ash 1 crwp-1189.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL WRIT PETITION NO. 1189 OF 2010 Ismail Ibrahim Sitadar. .. Petitioner Vs The State of Maharashtra & Others .. Respondents -- Shri Rahul Arote for the Petitioner. -- CORAM : A.S. OKA, J DATED : 4TH OCTOBER, 2011 ORAL JUDGMENT : . By this Writ Petition, the Petitioner has challenged the order passed under Section 56(1) of the Bombay Police Act, 1951 ( hereinafter referred to as “the said Act”). 2. A show cause notice dated 4th September, 2009 was issued calling upon the Petitioner to show cause as to why the order of externment should not be passed against him under Sub-section (1) of Section 56 of the said Act. The Deputy Commissioner of Police passed an order of externment dated 3rd November, 2009 against the Petitioner by which the Petitioner was externed from the limits of Mumbai City, Mubai Suburban District and Thane District for a period of two years. An Appeal preferred by the Petitioner against the said order has been dismissed by the State Government. ash 2 crwp-1189.10 3. The learned counsel appearing for the Petitioner has invited the attention of the Court to the show cause notice. He pointed out that in the show cause notice, there is a specific allegation made that the Petitioner is moving in the areas specified in Clause 5 of the show cause notice and has created a terror. As a result, no one is coming forward to lodge a complaint against the Petitioner. In the show cause notice, reliance was placed on the in-camera statements of the witnesses. He submitted that in the impugned order of externment, though there is a reference in the title to clauses (a) and (b) of Sub- section (1) of Section 56 of the said Act, it is not recorded in the order that the witnesses are not coming forward to give evidence against the Petitioner. He submitted that thus the show cause notice has been issued on one ground and the order has been passed on the other ground. He placed reliance on a decision of the Division Bench of this Court in the case of Yashwant Damodar Patil v. Hemant Karkare, Deputy Commissioner of Police, Thane & Another (1989 Mh.LJ 1113 ) in support of his contentions. 4. The learned APP supported the impugned orders by contending that in the show cause notice, there are clear assertions that due to terror created by the Petitioner, no one was willing to file complaint and depose against the Petitioner. He submitted that the ash 3 crwp-1189.10 Deputy Commissioner of Police had passed an order after considering the reply filed by the Petitioner and has recorded subjective satisfaction. He submitted that the decision of the Division Bench will have no application to the facts of the present case. 5. I have given careful consideration to the submissions. Sub- section (1) of Section 56 of the said Act reads thus:- “56(1) 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 are a 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 specifically 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 commissioner of an offence involving force or violence or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, (XLV of 1860) or in the abatement 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 a defined in the Maharashtra Prevention of Communal, Antisocial and other Dangerous Activities Act, 1980, (Mah.VII of 1981 or (2) in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in ash 4 crwp-1189.10 the Explanation to sub-section (1) of Section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (VII of 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 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].” 6. Sub-section (1) of Section 56 provides four grounds i.e. Clauses (a), (b), (bb) and (c) for passing an order of externment. Ground (b) is attracted when two conditions are satisfied; i.e. (i) 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 or Chapter XVI or Chapter XVII of the Indian Penal Code (XLV of 1860) or in the abatement of any such offence and (ii) 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. ash 5 crwp-1189.10 7. In the present case, in the show cause notice, the Clauses (a) and (b) of Sub-section (1) of Section 56 of the said Act were quoted. 8. It will be necessary to make a reference to the decision of this Court in the case of Yashwant Damodar Patil v. Hemant Karkare, Deputy Commissioner of Police, Thane (supra). In Paragraph 5, the Division Bench has observed thus:- “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 against him. For example, if action is proposed to be taken against him under clause (a) of section 56(1) 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 pubic 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 an 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 also be necessarily informed that witnesses are not coming forward to depose against him. The fact that ash 6 crwp-1189.10 the proposed externee is engaged or is about to be engaged in one or the other type of the activity or movements in clauses (a) and (b) of section 56(1) 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(1) of the Bombay Police Act, will provide a proper basis for the exercise of the power of externment under the provisions of the Act.” 9. The law laid down by the Division Bench is that the fact that the proposed externee is engaged or about to be engaged in one or the other type of the activity or movements in clauses (a) and (b) of Section 56(1) of the said Act is not sufficient by itself to warrant an order of externment. That fact coupled with the opinion formed by the designated officer that the witnesses are not willing to come forward to give evidence in public for the reasons mentioned in clauses (a) and (b) of Section 56(1) of the said Act will provide a proper basis for passing the order of externment. 10. It is true that the facts of the case before the Division Bench may be different. But in the present case, clauses (a) and (b) of Section 56(1) of the said Act were specifically invoked in the show cause notice. In the impugned order of externment passed by the Deputy Commissioner of Police, there is not even a reference made by ash 7 crwp-1189.10 the officer to the allegation that the witnesses are not willing to come forward to give evidence in public for the reasons mentioned in clauses (a) and (b) of Section 56(1) of the said Act. No such satisfaction or formation of opinion is reflected in the impugned order of externment. It is not sufficient to mention the said fact in the show cause notice, but it is absolutely necessary to record the opinion while passing the order under Clause (b) of Sub-section (1) of Section 56 of the said Act. In the absence of such opinion, the order of externment is not at all valid and the same will have to be quashed and set aside as the impugned order shows non-application of mind. 11. Accordingly, the rule is made absolute in terms of prayer clause (c). ( A.S. OKA, J )