1 cr-wp-1427-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.W.P. NO. 1427 OF 2010 Shri. Kishore @ Bundi Kishya Lahu Turukmare ..Petitioner Vs. The Principal Secretary, Home Department and Ors. ..Respondents .... Mr. Rahul Kadam Adv. for petitioner Mr. S.A.Shaikh APP for State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : OCTOBER 11, 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. 2 The order of externment dated 23.1.2010 passed by Respondent no.2 Deputy Commissioner of Police, Pune and confirmed by order dated 30.4.2010 by the Government of Maharashtra in an 2 cr-wp-1427-10 appeal preferred by the externee, is challenged in this petition. The petitioner is the externee. 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 notice is dated 2.1.2010. The said notice is annexed as Exh. A to this petition. 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 impugned externment order, the Externing Authority has stated that on account of fear of the externee, people are not willing to give evidence against him openly and only after the witnesses were taken into confidence and assured that their names would not be revealed, then witnesses gave their statements. The Externing Authority has relied on these statements to pass the externment order. However, the petitioner was not furnished any material regarding the incamera statements. The show cause notice, does not state any details about any statements of any incamera witnesses. Thus, the externee was not made aware on the basis of what material the Externing Authority reached such a conclusion. He 3 cr-wp-1427-10 submitted that in such case, the externment order cannot be sustained. 3 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 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 4 cr-wp-1427-10 reason of apprehension on their part as regards the safety of their person or property; [EMPHASIS SUPPLIED] ” 4 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 satisfaction that witnesses are not willing to come forward to give evidence in public on account of fear, the externing authority has relied upon some incamera statements of witnesses. From the show cause notice which is annexed as Exh. A to the petition, the learned APP was unable to point out any details relating to the incamera statements which 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). 5 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 5 cr-wp-1427-10 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 mentioned in the externment order, the moot point is no material in relation thereto was furnished to the externee as to what was the material before the externing authority to make this averment and to be subjectively satisfied on this aspect. The externment order shows that to make this averment and to reach his subjective satisfaction the externing authority relied upon the statements of some incamera witnesses but even the gist of these statements was not informed to the petitioner. 6 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 made against him in the show cause notice. 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 6 cr-wp-1427-10 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. Comissioner of Police, reported in 2003 ALL MR (Cri.) 2023. 7 For the reasons mentioned above, this petition succeeds. The order of externment dated 23.1.2010 passed under Section 56(1)(b) of the Bombay Police Act against the petitioner, is hereby quashed and set aside. 8 Rule made absolute accordingly. [ SMT. V.K.TAHILRAMANI, J.]