1 cr-wp-2296-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.W.P. NO. 2296 OF 2010 Ganesh Laxman Lagas ..Petitioner Vs. Police Commissioner and Ors. ..Respondents .... Mr. Anant Vadgaonkar Adv. for petitioner Mr. V.B.Konde-Deshmukh APP for State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : AUGUST 31, 2010 ORAL ORDER: 1 Heard the learned advocate for the petitioner and the learned APP for the State. Rule. By consent, rule is made returnable forthwith and the matter is heard finally. 2 The order of externment dated 13th May, 2010 passed by the Deputy Commissioner of Police, Pune and confirmed by the Government of Maharashtra in an appeal preferred by the externee, is challenged in this petition. The petitioner is the externee. 2 cr-wp-2296-10 3 The order of externment is passed under Section 56(1)(b) of the Bombay Police Act (hereinafter referred to as the “said Act ”). The said order was naturally preceded by a notice given under Section 59 of the said Act. The learned advocate for the petitioner submitted that one of the necessary ingredients of Section 56(1)(b) is the Externing Authority should be satisfied that witnesses are not willing to come forward to give evidence in public against such person due to apprehension. He submitted that in the present case when the impugned externment order was passed there was no material before the externing authority to reach such a conclusion, hence, the externment order cannot be sustained. 4 In order to understand the controversy involved, it is necessary to first see the relevant provisions of the Act and thereafter the contents of the notice and the order of externment. Section 56(1)(b) of the said Act reads as under: “56(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 3 cr-wp-2296-10 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)--------------- (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 Chapter XII, XVI,or XVII of the IPC or in the abetment 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; ” [EMPHASIS SUPPLIED] 5 On going through the provisions of Section 56(1)(b) it is evident that when an action is proposed to be taken against an externee and when the externment order is passed, the externing authority has to be subjectively satisfied that witnesses are not coming forward to give evidence against the proposed externee in public on account of apprehension in their mind about their own safety or about the safety of their property. In the present case, in order to arrive at his subjective 4 cr-wp-2296-10 satisfaction that witnesses are not willing to come forward to give evidence in public on account of fear, the externing authority has relied upon three incamera statements of witnesses A, B and C. All the three incamera statements have been recorded in the month of August, 2007 i.e. almost three years prior to the passing of the externment order. The externment order in the present case, came to be passed on 13th May, 2010. On a reading of the show cause notice, it is clear that only these three incamera statements have been relied upon by the externing authority to state that on account of fear, witnesses are not coming forward to give their evidence in public, hence, it is necessary to pass order under Section 56(1)(b). 6 After examining the provisions of section 56(1)(b) of the Bombay Police Act, it is observed that in every case, where an order of externment is proposed to be passed under Section 56(1)(b), it is necessary that the externing authority must be satisfied that witnesses are not willing to come forward to give evidence in public against the proposed externee on account of fear. Notice of such satisfaction must also necessarily be given to the proposed externee under section 59 of the said Act. In the present case, though the fact that witnesses are not coming forward to give evidence in public on account of fear is 5 cr-wp-2296-10 mentioned in the Notice as well as the externment order, which on the face of it is in conformity with Section 59 and Section 56(1)(b), the moot question is whether there was any material before the externing authority to make this averment and to be subjectively satisfied on this aspect. The show cause notice and externment order show that to make this averment and to reach his subjective satisfaction the externing authority relied upon the statements of three incamera witnesses. It is pertinent to note that these statements were recorded almost three years prior to passing of the externment order. However, thereafter, it is noticed that on 5.1.2010 an FIR came to be lodged against the petitioner i.e. CR No. 39 of 2010 at Dattewadi police station. This shows that in the recent past, witnesses have been coming forward to give evidence against the petitioner in public. These three statements of incamera witnesses which were recorded three years prior to the date of order of externment, can be said to be stale incidents. There cannot be said to be any live link between incidents which took place three years ago and passing of the externment order, especially in view of the fact that in the recent past people have come forward to give evidence against the petitioner in public. In my view, these three incamera statements recorded three years ago, cannot be made the basis for externment order under Section 56(1)(b) of the Act. 6 cr-wp-2296-10 7 According to the Externing Authority these three incamera statements recorded in August, 2007 were the basis for reaching his subjective satisfaction that witnesses were not willing to depose in public on account of fear. In such case, the externment proceedings should have been initiated soon after these statements were recorded and the Externing Authority should not have waited for three years to pass the externment order. 8 In my opinion, these stale incidents cannot be taken into consideration for passing an externment order in 2010 as it cannot be said that there was any continuing live link between these statements and passing of externment order. 9 The proceedings by way of an externment order are essentially preventive by nature and the very essence of such proceedings is that they must be expeditiously completed. If the object of externing a particular person is in order to remove him from the scene of his obnoxious activities which are having a detrimental effect in that area, the entire objective gets frustrated if the proceedings are completed after an inordinate lapse of time and it cannot then be said 7 cr-wp-2296-10 that there exists a live link between the charges that are levelled and the preventive action which is taken. 10 It needs to be reiterated in these cases that the law visualises a situation where an offender has become so persistently troublesome or dangerous to society around him that his physical presence in that area has to be done away with in public interest. Delay in implementation, therefore, runs counter to and frustrates the objective behind these provisions. More importantly, a reviewing authority such as a Court, is unable in cases of gross delay, to ascertain as to whether the situation complained about is still in existence at the latter point of time when the order is passed. The passing of an adverse order even if earlier justified, may be longer be valid. Alternatively, in the case of hardened and habitual offenders, with whom the police are most concerned, it is imperative that their activities are curbed at the earliest point of time. Taking steps to extern after an inordinate delay would result in snapping the live link between the prejudicial activities and the externment order. I may hasten to add that delay in passing an externment order is not fatal but the delay has to be satisfactorily explained. There is no explanation furnished as to why after three years, it was found necessary to pass an order of externment on the ground that though the prejudicial activities of 8 cr-wp-2296-10 the externee continued, witnesses are not willing to come forward to depose in public on account of fear. 11 For the reasons mentioned above, this petition succeeds. The order of externment dated 13.5.2010 passed under Section 56(1)(b) of the Bombay Police Act against the petitioner, is hereby quashed and set aside. 12 Rule made absolute accordingly. [ SMT. V.K.TAHILRAMANI, J.]