S.S. Shinde,J.
1. Heard.
2. Rule. Rule made returnable forthwith with the consent of the Counsels for the parties.
3. The learned Counsel appearing for the petitioner submitted that, in one of the crime out of three cases registered against him with Tophkhana Police Station, Ahmednagar the petitioner is already tried and trial ended in acquittal. It is submitted that, though specific ground was taken in reply that, the petitioner is acquitted, however, the respondent authorities have not considered the said fact and therefore, an externment proceedings stands vitiated. It is further submitted two cases registered against the petitioner vide Crime No.168/2010 and rime No.73/2012 are still pending and in both the cases the petitioner is on bail. It is further submitted that, the mandate of Section 56 (1) (a) (b) of the Bombay Police Act has not been followed by the respondent authorities inasmuch as it is not mentioned in the show cause notice as well as externment order that, the activities of the petitioner are such that it has created alarm, danger or harm to person or public property. It is further submitted that, the father in law of the complainant was serving as Thane Amaldar in Tophkhana Police Station, Ahmednagar and therefore, out of personal rivalry, externment proceedings were initiated against the present petitioner. It is submitted that, the offences registered against the petitioner are on account of personal rivalry and nothing to do with the public peace and public property. It is submitted that, there was some dispute about the grocery shop between the petitioner and complainant and out of said dispute the said offences are registered, which are private and personal in nature. It is further submitted that, the accused and complainant are from same family and therefore, offences registered against the petitioner could not have formed basis for initiating an externment proceedings against the petitioner. It is submitted that, in the show cause notice issued to the petitioner, there is no reference to the specific grounds as contemplated under Section 56 (a) and (b) of Maharashtra Police Act. It is submitted that, mandate of Section 56 (1) (a) (b) of the said Act has not been followed. So also the procedure prescribed for conduct of such inquiry is not followed by externing Authority. Therefore, learned counsel appearing for the petitioner has relied upon the Judgment of the Bombay High Court in the case of Balu V/s. Divisional Magistrate reported in 1969 Mh.L.J. 387 submits that Petition deserves to be allowed.
4. On the other hand, the learned Additional Public Prosecutor appearing for the State invited our attention to the contents of the show cause notices issued to the petitioner and also reasons assigned in the impugned order to pass the impugned order and further contended that no interference is warranted in exercise of writ jurisdiction to interfere with order passed by Competent Authority and prayed for dismissal of petition.
5. We have given careful consideration to the submissions advanced by the learned Counsel appearing for the petitioner and learned Additional Public Prosecutor. With their assistance, we have perused the pleadings in the Petition, grounds taken therein, annexure thereto and also perused the original record made available for our perusal. We have also considered the ruling relied by the Counsel appearing for the petitioner. It appears that, the Sub Divisional Police Officer, Nagar City, Ahmednagar issued notice to the petitioner stating therein that, he should remain present on 21st September, 2012 at 13.00 hours with two witnesses in the office of the said Authority so as to answer the charges stated in accompaniment to the said notice. Upon perusal of the annexure to the notice, there is reference to Crime No.319/2009, 168/2010 and 73/2012 registered against the petitioner under various sections of the Indian Penal Code and also under the Arms Act. Case arising out of Crime No.319/2009 shown to be pending against petitioner though he was acquitted after full-fledged trial on 4th May, 2013. Upon perusal of the contents of the said notice and annexure to said notice, we are of the view there are specific grounds mentioned in Section 56 (a) and (b) of Maharashtra Police Act. Except general allegations that the petitioner has no fear about law and he has indulged into criminal activity, has been stated in the evidence accompanied with show cause notice. None of the ingredients as contemplated under Section 56 of the said Act mentioned in the impugned order. It appears that the petitioner has filed reply to the said notice. It is also relevant to mention that, the said notice was given to the petitioner on 20th September, 2012 and he was asked to remain present in the office to answer the charges levelled against him on 21st September, 2012 in the office of the respondent Authority along with two witnesses and bond of Rs.500/- with sureties. In our opinion, it is expected from the authority that some reasonable time is required to be given to the person to whom notice is given. In reply filed to the said notice, the petitioner has stated that, he did not indulge into any prejudicial activities as alleged, which would cause damage to the public life or property. He has further stated that, he is Karta in the family and there are old aged parents in his house, to whom he has to look after.
6. Upon perusal of original record, it appears that on 8th October, 2012, another show cause notice was given to the petitioner by the respondent No.3. The said notice was also replied by the petitioner stating therein that, in all the three offences which are registered against the petitioner, the petitioner is released on bail by the Competent Court. The said offences are not yet resulted into conviction. The said offences are registered due to personal disputes between the parties, on account of dispute of fair price shop and as such registration of offences and allegations therein are nothing to do with danger to the public life or property. It further appears that, the respondent No.3 again issued notice to the petitioner on 7th May, 2013 asking the petitioner to remain present in the office of the respondent No.3 for hearing. It appears that, in the notice issued there is only reference to three crimes registered with the Tophkhana Police Station, Ahmednagar. In this notice also, it is not specifically mentioned that, due to alleged criminal activities of the petitioner, witnesses are not coming forward to depose against him. The notice also does not spell out any specific grounds for externment of the petitioner from the local jurisdiction of Ahmednagar, Nashik, Pune, Solapur and Aurangabad Districts for two years. After considering the order of externment, externing the petitioner from Ahmednagar Taluka came to be passed by the respondent No.3.
7. In the impugned order after adverting to the contentions of the petitioner and the material before him, the respondent No.3 passed the impugned order. In the said order, the reasoning part reads thus:
âHINDIâ
8. Upon careful perusal of the reasons assigned by the respondent No.3 in the impugned Judgment, it evident that, there is no discussion as to how the activities of the petitioner caused alarm, danger or harm to person or property of public at large. There is also no discussion that how the mandate of Section 56 (1) (a) is fulfilled in the present case in the absence of specific ground to that effect. There is only reference to pending three crimes registered with Kotwali Police Station, Ahmednagar. The respondent No.3 did not take into consideration the fact that, the petitioner is acquitted from one of the case after full-fledged trial. The Authority has brushed aside the contention of the petitioner that, he is already acquitted from one case, on the ground that he did not produce the copy of the Judgment of acquittal. In fact, the Authorities should have given him breathing time so as to produce on record copy of the acquittal order or should have ascertained from the Police Authorities about whether the petitioner is acquitted or otherwise. The other two matters are pending for trial and Competent Court has released the petitioner on bail. The said offences are registered against the petitioner during the period 2009-2012. Upon perusal of the notices issued to the petitioner, it appears that first notice was issued to the petitioner in the year 2012, another show cause notice was issued in the year 2013 and the externment order came to be passed in the month of March, 2014. No reasons are coming forward from the Authorities why they took so much time to pass the impugned order. There should be live link between the commission of offence by the petitioner and the order passed by the Authority. However, the said live link is missing inasmuch as the externment order is passed after about two years from registering the last Crime No.73/2012 against the petitioner in Tophkhana Police Station, Ahmednagar. In the impugned Judgment â Order, there is no specific discussion muchless discussion about how the activities of the petitioner caused alarm, danger or harm to person or property of public at large is concerned. The order under Section 56 (1) (a) cannot be made on the general ground. There should have been specific reasons in the impugned order that the externment of the petitioner is necessary for the preservation of peace or maintenance of law and order in a particular locality.
9. It appears that, crimes registered against the petitioner are out of personal disputes between him and his close relative i.e. complainant. As observed by the Bombay High Court in case of Balu supra, Section 56 of the Bombay Police Act, 1951, is restrictive of the fundamental rights âto move freely throughout the territory of Indiaâ and âto reside and settle in any part of the territory of Indiaâ, which have been guaranteed by Article 19 (1) (d) and (e) of the Constitution. Article 19 (5) provides that these fundamental rights shall not affect the operation of any law which imposes reasonable restrictions on the exercise of these rights âeither in the interests of the general public or for the protection of the interests of any Scheduled Tribeâ. The expression âalarm, danger or harm to person or propertyâ, which occurs in section 56 (a) of the Bombay Police Act, must, if possible, be so interpreted as to ensure that the provisions of that section are in conformity with the fundamental rights guaranteed by Article 19 (1) (d) and (e) of the Constitution. The expression âalarm, danger or harm to person or propertyâ in that section must be held to refer to the alarm, danger or harm to person or property of the public at large, and not of one or two individuals among the public. An order of externment based on a finding that the acts of the person proceeded against had caused or were calculated to cause alarm, danger or harm to two individuals cannot be sustainedâ. The requirement of Section 56 (1) (a) (b) and also the procedure under Section 59 required to be followed has not been scrupulously gone into or followed by the respondent authorities.
10. According to the petitioner, the impugned externment order passed by the Competent Authority and 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. Commissioner of Police, State of Maharashtra] 2, reported in AIR 1973 S.C. 630 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 persona and property. This subjective satisfaction is conspicuously absent in the order passed by the Externing Authority. In paragraph 4, the Division Bench held that what is stated in show cause notice cannot be the basis to assume that the concerned authority was subjectively satisfied about the existence of the aforesaid fact and in absence of such subjective satisfaction of the fact, the Externing Authority would not acquire jurisdiction to invoke section 56 (1) (a) (b) of the said Act.
11. In the light of discussion made in foregoing paras, in our considered view, the impugned Order passed by the respondent No.3 deserves to be quashed and set aside. The view which we have taken finds support from the authoritative pronouncement of the Bombay of the High Court in the case Balu [supra], that externment order cannot be passed unless there is alarm, danger or harm to person or property of public at large witnesses are not willing to come forward due to terror of such persons, is concerned. The externment order cannot be passed where the interest of few individual is involved. The order under Section 56 (a) and 56 (b) cannot be made on the general ground that such an order was necessary for the preservation of peace or maintenance of law and order in a particular locality. In our view, the impugned order is passed in complete breach of provisions of law and procedure prescribed for passing such order. The order passed is not only arbitrary but in gross abuse of process of law. Therefore, same deserves to be set aside in exercise of writ jurisdiction.
12. For the reasons aforesaid, the impugned order of externment is quashed and set aside. Rule made absolute in terms of prayer clause âC. The Petition is allowed to above extent with no order as to costs.