishable under Chapter XVI of the Indian penal Code, he failed to mention also that the witnesses are not coming forward to give evidence against him.
This it self would not have been fatal to an action that could have been taken under the first part of clause (b) of Section 56(i) of the Bombay Police Act. Unfortunately, the Deputy Commissioner of Police has ultimately passed the order of externment under the second part of Clause (b) of Section 56(i) of the Act. He enumerates, as he had enumerated in the notice under Section 59, the three cases which are pending against the petitioner. Thereafter, he also proceeds to say that as a result of the conduct of goondaism engaged by the proposed externee, the people in the neighbourhood have developed a fright about their lives and they are unwilling to give evidence in public against him. For a valid order under Section 56(i)(h) (later part) of the Act, this satisfaction is undoubtedly necessary, but the petitioner was not told, when he was told about the conditions mentioned in the second part of Clause (b) of Section 56(i), that witnesses are not willing to come forward to depose; against him. The condition about the unwillingness of the witnesses was mentioned only in relation to the circumstances covered by the first part of Clause (b) of Section 56(i) of the Act. This shows that the externing authority has taken into consideration a factor of which notice had not been given to the proposed externee under Section 59 of the Act. (Paras 9 & 10)
(ii) Bombay Police Act - Sections 56(i)(b) & 59 - Orders of externment passed by the authorities in Maharashtra and especially by the authorities in Thane District- While giving notice under Section 59, the clear distinction between Clause (a) and the first part of Clause (b) of Section 56(i) is not always borne in mind - Allegations against the proposed externee mentioned in the notices are too vague to enable the proposed externee to represent against the proposed orders of externment - The prevailing practice depricated. (Para 11)
BOMBAY POLICE ACT, 1951.
Sections 56 (1) (a), 56 (1) (b) and 59-Extemment-Notice to proposed externee -Should not be vague-Notice must indicate that witnesses are not willing to depose-Held, failure to indicate so vitiates order of externment.
Court has already, after examining the provisions of Section 56 (I) of the Bombay Police Act, held that in every cases of act involved on the part of the proposed externee, where an order of externment is proposed to be passed, it is necessary that the officer concerned must be satisfied that witnesses are not willing to come forward to give evidence against him. Notice of such satisfaction must also necessarily be given to the proposed externee under Section 59 of the Bombay Police Act. II the present case, though notice of the fact that witnesses are not coming forward to give evidence against the proposed externee has been given in so far as the ground mentioned in the first part of clause (b) of Section 56 (I) is concerned, no such notice has been given is so far as the ground mentioned in the second part of Section 56 (I) (b) concerned.
In other words, when the authority proceeded to give notice to the proposed externee on the ground that he is engaged in the commission of offences punishable under Chapter XVI of the Indian Penal Code, he failed to mention also that the witnesses are not coming forward to give evidence against him.
While giving notice under Section 59 of the Act, the clear distinction between clause (a) and the first part of cause (b) of Section 56 (1) is not always borne in mind. Vague words mentioning that the petitioner is involved to the activities causing alarm or danger and also in acts of violence, etc. are freely used. Though the law does not require the authorities under the Bombay Police Act to give the details of the activities of the propose externee, it is still necessary as required by Section 59 of the Act, to give to the proposed externee information about the general nature of the material al1egation against him.
2. The order of externment passed under section 56(i)(b) of the Bombay Police Act was naturally preceded by a notice given under section 59 of the said Act. Mr. Chitnis, the learned Advocate appearing in support of the petition, has challenged the order of externment on the ground that the said order has taken into consideration a factor of which the petitioner has not been given notice under section 59 of the Bombay Police Act. The contention is well-founded, as we will show shortly. In order to understand the same, however, it is necessary to first notice the relevant provisions of the Act and thereafter the contents of the notice and the order of externment.
3. Section 56(i) of the Bombay Police Act visualises three situations in which the order of externment could be passed by the designated officer. We will, however, ignore, for the purpose of the disposal of this petition the third type of situation and only analyse the two situations which are covered by Clauses (a) and (b) of section 56(i) of the Act. 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. That is what is provided in clause (a). The 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 the commission of an offence involving force or violence. It is so provided in the first part of clause (b) of section 56(i) of the Act. An order of externment can also be passed against a person if that person is engaged or about to be engaged in the commission of an offence punishable under Chapter XII, of Chapter XVI, or Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause (b) of section 56(i) of the Act. But it is not enough that these conditions alone are satisfied. In addition to this the designated officer should be of the 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 the safety of their person or property.
4. Summarising again, the provisions of section 56(i) in so far as they are relevant for the purpose of this petition, it can be stated that a person, whose movements or acts are causing or calculated to cause alarm or danger or harm to person or property and against whom witnesses are unwilling to depose, can be externed under Clause (a) of section 56(i) of the Act. Similarly, if there are reasonable grounds for believing that a person is engaged or is about to be engaged in the commission of an offence involving force or violence and witnesses are unwilling to depose against him, he can be externed under the first part of Clause (b) of section 56(i) of the Act. Again a person who is engaged or is about to engage in the commission of an offence punishable under Chapter XII, or Chapter XVI, or Chapter XVII of the Indian Penal Code and against whom witnesses are unwilling to come forward and depose, can also be externed as per the second part of Clause (b) of section 56(i) of the Act.
5. Whenever, therefore, an action is proposed to be taken against an externee, hereinafter referred to as "the proposed externee", a notice naturally has to be given to him under section 59 of the Bombay Police Act. This notice must inform the proposed externee the grounds on which action is proposed to be taken against him. For example, if action is proposed to be taken against him under Clause (a) of section 56(i) of the Act, then the proposed externee must be told that his movements or acts are causing or ca
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