IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.864 OF 2008 WITH CRIMINAL APPLICATION NO.149 OF 2008 IN CRIMINAL WRIT PETITION NO.864 OF 2008 Mr.Nitin Tukaram Gavankar .. Petitioner/ Applicant Vs. The Deputy Commissioner of Police, Zone-XII, Mumbai & Ors. .. Respondents Ms S.S.Hawasia with Mr.S.P.Halwasia i/by M/s.Halwasia & Co for the petitioner/applicant. Mr.S.R.Borulkar, P.P with Mrs.P.P.Shinde, A.P.P for the respondents. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 12th August 2008. : 12th August 2008. : 12th August 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the last date. The challenge in this petition under Article 227 of the Constitution of India is to an order of externment passed by the Deputy Commissioner of Police on 29th January 2008 in exercise of powers under section 56(1)(a)(b) of the Bombay Police Act, 1951. The order of externment has been confirmed by the Appellate : 2 : 2 : 2 : Authority in a statutory appeal. 2. The learned counsel appearing for the petitioner has raised various contentions. The first contention is that the show cause notice refers to three cases registered against the petitioner and in one case out of the three, withdrawal of the case has been permitted and in another case, the petitioner has been discharged. The submission is that these relevant facts which were brought to the notice of the concerned authority by filing a reply have not been considered by the authority which has passed the order of externment. He submitted that the subjective satisfaction is vitiated by non consideration of these important factual aspects. It is submitted that an inquiry was conducted by the Assistant Commissioner of Police before whom six witnesses were examined and the evidence of the said witnesses has not been considered by the Deputy Commissioner who has passed the order of externment. It is submitted that order of externment shows non application of mind. 3. I had called upon the learned A.P.P to produce the file of the proceedings. I have perused the said file. I brought to the notice of the learned A.P.P that in the said file there are two original orders of : 3 : 3 : 3 : externment signed by the Deputy Commissioner of Police. The first is the one which is served to the petitioner and the second one is of the same date i.e 29th January 2008 which is a detailed order passed by the same Deputy Commissioner of Police. I have also brought to the notice of the learned A.P.P that the second order dated 29th January 2008 is a detailed order in which to some extent there is a consideration of the evidence of witnesses examined by the petitioner before the Enquiry Officer (Assistant Commissioner of Police). 4. The learned A.P.P submitted that the Assistant Commissioner of Police, Dahisar Division was appointed as an Enquiry Officer. It is submitted that though an opportunity was given to the petitioner to produce evidence before the Deputy Commissioner of Police, no evidence was adduced by the petitioner. The learned A.P.P submitted that the Deputy Commissioner of Police before passing the order of externment has considered the report of the Enquiry Officer and the Enquiry Officer has considered the evidence adduced by the petitioner. It is submitted that the subjective satisfaction recorded by the Deputy Commissioner of Police cannot be gone into in this Writ Petition under Article 226 and Article 227 of the Constitution of : 4 : 4 : 4 : India. She pointed out that the learned Deputy Commissioner of Police had not only considered the offences registered against the petitioner but also the in-camera statements of certain persons. It is submitted that the other order dated 29th January 2008 is not a separate order but a noting made by the Deputy Commissioner of Police who has passed the order of externment which is duly served to the petitioner. 5. I have carefully considered the submissions. It cannot be disputed that an order of externment affects liberty of an individual. The Apex Court in the case of Lt.Governor, NCT and others Vs. Ved Prakash Alias Vedu [(2006) 5 Supreme Court Cases 228] observed that an order of externment is an executive order which must demonstrate due application of mind on the part of the Statutory Authority. The Apex Court held that when validity of such an order is question, what would be seen is material on which satisfaction of the authority is based. The satisfaction of the authority although subjective, should be based on objectivity. It is well settled that sufficiency of material as such may not be gone into by Writ Court unless it is found that while passing the impugned order the authority has failed to take into consideration the relevant facts or had based : 5 : 5 : 5 : its decision on irrelevant factors which are not germane or which are not at all relevant. The Apex Court in the same decision observed that while considering challenge to an order of externment the High Court would undoubtedly jealously guard the fundamental rights of a citizen. The Apex Court observed that the Court may examine the record itself so as to satisfy its conscience not only for the purpose of ascertaining whether the procedural self-guards available to the petitioner have been provided but also for the purpose that the witnesses have disclosed their apprehension about deposing in Court truthfully and fearlessly because of the alleged prejudicial activities of the proceeder. 6. In the present case, it will be necessary to refer to the procedure followed before passing the order of externment. The sponsoring authority in the present case is the Senior Inspector of Police of Dahisar Police Station who submitted the report to Deputy Commissioner of Police for initiating action under section 56(1)(a)(b) of the said Act of 1951. It will be necessary to refer to section 59 of the said Act of 1951 which reads thus: : 6 : 6 : 6 : "59. (1) Before an order under section 55 [56, 57 or 57A] is passed against any person the officer acting under any of the said sections or any officer above the rank of an Inspector authorised by that officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such application; and examine such witness, unless for reasons to be recorded in writing, the authority or officer is of opinion that such application is made for the purpose of vexation or delay. Any written statement put in by such person shall be filed with the record of the case. Such person shall be entitled to appear before the officer proceeding under this section by an advocate or attorney for the purpose of tendering his explanation and examining the witness produced by him. : 7 : 7 : 7 : (2) The authority or officer proceeding under sub-section (1) may, for the purpose of securing the attendance of any person against whom any order is proposed to be securing the attendance of any person against whom any order is proposed to be made under section 55, [56, 57 or 57A] require such person to appear before him and to pass a security bond with or without sureties for such attendance during the inquiry. If the person fails to pass the security bond as required or fails to appear before the officer or authority during the inquiry, it shall be lawful to the officer or authority to proceed with the inquiry and thereupon such order as was proposed to be passed against him may be passed." Sub section (1) provides that before an order of externment is passed against any person, the officer acting under any of the said sections 55, 56, 57 and 57A or any officer above the rank of the Inspector authorised by that officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable : 8 : 8 : 8 : opportunity of tendering an explanation regarding them. The sub section further provides that if such person makes an application for examination of any witness produced by him, the authority or the officer concerned shall grant such application. It is permissible for such person to file a written statement. Under section 56 of the said Act of 1951, in Greater Mumbai, the Commissioner and in any other areas, the District Magistrate or Sub Divisional Magistrate empowered by the State Government in that behalf can exercise power of passing an order of externment. Thus, in the city of Mumbai authority to pass an order of externment is the Commissioner appointed under section 7 of the said Act of 1951. The Deputy Commissioner of Police is appointed under section 10 of the said Act of 1951. The Deputy Commissioner, in the present case has exercised the powers delegated to him by the Commissioner. Sub section (1) of section 59 provides that inquiry contemplated therein has to be held either by the person who is empowered to pass order of externment or any officer above the rank of the inspector authorised by that officer. The perusal of the file shows that an order was passed by the Deputy Commissioner authorising the Assistant Commissioner of Police, Dahisar Division to hold an inquiry under section 59 of the said Act of : 9 : 9 : 9 : 1951. Accordingly an enquiry was held by the Assistant Commissioner of Police before whom the petitioner examined 6 witnesses. The inquiry was concluded by the Assistant Commissioner of Police and a recommendation was made by him to pass an order of externment. 7. At this stage, it will be necessary to refer to the order of externment which is served to the petitioner and which has been annexed to the petition. The said order records that before Enquiry Officer the petitioner had examined defence witnesses. The Deputy Commissioner has stated that in the report submitted by the Enquiry Officer it is stated that the evidence of the said witnesses was not satisfactory. In his order, the Deputy Commissioner has specifically recorded that though an opportunity was given to the petitioner, the petitioner did not produce any defence witnesses. The question which arises is whether after an inquiry is held by an authorised officer of sub section (1) of section 59 it is necessary for the person to whom show cause notice has been issued to again adduce the same evidence before the officer empowered to pass an order of externment. In this behalf it will be necessary to refer to a decision of the Division Bench of this Court in the case of Nanhekhan Gulabkhan Pathan Vs. State of : 10 : 10 : 10 : Maharashtra & Ors. (1992 Maharashtra Law Journal 225). In the case before the Division Bench of this Court, the order of externment was passed by Sub Divisional Magistrate, Aurangabad. The show cause notice was earlier issued by the Sub Divisional Police Officer. An inquiry was held by the Sub Divisional Police Officer and he submitted the entire record to the Sub Divisional Magistrate. After perusing the record of the inquiry, Sub Divisional Magistrate passed an order of externment. The question which specifically arose before the Division Bench was whether it was obligatory on the part of the externing authority i.e the Sub-Divisional Magistrate to hear the proposed externee either in person or through his lawyer under section 59 of the said Act of 1951 before the ultimate order of externment under section 56 of the said Act of 1951 was passed. What is held by Division Bench on this aspect reads thus: "..... For that purpose it is open for such officer to hold a preliminary enquiry as he may deem fit and proper in exigency of the matter, but after he holds such enquiry, he has to send the entire record of the enquiry to the : 11 : 11 : 11 : externing authority who ultimately passes the externment order after considering the entire material so sent to him. It may be that during the preliminary enquiry the proposed externee is given an opportunity of being heard personally, but that will not dispense with the requirement of section 59 which grants the right to the proposed externee to appear before the externing authority, either in person or through his lawyer for the purpose of tendering his explanation, before the ultimate order was passed. In other words, merely because the In other words, merely because the In other words, merely because the enquiry enquiry enquiry officer above the rank of Inspector of officer above the rank of Inspector of officer above the rank of Inspector of Police Police Police has given the personal hearing to the has given the personal hearing to the has given the personal hearing to the proposed proposed proposed externee, that by itself will not be externee, that by itself will not be externee, that by itself will not be due due due compliance of the procedure as embodied in compliance of the procedure as embodied in compliance of the procedure as embodied in section section section 59 of the Act. The basic condition 59 of the Act. The basic condition 59 of the Act. The basic condition which which which is clamped on the externing authority is is clamped on the externing authority is is clamped on the externing authority is to to to hear the proposed externee either in person hear the proposed externee either in person hear the proposed externee either in person or or or through his representative namely the lawyer through his representative namely the lawyer through his representative namely the lawyer or or or advocate and be satisfied according to the advocate and be satisfied according to the advocate and be satisfied according to the due due due procedure, before the ultimate order of the procedure, before the ultimate order of the procedure, before the ultimate order of the externment externment externment is passed. is passed. is passed. ......" (Emphasis added) : 12 : 12 : 12 : Thus, the law laid down by the Division Bench is that the authority which passed order of externment has to give an opportunity of being heard to the proposed externee and the statutory obligation cannot be said to have been discharged merely because the proposed externee was given an opportunity of being heard by a sub-ordinate police officer who is not the competent authority to pass the ultimate order of externment. That is the reason why in the present case after report was submitted by the Enquiry Officer, a show cause notice was issued by the Deputy Commissioner to the petitioner calling upon the petitioner to show cause. While passing the order of externment, the Deputy Commissioner or the authority which passes the order of externment has to consider the report of the Enquiry Officer and the material and evidence placed before the Enquiry Officer. The subjective satisfaction of the authority has to be recorded on the basis of the consideration of said material and therefore, it is not expected of the proposed externee to again adduce the same evidence before the said authority which is already adduced by him before the enquiry Officer. In the present case in the order of the Deputy Commissioner which is served to the petitioner it is recorded that the petitioner has not examined any defence witnesses : 13 : 13 : 13 : before him. Infact, there was no occasion for the petitioner to examine defence witnesses before the Deputy Commissioner in as much as before the enquiry Officer appointed by the Deputy Commissioner, the petitioner had adduced evidence by examining defence witnesses. The order of externment which is served to the petitioner does not show that the evidence of the said witnesses has been considered by the Deputy Commissioner. The Deputy Commissioner has merely referred to the report of the Enquiry Officer in which it is mentioned that according to the Enquiry Officer, the evidence of the defence witnesses was not satisfactory. At this stage it must be noted that in the separate detailed order of externment which is in the file there is a detailed reference to the findings recorded by the Enquiry Officer on the basis of the evidence of the witnesses examined by the petitioner. In the said order it is noted that the Enquiry Officer was of the view that the witnesses were tutored witnesses as their depositions were almost identical. This portion of the order in the file is not found in the order which is served to the petitioner. In the said second order which is found in the file, the Deputy Commissioner has not found fault with the petitioner on the ground that he has not produced any witnesses before : 14 : 14 : 14 : him. The submission of the learned A.P.P is that the second order is not an order but is a mere noting made by the Deputy Commissioner. The said submission cannot be accepted on plain reading of the said order. It is an order passed by the Deputy Commissioner bearing his seal in which in the concluding portion he has stated as under: "Therefore, I hereby order that the proposed externee shall be externed from Mumbai, sub-urban and Thane districts for a period of one year." 8. The said order directs that a separate order of externment shall be issued. It appears that it is this separate order of externment which is served to the petitioner. The subjective satisfaction of the authority is recorded in the other order dated 29th January 2008 which is admittedly not supplied to the petitioner. If the subjective satisfaction of the authority is recorded in the said order, it is this order which ought to have been served to the petitioner. The minimum which is expected is that the proposed externee should know on what grounds the order of externment is passed by the authority. Thus, the real : 15 : 15 : 15 : grounds or reasons recorded for passing order of externment were not communicated to the petitioner. 9. There is one more aspect of the matter. Apart from in-camera statements, the show cause notice refers to the three offences registered against the petitioner. One offence is under section 387 of the Indian Penal Code registered with Jogeshwari police station. On 24th December 1998 the petitioner was acquitted of the said offence. The second offence which is referred to is recorded with Dahisar police station under section 387 read with section 34 of the Indian Penal Code. An application was made by the police prosecutor under section 321 of the Code of Criminal Procedure, 1973 in the said case and on the basis of the said application, the learned Magistrate had discharged the petitioner. These two orders were brought to the notice of the authority by the petitioner. But there is a non consideration of the said orders by the authority which passed the order of externment. There is non consideration of the evidence of the defence witnesses examined by the petitioner and infact Deputy Commissioner observed that no witnesses were produced before him by the petitioner. After the petitioner adduced the evidence before Enquiry Officer he was not : 16 : 16 : 16 : expected to lead the same evidence before the Deputy Commissioner and the Deputy Commissioner was bound to consider the said evidence adduced by the petitioner before the Enquiry Officer. Therefore, this is a case of non application of mind by the Deputy Commissioner. Moreover, the reasoned order of externment was not served to the petitioner. 10. Thus, the impugned order of externment is completely illegal and the same deserves to be quashed and set aside. 11. Accordingly, the order of externment dated 29th January 2008 is quashed and set aside. Rule is accordingly made absolute with no orders as to costs. 12. In view of disposal of this petition, Criminal Application No.149 of 2008 does not survive and the same is rejected. (A.S.Oka, J)