1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.138/2011. Bhupendra s/o Shantaram Pardeshi Age: 30 Yrs., occu. Business, r/o Panchwatinagar, Pipeline Rd., District Ahmednagar. - PETITIONER VERSUS 1) The State of Maharashtra Through Secretary, Home Department, Mantralaya, Mumbai.32. 2) The Sub Divisional Magistrate, Nagar Division, Ahmednagar, District Ahmednagar. - RESPONDENTS ***** Mr.NV Gavare, Advocate for petitioner; Mr.VH Dighe, APP for Respondents. ----- CORAM : K.U.CHANDIWAL, J. DATE : 3rd March, 2011. ORAL JUDGMENT: 1) Heard. Rule, made returnable forthwith. Heard finally, by consent of the parties. 2) The order of externment dated 7th February, 2011 recorded by the Respondent No.2 – Sub Divisional Magistrate, Nagar Division, Ahmednagar in Externment proceedings No.23/2010, 2 is questioned by the petitioner/externee. 3) The bone contention is, a) the respondent no.2 has passed the externment order in absence of any tangible evidence, without following the principles of natural justice; b) Respondent No.2 did not refer in his order the statements of two witnesses, viz. Ashok Diwate and Rajesh Dixit; c) the alleged criminal activities of the petitioner/externee are from Ahmednagar city and not from Nagar taluka and, therefore, the externment order to that extent is also illegal; d) Liberty, as enshrined under Article 21 of the Constitution of India, has been taken away in a casual and callous manner by the Executive. 4) The learned APP submits that there is no perversity in the order, it does not suffer from any omission or prejudicial act to the externee. Seven cases were pending at the material time against the petitioner/externee, of which reference is given to him in the show cause notice, even if some cases are compounded, the illegal activities of the petitioner/externee are not arrested. The reference to four other cases, while passing the order are chapter proceedings and they do not change the colour and complexion of the matter. It is not requirement of law that 3 details of witnesses should be informed to the externee. He submits, the respondent no.2 was conscious of the nature of order as the externment is for two months, which he could have extended up to two years in the light of gravity and the nature of accusations against the accused/externee. 5) The notice slapped to the petitioner/externee dated 31.12.2010 is necessarily in terms of Section 59 of the Bombay Police Act, which also requires adherence to the procedure in terms of Section 56(1)(a)(b)(bb) and Section 56(2) thereof. The report that has been furnished by the competent authority, i.e. Sub Divisional Police Officer (SDPO), which reads in Marathi, as under , - “vkf.k T;kvFkhZ mi foHkkxh; iksyhl vf/kdkjh uxj ‘kgj foHkkx vgenuxj ;kauh R;kapsdMhy tk-dz- ‘kfo@d-fy-@g-iz- izk-pkS0@681@2010 fn- 29@11@2010 vUo;s ;kdkeh izkFkfed pkSd’kh d:u eqacbZ iksyhl vWDV 1951 pas dye 56¼1½¼v½¼c½ vUo;s vgoky lknj dsyk vkgs R;k e/;s R;kauh rqeP;k gkypkyh] dwR; gs loZlkekU; O;Drhl Hk;] /kksdk] btk rlsp ekyeRrsP;k lqjf{krrsl /kksdk fuekZ.k dj.;klkj[;k vlY;kps fnlwu vkY;kus o fHkrhiksVh rqeP;k fo:/n dks.khgh lk{k ns.;kl r;kj ukghr- R;keqGs rqEgkl vgenuxj rls vkSjaxkckn] iq.ks] chM ukf’kd ;k ftYg;kps gnnhrqu nksu o”kkZdjhrk gnnikj dk d: u;s ;klkBh gh uksVhl ns.;kr ;sr vkgs- mifoHkkxh; iksfyl vf/kdkjh ;kauh R;kapsdMhy vgokyke/;s [kkyhyizek.ks xqUg;kapk rif’ky fnysyk vkgs-” 4 6) The notice thus refers to some witnesses, who are not coming forward. Pursuant to such show-cause notice, a reply was tendered by the petitioner/externee. He had informed to examine two witnesses and their statements were furnished named above. 7) In the matter of Pandharinath Shrihari Vs. Dy. Commissioner of Police, State of Maharashtra – AIR 1973 SC 630, the Hon’ble Lordships have observed in paragraph 9 as under , - “These provisions (referring to Section 56, 59(1) of the Bombay Police Act) show that the reasons which necessitate or justify the passing of an externment order arise out of extraordinary circumstances. An order of externment can be passed under clause (a) or (b) of section 56 if, and only if, the authority concerned is satisfied that witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety of their person or property. A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding. If the show cause notice were to furnish to the proposed externee concrete data like specific dates of incidents or the 5 names of persons involved in those incidents, it would be easy enough to fix the identity of those who out of fear of injury to their person or property are unwilling to depose in public. There is a brand of lawless element in society which it is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence. The lordships further observed, - “evidence is impossible to obtain, because out of fear of reprisals witnesses are unwilling to depose in public, That explains why section 59 of the Act imposes but a limited obligation on the authorities to inform the proposed externee "of the general nature of the material allegations against him".” 9) This position illustrated by the Hon’ble Lordships though find its place in the notice, referred above, however, while passing the order, the learned Sub Divisional Magistrate dealt with such statements of the witnesses, without informing to the petitioner/externee, even by slightest reference as to who were they, or what was broader grievance against the petitioner. That apart, the learned Sub Divisional Magistrate, did not whisper or refer to the two witnesses of Applicant. It was obligatory on the part of the Sub Divisional Magistrate (SDM) to 6 deal with them. The learned SDM referred to four pending chapter cases, while negating the contention of the petitioner/externee, are not informed to him in the show cause notice, which was also imperative to be so done. 10) These aspects and flaw in the order of learned SDM naturally calls for interference to quash and set aside the order dated 7th February, 2011, being not following the prescribed procedure. The order is accordingly quashed and set aside. The matter is remitted to the learned Sub Divisional Magistrate to independently deal with the statements of the witnesses and also inform the petitioner/externee a broader gist of statements and solicit his explanation. The learned Sub Divisional Magistrate shall desist to refer four chapter cases while passing order in any manner. This Court has not expressed any opinion on merits of the case. 11) The Criminal Writ petition is allowed to the above extent. Rule is made absolute in aforesaid terms. sd/- ( K.U.CHANDIWAL ) JUDGE