Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police and anr. - Court Judgment

Excerpt:
criminal - order of externment - sections 56 (1) and 59 of bombay police act, 1951 - whenever an action is proposed to be taken against an externee notice to be given under section 59 - notice must inform proposed externee grounds on which action is proposed to be taken against him - fact that proposed externee is engaged or is about to be engaged in one or other type of activity under sections 56 (1) (a) and 56 (1) (b) is not sufficient to warrant an order of externment - such fact coupled with opinion of designated officer that witnesses are not willing to come forward to give evidence in public for reasons mentioned in sections 56 (1) (a) and 56 (1) (b) would provide proper basis for exercise of power of externment under provisions of act - in instant case there was failure of externing authorities to comply with second condition - order of externment liable to be set aside. - - the contention is well-founded, as we will show shortly. but it is not enough that these conditions alone are satisfied. he was told, in the first place, that he was living in the jurisdiction of vartak nagar police station and, with the assistance of a group of goondas, he was harassing the poor people living in laxmi nagar and chirag nagar and that he was also indulging in beattng the said persons. 9. we have already, after examining the provisions of section 56(i) of the bombay police act, held that in every case of acts involved on the part of the proposed externee, where an order of externment in proposed to be passed, it is necessary that the officer concerned must be satisfied that witnesses are not willing to come forward to give evidence against him. in other words, when the authority proceeded to give notice to the proposed externee on the ground that he is engaged in, the commission of offences punishable under chapter xvi of the indian penal code, he failed to mention also that the witnesses are not coming forward to give evidence against him.r.a. jahagirdar, j.1. the order of externment dated 29th of october, 1988 passed by the deputy commissioner of police, thane, and confirmed by the government of maharashtra in an appeal preferred by the externee, is challenged in this petition under article 226 of the constitution of india. the petitioner is the externee.2. the order of externment passed under section 56(i)(b) of the bombay police act was naturally preceded by a notice given under section 59 of the said act. mr. chitnis, the learned advocate appearing in support of the petition, has challenged the order of externment on the ground that the said order has taken into consideration a factor of which the petitioner has not been given notice under section 59 of the bombay police act. the contention is well-founded, as we will show shortly. in order to understand the same, however, it is necessary to first notice the relevant provisions of the act and thereafter the contents of the notice and the order of externment.3. section 56(i) of the bombay police act visualises three situations in which the order of externment could be passed by the designated officer. we will, however, ignore, for the purpose of the disposal of this petition the third type of situation and only analyse the two situations which are covered by clauses (a) and (b) of section 56(i) of the act. an order of externment can be passed against a person whose movements or acts are causing or calculated to cause alarm, danger or harm to person or property. that is what is provided in clause (a). the order of externment can also be passed against a person if there are reasonable grounds for believing that such a person is engaged or is about to be engaged in the commission of an offence involving force or violence. it is so provided in the first part of clause (b) of section 56(i) of the act. an order of externment can also be passed against a person if that person is engaged or about to be engaged in the commission of an offence punishable under chapter xii, of chapter xvi, or chapter xvii of the indian penal code. this is so provided in the latter part of clause (b) of section 56(i) of the act. but it is not enough that these conditions alone are satisfied. in addition to this the designated officer should be of the opinion that 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.4. summarising again, the provisions of section 56(i) in so far as they are relevant for the purpose of this petition, it can be stated that a person, whose movements or acts are causing or calculated to cause alarm or danger or harm to person or property and against whom witnesses are unwilling to depose, can be externed under clause (a) of section 56(i) of the act. similarly, if there are reasonable grounds for believing that a person is engaged or is about to be engaged in the commission of an offence involving force or violence and witnesses are unwilling to depose against him, he can be externed under the first part of clause (b) of section 56(i) of the act. again a person who is engaged or is about to engage in the commission of an offence punishable under chapter xii, or chapter xvi, or chapter xvii of the indian penal code and against whom witnesses are unwilling to come forward and depose, can also be externed as per the second part of clause (b) of section 56(i) of the act.5. whenever, therefore, an action is proposed to be taken against an externee, hereinafter referred to as 'the proposed externee', a notice naturally has to be given to him under section 59 of the bombay police act. this notice must inform the proposed externee the grounds on which action is proposed to be taken against him. for example, if action is proposed to be taken against him under clause (a) of section 56(i) of the act, then the proposed externee must be told that his movements or acts are causing or calculated to cause alarm, danger or harm to person and property and witnesses are not willing to come forward to give evidence in public against him. if action is proposed to be taken against him on the ground that the proposed externee is engaged or is about to be engaged in the commission of an offence involving force or violence, then he must be told so and he must also be informed that in the opinion of the officer witnesses are not willing to come forward to give evidence in public against him. similarly, if any action is proposed to be taken against the proposed externee on the ground that he is engaged or is likely to be engaged in the commission of offences punishable under chapter xii or chapter xvi or chapter xvii of the indian penal code, then he must be informed about the same and he must be necessarily informed that witnesses are not coming forward to depose against him. the fact that the proposed externee is engaged or is about to be engaged in one or the other type of the activity or movement in clauses (a) and (b) of section 56(i) of the bombay police act, is not sufficient by itself to warrant an order of externment. that fact, coupled with the opinion formed by the designated officer that witnesses are not willing to come forward to give evidence in public for the reasons mentioned in clauses (a) and (b) of section 56(i) of the bombay police act, will provide a proper basis for the exercise of the power of externment under the provisions of the act.6. now, we proceed to examine the facts of the case before us. by a notice dated 13th of july, 1988, purporting to be under section 56(i)(a) of the bombay police act, the petitioner, as the proposed externee, was informed of certain facts on the basis of which the order of externment was proposed to be passed. he was told, in the first place, that he was living in the jurisdiction of vartak nagar police station and, with the assistance of a group of goondas, he was harassing the poor people living in laxmi nagar and chirag nagar and that he was also indulging in beattng the said persons. he was also told that he was picking up quarrels with the people residing in the adjacent areas and creating an atmosphere of tension. thereafter, he was also told that being afraid of his tendency towards violence, the people were not willing to come forward to lodge complaints with the police station.7. from this it appears to us that the notice, so far summarised, is under the first part of clause (b) of section 56(i) of the bombay police act. it mentions that the proposed externee is engaged in the commission of offences involving force or violence and it also mentions that witnesses are not willing to come forward to lodge their complaints against him.8. if this was the only ground mentioned in the notice and if action has been subsequently taken on the said notice by passing order of externment, probably we would not have found any fault with the same. unfortunately, however, the notice under section 59 further proceeds to state that some complaints have been registered in the police station and they are under chapter xvi of the indian penal code. this is in accordance with the second part of clause (b) of section 56(i) of the bombay police act. however, having mentioned that the proposed externee has indulged in commission of offences under chapter xvi of the indian penal code, the notice does not further say that witnesses are not willing to give evidence against the proposed externee.9. we have already, after examining the provisions of section 56(i) of the bombay police act, held that in every case of acts involved on the part of the proposed externee, where an order of externment in proposed to be passed, it is necessary that the officer concerned must be satisfied that witnesses are not willing to come forward to give evidence against him. notice of such satisfaction must also necessarily be given to the proposed externee under section 59 of the bombay police act. in the present case, though notice of the fact that witnesses are not coming forward to give evidence against the proposed externee has been given in so far as the ground mentioned in the first part of clause (b) of section 56(i) is concerned, no such notice has been given is so far as the ground mentioned in the second part of section 56(i)(b) in concerned. in other words, when the authority proceeded to give notice to the proposed externee on the ground that he is engaged in, the commission of offences punishable under chapter xvi of the indian penal code, he failed to mention also that the witnesses are not coming forward to give evidence against him.10. this itself would not have been fatal to an action that could have been taken under the first part of clauses (b) of section 56(i) of the bombay police act. unfortunately, the deputy commissioner of police has ultimately passed the order of externment under the second part of clause (b) of section 56(i) of the act. he enumerates, as he had enumerated in the notice under section 59. the , three cases which are pending against the petitioner. thereafter, he also proceeds to say that as a result of the conduct of goondaism engaged by the proposed externee the people in the neighbourhood have developed a fright about their lives and they are unwilling to give evidence in public against him. for a valid order under section 56(i)(b) (later part) of the act, this satisfaction is undoubtedly necessary, but the petitioner was not told, when he was told about the conditions mentioned in the second part of clause (b) of section 56(i), that witnesses are not willing to come forward to depose against him. the condition about the unwillingness of the witnesses was mentioned only in relation to the circumstances covered by the first part of clause (b) of section 56(i) of the act. this shows that the externing authority has taken into consideration a factor of which notice had not been given to the proposed externee under section 59 of the act. in view of this, we are bound to hold that there has been a breach of the rule of natural justice which has been incorporated in section 59 of the bombay police act and, therefore, the order of externment will have to be set aside. in the instant case, if the externing authority had acted only on the ground mentioned in the first part of clause (b) of section 56(i) of the act, that order would have been sustainable, because to notice, as required by law, had been given in so far as the first part of clause (b) of section 56(i) was concerned. as already mentioned above, this has not been done.11. before parting with this judgment, it would not be inappropriate to mention a couple of facts which we have noticed a while dealing with orders of externment passed by the authorisation in this part of maharashtra and especially by the authorities in thane district. while giving notice under section 59 of the act, the clear distinction between clause (a) and the first part of clause (b) of section 56(i) is not always borne in mind. vague words mentioning that the petitioner is involved in the activities causing alarm or danger and also in acts of violence, etc. are freely used. though the law does not require the authorities under the bombay police act to give the details of the activities of the proposed externee, it is still necessary, as required by section 59 of the act, to give to the proposed externee information about the general nature of the material allegation against him what the general nature of the material allegation against the proposed externee is had been explained by the supreme court in pandharinath shridhar v. deputy commissioner of police. a.i.r. 1978 sc 630. some of the orders of externment have been set aside on the ground that the allegations against the proposed externee mentioned in the notices are too vague to enable the proposed externee to represent against the proposed orders of externment. it may also be noted that very often the period during which the prejudicial activities of the proposed externee are committed is also not mentioned. in our opinion, this is absolutely, necessary because without the notice of the period with reference to which action is proposed to be taken, the proposed externee obviously cannot defend himself properly.12. for the reason stated above, this petition succeeds. the order of externement dated 29th of october, 1988 passed by the deputy commissioner of police under section 56(i)(b) of the bombay police act against the petitioner is hereby set aside.