1997 Supreme(Bom) 311

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
S.B. Mhase, J.
Abdul Wasim s/o Mohammad Faruq Musalman .... Petitioner.
Versus
State of Maharashtra another ...... Respondents.
Criminal Writ Petition No. 270 of 1996, decided on 4-7-1997.
Advocates appeared :
S.A. Jaiswal and P.S. Jaiswal, for the petitioner.
S.B. Wahane, A.P.P., for respondents.

Headnote:Sections 10 and 56-Power of Dy. Commissioner of Police-Order of internment-Competency of-Valid.

       Sections 10(2) and 56(1)(a)Externment proceedings-Contention that externment order not disclosing in what manner facts were appreciated and that offences being minor externment proceedings improper-Further contention that Asstt. Commissioner of Police not competent to carry on such proceeding in such order first contention cannot be expected to be disclosed-As regard second contention it is not correct in view of amendment of Act in 1994.- The learned counsel for the petitioner than submitted that there is non-application of mind by the authority. He submitted that the order does not disclose in what manner the facts were appreciated. It was further being submitted that the petitioner has no earlier criminal history and that there is no finding recorded in respect of the acts of the petitioner being alarming to the residents of that area Ganga Jamuna. It is further submitted that the offences which are pointed out, are the minor offences and for that purpose, the externment proceeding is improper and all these considerations are not reflected in the order with due respect to the learned counsel, the said aspect cannot be expected in the order and the ratio laid down in the case of Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, State of Maharashtra, reported in 1973 Mh LJ 413 SC : AIR 1973 SC 630 is answer to the said ground raised by the learned counsel.

       Sections 11(2) and 59(1)Authorization of power-The authorization by Deputy Commissioner of Police to Assistant Commissioner of Police for externing a person is not in any way affected or bad in law as no special order is necessary.- The learned counsel, Court has perused the concerned provisions. On reading the provisions Court held that there is no merit in the submission made by the learned counsel Section 59 itself provides for the manner of inquiry if conducted by the officer externing person from a particular area. Section 59 provides that the said officer can authorise any officer above the rank of an Inspector to issue in writing the general nature of material allegations to the extrenee and to accept his explanation and record and examine the witnesses tendered by him. This is a statutory provision permitting an authorization to an officer exercising the power of the extemment. Therefore, the authorization by the Deputy Commissioner of Police to the Assistant Commissioner of Police is not in any way affected or bad in law Court further accept the submission of the learned Additional Public Prosecutor that for the functions and duties to be performed under the provisions of the Act or under any other law for the time being in force, no general or special order is necessary. Such order is necessary when the functions and duties are assigned to the Assistant Commissioner of Police by the Commissioner of Police. That means the functions and duties, which are not assigned by the provisions of law but they are being assigned to the Assistant Commissioner of Police because of the order of the Commissioner of Police for such delegation of power the general or special order is necessary. However, as Court has already found that Section 59 itself is clear enough to delegate the power to any officer above the rank of an Inspector, the reference to Section 11 as pointed out by the learned counsel for the counsel for the petitioner, was needless. In the result, the submission made by the learned counsel for the purpose of the non-application of Section 10(2) and issuance of the notice under Section 56 by the Assistant Commissioner of Police and the act of recording the statement by the said Assistant Commissioner of Police relying on Section 11 are without any merit and, therefore, they are rejected.

       Section 56(1)(a)-Secret statements- The secret statements are required to be recorded by Police, because the witnesses are not coming forward and these secret complaints are not disclosed to the petitioner, as the petitioner attempted to obtain affidavits of a person who has given secret statement to police, shows that petitioner has tampered the witness, therefore, these affidavits stated in externment order, will not have any effect.- The learned counsel further submitted that the secret complaints are false once. He has produced on record the affidavit of one of the persons, whose statements was recorded by the Police, namely V to point out that his statement was recorded by misconception by the police and he was not knowing the contents by the police and he was not knowing the contents of the said statement and, therefore, submission was tried to be developed that some complaints recorded by the police are concocted ones Court does not agree with this submission. Firstly the secret statements are required to be recorded by the police, because the witnesses are not coming forward against the petitioner. However, the activities of the petitioner are a menace to the Society of the area of Ganga Jamuna and the near locality wherefrom he is extemed by the authority. The particulars of these secret complaints are not disclosed to the petitioner because as observed in the case of Ps, if such information is disclosed either in the notice or in the order, there will be a danger to the life and property of those persons, who were otherwise not ready to come for ward to depose against the petitioner.

       On the contrary, the attempt on the part of the petitioner to obtain an affidavit of a person who has given secret statement or complaint to the police with the background, which is stated in the notice, shows that the petitioner has tampered the said witness and obtained the affidavit from that person. Such affidavits in the facts and circumstances of the case stated in the externment order. Will not have any if effect on the mind of this Court. This affidavit has no value in order to assess to the correctness or otherwise of the order of extemment.

       Section 56(a)-Notice-Delay-When notice under Section 59 of Act was issued on 9.8.1996 and, thereafter, giving an opportunity to file explanation and to lead evidence by petitioner, the order passed on 16.10.1996 had proximity in it.- The notice under Section 59 of the said Act was issued on 9th August, 998 and, thereafter, giving an opportunity to the explanation and to lead evidence by the petitioner, the order has been passed on 16th October. There is proximity in the order. The learned counsel tried to submit that there is delay in passing the order. However, on perusal of the facts, it will be seen that there is no delay in passing the order. Therefore, the said challenge does not survive.