1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1944 OF 2009 Sachin Vithalrao Bhujbal .. Petitioner V/s. Satish Khandare & Ors. .. Respondents Ms.Sharmila Kaushik for the Petitioner. Mrs.P.P.Bhosale, A.P.P.for the State. CORAM : S.A. BOBDE, J. DATE : SEPTEMBER, 1 st & 2 nd , 2009 . P.C.: The petitioner has challenged the order of externment issued against him under section 56(b) of the Bombay Police Act. The main reason for the externment appears to be that the petitioner has been charged with three offences and his activities have caused harm, alarm and danger in the minds of the residents and shop-keepers residing within the jurisdiction of Samarth Police Station. 2. Ms.Kaushik, the learned counsel for the Petitioner, submitted that no case for externment is made out under section 56(b) of the Bombay Police Act which provides for externment in the following circumstances : 2 “(b) that there are reasonable grounds for believing that 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, XVI or XVII of the Indian Penal Code (XLV of 1860), or in the abetment of any such officer 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.” 3. According to the learned Counsel, the very fact that offences have been registered against the petitioner and are pending trial show that the apprehension of the authority that the petitioner might threaten witnesses is unfounded who might not come forward, and, therefore, the order deserves to be quashed. 4. There is no doubt that the notice states that certain cases are registered against the Petitioner. It is however not possible to infer from the mere fact of pendency of trial that there is no basis for the authority to come to the conclusion that witnesses would not come forward. The learned counsel for the petitioner stated that the actual details of whether all the witnesses have come forward are not known. A similar argument was rejected in AIR 1973 Supreme Court 630 in Pandharinath Shridhar Rangnekar V/s.Dy. Commissioner of Police, State of Maharashtra in the 3 following words. “6. Regarding the first point, it is urged that in Criminal Cases Nos.2106/P of 1969 and 2337/P of 1969 which were filed against the appellant in the court of the learned Presidency Magistrate, 22nd Court, Andheri, Bombay, five witnesses were examined by the prosecution in each case thereby falsifying the assertion that witnesses were not willing to come forward to depose against the appellant in public. We cannot accept this contention. No connection is shown to exist between the two particular criminal cases and the incidents referred to in the externment order. Counsel attempted to establish that connection by saying that Damayanti Deshpande who was inimical to the appellant was the motive force behind the prosecutions as well as the externment proceedings. But the affidavit of the Deputy Commissioner has specifically denied that allegations. Besides, as held by this Court in Bhagubhai Dullabhai v/s.The District Magistrate, Thane, 1956 SCR 533=(AIR 1956 SC 585), though, in order to attract the operation of Section 56 of the Act, the officer concerned has to satisfy himself that witnesses are not willing to come forward to give evidence in public, it is not necessary that all the witnesses must be found thus unwilling to give evidence. The circumstances therefore that in the two criminal cases certain witnesses came forward to depose against the appellant in public cannot falsify the assertion that witnesses were unwilling to give evidence against the appellant in public”. 5. It was next contended by the learned counsel for the petitioner that the show cause notice issued to the petitioner itself is vitiated and therefore the entire proceeding, on the ground that the notice 4 does not states the period of proposed externment. Section 56 of the Bombay Police Act reads as follows : “56. 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 area 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 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 commission of an offence involving force or violence or an offence punishable under Chapter 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 the far believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Anti- social 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 the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an 5 immigrant, the said officer may, by and 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]. [(2) An officer directing any person under sub- section (1) to remove himself from any specified area or areas in the State may further direct such person that during the period the order made against him is in force, as and when he resides in any other areas in the State, he shall report his place of residence to the officer in-charge of the nearest police station once in every month, even if there be no change in his address. The said officer may also direct that, during the said period, as and when he goes away from the State, he shall, within ten days from the date of his departure from the State send a report in writing to the said officer, either by post or otherwise, of the date of his departure, and as and when he comes back to the State he shall, within ten days, from the date of his arrival in the State, report the date of his arrival to the officer in-charge of the police station nearest to the place where he may be staying.]” 6. There is no requirement that the notice should contended the 6 proposed period of externment. The learned counsel for the petitioner however relied on a decision of the Division Bench of this Court in Mrs.Marry Kutty V/s.State of Maharashtra, 1987 (2) Bom. C.R.196 where a Division Bench made the following observations. “5. As has been pointed out earlier, under section 56 two alternative actions are contemplated against the person concerned. He is either to be directed to conduct himself in a particular manner or to remove himself from an area or areas for a specified period. Which of the two actions will be taken finally and the precise particulars thereof may be decided upon by the officer on the basis of the material that may come before him in the enquiry held under section 59(1). However, when the notice is issued under section 59(1), it is to inform him not only that an enquiry is to be held into the allegations stated therein but that the same is being held with a view to take either of the two actions against him. If the purpose of the enquiry is not stated in the notice, the person concerned need not even appear in the enquiry at all, as he is entitled to presume that nothing of any consequence would happen to him even if he does not appear. Precisely for the same reason the purpose has to be stated in clear and detailed terms. For just as the person may disregard a notice which gives him no inkling of the object of the enquiry, he may also ignore a notice which proposes an action which to him may not appear harmful to his interest. The Act does not contemplate a purposeless enquiry into the conduct of a person. The fact that the precise particulars of the action proposed against the person should be communicated to him is made clear by the provisions of section 59(1) itself when it states that “Before an order under section 55,56,57,57A is passed against any person the officer shall inform the person...”etc. This 7 language of the section implies that the person concerned must atleast known that the order proposed is under either of the said sections. It, therefore, legitimately follows that he should also know the kind or the nature of the order and its essential particulars. The ultimate order that may be passed may not in all respect be the same as was proposed. But that may be because after applying his mind to the material which comes before him in the enquiry, the officer may come to the conclusion that the action proposed is not warranted in the circumstances of the case. But this eventuality also enjoins upon the officer that he should intimate the person concerned the extreme action that is proposed against him. The person concerned is entitled not only to tender his explanation for the allegations but also for the action proposed against him. It is after taking into consideration all that the person has to say not only against the allegations but also against the proposed action that the officer has to pass his final order under the respective section. It is, not open for the officer to take an action which the person concerned had no opportunity to defend or on grounds which were not intimated to him”. 7. None of the above observations in my view warrant an inference of the conclusion that the notice should state the exact period of externment which is proposed. The authority is entitled as a matter of law to state in the show cause notice that an externment is proposed and specify the actual period of externment only in the externment order. The authority cannot be tied down to a specific period of externment which must be mentioned in notice should indeed be entitled to exercise his discretion to specify the period at the time of making the externment 8 order after hearing the proposed externee. 8. It was lastly contended on behalf of the petitioner that the show cause notice is vitiated on the ground that it is not stated therein that in the pending cases witnesses are not coming forward. There is however, no requirement of law that only witnesses from pending cases should not be willing to come forward in order to attract the provisions of law. In the present case the notice clearly made that reference to the activities of the petitioner as follows : “ You are residing at the aforesaid address within the jurisdiction of Samarth Police Station and you are always carrying dangerous weapons. You are dangerous, desperate criminal minded and habitual goonds, having created a terror upon the minds of the people residing in your area and further you are extorting money and assaulting the small time businessmen as well as passerbys, by threatening them with the weapons. You are an alcoholic. Being dangerous desperate and cruel by creating a fear upon the minds of the passerby with the help of weapons during day and night time, you have been extorting money from them. As a result of your activities, a terror is created within the area, covered by Samarth Police Station and you being a dangerous and cruel person, nobody is willing to complain against you openly. As a result of that the crimes committed by you have increased. As a result of the terror and gundagiri there has been insecurity upon the minds of the people residing in the said area. Due to your terror, the people do not dare, to make police complaints against you openly.” 9 9. The notice goes on to further refer to particular witnesses who are not named, but who stated that they are robbed of their monies and threatened to be cut to pieces by the petitioner was armed with a dangerous weapon. It cannot be said that the notice did not give adequate notice to the allegations which the petitioner is expected to meet which is the essential requirement of the law. The order of externment cannot be said to vary in any material particular from the notice. In this view of the matter, there is no merit in the petition which is hereby dismissed. ( S.A. BOBDE, J.)