2019 Supreme(Bom) 292

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
P.N. DESHMUKH, SUNIL B SHUKRE AND Z.A. HAQ, JJ.
SUMIT - Appellant
Versus
DEPUTY COMMISSIONER OF POLICE, ZONE1, NAGPUR - Respondent
Criminal Writ Petition No. 1002 of 2017, 1006 of 2017, 1249 of 2017
Decided on : 08-02-2019

Headnote:

Maharashtra Police Act - Section 56(1)(a)and(b) - Bombay Police Act - Section 27 - Jurisdiction of officer - Restrain upon fundamental right - Whether or not details of material allegations need be furnished to person proposed to be extended - Whether such an order needs to show the existence of material that a larger or additional area so chosen or selected is intimately connected with actual area of activities of externee due to improved or common means of transport and communication system that the facts or the material warranting externment from a larger or additional area or neighboring area exist and that externing authority has applied its mind to factors while passing an order of externment - Whether it is necessary to state in show cause notice the details of in-camera statements recorded by externing authority to reach to satisfaction that witnesses are not coming forward to give evidence or depose in public against proposed externee due to fear of alarm danger or harm to their person or property - Petitioners have been externed by respondent No.1 Deputy Commissioner of Police from the area of Nagpur city for different periods subject to maximum of two years - Power invoked by respondent No.1 is under Section 56(1)(a)and(b) of Maharashtra Police Act - Clause (a) of Section 56(1) requires that movements or activities of a person are causing alarm, danger or harm to the person and property - Clause (b) of Section comes into play if the authority empowered under the Act 1951 acting reasonably believes that such person is engaged or is about to be engaged in commission of offences enumerated in this clause and is also of the opinion that the witnesses for fear of reprisal are unwilling to give evidence in public against such person - During course of hearing of the petition before Division Bench it was argued that the impugned order was illegal, irrational and arbitrary it being excessive, showing no application of mind and little respect for principle of audi altaram partem - Division Bench bearing in its mind the object of this provision of law crystallized over the years as a result of landmark decisions of Honble Supreme Court reported held that though the decision or action of externment can always be challenged on ground that it is vitiated by arbitrariness or unfairness or illegality or irrationality all together converging into famous principle there are well defined limits to power of judicial review that a writ Court can exercise over such an order passed as a part of administrative functions of authority – Held, Court must therefore reject the argument that particulars contained in the notice are vague - Court endorse view of High Court that Criminal Application in which judgment was delivered on April by another Division Bench of that court was not correctly decided to extent to which the notice therein was held to be vague - View taken in that case is inconsistent with the view expressed by this court - Illustrations appearing in the above-referred observations in court view should serve sufficient guidance for all about the manner in which the show-cause notice must be given by extending authority and as to how it be scrutinized by the court in its exercise of power of judicial review of administrative action or statutory discretion - That would clear up our mind as to how much show-cause notice speak and what it must avoid speaking on - Only duty cast upon extending authority is to inform proposed externee of general nature of material allegations against him and sphere of corresponding right of proposed externee to know court must say is limited by object of externment proceedings - Object is to bring certain kind of bad elements to book who by their criminal activities make it impossible or difficult for the criminal justice system to deal with sternly - In their cases legal evidence hardly comes forth because witnesses are hesitant to depose in public out of fear to their person or property - This is the reason why the corresponding right of proposed externee has been reduced to minimum possible in law and that is what lends sufficiency to show-cause notice under Section 59(1) of the Act, 1951 - It has been held that as the show-cause notice as well as the impugned judgments do not make any reference regarding recording of in-camera statements of witnesses impugned orders passed by externing authority and also the orders passed by appellate authority cannot be held to be legally sustainable - This view with due respect court would say does not lay down the correct exposition of law - Principles of law settled by Honble Apex Court and discussed earlier and also the provisions of Section 59 (1) would all show that what is required to be stated in show-cause notice is only the general nature of material allegations and nothing more - They do not show that the show-cause notice must refer to fact of recording of in-camera statements of persons rather they indicate that it would be a sufficient compliance with requirement of law if show-cause notice states in general terms material allegations made against proposed externee - If show-cause notice makes a disclosure in general terms of material allegations and does not specifically mention the fact of recording of in-camera statements court must say it is an enough compliance with the requirement of law – Thus view expressed in Ravi and reproduced earlier is overruled - In a given case however it may be added that at most in order to satisfy itself as to whether or not the general statements of material allegations made in the notice are based upon some material or not High Court may insist upon production of record including statements of witnesses recorded in-camera - In such an eventuality High Court would examine record and make its conclusion about existence or otherwise of material on record and stop the inquiry - Reason being that there is a bar upon power of High Court to also consider sufficiency or otherwise of the material on record which is behind action of issuance of show-cause notice – Order accordingly