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2013 DIGILAW 1421 (BOM)

Prakash Mogal Londhe v. D. S. Swami

2013-07-25

S.B.SHUKRE, S.C.DHARMADHIKARI

body2013
JUDGMENT S. B. SHUKRE, J. :- The order dated 9th May 2012 externing the petitioner from the limits of Nashik City and Nashik Rural district passed by the Deputy Commissioner of Police, has been challenged in this petition. 2. We have heard learned Counsel for petitioner and learned APP for State. 3. The contention of the learned Counsel for the petitioner is that the externment order has been passed by violating the principles of law laid down from time to time by this Court in its various judgements. Placing reliance upon the law laid down by this Court in the case of Veshwant Damodar Patil Vs. Hemant Karkar, Deputy Commissioner, reported in 1989 (3) BCR 240, the learned Counsel for petitioner has submitted that the show cause notice issued to the petitioner does not satisfy the criteria laid down in this judgement. According to him, the action of externing that was proposed to be taken against the petitioner was under section 56(1)(b) of the Bombay Police Act. 1951 (for short the Act) and requirement of this section is that the show cause notice must contain an averment that the proposed externee is engaged or is about to engage in the commission of offence involving force or violence and that the notice must also inform him that in the opinion of the Officer, witnesses are not willing to come forward to give evidence in public against him. 4. The learned A PP on the other hand submits that a careful perusal of the show cause notice would disclose that this very requirement of section 56(1)(b) has been satisfied in this case. He submits that there are allegations in the show cause notice that the witnesses. whose in camera statements were recorded, have been threatened by the petitioner and, according to him, these allegations are in the nature of information given to the petitioner that the witnesses are reluctant to give evidence against him in public. 5. We have, with the assistance of the learned Counsel for the petitioner and the learned APP, gone through this petition and the documents annexed thereto, including the impugned order. 6. From the tenor of the show cause notice, it may be seen that this notice has been issued not only under clause (b) but also clause (a) of section 56 (1) of the Act. 7. 6. From the tenor of the show cause notice, it may be seen that this notice has been issued not only under clause (b) but also clause (a) of section 56 (1) of the Act. 7. There are two essential requirements for drawing an inference under clause (a) of sub-section 1 of section 56. These requirements are that the movements or acts of the proposed externee must cause or should be calculated to cause alarm, danger or harm to person or property and that such dangerous activities of the proposed externee are making the witnesses not to come forward to give evidence in public against him. Clause (b) of this sub-section also has two requirements. First is that in the opinion of the externing authority, there must be a reasonable ground to believe that the person is engaged or is about to be engaged in the commission of offences involve force or violence or those punishable under Chapters 12, 16 or 17 of Indian Penal Code. Secondly, it is also necessary that these actions on the part of the proposed externee give rise to a fear in the mind of the prospective witnesses out of which, the witnesses would not come forward to give evidence against that person. 8. In the case of Veshwant Patil (supra), this Court has found that if action is proposed to be taken under clause (a) or clause (b), in addition to the first requirement as clarified in the earlier paragraph in respect of either of these clauses, it is also necessary to have something on record to form an opinion that witnesses are not willing to come forward to give evidence in public against such a person. This Court has clearly held that information about these essential requirements of clauses (a) and (b) of section 56(1) should be contained in the notice issued to the proposed externee under section 59 of the Act so that the proposed extemee gets an opportunity to sufficiently meet the case against him. 9. Now, in the light of these principles of law, it would be necessary for us to examine the show cause notice issued to the petitioner. 9. Now, in the light of these principles of law, it would be necessary for us to examine the show cause notice issued to the petitioner. The show cause notice refers to three cognisable cases as well as three non-cognisable cases recorded against the petitioner at Satpur police station and two in camera statements of witnesses, In the entire show cause notice, apart from mentioning of these offences, there is nothing which can be said to be in the nature of an information that the activities or the movements of the petitioner are of such a nature as are likely to make the witnesses fearful of him and not to come forward for giving evidence against him. If this essential requirement is lacking in the show cause notice, we have to hold that the notice does not answer the requirements of law and stands vitiated inasmuch as such a show cause notice cannot be said to be giving sufficient opportunity to the petitioner to defend himself in the case. 10. Therefore, we find great substance in the argument of the learned Counsel for the petitioner and no merit in the argument of learned APP canvassed in this regard. 11. The next submission of the learned Counsel for the petitioner is that the externment of the petitioner has been based upon insufficient material as one of the offences relied upon, relates to an incident of 2002, and is very old and the other two offences registered against the petitioner in the year 2011 are not of such a nature as to lead one to believe that the petitioner is so dangerous a character that he would in future commit similar offences or those offences which are mentioned in clause (b) of section 56(1) of the Act. According to him, even the non cognisable cases and the statements of confidential witnesses do not reveal any material to draw the necessary inference either under clause (a) or clause (b) of section 56(1). The learned APP, however, does not agree with the contention of learned Counsel for petitioner and submits that this very material as is contained in the show cause notice is enough for taking action of the kind the externing authority has taken against the petitioner. 12. The learned APP, however, does not agree with the contention of learned Counsel for petitioner and submits that this very material as is contained in the show cause notice is enough for taking action of the kind the externing authority has taken against the petitioner. 12. On going through the show cause notice as well as the impugned order, we find ourselves in agreement with the learned Counsel for the petitioner and do not accept the submissions of the learned APP. The offences relied-upon by the externing authority of the year 2002 and other two offences although under chapter XVI and XVII of the Indian Penal Code are of the year 2011, by themselves do not appear to be sufficient to draw an inference that the petitioner would engage himself in commission of similar offences in future. The allegations contained in both of these crimes are individualistic in nature and do not indicate any compulsive criminal character of the petitioner. As regards the non cognisable cases registered against the petitioner, we find that these cases, in fact. ought not to have been mentioned at all in the show cause notice for the simple reason that the record does not show that any further action as per section 155(2) of the Cr.P.C. has been taken as regards these cases. Therefore, we are of the opinion that these non cognisable cases are absolutely of no significance for drawing the necessary inference under either of the clauses of sub-section 1 of section 56 of the Act. 13. As regards in camera statements of the two witnesses, although there is a mention of these two witnesses being given threats to not complain, but, we do not find that the threatening was of such a nature that apart from these two witnesses some other persons also would be scared to give evidence in public against the petitioner. In fact, there is no specific averment anywhere in the statements of these two witnesses to the effect that witnesses are unwilling to come out in public to give evidence against petitioner. As such we find that whatever material has been considered by the externing authority for reaching his conclusion, is insufficient and something more was required. That something more, not being there on the record, the impugned order, we have to say, cannot be sustained in law. 14. As such we find that whatever material has been considered by the externing authority for reaching his conclusion, is insufficient and something more was required. That something more, not being there on the record, the impugned order, we have to say, cannot be sustained in law. 14. The learned Counsel for the petitioner has further argued that whatever incidents have been referred to in the show cause notice and also in the impugned order, are confined to the area within the limits of Satpur police station, and yet, the petitioner has been externed from as large an area as comprising limits of Nashik city and rural. So far as Nashik rural is concerned, there is absolutely no allegation in the show cause notice that dangerous activities of the petitioner were also extended to these areas, submits the learned Counsel for petitioner. He further submits that so far as externment from Nashik rural area is concerned, the same is based upon extraneous material not forming part of a show cause notice and, therefore, the whole action had been taken in violation of principles of natural justice. In support of his submissions, he refers to us the cases of Namdeo Zipa Desale Vs. M. V.Chitale, Dy. Commissioner of Police Kalyan reported in 1987 (3) Bom.C.R. 370 and in the case of Sharatullah Mohammed Mukim Khan Vs. Sudesh K. Padvi & Ors., reported in 2002 ALL MR (Cri) 419. Learned A.P.P. does not dispute the legal position, though, on facts he supports the action of the externing authority. 15. In the case of Namdeo (supra) the Division Bench of this Court has held that when an order of externment is based upon the material extraneous to the show cause notice and about which the petitioner has no opportunity to show cause or explain such an order violates basic principles of natural justice. Same law has been reiterated by the learned Single Judge of this Court in the case of Sharatullah Khan (supra). 16. We have no doubt in our mind that the law so pronounced in the above referred cases is well settled and requires the authority passing an externment order which has far reaching consequences for fundamental freedoms of the citizen to not base its decision on any material extraneous to what is contained in the show cause notice. 16. We have no doubt in our mind that the law so pronounced in the above referred cases is well settled and requires the authority passing an externment order which has far reaching consequences for fundamental freedoms of the citizen to not base its decision on any material extraneous to what is contained in the show cause notice. The reason being that the affected person would have no knowledge about such material and thus gets no opportunity to defend himself. So far as the area of Nashik rural is concerned, from which the petitioner has been externed, this is what exactly has happened in the instant case. The petitioner has been denied an opportunity to show cause or explain as to why he should not be externed from the area comprising Nashik rural. So, we uphold the contentions of learned Counsel for petitioner and do not agree with submissions on facts as made before us by learned APP in this regard. 17. For all these reasons, we are of the view that the impugned order is absolutely illegal and deserves to be quashed and set aside and accordingly we do so. The petition stands allowed. Rule is made absolute in these terms. Petition allowed.