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High Court of Judicature at Bombay
A.S. OKA & A.P. BHANGALE
Hanuman Rajaram Mhatre
Versus
The State of Maharashtra
Cri. Writ Petition No. 3858 of 2012
Decided on : 15-01-2013
In absence of any evidence on record to show that petitioner, being on bail in respect of all pending criminal trials, is likely to indulge in commission of similar offences posing danger to law and order in areas concerned, order of externment cannot be sustained.
BOMBAY POLICE ACT, 1951 - Section 56(1)(a)(b) - Order of externment.
Order of externment can be passed when larger public interest so demands and also when there is compelling necessity to extern subject-notice from areas concerned. - To pass externment order under Section 56(1)(a)(b), the Police Commissioner or the District Magistrate, as the case may be, must be satisfied that :
(i) Firstly, that the acts of the person are causing or calculated to cause wilful danger or harm to the person or property or that there are reasonable grounds that he is engaged or about to be engaged in the commission of an offence under Chapters XVI and XVII IPC.
(ii) Secondly, in the opinion of the officer, witnesses are not willing to come forward to give evidence and unless such an opinion is formed by the officer, he cannot pass the order for externment of the person.
A drastic step of externment to be used very sparingly only when larger public interest so demands and is to be rarely taken as the provisions makes serious inroads in to personal liberty and therefore are to be strictly complied with. The order of externment must indicate that it is exceptional measure required to be adopted by the competent authority concerned only when the movements or acts of notice person are causing or calculated to cause alarm, danger or harm to person or property and it is really essential to extern the notice from certain areas after he has failed to show cause as to why he should not be externed as preventive measure. The right to personal liberty guaranteed under the Article 21 of the constitution of India is sacrosanct and there must be compelling necessity to extern the subject-notice in such case from the areas concerned.
The externment may have adverse effect to cause loss of livelihood or economic death of the notice who is externed. Furthermore the subject-notice in the externment proceeding have no opportunity to cross-examine witnesses like a full fledged criminal trial because of need to maintain secrecy of identity of witnesses who otherwise due to fear, may not come forward to give statement against the proposed externee but the subject-notice in the externment proceedings is entitled to the observance of the principles of natural justice on the part of decision making authority and ought to be given reasonable opportunity to answer or defend himself qua the allegations made against him. The notice cannot be awarded a surprise in the form of externment order based upon the undisclosed, extraneous and additional material other than that which was indicated in the show-cause notice. If in given case witnesses are not coming forward due to fear to give their deposition against the proposed externee and statements of such witnesses have to be recorded in camera, then statements of such witnesses without disclosure of identity of such witnesses by deleting the portion in the statement tending to disclose their identity, may be furnished to proposed externee for the purpose to enable him answer or meet the nature of allegations/accusations levelled against him. In defence the proposed externee may give his written statement and/or examine witness or witnesses and produce documentary evidence if any to oppose externment order as proposed. The externment order if passed thereafter must also indicate the application of mind to the material made available to the authority concerned that is empowered to pass the externment order.
(A.P. Bhangale, J.)
1. Rule. Rule made returnable forthwith. Taken up for hearing by consent and Heard.
2. The petitioner has sought to invoke writ jurisdiction of this court praying for quashing and to set aside the show cause notice dated 04012012, the order of externment dated 10042012 and the order externing the Petitioner issued on behalf of the Respondent state to the petitioner whereby the Petitioner was directed to be externed from the Mumbai Suburbs, New Mumbai and Thane, Raigarh Districts for the period of two years. The Deputy Commissioner of Police passed the order of externment on the ground that due to the illegal acts of the petitioner, alarm or danger has been created in the mind of the people in respect of safety of person or property in view of the offences committed by him under the provisions of Chapters 16 and 17 of the Indian Penal Code.
3. The show cause notice was issued to the Petitioner on 04-01-2012 under section 59 of the Bombay police Act, calling upon the Petitioner to attend on 12-01-2012 at 11 a.m. the Petitioner had examined himself and one witness in support of his defence. Externment order was passed on 10042012. Which was challenged in appeal before Secretary, Home Department Government of Maharashtra .The Appeal was rejected on 15th October 2012 .It is case of the Petitioner that he is law abiding Citizen, resident of Dombivali (west) District Thane. Assistant commissioner of police of Thane had submitted report under Section 56 (1) (a) (b) of the Bombay Police Act, 1951 and alleged that the acts of the Petitioner in the area and surrounding area were likely to cause danger, harm and terror, detrimental to the lives of people there creating law and order situation, as the Petitioner is likely to indulge in commission of criminal offences. It is further alleged that the shop keepers and hawkers in the surrounding areas are terrorized due to threats from the Petitioner making their lives miserable. To prevent violence and to maintain law and order it was proposed to extern the Petitioner from the Districts of Mumbai suburb, Thane, Navi Mumbai and Raigarh for the period of two years. Upon these allegations show cause notice dated 15122011 was issued to the Petitioner by Assistant Commissioner of Police, Dombivali Division pursuant to the delegated authority from Deputy Commissioner of police, Zone III, Kalyan. The Petitioner was called upon to submit explanation and attend his office for inquiry on 12112011 at 11 a.m.and furnish P.R. Bond in the sum of Rs 5000/or a surety bond in the like amount or else the inquiry would proceed exparte if the Petitioner remain absent at the inquiry.
Criminal cases were listed in tabular form as under: Status as
Status as
Sr.No. Police Station. C.R.No. Offences alleged. per Show-cause Actual Status
notice
1. Dombivli I-433/88 147, 148, 149, 336, 426 of IPC. Pending Acquitted
2. Dombivli I-313/88 344, 347, 340, 323, 506, 502 of IPC. Pending Acquitted
147, 148, 149, 307
3. Dombivli I-192/88 of IPC & 25(1)(a) of Arms Act. Pending Acquitted
4. Hill Line Ulhasnagar I-30/89 147, 148, 149, 302 of IPC & 25(1)(a) of Pending Record not available
Arms Act.
5. Manpada I-103/92 147, 152, 323, 504, 506 of IPC. Pending Acquitted
6. VishunuNagar 21/91 323, 504, 506(2) Pending Record not available
7. VishunuNagar 25/92 384 R/w. 34 IPC Pending Record not available
8. VishunuNagar 22/94 37(1), 135 of Bombay Police Act. Pending Record not available
9. VishunuNagar 18/95 385 R/w. 34 IPC Pending Acquitted
10. VishunuNagar 3/2009 379, 34 IPC & 15 of Environment Act. Pending Pending
11. VishunuNagar 80/2010 379, 34 IPC & 15 of Environment Act. Pending Pending
12. VishunuNagar 111/2011 379, 34 IPC & 15 of Environment Act. Pending Pending
13 VishunuNagar 776/2010 NC U/sec.232, 504 & 506 Pending Pending
-Preventive action
1. VishunuNagar 1/2009 110 (d) & (g) Personal Bon
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