Subhash Jethu Patil vs State of Maharashtra and Deputy Commissioner of Police, Division-2, Panvel

Khanwilkar, J.—Heard Counsel for the parties. This petition takes exception to the externment order passed by the Appropriate Authority which has been confirmed by the Appellate Authority, in exercise of powers u/s 56(1)(a) and (b) of the Bombay Police Act, 1951.

Several grounds have been urged in this petition. However, it is not necessary to traverse through all those grounds, as, in our opinion, the first ground urged before us goes to the root of the matter. According to the petitioner, the impugned externment order passed by the Appropriate Authority and as confirmed by the Appellate Authority does not record subjective satisfaction of the fact that witnesses were not willing to come forward to depose against the petitioner out of fear, which is one of the cardinal requirement to invoke Section 56 of the Act. This position is no more res integra. The Apex Court in the case of Pandharinath Shridhar Rangnekar Vs. Dy. Commr. of Police, The State of Maharashtra, has observed that an order of externment can be passed under clause (a) or (b) of Section 56 if, and only if, the authority concerned is satisfied that witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety of their person and property. This subjective satisfaction is conspicuously absent in the order passed by the Externing Authority as also by the Appellate Authority.

Learned A.P.P. was at pains to persuade us to take the view that the externment order was passed in continuation of the show-cause notice which does mention the said fact. We are not impressed by this argument at all. The fact so noted in the show-cause notice cannot be the basis to assume that the Appropriate Authority was subjectively satisfied about existence of that fact. That subjective satisfaction must be reflected in the order of Externing Authority. In absence of recording of that subjective satisfaction, the Externing Authority would not acquire jurisdiction to invoke Section 56 of the Act at all. That being a jurisdictional fact, non-mention thereof is fatal. In such a case, the finding that externment order is vitiated, is inevitable. Accordingly, we have no hesitation in quashing and setting side the impugned externment order as also the decision of the Appellate Authority dated 10th December, 2010 and 20th April, 2011 respectively. Rule is made absolute accordingly.