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Judgment
The challenge in this petition is to the order
dated 9-6-2017 passed by the respondent No.1-Deputy
Commissioner of Police, Zone-1, Nagpur City, Nagpur, externing
the petitioner from the area of Nagpur City for a period of two
years in exercise of her power under Section 56(1)(a) and (b) of
the Bombay Police Act, 1951 on the grounds - (i) that the
movements or the activities of the petitioner are causing alarm,
danger or harm to the person and property of the residents in the
locality under Pratapnagar Police Station, (ii) that there are
reasonable grounds for believing that the petitioner is engaged in
the commission of an offence involving force or violence or an
offence punishable under Chapter XVI of the Indian Penal Code
(" IPC "), and (iii) that in the opinion of the externing authority, the
witnesses are not willing to come forward to give evidence in
public against the petitioner by reason of apprehension on their
part as regards the safety of their person or property. The order
makes a reference to five cases registered against the petitioner at
Pratapnagar Police Station in respect of the offences covered by
Chapters VIII, XVI and XVII of IPC .
The grounds of challenges to the order impugned, as are
urged by Shri Vyas, the learned counsel appearing for the
petitioner, are - (i) that the activities or the offences alleged against
the petitioner are confined or restricted to the local limits of the
jurisdiction of Pratapnagar Police Station and the order to the
extent of externing the petitioner from the entire city of Nagpur is
excessive and without jurisdiction, and (ii) that the in-camera
statements said to have been recorded and referred to in the show
cause notice as well as in the order impugned fail to give the details
of such statements, including the names of the witnesses, the dates
of incidents, the contents of such statements, the copies thereof,
etc., and as such there is a failure to provide the petitioner an
opportunity to make an effective representation.
Shri Vyas for the petitioners relies upon the decisions of
the Division Bench of this Court in the cases of Pappu @ Akhilesh
Shivshankar Mishra v. The State of Maharashtra & Anr ., reported in
2017 ALL MR (Cri) 1, and Ravi s/o Raju Bhalerao v. The State of
Maharashtra & Ors., reported in 2017 ALL MR (Cri) 4646, for the
proposition that there is no evidence on record to suggest that a
larger or additional area covered by an order of externment is
intimately connected to the area of Pratapnagar Police Station due
to improved or common means of transport and communication
system and that there exists no material to justify the externment
beyond the local limits of Pratapnagar Police Station. He also relies
upon the Division Bench decisions of this Court in the cases of -
(1) Sanjay s/ o Balasaheb Ruptakke v. The State of Maharashtra &
Ors ., reported in 2017 ALL MR (Cri) 3983, and (2) Sayyed Jafar
Sayyed Nasir v. The Divisional Commissioner, Amravati, reported in
2017 ALL MR (Cri) 4303, and also the decision of the another
Division Bench in the case of Pankaj Prakash Shimpi v. The Deputy
Commissioner of Police, Zone-II, Nashik City, & Ors., delivered in
Criminal Writ Petition No.2742 of 2016 at the Principal Seat of this
Court at Mumbai, to urge that mere passing reference to the
in-camera statements is not enough, but the details are required to
be furnished in the show cause notice as to what was stated by the
witnesses, the gist of their version, and the allegations made
against the petitioner.
Shri Pathan, the learned Additional Public Prosecutor
appearing for the respondents, has relied upon the decisions of the
Apex Court in the cases of - (1) Gurbachan Singh v. State of
Bombay and another, reported in AIR 1952 SC 221; (2) Bhagubhai
Dullabhbhai Bhandari v. District Magistrate, Thana and others,
reported in AIR 1956 SC 585; (3) Pandharinath Shridhar Rangnekar
v. Dy. Commr. of Police, the State of Maharashtra, reported in
(1973) 1 SCC 372 ; (4) State of Maharashtra and another v. Salem
Hasan Khan, reported in (1989) 2 SCC 316; and (5) State of NCT of
Delhi and another v. Sanjeev alias Bittoo, reported in (2005) 5 SCC
He has also invited our attention to the amendment effected
in Section 56 of the Bombay Police Act, 1951 in the year 1981,
conferring jurisdiction upon the externing authority to pass an
order of externment beyond the local limits of its jurisdiction.
According to him, the decision of the Apex Court in
Pandharinath Rangnekar''s case, cited supra, was rendered on
unamended provision of Section 56 of the Bombay Police Act, and
though the Division Bench of this Court in Pappu @ Akhilesh
Mishra''s case, cited supra, referred to the amended portion of the
said provision, it failed to consider the overriding effect given to the
amended provision, which commences from a non obstante clause
of "notwithstanding anything contained in this Act or any other law
for the time being in force". He submits that sufficient details of
in-camera statements are given in the show cause notice and the
order impugned, and there is no failure to provide an effective
opportunity to make a representation against the proposed
externment, to the petitioner.
From the rival submissions of the parties, the following
questions are posed for our consideration :
(1) If from the material produced before this Court it is
shown that the activities of an externee are confined or
restricted to the local limits of the jurisdiction of a Police
Station in a district, whether the externing authority can
choose or select a larger or additional area beyond the
local limits of its jurisdiction, whether contiguous to it or
not, to pass an order under Section 56 of the Bombay
Police Act?
(2) If yes, whether such an order needs to show the
existence of material - (a) that a larger or additional area
so chosen or selected is intimately connected with the
actual area of the activities of the externee due to
improved or common means of transport and
communication system, (b) that the facts or the material
warranting externment from a larger or additional area or
neighbouring area exist, and (c) that the externing
authority has applied its mind to the factors (a) and (b)
while passing an order of externment?
(3) Whether it is necessary to state in the show cause
notice the details of in-camera statements recorded by the
externing authority to reach to the satisfaction that the
witnesses are not coming forward to give evidence or
depose in public against the proposed externee due to fear
of alarm, danger or harm to their person or property?
In order to consider the aforesaid questions, the provision
of Section 56 contained in the Bombay Police Act (now
Maharashtra Police Act), 1951 needs to be seen. Prior to 1981, the
provision of Section 56 of the said Act was as under :
Removal of "56. Whenever it shall appear in Greater Bombay and persons about other areas for which a Commissioner has been appointed to commit offence under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate specially empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer
witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts, or any part thereof, contiguous thereto by such route and within such time as the said officer may prescribe and not to enter or return to the said area or the area and such contiguous districts, or part thereof, as the case may be, from which he was directed to remove himself."
We are not concerned with some parts of this provision
and we shall, therefore, be referring to only that portion of this
provision, which is relevant to decide the controversy in this case.
Perusal of the aforesaid provision shows that
sub-section (1) of Section 56 empowers the State Government to
extend the provision of Section 56 to the area or areas by issuing
the notification in the Official Gazette and specifically empowering
the District Magistrate or Sub-Divisional Magistrate to pass an order
in writing, directing any person to remove himself outside the area
within the local limits of his jurisdiction or such area and any
district or districts, or any part thereof, contiguous thereto and not
to enter or return to such area and contiguous districts, or part
thereof, as the case may be, from which he was directed to remove
himself.
On the basis of the material available with the externing
officer, the provision of Section 56 of the Bombay Police Act
contemplates recording of subjective satisfaction - (a) that the
movements or acts of any person are causing or calculated to cause
alarm, danger or harm to person or property, or (b) that there are
reasonable grounds for believing that such person is engaged or is
about to be engaged in the commission of an offence involving
force or violence or an offence punishable under Chapter XII, XVI
or XVII of IPC, or in the abetment of any such offence, and when in
the opinion of the said officer, the witnesses are not willing to come
forward to give evidence in public against such person by reason of
apprehension on their part as regards the safety of their person or
property, he may direct such person to conduct himself as shall
seem necessary in order to prevent violence and alarm. The
externing officer is required to pass an order in writing, which is to
be duly served upon the externee or by beat of drum or otherwise,
as he deems fit.
Section 59 of the Maharashtra Police Act deals with
hearing to be given before order under sections 55, 56, 57 or 57A is
passed, and the provision of sub-section (1) therein being relevant,
is reproduced below :
"59. Hearing to be given before order under sections 55, 56, 57 or 57A is passed
(1) Before an order under section 55, 56, 57 or 57A is passed against any person the officer acting under any of the said sections or any officer above the rank of an Inspector authorised by that officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application for the examination of any witnesses produced by him, the authority or officer concerned shall grant such application; and examine such witness, unless for the reasons to be recorded in writing, the authority or officer is of opinion that such application is made for the purpose of vexation or delay. Any written-statement put in by such person shall be filed with the record of the case. Such person shall be entitled to appear before the officer proceeding under this section by an advocate or attorney for the purpose of tendering his explanation and examining the witness produced by him.
So far as an order under Section 56 of the said Act is
concerned, the provision of Section 59 therein requires an
information as to the general nature of the material allegations in
writing to the person against whom such order is proposed to be
passed, so as to provide him a reasonable opportunity of tendering
an explanation regarding them.
Section 60 of the Maharashtra Police Act provides for a
right of appeal against an order passed under Section 56, and
Section 61 of the said Act attaches finality to the order passed by
the State Government in certain cases, and it runs as under :
"61. Finality of order passed by State Government in certain cases Any order passed under section 55, 56, 57 or 57A or by the State Government under section 60 shall not be called in question in any Court except on the ground that the authority making the order or any officer authorised by it had not followed the procedure laid down in sub-section (1) of section 59 or that there was no material before the authority concerned upon which it could have based its order or on the ground that the said authority was not of opinion that witnesses were unwilling to come forward to give evidence in public against the person in respect of whom an order was made under section 56."
The grounds of challenges to the order passed under
Section 56 are restricted under Section 61 . The order of
externment can be challenged only on the ground - (a) that the
authority making the order or any person authorized by it had not
followed the procedure laid down in sub-section (1) of Section 59,
or (b) that there was no material before the authority concerned
upon which it could have based its order, or (c) on the ground that
the said authority was not of the opinion that the witnesses were
unwilling to come forward to give evidence in public against the
person in respect of whom an order was made under Section 56 of
the Maharashtra Police Act.
A leading decision of the Apex Court on the provisions of
Sections 56, 58 and 59 of the Bombay Police Act is in the case of
Pandharinath Rangnekar, cited supra, which takes into
consideration its earlier decisions and also confirms the view taken
by the Bombay High Court in several decisions which are
considered. It was a case where the activities of the externee were
undoubtedly restricted to certain localities within the jurisdiction of
the Vile Parle Police Station, but the order of externment directed
the externee to remove himself from the limits of the districts of
Greater Bombay and Thana for a period of two years. The High
Court dismissed the writ petition under Articles 226 and 227 of the
Constitution of India and the Apex Court confirmed the dismissal.
In the light of the aforestated factual position, the Apex
Court considers the challenge of imposing unreasonable restrictions
in the order of externment. In para 15 of the said decision, the
Apex Court has held as under :
"15. As regards the last point, it is primarily for the externing authority to decide how best the externment order can be made effective, so as to subserve its real purpose. How long, within the statutory limit of two years fixed by Section 58, the order shall operate and to what territories, within the statutory limitations of Section 56 it should extend, are matter which must depend for their decision on the nature of the data which the authority is able to collect in the externment proceedings. There are cases and cases and therefore no general formulation can be made that the order of externment must always be restricted to the area to which the illegal activities of the externee extend. A larger area may conceivably have to be comprised within the externment order so as to isolate the externee from his moorings."
It is primarily for the externing authority to decide -
(a) how best the order of externment can be made effective so as to
subserve its real purpose, (b) what should be the period of
externment within the statutory limit of two years, and (c) to what
territories it should extend, depending upon the illegal activities of
an externee and no general formulation can be made that the order
of externment must always be restricted to the area to which the
illegal activities of the externee extends. A larger area may have to
be comprised within the externment order so as to isolate the
externee from his moorings. The area to which the order should
extend, would depend upon the nature of data which the authority
is able to collect.
In para 17, the Apex Court considers the decision of the
Bombay High Court in Balu Shivling Dombe v. The Divisional
Magistrate, Pandharpur, reported in 71 Bombay L.R. 79, as under :
"17. But Balu Shivling''s case (supra), furnishes no analogy in the instant matter. A vast city like Bombay presents its own peculiar problems of law and order. It has an over-growing industrial complex and the city has spread its arms far and wide. A fair proportion of its teeming population is mobile, with large multitudes streaming in and out of the city in the pursuit of their daily avocations. An order of externment restricted to the particular area chosen by the externee for his unlawful activities and to a small periphery thereof would in such circumstances fail of its true purpose. It would be impossible to secure obedience to such an order and its enforcement would raise practical problems which would impair the efficacy of the order. An order in the instant case if restricted, say, to the areas within the jurisdiction of the Vile Parle Police Station and its periphery would not serve its purpose. Rather than solving a problem of law and order, it would create yet one more."
In a given case, it may be impossible to secure obedience
to such order restrictive to the area of the activities of externee and
its enforcement may raise practical problems, which would impair
the efficacy of the order and would not serve the purpose. Rather
than solving a problem of law and order, it may create another.
In para 18, the Apex Court takes into consideration the
decision of the Division Bench of the Bombay High Court, and the
following portion is quoted with approval :
"18. ...
"In the present case the area of activity of the externee was undoubtedly stated to be Santacruz, but Santacruz is a fairly wide area. Moreover, it is very intimately connected with the surrounding area of Thana district. It is common knowledge that Thana town in the surrounding area is also an area where large industries have grown contiguous with the industrial area of Greater Bombay and that the entire industrial area is connected together by several means of communication including suburban trains of which there are several during each day, by taxis plying to and from Greater Bombay and by bus services operating between Greater Bombay and several parts of Thana District. Therefore, the Police could reasonably have thought that it would not be sufficient to ask the petitioner to keep off only from the area of Greater Bombay which has an equally busy and highly industrialised area contiguous to it. Therefore, the order was extended to Thana District."
The Apex Court proceeds on common knowledge
regarding contiguous nature of the additional or larger area to the
area of the activities of the externee. It considers in para 18 above
the facts in the case before it to appreciate the purpose of extended
order.
In para 20, the Apex Court considers the decisions
delivered by the different Judges of the Bombay High court as
under :
"20. These judgments of the Bombay High Court have taken the view that the districts of Greater Bombay and Thana form, so to say, a single unit. Palekar, J. observes in his judgment in Criminal Applications Nos.30 and 93 of 1970 : "It may be that the area of operation may be in a particular locality, but if the externment is limited only to that area, then it might be impossible to prevent the externee from visiting that area every day. Any part in Bombay is easily connected by transport with any other part of Greater Bombay and also the Thana District, and if, for example, an externee is externed outside the limits of Greater Bombay, then he should not take more than 15 minutes to reach Kurla from a place like Thana if the latter is excluded from externment. The very object of externment is to make it as difficult as possible to the externee to return to the field of his activities." Tulzapurkar, J., expressed the same view by saying that "the contiguous area of Thana
District is intimately connected with the industrial area of Greater Bombay with cheaper and quicker means of transport and communication." According to Bhasme, J., who delivered the judgment of the Bench in Criminal Application No.149 of 1972, "By reason of the means of communication and proximity, the districts of Greater Bombay and Thana are for all practical purposes one local area or one district." Deshmukh, J. in the judgment under appeal, says that "Greater Bombay and Thana District are ....... intimately connected by several communications". In matters of local colour and conditions the view so consistently expressed by the learned Judges of the High Court must, in our opinion, be accepted as correct."
In the aforesaid para also, the facts giving rise to passing
of an order of externment beyond the local limits of jurisdiction of
the externing authority are considered on the basis of common
knowledge of the Judges of the High Court, which the Apex Court
accepted as correct.
In the light of the decision of the Apex Court in
Pandharinath Rangnekar''s case, we answer the first question of law.
We hold that if from the material produced before the Court it is
shown that the activities of an externee are confined or restricted to
the local limits of the jurisdiction of a Police Station in a district, it
is open for the externing authority to choose or select a larger or
additional area beyond its jurisdiction to pass an order under
Section 56 of the Bombay Police Act, as it stood on the date of the
said judgment, if the area so chosen or selected is contiguous to the
area of its jurisdiction. In this respect, we do not find any view
contrary to this, taken by this Court.
Now we turn to the second question as to the existence of
material to show that the larger or additional area chosen or
selected for externment is contiguous and intimately connected
with the actual area of the illegal activities of the externee. In the
decision in Pandharinath Rangnekar''s case, the Apex Court has
relied and believed the common knowledge of the Judges about the
contiguousness or otherwise of the larger or additional area chosen
or selected with the actual area of illegal activities of the externee
and there was no insistence on the existence or production of
material to justify its extension to the additional area in the order of
externment. On the contrary, the Apex Court holds that it is for the
externing authority to decide to what territories the order should
extend and it will depend upon the nature of data which the
authority is able to collect.
We now turn to the decision of the Division Bench of this
Court in the case of Pappu @ Akhilesh Mishra, relied upon by
Shri Vyas for the petitioner. It was a case where the activities of the
externees were restricted to the local limits of a particular Police
Station in a district, but the externees were directed to remove
themselves from the entire city as well rural areas, and in some
cases from the other districts also. The Division Bench considered
several reported decisions rendered by this Court. It also
considered a leading decision of the Apex Court in Pandharinath
Rangnekar''s case, cited supra. The relevant portion of consideration
is contained in paras 26, 27 and 28, which is reproduced below :
"26. It appears that before amendment to Section 56[1] by Act No.8/1981, externment was possible from local limits of jurisdiction of respective authority and contiguous area. Statement of object and reasons/SOR of Amendment Act reveals that there was improvement in transport facilities and means of communications which consequently reduced efficacy of the provisions. By said amendment, the Authority is now empowered to order externment from areas falling not only within the local limits of its jurisdiction, but, also from other areas, even if such areas are not contiguous to its jurisdictional area. There is no challenge to this provision. The amendment therefore gives teeth to the Authority ordering externment and may effectively check return of the externed persons to the area of his influence. Thus, facts & factors looked into by the Authority for reaching subjective satisfaction as envisaged under Section 56[1] must be capable of supporting the need of ordering externment beyond the area of jurisdiction of such authority. If larger area is being selected, need thereof must also be evaluated by that authority, and such an evaluation which constitutes the "application of mind", has to surface in the impugned order. Externment is a measure which operates against the fundamental right and therefore, order of externment must be a reasonable order. It has to demonstrate that externment has been ordered only from the area which is necessary to give effect to it and not from unnecessarily
larger area. Precedents looked into by us show that this application of mind, qua the extent of area also constitutes one of the essential ingredients of a test used to uphold the provisions of externment as a reasonable restriction on fundamental right of the externee. Various precedents looked into by us show that where order of externment is found not to contain any material for ordering externment from a larger area, the same have been quashed and set aside."
"27. The Hon''ble Supreme Court in the case of Pandharinath (supra), has found that the local colour and condition consistently noted by the learned Judges of High Court need to be accepted as correct. In present matters, no judicial pronouncements holding any City areas/urban area and rural areas with which we are concerned, to be intimately connected with each other, has been pressed into service before us. Where more districts than one are involved, no view taken by any Court that said areas are intimately connected due to improved or common means of transport, is pointed out. Impugned order also does not show that these cities/urban and rural areas are intimately connected or otherwise. The material in the chart reproduced above, does not show any consistent approach in this respect. The authority ordering externment has no where mentioned local limits of its jurisdiction. There is
nothing on record to show that it was alive to the fact that it was ordering externment from adjacent/contiguous areas not ordinarily falling in its jurisdiction. Need for selecting such additional areas is also not apparent in any order. In absence of any such application of mind, this Court in writ jurisdiction cannot for the first time appreciate the need to extern a person from a larger area. Facts warranting externment from larger area are absent in the impugned order & are not presented to us in any manner by the respondents."
"28. The orders of externment are already passed and those orders are not stayed by this Court. The externee is, therefore, out of the area from which the externment has been ordered by the respective impugned orders. Impugned orders show various offences committed by them. But, then, as there is non application of mind while selecting area of externment any of the orders of externment assailed before us, cannot be sustained."
The Division Bench holds that there must exist material to
show that a larger or additional area so chosen or selected is
intimately connected with the actual area of the activities of the
externee due to improved or common means of transport and
communication system. The Court holds that the facts and factors
to pass an externment order beyond the area to which the activities
of the externee are confined, should be capable of supporting the
need of ordering externment beyond the area of the jurisdiction of
such authority. It holds that evaluation of larger area by
application of mind has to surface in the impugned order. It further
holds that there is nothing on record to show that the authority was
alive to the fact of ordering externment from larger area not
ordinarily falling in its jurisdiction, and the order of externment
does not reflect it. Before proceeding to deal with this judgment,
we see the propriety and the object to amend the provision of
Section 56 of the Bombay Police Act.
After the decision of the Apex Court in Pandharinath
Rangnekar''s case, the provision of Section 56 of the Bombay Police
Act, 1951 was amended by the Maharashtra Act No.33 of 1981.
The portion beginning with the words "to remove himself outside
the area" and ending with the words "directed to remove himself"
was substituted, and Clause (bb) was added by re-numbering the
said Section. Sub-section (2) was also inserted in Section 56 . We
are concerned in this matter only with the provision of
sub-section (1) of Section 56 regarding "Removal of persons about
to commit offence", which is reproduced below :
"56. Removal of persons about to commit offence
(1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf--
(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or
(b) that there area reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or
(bb) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Antisocial and Other Dangerous Activities Act, 1980, or (2) in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, or
(c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or such prejudicial act, or the outbreak or spread of such disease or notwithstanding anything contained in this Act or any any other law for the
time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the officer or not and whether contiguous or not, by such route, and within such time, as the officer may specify and not to enter or return to the area or areas specified (hereinafter referred to as "the specified area or areas") from which he was directed to remove himself."
The highlighted portion has been substituted by the
Maharashtra Act No.33 of 1981, which gives overriding effect.
Prior to this amendment, the externing authority was competent to
direct removal of externee outside the area within the local limits of
his jurisdiction or such area and any district or districts or any part
thereof, contiguous thereto. However, the amendment permits
removal from such area or areas in the State of Maharashtra,
irrespective of the fact whether it is contiguous or not by route.
Such a power has been given overriding effect on the other
provision contrary to the provisions in the said Act or any other law
for the time being in force.
The Statement of Object and Reasons for the amendment
of the aforesaid nature is reproduced below :
"Statement of Objects and Reasons
Section 56, 57 and 63 AA of the Bombay Police Act, 1951, provide for externment of persons about to commit offences or of persons convicted of certain offences. The Commissioner of Police, District Magistrates and other officers empowered in this behalf are authorised to extern such persons outside the local limits of their jurisdiction and outside the area and districts contiguous thereto, for a period not exceeding two years. The objective underlying these provisions is to protect the locality or contiguous areas or districts from a probable danger of commission of offences by the externees, as externment would sever his link with the normal area of his criminal activities and would reduce his criminal propensity in general.
The impact of these preventive provisions has been reduced significantly because of two factors. Firstly, mere externment of persons from contiguous districts does not in these days of better facilities of transport and communication, ensure severance of his link with the original area of operation, from which he is externed. Secondly, in the absence of any provision for periodical reporting to the police station of the place where he resides, from time to time, after his externment, it becomes very difficult for the police machinery to keep surveillance over the activities of the externee. Frequent contraventions of the externment orders by externees have, therefore, become a normal feature, defeating the very objective of these provisions.
With a view to making the existing prevention provisions more effective, it is considered necessary to amend the relevant provisions of the act as follows--
(1) To authorise the officers to extern the persons from any specific area, which may not be within the limits of their ordinary jurisdiction or may not be contiguous thereto and direct them not to return to these specified area as long as the externment order is in force. Even after this amendment the externee would be free to reside or move freely in the remaining part of the State of Maharashtra and at any time to go to any place outside the State.
(2) To impose an obligation on every externee during the period of externment to report his place of residence to the officer in charge of the nearest police
station once in every month, and as and when he leaves the State to report his date of departure or arrival, as the case may be, to the authorised officer. These provisions will greatly help the police to keep a watch on his movements and activities during the period of his externment.
(3) For prevention of crimes against Railway property, which are on the increase, it is proposed to amend section 57 to enable the officers to pass externment orders also against persons who have been convicted for two or more offences under the Railway Property (Unlawful Possession) Act, 1966.
It has become imperative to put these additional but reasonable restrictions on the movements and the place of residence of a few dangerous or convicted persons in the larger interests of the general public to ensure that the majority of the people may live in peace and harmony and be able to carry on their lawful avocations, untrammelled by constant fear or threat of danger to their life or property."
We ask the question to ourselves as to the propriety of
amending the provision of Section 56 of Bombay Police Act and we
get the answer to it in Clause 2 of the Statement of Objects and
Reasons. The Legislature found that the impact of the existing
prevention provisions under the said Act has been reduced
significantly because of two factors - firstly, mere externment of
persons from contiguous districts does not, in these days of better
facilities of transport and communication, ensure severance of his
link with the original area of operation, from which he is externed;
and secondly, in the absence of any provision for periodical
reporting to the police station of the place where he resides, from
time to time, after his externment, it becomes very difficult for the
police machinery to keep surveillance over the activities of the
externee. The Legislature noticed that the frequent contraventions
of the externment orders by the externees have, therefore, become
a normal feature, defeating the very objective of these provisions.
This is how the amendment has triggered.
Now turning to the object of the amendment, as we see
from Clause 1 of the Statement of Objects and Reasons, the object
is to protect the locality or contiguous areas or districts from a
probable danger of commission of offences by the externees, as
externment would sever his link with the normal area of his
criminal activities and would reduce his criminal propensity in
general. The amendment authorizes the officers to extern the
persons from any specific area, which may not be within the limits
of their ordinary jurisdiction or may not be contiguous thereto and
direct them not to return to the specified area as long as the
externment order is in force. The provision enables the externing
authority to keep the surveillance over the activities of the externee
by imposing an obligation on the externee during the period of
externment to report his place of residence to the officer in-charge
of the nearest police station once in every month, and as and when
he leaves the State, to report his date of departure or arrival, as the
case may be, to the authorized officer.
There can be no doubt that the provision of Section 56 of
the Bombay Police Act was made in the interest of general public
and to protect them against the dangerous and bad characters,
whose presence in a particular locality may jeopardize the peace
and safety of the citizens. However, the object of amendment to
Section 56 of the Bombay Police Act is two-fold - (1) to protect the
locality or contiguous areas or districts from a probable danger of
commission of offences by the externees, as the externment would
sever his link with the normal area of his criminal activities and
would reduce his criminal propensity in general; and (2) to restore
the impact of preventive provision of externment, which was found
to be reduced significantly because of the development of better
facilities of transport and communication, and to keep surveillance
over the activities of the externee. There is a definite distinction
between the object of externment, which imposes reasonable
restrictions on the fundamental right to move freely under
Article 19 of the Constitution of India and the object to see the
effective implementation of such provision. Thus, the amendment
is directed to advance and subserve the object of externment in a
more effective manner.
In our view, the Legislature itself has taken note of the
improved or common means of transport and communication
system, which has reduced the impact of externment order and
increased the criminal propensity to defeat or frustrate the object of
externment order. The order of externment from the larger or
additional area can, therefore, be justified on the basis of the
existence of material showing the nature of activities of the
externee in a restricted area and the order of externment cannot be
vitiated merely because no specific reference is made to the options
available to deal with the situation as the material justifying
externment can throw light on the option exercised. There cannot
be insistence upon the existence of material to show that the larger
or additional area so chosen or selected is intimately connected
with the actual area of the activities of the externees due to
improved or common means of transport and communication
system, which would defeat or frustrate the very object and purpose
of the amendment. The order of externment, therefore, need not
show the existence of material - (a) that the larger or additional
area so chosen or selected is intimately connected with the actual
area of the activities of the externee due to improved or common
means of transport and communication system, (b) that the facts
and material warranting externment from larger or additional area
or neighbouring areas exist, and (c) that the externing authority has
applied its mind to the factors (a) and (b) while passing the order
of externment. We, therefore, answer the question No.(2)
accordingly.
Do we mean that under no circumstances the order of
externment can be set aside on the ground that it is excessive or
unreasonable, particularly when Section 61 of the Bombay Police
Act permits the challenge on the ground that there was no material
before the authority concerned, upon which it could have based its
order? The answer would obviously ''No''. In the decision of Sanjeev
alias Bittoo, cited supra, the Apex Court has stated as to
what must be recorded in the order, and it is held that - (i) the
order of externment must show existence of some material
warranting pass of such order, (ii) mere repetition of the provision
would not be sufficient, (iii) reference has to be made to some
material on record, and (iv) it is not the sufficiency of material but
the existence of material which is sine qua non. The Apex Court has
held that - (i) the order of externment cannot be vitiated merely
because no specific reference is made to the options available to
deal with the situation, as the materials justifying externment can
also throw light on the options to be exercised, (ii) it is a matter of
legitimate inference to be drawn on the basis of the material on
record and there cannot be any hair-splitting in such matters, and
(iii) it is on the basis of subjective satisfaction on the basis of
objective assessment of the material on record that the order of
externment is passed.
The Court holds in the aforesaid decision that unless the
satisfaction recorded is shown as perverse based on no evidence on
record, misreading of evidence or which a reasonable man could
not form or that the person concerned was not given due
opportunity resulting in prejudice, no interference should be made.
The Court further holds that it is the legality of the decision-making
process, which is to be seen, and not the legality of the order per se.
The test is whether there is infirmity in the decision-making process
and not the decision itself. The Court has classified the challenges
to the administrative order on three grounds as - (i) illegality, (ii)
irrationality, and (iii) procedural impropriety. The Court holds that
"irrationality" means it is "so outrageous" as to be in total defiance
of logic or moral standards.
In the decision of the Apex Court in Pandharinath
Rangnekar''s case, it is held in para 16 as under :
"16. An excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case. The decision of the Bombay High Court in Balu Shivling Dombe v. The Divisional Magistrate, Pandharpur (supra), is an instance in point where an externment order was set aside on the ground that it was far wider than was justified by the exigencies of the case. The activities of the externee therein were confined to the city of Pandharpur and yet the externment order covered an area as extensive as districts of Sholapur, Satara and Poona. These areas are far widely removed from the locality in which the externee had committed but two supposedly illegal acts. The exercise of the power was therefore arbitrary and excessive, the order having been passed without reference to the purpose of the externment."
In view of the aforesaid decisions of the Apex Court, in
our view, the decision/action of externment can always be
challenged on the ground that it is vitiated by arbitrariness,
unfairness, illegality, irrationality or Wednesbury principle of
unreasonableness, i.e. when the decision is such as no reasonable
person on proper application of mind could take or that it is vitiated
by procedural impropriety. It is not the decision per se based upon
the subjective satisfaction on the basis of the objective assessment
of the material available on record, which can be made subject-
matter of challenge, but it is the legality of decision-making process,
which is to be seen.
In the decision of the Apex Court in the case of Tata
Cellular v. Union of India, reported in (1994) 6 SCC 651, the Apex
Court has laid down the tests to be applied for judicial review of the
administrative action classified as under :
"(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. The decision is such that no authority properly directing itself on the relevant law and
acting reasonably could have reached it.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. Another development is that referred to by Lord Diplock in R v. Secretary of State for the Home Deptt., ex Brind, viz. the possible recognition of the principle of proportionality. Two other facets of irrationality may be mentioned : (1) It is open to the court to review the decision-maker''s evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. (2) A decision would regarded as unreasoanble if it is impartial and unequal in its operation as between different classes."
Thus, if a case is made out within the aforestated
parameters, an order of externment can be challenged and set aside
by the Court.
With great respect, we are unable to agree with the
decision of the Division Bench of this Court in the case of Pappu @
Akhilesh Mishra, cited supra, for the following reasons :
(a) The decision of the Apex Court in the case of
Pandharinath Rangnekar holds in para 15 that it is
primarily for the externing authority to decide - (i) how
best the order of externment can be made effective so as
to subserve its real purpose, (ii) what should be the period
of externment within the statutory extent of two years,
and (iii) to what territories it should extend and no
general formulation can be made that the order of
externment must always be restricted to the area to which
the illegal activities of the externee extends.
(b) In the case of Pandharinath Rangnekar, the common
knowledge of the Judges of the concerned High Court
about the existence of improved and common means of
transport and communication system is accepted as the
basis to confirm the order of externment beyond the local
limits of the jurisdiction, coupled with the decision of the
externing authority.
(c) The Division Bench holds that where more districts
than one are involved, no view taken by any Court that
the said areas are intimately connected due to improved
or common means of transport is pointed out. But with
respect, the Division Bench failed to see that in none of
the decisions of the Apex Court, there was insistence upon
disclosure of the material existing to justify the
externment beyond the local limits to which the activities
of externee were confined, though removal was
permissible only from the area contiguous to the activities
of the externee.
(d) After the decision of the Apex Court in Pandharinath
Rangnekar''s case, the amended provision of Section 56 of
the Bombay Police Act empowered the externing authority
to direct removal of externee outside the area of his
activities, whether such area is shown to be contiguous or
not. As such, the requirement of showing the area of
externment to be contiguous to the activities of the
externee is dispensed with by giving overriding effect to
such power.
(f) From the Statement of Objects and Reasons itself, it
is apparent that the object is to prevent contravention of
the externment order by the externees to defeat the very
purpose of the provision . The Legislature itself has, while
introducing the amendment, taken note of intimate
connection of urban and rural areas of the districts and
empowerment is to direct removal outside such area or
areas in the State of Maharashtra, whether within the
local limits of the jurisdiction of the officer or not, and
whether contiguous or not by such route.
We now turn to the question No.(3) as to whether it is
necessary to show in the show cause notice the details of in-camera
statements recorded by the externing authority to reach to the
satisfaction that the witnesses are not coming forward to give
evidence or speak in public against the proposed externee due to
fear of alarm, danger or harm to their person or property.
The provision of Section 27(1) of the City of Bombay
Police Act, 1902, which is held analogous to Section 56 of the
Bombay Police Act, was the subject-matter of challenge in the
petition preferred under Article 32 of the Constitution of India
before the Apex Court in the case of Gurbachan Singh, cited supra,
on the ground that it violates the guarantee of the petitioner
contained under Article 19(1)(d) of the Constitution of India and is,
therefore, inoperative under Article 13(1) therein. Para 7 of the
said decision reads as under :
"(7) The second point urged by the learned counsel raises the question as to whether S.27(1) of the City of Bombay Police Act has imposed restrictions upon the fundamental right of a citizen which is guaranteed under Art.19(1)(d) of the Constitution and being in conflict with this fundamental right is void and inoperative under Art.13(1) of the Constitution. There can be no doubt that the provision of S.27(1) of the Bombay Act was made in the interest of the general public and to protect them against
dangerous and bad characters whose presence in a particular locality may jeopardize the peace and safety of the citizens. The question, therefore, is whether the restrictions that this law imposes upon the rights of free movement of a citizen, come within the purview of clause 5 of Art.19 of the Constitution; or in other words whether the restrictions are reasonable? It is perfectly true that the determination of the question as to whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enunciated in Art.19(1)(d) of the Constitution are reasonable or not within the meaning of clause 5 of the Article would depend as much upon the procedural part of the law as upon its substantive part; and the Court has got to look in each case to the circumstances under which and the manner in which the restrictions have been imposed. The maximum duration of the externment order made under S.27(1) of the Bombay Act is a period of two years and the Commissioner of Police can always permit the externee to enter the prohibited area even before the expiration of that period. Having regard to the class of cases to which this sub-section applies and the menace which an externment order passed under it is intended to avert, it is difficult to say that this provision is unreasonable. The Commissioner of police can in a proper case cancel the externment order any moment he likes, if, in his opinion, the return of the externee to the area from
which he was removed ceases to be attended with any danger to the community. ..."
The Apex Court upholds the validity of the provision and
holds that there can be no doubt that the said provision was made
in the interest of the general public and to protect them against
dangerous and bad characters whose presence in a particular
locality may jeopardize the peace and safety of the citizens. The
Apex Court has held that having regard to the class of cases to
which the provision applies and the menace which an externment
order passed under it, is intended to avert, it is difficult to say that
the provision is unreasonable. It holds that the Commissioner of
Police can in a proper case cancel the externment order any
moment he likes, if, in his opinion, the return of the externee to the
area from which he was removed ceases to be attended with any
danger to the community.
It was the further argument considered by the Apex Court
in the aforesaid decision that the suspected person is not allowed to
cross-examine the witnesses, who deposed against him, and on whose evidence the proceedings were started. The Apex Court has
held in para 7 as under :
"(7) ... In our opinion, this by itself would not make the procedure unreasonable having regard to the avowed intention of the legislature in making the enactment. The law is certainly an extraordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitute a menace to the safety of the public residing therein. This object would be wholly defeated if a right to confront or cross-examine these witnesses was given to the suspect. The power to initiate proceedings under the Act has been vested in a very high and responsible officer and he is expected to act with caution and impartiality while discharging his duties under the Act. This contention of Mr. Umrigar must, therefore, fail."
The Court holds that the law is certainly an extraordinary
one and has been made only to meet those exceptional cases where
no witnesses for fear of violence to their person or property are
willing to depose publicly against certain bad characters whose
presence in certain areas constitute a menace to the safety of the
public residing therein. The Court further holds that this object
would be wholly defeated if a right to confront or cross-examine
these witnesses was given to the suspect. The Court holds that the
power to initiate the proceedings under the Act has been vested in a
very high and responsible officer and he is expected to act with
caution and impartiality while discharging his duties under the Act.
In the decision of Bhagubhai Bhandari''s case, cited supra,
it was a grievance that particulars of evidence against the
petitioners and of their alleged activities have not been given to
them. The Court rejects the said contention holding that the words
of Section 56 do not lend themselves to that extreme contention. If
such an extreme interpretation were to be put on that part of
Section 56, it is not difficult to imagine a situation where it will
become almost impossible to apply that Section to any case.
In the decision of the Apex Court in Pandharinath
Rangnekar''s case, cited supra, it was held that if the show cause
notice were to furnish to the proposed externee concret data like
specific dates of incidents or the names of persons involved in those
incidents, it would be easy enough to fix the identity of those who
out of fear of injury to their person or property are unwilling to
depose in public. It holds that the externee is only entitled to be
informed of the general nature of the material allegations and
neither the externing authority nor the State Government in appeal
can be asked to write a reasoned order in the nature of a judgment.
It further holds that if those authorities were to discuss the evidence
in the case, it would be easy to fix the identity of witnesses who are
unwilling to depose in public against the proposed externee.
In the decision of the Apex Court in the case of
Lt. Governor, NCT and others v. Ved Prakash alias Vedu, reported in
(2006) 5 SCC 228, it is held that the High Court was not correct in
coming to the finding that the authority was bound to disclose the
cases in which the witnesses had deposed against the externee out
of fear or because of theft, etc. It is held that if an attempt is made
to communicate the cases in which the witnesses were not
forthcoming due to the activities of the proceedee, the same would
violate the secrecy required to be maintained and would otherwise
defeat the purpose for which Section 47 of the Delhi Police Act had
been enacted. The Court holds that the sufficiency of material may
not be gone into by the writ court unless it is found that in passing
the impugned order, the authority has failed to take into
consideration the relevant facts or had based its decision on
irrelevant factors not germane therefor.
The Apex Court in the aforesaid decision held that the
High Court should ordinarily insist on production of the entire
records including the statement of witnesses to express their
intention to keep their identity in secret so as to arrive at a
satisfaction that such statements are absolutely voluntary in nature
and had not been procured by the police officers themselves. The
Court has to satisfy its conscience not only for the purpose that the
procedural safeguards available to the proceedee have been
provided but also for the purpose that the witnesses have disclosed
their apprehension about deposing in court truthfully and fearlessly
because of the activities of the proceedee. The Court reiterates that
in any event, there would be no direction to the authorities to
either disclose the names of the witnesses or the number of cases
where such witnesses were examined for simple reason that they
may lead to causing of further harm to them and the secrecy as
regards identity of such persons may be defeated.
In para 11, the Apex Court recorded the finding in the
aforesaid decision that the provisions of Section 56 of the Bombay
Police Act are in pari materia with Section 45 of the Delhi Police Act
and, therefore, the interpretation of the provisions under the
Bombay Police Act made in Pandharinath Shridhar Rangnekar v.
Dy. Commissioner of Police, reported in (1973) 1 SCC 372, would be
applicable.
The principles laid down by the Apex Court in all the
aforesaid decisions can be summarized as under :
(1) The challenge to the provision of externment under
Section 27(1) of the City of Bombay Police Act, 1902,
which is analogous to Section 56 of the Maharashtra
Police Act on the touchstone of the fundamental right
under Article 19(1)(d) of the Constitution of India, cannot
be upheld and it is held that the restrictions imposed upon
the right of free movement of the citizens come within the
purview of Clause (5) of Article 19 and it is reasonable.
(2) The law of externment is certainly an extraordinary
one and has been made only to meet those exceptional
cases where no witnesses for the fear of violence to their
person or property are willing to depose publicly against
certain bad characters whose presence in certain areas
constitutes menace to the safety of the public residing
therein. Such restraints have to be suffered in larger
interest of Society.
(3) The maximum duration of the externment order is
of two years and the competent authority can always
permit the externee to enter the prohibited area even
before the expiration of that period.
(4) The externee is only entitled to be informed of the
general nature of the material allegations, and neither the
externing authority nor the State Government in appeal
can be asked to write a reasoned order in the nature of
judgment. To insist upon it, would result in fixing the
identity of the witnesses, who are unwilling to depose in
public against the proposed externee.
(5) A reasoned order containing a discussion would
probably spark off another round of harassment, and to
discuss the evidence in the case would amount to fixing
the identity of the witnesses unwilling to depose in public.
(6) The authority is not bound to disclose the cases in
which the witnesses had deposed against the externee out
of fear or because of threat. To communicate the cases in
which the witnesses were not forthcoming due to
activities of externee, would violate the secrecy required
to be maintained.
(7) The grievance that particulars of evidence against
the externee of his alleged activities have not been given
to him, cannot be read into Section 56 of the Maharashtra
Police Act, otherwise it is not difficult to imagine a
situation where it becomes almost impossible to apply
that Section to any case.
In the decision of the Division Bench of this Court in the
case of Sayyed Jafar Sayyed Nasir, cited supra (to which one of us,
Shri M.G. Giratkar, J., is a party), it is held in para 5 as under :
"5. In the circumstances of the case, it would be necessary to quash and set aside the impugned order. If the Deputy Commissioner of Police wanted to rely on the in-camera statements of the witnesses for externing the petitioner, it was necessary for him to mention in the show cause notice what was stated by the witnesses when their in-camera statements were recorded. It is rightly submitted on behalf of the petitioner that, in the absence of any mention about the in-camera statements by the witnesses in the show cause notice, the right of the petitioner to give an effective reply stood hampered. As the procedure was not followed by the Deputy Commissioner of Police while deciding the proposal for the externment of the petitioner, the impugned order is liable to be set aside."
In the another decision of the Division Bench of this Court
in Sanjay Ruptakke''s case, cited supra, the Court holds in para 5 that
it is necessary to make reference to the gist of in-camera
statements recorded so as to enable the proposed externee to reply
to the show cause notice.
We have already expressed our disagreement with the
view taken by the Division Bench of this Court
(Shri B.P. Dharmadhikari & Kum. Indira Jain, JJ.) in the case of
Pappu @ Akhilesh Shivshankar Mishra v. The State of Maharashtra &
Anr ., reported in 2017 ALL MR (Cri) 1, on the question No.(2),
framed by us. We also think that in the light of the principles laid
down by the Apex Court, which we have summarized, the question
of law at serial No.(3), framed by us, is also required to be decided
by a larger Bench to consider the correctness of the view expressed
by the Division Benches of this Court in the cases of Sanjay s/ o
Balasaheb Ruptakke v. The State of Maharashtra & Ors ., reported in
2017 ALL MR (Cri) 3983 -(M/s. S.S. Shinde & K.K. Sonawane, JJ.) ;
and Sayyed Jafar Sayyed Nasir v. The Divisional Commissioner,
Amravati, reported in 2017 ALL MR (Cri) 4303-
(Smt. Vasanti A. Naik & M.G. Giratkar, JJ.). We, therefore, refer
the following two questions for the decision of the larger Bench :
(1) Where the activities of externee are confined to
specific area of the local limits of the jurisdiction of a
police station in a district but the order of externment
extends to the entire district, rural areas and even beyond
the distinct or districts (irrespective of the fact that it is
contiguous or not), whether such an order needs to show
the existence of material - (a) that a larger or additional
area so chosen or selected is intimately connected with
the actual area of the activities of the externee due to
improved or common means of transport and
communication system, (b) that the facts or the material
warranting externment from a larger or additional area or
neighbouring area exist, and (c) that the externing
authority has applied its mind to the factors (a) and (b)
while passing an order of externment?
(2) Whether it is necessary to state in the show cause
notice the details of in-camera statements recorded by the
externing authority to reach to the satisfaction that the
witnesses are not coming forward to give evidence or
depose in public against the proposed externee due to fear
of alarm, danger or harm to their person or property?
We, therefore, direct the Registry of this Court to place the
matter before Hon''ble the Chief Justice for consideration of the
larger Bench to decide the aforesaid questions, and we expect the
early constitution of the larger Bench, as in the present matter, the
period of two years is likely to expire. The questions, in our view,
are of public importance and repeatedly arise in day-to-day matters.