1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 479 OF 2009 Shri Rahul Sahebrao Chabukswar age 28 years, r/o Nyanagar, Husain Colony Garkheda Compound Aurangabad. .. PETITIONER VERSUS 1 Deputy Commissioner of Police Zone, Aurangabad. 2 Principal Secretary (Home) Mantralaya, Mumbai 3 The State of Maharashtra .. RESPONDENTS Shri U.N. Tripathi, Advocate for the petitioner. Shri Dilip Bankar Patil, APP for the State. ===== CORAM : R. M. BORDE, J. DATE : 7 th July, 2009. ORAL JUDGMENT : 1 Heard. 2 Rule. Rule made returnable forthwith. With the consent of the parties, the matter is taken up for final disposal at admission stage. 3 Petitioner is assailing the order passed by the Deputy Commissioner of Police, Aurangabad region, Aurangabad dt. 26-3-2009 passed under section 56(1)(a)(b) of the Bombay Police Act 1951 directing externment of the 2 petitioner from Aurangabad and Jalna districts for a period of two years. The externing authority issued notice on 23-8-2008 directing the petitioner to show cause as to why action contemplated under section 56 of the Bombay Police At shall not be taken against him. It is alleged in the notice that the petitioner is a ‘goonda’ and has no source of income and conducts criminal activities in the areas of Pundlik nagar, Nyaynagar, Vishalnagar, Husain colony, Gajanan nagar, New Hanuman nagar, N-3, N-4, Cidco and Garkheda area of Aurangabad city. It is alleged that he threatens the common citizens and the small businessmen with the help of a knife and gupti and creates terror amongst them. He also conducts extortionist activities. There are number of offences registered against him. The offences registered fall within the purview of Chapter XVI of the Indian Penal Code. A list of about 8 offences under the provisions of Indian Penal Code as well as preventive proceedings initiated on three occasions earlier were enlisted in the notice. Offences at sr. nos. 1 to 3 are of grave nature whereas the offences at sr.nos. 4 to 9 are the non-congnizable complaints lodged against the petitioner. Offence at sr. no. 1 pertains to the year 2002 whereas other offences at sr. nos. 2 and 3 pertain to the year 2004 and 2006. It is thus contended that the petitioner is indulging in criminal activities continuously since long. It is also further alleged that because of criminal activities of the petitioner, terror is created amongst the common citizens residing in the locality mentioned in the notice and as such, people are not coming forward to depose against him. It is also noted in the notice that in an enquiry conducted against the petitioner, statements of four persons were recorded who have on extending assurance of maintaining secrecy disclosed to the police officials in respect of criminal activities conducted by 3 the accused. Petitioner was thus directed to show cause as to why action under section 56(1)(a)(b) of Bombay Police Act shall not be taken against him and as to why he shall not be directed to remove himself out of Auranagabad and Jalna districts for a period of two years. 4 Petitioner appeared before the authority and presented his defence statement. The externing authority after following the procedure, passed final oder on 26-3-2009 thereby directing externment of the petitioner out of Aurangabad and Jalna districts for a period of two years. Petitioner preferred appeal to the State Government which came to be heard and disposed of by the Principal Secretary, Home Department, who was pleased to dismiss the same by order dt. 30-5-2009. Petitioner has thus approached this court raising exception to the order of externment passed against him as well as the appellate order passed by the State Govenment. 5 I have heard arguments advanced by Shri Tripathi, learned counsel for the petitioner and Shri Dilip Bankar Patil, learned APP for the State. Shri Tripathi, learned counsel for the petitioner has vehemently contended that the order of externment passed against the petitioner does not come within the purview of clauses (a) & (b) of Section 56(1) of the Bombay Police Act. It is contended that there is no material to come to the conclusion that the activities of the externee are of such a grave character which are likely to cause or calculated to cause danger or harm to the society at large or the person or property of the individuals residing in the locality. It is contended that there is no material or that the material placed on record is not sufficient to proceed against the petitioner under section 56(1)(b) of the Act. 4 He has pointed out that out of offences enlisted in the final order passed by the externing authority, offence at sr. no. 1 is only cognizable offence and the criminal proceedings are pending before the trial court. So far as offences enlisted at sr. nos. 2 to 7 in the final order are concerned, those are of non-cognizable nature. It is his contention that it would be unsafe or hazardous to pass order relying upon the material collected by externing authority and noted in the order. It is further contended that inference cannot be drawn on the basis of available material that as a result of the continuous criminal activities of the petitioner and because of fear the witnesses are not coming forward to depose against him. It is his contention that offence at sr. no. 1 unlisted in the final order is yet to reach the stage of recording of evidence whereas the other complaints mentioned in the final order are of non-cognizable nature. Therefore it is unsafe to draw an inference that the witnesses are not coming forward to depose against the petitioner on account of fear or threat in respect of safety of their person or property. He has pointed out that the offence at sr. no. 4 which is of non- cognizable nature is infact a complaint of ill-treatment lodged by his wife with the police authority. Offence at sr. no. 4 registered at the instance of his wife is also taken as the basis for issuing the order of externment against the petitioner. This itself shows non-application of mind to the record by the externing authority. The petitioner has also objected for placing reliance on the ‘in camera’ statements of the witnesses recorded by the police authority. He has contended that so far as paragraph nos. 3 and 4 of notice which relate to statement of witnesses recorded on 3-8-2008 and 4-8-2008 are concerned, there are no particulars given as to where the alleged offence has been committed or as to what was the time of commission of offence. 5 In the absence of necessary particulars, according to him, it is difficult for the externee to meet the charge levelled against him. It is thus contended that the whole order of externment passed by the authority is vitiated and liable to be quashed. 6 Learned APP for the State has supported the order passed by the externing authority which has been confirmed by the appellate authority. It is contended by learned APP that the cases alleged against the petitioners are in respect of the criminal activities coming within purview of Chapter XVI of the Indian Penal Code. It is contended that there is sufficient material collected by the police to reach a satisfaction in respect of necessity of taking preventive action against the petitioner. 7 I have perused the impugned order passed by the externing authority as well as the order passed by the State Government. In order to take preventive action as contemplated by section 56 of the Bombay Police Act, the externing authority has to satisfy, (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or (b) that there are reasonable grounds for believing that such person is engaged or is about to engage in commission of offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or the abetment of any such offence and when in the opinion of such officer witnesses are not wiling to come forward to depose against such person by reason of apprehension on their part as regards the safety of their person or property. In the instant matter, inference is drawn against the externee on the basis of the cases involving him enlisted 6 in the order at sr. no. 1 to 7. Offence at sr. no. 1 is registered on 5-5-2006 and it is stated that the criminal proceedings are yet pending in the trial court. Offence allegedly committed in the year 2006 cannot be a basis for initiating action in the year 2009. The other offences stated at sr. nos. 2 to 7 are non-cognizable complaints and the accused had no opportunity to meet the charge against him. Apart from this, offence at sr. no. 4 bearing Crime No. 1177/07 is alleged to be an act of violance against his wife and is registered on 26-11-2006 for offence punishable under section 232, 504 and 506 r/w section 34 of the Indian Penal Code. Offence alleged by the wife of the petitioner cannot be a basis for initiating prevention action or passing the preventive order against the petitioner. Externing authority has also relied upon the offence registered against the petitioner at the instance of his wife for passing final order. This itself shows non-application of mind by the externing authority. Apart from this aspect, offences at sr. nos. 2 to 7 which are of non-cognizable nature are not sufficient to proceed against the petitioner under section 56 of the Bombay Police Act. Grievance is made by the petitioner that there are no particulars given in the notice in respect of the statements of the witnesses secretly recorded. It is necessary for the externing authority to record the particulars such as time, date, place and nature of allegations to enable the externee to meet the case built up against him. It is contended that item nos. 3 and 4 in the notice in respect of ‘in camera statements’ of the witnesses do not give requisite particulars so as to enable the petitioner to meet the allegations against him. Learned counsel for the petitioner has placed reliance on the judgment reported in (1999) Vol. 101(1) Bom.L.R. 631 in the matter of Iqbal Hussain Abid Hussain Qureshi vs. The State of Maharashtra and others. In 7 paragraph no. 7 of the judgment, it is noted thus: 7. I will take the last ground first namely that in so far s in camera statement of witness “B” is concerned that no particulars of the place have been given and in the light of that Petitioner was denied proper opportunity to show cause. Statement of witness “B” only shows that incident took place on20th November, 1997 at 11.25 p.m. In Abdul Kadir Razzaque Beg v. Sub-Divisional Magistrate,Nasik and others, the Division Bench of this Court has observed that the time, the date, the place and the nature of incident should be circumscribed within such reasonable limits in order to enable the Petitioner to meet the allegations against him. Whereas the in camera statement of witness “A” apart from showing the date and time shows also the place. No such particulars are set out in so far as in camera statement of witness “B” is concerned. The Petitioner therefore was denied a reasonable opportunity of meeting the said ground. Once it is held that the Petitioner was denied the reasonable opportunity, the said ground could not have been the basis of formation of opinion. It is also clear that when the order of externment is based on the several grounds and one of the grounds cannot be sustained, the Court cannot decide which ground weighs with the Externing Authority and it cannot substitute the decision over that of the Externing Authority. The order on that count is liable to be quashed and set aside. . The learned Single Judge while dealing with the matter of Iqbal Hussain has placed reliance on a Division Bench judgment in the matter of Abdul Kadir Razzaque Beg vs. Sub-Divisional Magistrate, Nasik reported in 1991 Mh.L.J. 474. The Division Bench in paragraph nos. 5 and 6 of the 8 judgment has observed thus : 5 On a perusal of the order of externment passed by the Externing Authority as also the Appellate Authority, it would be difficult for this Court to uphold the view that the authorities in question had applied their minds to the facts of the present case. We have pointed out to Mr. Kothari, the learned Public Prosecutor, that, undoubtedly, the Courts have consistently taken the view that an Externing Authority is not required to give any detailed reasoning or judgments in support of the orders or decisions, but one has, at the same time, to bear in mind the fact that the appellate authority or the reviewing authority must be provided with sufficient material from the order whereby that authority or court can come to the conclusion that the order has not been passed arbitrarily or mechanically. Mr. Kothari relied on an unreported decision of this Court in the case of State vs. Sushil Govind Kasale, Criminal Appeal no. 1201 of 1969, wherein a Division Bench of this Court did take the view that no reasons need to be given and that only the subjective satisfaction required to be recorded. This court has consistently upheld this view, but it needs to be clarified that while detailed reasons are not required to be recorded, the authority would not be justified in merely reproducing the the ingredients of the section and prefixing it with the clause “I am satisfied that”. The inherent danger in an order of this type is that it is virtually impossible for the court to find out as to whether at all the authority has perused the record and whether at all the authority has applied its mind to what was pointed out against the person against whom the order is made. While dealing with cases of externment where the consequences are serious and where the rights and liberty of a person over a protracted time stand to 9 be affected, it is essential that the order must pass the tests of judicial scrutiny. The duty to act fairly and the duty to act reasonably are now crystallized principles which must be embodied in all such orders and for the purpose of ascertaining as to whether these principles have been followed, it would be necessary for the concerned authorities to produce an order of the type whereby the court can reasonably be satisfied of due compliance of the procedure prescribed by law. 6 There is no dispute with regard to this proposition, but it is also essential that while setting out the charges against the person concerned, that the time, the date, the place, the nature of the incident, etc., should be circumscribed within such reasonable limits that it would be possible for the person concerned to adequately meet those charges. The Supreme Court in the case of State of Gujarat vs.Mehbubkhan, AIR 1968 SC 1468, has set out one such illustration when it pointed out that unless the time period is reasonably specified, it may be difficult for th person against whom the charges are made to sustain a defence of alibi by saying that he was not at that particular place around that period of time or by bringing forth documentary evidence in support of his contention that he was at some other place. . Coming to the case at hand, it is clear that the particulars in respect of place of commission of offence has not been described in respect of incident narrated at paragraph nos. 3 and 4 of the notice. The externee, therefore, rendered incapable of meeting the charge levelled against him for want of necessary particulars. As stated earlier, the list of offences alleged to have been committed by the externee also enlist the offence lodged against him by his wife. Complaint lodged against the externee by 10 his wife cannot be a basis for passing a prohibitory order against him. This fact itself shows non-application of mind by the externing authority. Registration of non-cognizable offence against externee in itself is not a sufficient ground for taking externment action of curtailing the individual liberty of a person. 8 Shri Dilip Bankar Patil, learned APP for the State has made available the ‘in camera’ statements of witnesses recorded by police. I have gone through all the four statements recorded by the externing authority on 3-8-2008 and 4-8-2008. Statements of all the witnesses are strikingly identical. Not only the nature of crime but the manner in which crime is committed and the place of offence is also strikingly identical. All the four statements are to a large extent identical. It would be quite unsafe to place reliance on such ‘in camera’ statements of the witnesses. Considering the contents of the statements recorded by the police officials which are evidently uncontroverted and the petitioner had no opportunity to meet the allegations by subjecting the witnesses to cross examination. In the given circumstances, in my opinion, it is unsafe to place reliance on ‘in camera’ statements. The order of externment passed by the Deputy Commissioner of Police passed under section 56(1)(a)(b) of Bombay Police Act on26-3-2009 confirmed by the State Government on 30-5-2009 is likely to be quashed and set aside and same is accordingly quashed and set aside. Rule is accordingly made absolute. ( R. M. BORDE, J.) dyb/office/cwp479.09.odt