1. Externment order passed under Section 56 of the Maharashtra Police Act, 1951, based on criminal offences and confidential statements — Challenge to the order's validity. (Para 1 )
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2022 Supreme(SC) 51
SUPREME COURT OF INDIA
(From the High Court of Judicature at Bombay at Aurangabad)
AJAY RASTOGI, ABHAY S. OKA, JJ.
Deepak S/o Laxman Dongre - Appellant
Versus
The State of Maharashtra & Ors. - Respondents
Criminal Appeal No. 139 of 2022 [@ SLP(Crl.) No.9032 of 2021]
Decided on : 28-01-2022
Advocates appeared:
For the Petitioner(s): Mr. Sandeep Sudhakar Deshmukh, AOR
For the Respondent(s): Mr. Sachin Patil, AOR. Mr. Rahul Chitnis, Adv. Mr. Aaditya A. Pande, Adv. Mr. Geo Joseph, Adv. Ms. Shwetal Shepal, Adv.
For the Petitioner(s): Mr. Sandeep Sudhakar Deshmukh, AOR
For the Respondent(s): Mr. Sachin Patil, AOR. Mr. Rahul Chitnis, Adv. Mr. Aaditya A. Pande, Adv. Mr. Geo Joseph, Adv. Ms. Shwetal Shepal, Adv.
IMPORTANT POINT
Order of externment is an extraordinary measure – As in case of any other administrative order, judicial review is permissible on the grounds of mala fide, unreasonableness or arbitrariness.
Headnote:
Maharashtra Police Act, 1951 – Sections 56(1)(a)(b) and 56 – Constitution of India – Article 19(1)(d) – Externment order – Challenge as to – Section 56 makes serious inroads on personal liberty of a citizen guaranteed under Article 19(1)(d) of Constitution of India – Order of externment is an extraordinary measure – In a given case, such order may deprive the person of his livelihood – Considering nature of power under Section 56, competent authority is not expected to write a judgment containing elaborate reasons – However, competent authority must record its subjective satisfaction of existence of one of grounds in sub-section (1) of Section 56 on the basis of objective material placed before it – Though competent authority is not required to record reasons on par with a judicial order, when challenged, competent authority must be in a position to show application of mind – Court while testing order of externment cannot go into question of sufficiency of material based on which subjective satisfaction has been recorded – However, Court can always consider whether there existed any material on the basis of which a subjective satisfaction could have been recorded – Court can interfere when either there is no material or the relevant material has not been considered – Court cannot interfere because there is a possibility of another view being taken – As in case of any other administrative order, judicial review is permissible on the grounds of mala fide, unreasonableness or arbitrariness – Impugned order appears to have been passed casually in a cavalier manner – As order impugned takes away fundamental right under Article 19(1)(d) of Constitution of India, it must stand the test of reasonableness contemplated by clause (5) of Article 19 – Considering the bare facts on record, order shows non-application of mind and smacks of arbitrariness – It becomes vulnerable – Order cannot be sustained in law – Application of mind on part of competent authority is required for deciding duration of restraint order under Section 56 – If order of externment for maximum permissible period of two years is passed without recording subjective satisfaction regarding necessity of extending order of externment to maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under clause (d) of Article 19(1) of Constitution of India – Impugned order of externment as well as impugned Judgment and order of High Court, quashed and set aside. (Paras 6, 7, 10 to 15)
Facts of the case:
Respondent No.2 by his order dated 15th December 2020 exercised the powers under Section 56(1)(a)(b) of Maharashtra Police Act, 1951. By the said order, he was externed from District Jalna for a period of two years from the date on which he removes himself from District Jalna. Impugned order of externment was passed on the ground that the confidential statements of witnesses ‘A’ and ‘B’ disclose that witnesses are not willing to come forward to give evidence against appellant, the activities of appellant are very dangerous and the offences registered against the appellant under the Indian Penal Code are of grave and serious nature which are causing disturbance to the public at large. It was further observed by the respondent No.2 that the confidential statements of two witnesses demonstrate that the appellant is indulging in illegal activities which are causing alarm, danger or harm to the public at large.
Findings of Court:
Impugned order of externment dated 15th December 2020 shows that it does not disclose any application of mind on this aspect. It does not record the subjective satisfaction of respondent no.2 on the basis of material on record that the order of externment should be for the maximum period of two years.
Result : Appeal allowed.
Legal Category Hierarchy
- constitutional law
- administrative law
- crime and sentencing
- practice and procedure
Table of Contents
2. Challenge based on mala fides, stale offences, lack of witness apprehension, and absence of reasons for imposing the maximum externment period versus the authority's subjective satisfaction. (Para 2 , 3 )
3. Externment is an extraordinary measure infringing Article 19(1)(d); it requires objective material, application of mind, and specific justification for the duration of the restraint. (Para 4 , 5 , 6 , 7 , 10 , 11 , 13 , 14 )
4. Orders of externment must be based on objective material and recorded subjective satisfaction, particularly regarding witness apprehension and the necessity of the maximum restraint period. (Para 7 , 13 )
5. Appeal allowed — Order of externment and the High Court judgment quashed and set aside. (Para 15 , 16 )
6. What is the legal nature of an order of externment under the Maharashtra Police Act, 1951?
It is an extraordinary measure that infringes the fundamental right to free movement under Article 19(1)(d) of the Constitution. Consequently, it must be used sparingly, strictly comply with statutory requirements, and stand the test of reasonableness. (Para 4 , 6 , 7 )
7. What are the essential requirements for passing an externment order under Section 56(1)(b) of the Maharashtra Police Act, 1951?
The authority must have objective material to believe the person is engaged in offences involving force, violence, or specific IPC chapters, and must record subjective satisfaction that witnesses are unwilling to testify due to apprehension for their safety or property. (Para 5 , 7 )
8. What is the standard of judicial review for an administrative order of externment?
While the court does not evaluate the sufficiency of material, it examines whether any material existed for subjective satisfaction and whether the order is mala fide, unreasonable, or arbitrary, ensuring the authority demonstrated an application of mind. (Para 10 )
9. Is the competent authority required to provide reasons when imposing the maximum period of externment under Section 58?
Yes. When imposing the maximum permissible period of two years, the order must disclose an application of mind and record subjective satisfaction based on objective material regarding the necessity of the maximum duration. (Para 13 )
JUDGMENT :
ABHAY S. OKA, J.
Leave granted.
1. The respondent No.2 by his order dated 15th December 2020 exercised the powers under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 (for short “1951 Act”). By the said order, the appellant, who is a resident of Mandeolgaon, Taluka Badnapur, District Jalna was directed to remove himself outside the limits of District Jalna within 5 days. By the said order, he was externed from District Jalna for a period of two years from the date on which he removes himself from District Jalna. In the impugned order of externment, the respondent No.2 relied upon 5 offences registered against the appellant, the details of which are as under:-
| S.No. | Police Station | Crime Register No. | Section | Status |
| 1. | Taluka Jalna | 367/2013 | 452, 324, 504 and 34 of IPC | Acquitted |
| 2. | Kadim Jalna | 247/2018 | 354, 354(a), 323, 504, 506, 509, 34 of IPC | Pending in the court of law |
| 3. | Chandanzira | 378/2018 | 307, 325, 323, 341, 201, 120(8), 405, 506, 507, 37 of IPC | Pending in the court of law |
| 4. | Badnapur | 15/2020 | 354, 354(a), 354(d), 509, 506 of IPC | Pending in the court of law |
| 5. | Badnapur | 215/2020 | 509, 501, 506 with 67, 67(a) of IT Act | Under Investigation |
In addition, the respondent No.2 relied upon confidential in-camera statements of witnesses ‘A’ and ‘B’. A statutory appeal was preferred by the appellant against the impugned order of externment dated 15th December 2020. The appeal was dismissed by the Appellate Authority. The appellant questioned the impugned order of externment by filing a writ petition under Article 226 of the Constitution of India before the Bombay High Court. A Division Bench of the Bombay High Court by the impugned Judgment and order dated 20th August 2021 dismissed the writ petition. The impugned order of externment was passed on the ground that the confidential statements of witnesses ‘A’ and ‘B’ disclose that witnesses are not willing to come forward to give evidence against the appellant, the activities of the appellant are very dangerous and the offences registered against the appellant under the Indian Penal Code (for short “IPC”) are of grave and serious nature which are causing disturbance to the public at large. It was further observed by the respondent No.2 that the confidential statements of two witnesses demonstrate that the appellant is indulging in illegal activities which are causing alarm, danger or harm to the public at large.
2. Shri Sandeep Sudhakar Deshmukh, the learned counsel appearing for the appellant has taken us through the impugned order of externment as well as the impugned Judgment and order of the Bombay High Court. His submission is that the act of passing the impugned order of externment was a mala fide act at the instance of Shri Narayan Kuche, a local Member of the Legislative Assembly (MLA) with the object of settling family disputes. It is pointed out by the learned counsel that the said MLA is a maternal uncle of the appellant. It is pointed out by the learned counsel that the said MLA tried to implicate the appellant in a false case (Crime No.15 of 2020) filed at his instance by one Varsha Bankar with Badnapur police station in Jalna District.
He submitted that the said Varsha Bankar admitted in her police statement that the brother of the said MLA advised her to make phone calls and send messages and photographs to the appellant. He submitted that after a First Information Report was registered against the said MLA, his brother and the said Varsha Bankar, on the basis of the appellant’s complaint, a show-cause notice dated 7th July 2020 was issued by the respondent No.2 to the appellant calling upon him to show cause why an order of externment under Section 56 of 1951 Act should not be passed. The learned counsel pointed out that the in-camera statements of witnesses ‘A’ and ‘B’ are general in nature which do not refer to any specific allegation against the appell
