Abdul Wahab Vs. the Sub-divisional Magistrate, Malegaon and Another - Court Judgment

H.H. Kantharia, J.

1. By this writ petition under Art. 226 of the Constitution, the petitioner challenges an order of externment dated January 17, 1990 passed against him under Section 56(1)(b) of the Bombay Police Act, 1951 by the Sub-Divisional Magistrate, Malegaon, Sub-Division, Malegaon (first respondent) which was confirmed by the State of Maharashtra (second respondent) on June 2, 1990 in an appeal.

2. The Sub-Divisional Police Officer, Malegaon had issued a show cause notice dated June 8, 1989 to the petitioner to show cause why he should not be externed from the areas of Nasik, Dhule, Jalgaon and Ahmednagar districts for the period of two years as he had committed eight offences under Indian Penal Code and the Arms Act from the year 1984 and no witnesses were willing to come forward to depose against him as there was danger to the lives and properties. The petitioner appeared before the Sub-Divisional Police Officer, Malegaon and submitted his written statement along with two character certificates, income-tax certificate and a licence to manufacture goods under the Central Excise Rules. The petitioner was again issued a show cause notice dated August 7, 1989 by the Sub-Divisional Magistrate, Malegaon to hear him in person. He appeared before the Sub-Divisional Magistrate with an advocate and a written statement and again furnished income-tax certificate, character certificate etc. On considering the submissions made before him and after perusing the documents, the first respondent came to the conclusion that the petitioner was dangerous to the society and to the properties of the members of the society and, therefore, he was required to be externed from the areas of Nasik, Dhule, Jalgaon and Ahmednagar districts as recommended by the police authorities for a period of two years and hence he passed the order dated January 17, 1990 so externing the petitioner. It appears that the petitioner had filed an appeal to the Government of Maharashtra which came to be rejected on June 2, 1990. Hence the present writ petition was filed.

3. It may be noted at the outset that the respondents did not file returns opposing this writ petition.

4. Mr. Solkar, learned advocate appearing on behalf of the petitioner, brought to our notice that in the show cause notice dated June 8, 1989 (Exhibit-F to the petition) it was shown that the petitioner had committed eight offences from the year 1984 to the year 1986 which included four alleged offences as shown in an earlier notice dated March 19, (Exhibit-A to the petition). The submission of the learned advocate is that this shows total non-application of mind on the part of the externing authority. The submission of the learned advocate has substance in it and deserves to be accepted. Thus, it appears that there is difference about the C.R. numbers the alleged offences mentioned in the notice dated March 19, 1987 and notice dated June 8, 1989. Mr. Solkar urged that there are some typing errors in these documents but the record which he has now obtained from the police confirms that the first four alleged offences mentioned in the notice dated June 8, 1989 were already considered while issuing the notice to the petitioner on March 19, 1987 and the externment proceedings based on those alleged offences were dropped. Whether or not there are typing errors in notices dated March 19, 1987 and June 8, 1989, the fact remains that at least one alleged offence at serial number 3 in both the notices is the same being C.R. No. 85 of 1986 which goes to show that there was total non-application of mind on the part of the externing authority while issuing the externment order. Mr. Solkar further pointed out that the case mentioned at serial No. 3 in the notice dated June 8, 1989 was already compromised by an order dated February 4, 1987 in the Court of the Judicial Magistrate, First Class at Malegaon and even then it is mentioned in this notice that the said case was pending in the Court which also shows total non-application of mind on the part of the externing authority. It is further important to note that the cases at serial numbers 5, 6 and 7 in the notice dated June 8, 1989 are not the cases registered at Azadnagar Police Station but they were merely the N.C. complaints lodged against the petitioner and out of three, two were by his own wife. In other words, the N.C. complaints have been converted into C.R. numbers and so mentioned in the notice dated June 8, 1989 and the externing authority, without applying his mind, averred in the externment order that there were eight offences committed by the petitioner. This also goes to show a total non-application of mind by the externing authority.

5. The second contention raised by Mr. Solkar is that the impugned externment order under Section 56(1)(b) of the Bombay Police Act could be passed only if there were reasonable grounds for believing that the persons sought to be externed has engaged or was about to engage himself in 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 the externing officer witnesses were not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards safety of their person or property. The submission of the learned advocate is that in cases where the wife of the petitioner lodged N.C. complaints against him and the persons who lodged N.C. complaint at serial number 7 could not be said to be witnesses who were afraid of appearing in Court to give evidence against the petitioner because there is no record to show that private complaints were filed in the Court by the persons who had filed N.C. complaints against the petitioner. Therefore, the contention of the learned advocate is correct that the externment order was passed not in consonance with the provisions of Section 56(1)(b) of the Bombay Police Act and once again with total non-application of mind. Mr. Solkar is again correct in making a submission that the provisions of Section 56(1)(b) of the Bombay Police Act would not be attracted in a case that was compromised inasmuch as in a compromised case the question of witnesses being afraid of giving evidence in the Court does not arise.

6. Since all the contentions raised by the learned advocate appearing on behalf of the petitioner go unchallenged inasmuch as the respondents did not file a return opposing this writ petition and we find substance in all the contentions of the learned advocate, this writ petition must succeed.

7. In this view of the matter, the writ petition is allowed. The impugned externment order itself and the one confirmed by respondent No. 2 are quashed and set aside. Rule is accordingly made absolute in terms of prayer clause (b) of the petition.

8. Petition allowed.