1 cr-wp-2880-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.W.P. NO. 2880 OF 2010 Mr. Prakash Hari Binawat ..Petitioner Vs. The State of Mah. and Ors. ..Respondents .... Mr.C.G.Gavnekar Adv. for petitioner Smt. M.M.Deshmukh APP for State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : OCTOBER 26, 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 26.7.2010 passed by Respondent no.2 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-2880-10 3 The order of externment is passed only 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 that 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 in their mind relating to their person or property. He submitted that not only the proposed externee has to be subjectively satisfied but the proposed externee has to be informed the material on which such satisfaction is based in the show cause notice so that he can effectively reply to the same, which has not been done in the present case, hence, the order of externment cannot be sustained. 4 In order to understand the controversy involved, it is necessary to first see the relevant provisions of Section 56(1)(b) 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 3 cr-wp-2880-10 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)--------------- (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 4 cr-wp-2880-10 their property. In the present case, the material relied upon by the Externing Authority in order to arrive at his subjective satisfaction that witnesses are not willing to come forward to give evidence in public on account of fear is not stated in the show cause notice. On a reading of the show cause notice which is annexed as Exhibit-`A ’ to the affidavit of respondent no.2, it is clear that there is no material therein to show 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 relating to their person or property. Notice of such satisfaction must also necessarily be given to the proposed externee under section 59 of the said Act. However, the show cause notice does not show that to reach such subjective satisfaction there was any material before the externing authority. 5 cr-wp-2880-10 7 It is not only in the order of externment that the subjective satisfaction has to be reflected but the proposed externee has to be made aware of the material on which such satisfaction is based. A show cause notice is required to be issued to the proposed externee before any externment order is issued, with a view to enable him to meet the allegations against him. If the proposed externee is not even informed the material particulars like approximate time of the incident, approximate area and general nature of the incident, this itself is a sufficient ground for quashing the order of externment because it deprived the petitioner of an opportunity to explain the allegations made against him in the show cause notice. This is clearly illegal. Similar view is taken by this Court in a case of Mr. Kishore Durge Vs. Dy. Commissioner of Police, reported in 2003 ALL MR (Cri.) 2023. In the show cause notice in the present case, there is not even a whisper of any such material, hence, the order of externment is liable to be struck down. 8 For the reasons mentioned above, this petition succeeds. The order of externment dated 26.7.2010 against the petitioner, is hereby quashed and set aside. 9 Rule made absolute accordingly. [ SMT. V.K.TAHILRAMANI, J.]