-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 10 OF 2009 STATE (represented by Superintendent of Police, North, Porvorim, Goa). .. Petitioner. Verses 1.Shri Sonu @ Sunil Laxmikanth Mardolkar, r/o Simepaim, Mardel, Ponda, Goa. 2.Additional District Magistrate, North Goa District at Panaji, Goa, .. Respondents. Mr. C. A. Ferreira, Public Prosecutor for the petitioner. Mr. V. A. Lawande, Advocate for respondent no. 1. CORAM : N. A. BRITTO J. DATE : 8TH MAY, 2009. -2- ORDER : The challenge in this Writ Petition is to the order dated 14.10.2008 of the Additional District Magistrate by which the Additional District Magistrate has refused to pass an externment order against the respondent no. 1 under Section 4 (a) of the Goa Maintenance of Public Order and Safety Act, 1988 on the ground that the respondent was acquitted in most of the cases and therefore the respondent could not be held to be a notorious criminal who was a danger to public order and tranquility. 2. The petition herein has been filed at the behest of Superintendent of Police, North at whose instance the externment proceedings were initiated stating that the respondent being at large was a threat to -3- public order and tranquility. The list of cognizable cases and Chapter cases in which he was involved was mentioned. By a further application dated 14.8.2007, a list of additional cases filed against the respondent was given and again on 24.6.2008 further list was given. 3. As far as the facts of the case are concerned, the conclusion arrived at by the learned Additional District Magistrate that because the respondent was acquitted in most of the cases, he being at large was not threat to public order and tranquility, cannot be sustained. As regards this aspect, a Division Bench has held in the case of Agostinho Fernandes Vs. Chief Secretary, by judgment dated 27.8.2003 that a mere acquittal of the petitioner in some of the cases and mere compounding of the offence in -4- other cases would not be a circumstance which would negate the fact that no material as such, was existing. Whether a person is acquitted or convicted for the aforesaid offence, the fact that the offence had been registered against him would form the basis for an authority to come to the conclusion that the person is indulging in illegal activities, though, the Division Bench further held that in Writ jurisdiction this Court could not examine the adequacy or otherwise of the material which was before the externing authority. 4. In the case of Harcharan Singh Vs. State (2000 Cri. L.J. 1671), a Division Bench of Delhi High Court observed that there is no general rule that criminal cases against a person which result in his acquittal cannot be taken into consideration by the authority -5- proceeding against him under Sections 47/50 of Delhi Police Act, 1978. The Division Bench further held that the legislature has provided for the subjective satisfaction of the authority concerned to arrive at an opinion for passing the order under Section 47 of the Act. Basically the order of externment is passed to prevent a person with criminal tendencies from engaging himself in commission of offences. It is Officer concerned who must have considered the material placed before him to satisfy himself on the basis thereof as to whether such a person is likely again to indulge in commission of offences in future. Therefore, in order to check the propensities of a person and making a prognosis of his probable future conduct, his past activities can be taken into consideration. -6- 5. In the case of Pandharinath Shridhar Rangnekar Vs. Deputy Commissioner of Police (AIR 1973 SC 630), the Hon ble Supreme Court observed that the proposed externee is only entitled to be informed of the general nature of the material allegations, neither the externing authority nor the State Government in appeal can be asked to write reasoned order in the nature of a judgment. If those authorities were to discuss the evidence in the case, it would be easy to fix the identity of witnesses who were unwilling to depose in public against the proposed externee. A reasoned order containing a discussion of the evidence led against the externee would probably spark off another round of tyranny and harassment. 6. In the case of State of Maharashtra Vs. Salem Hasan Khan (1989 (2) SCC 316), it -7- was held that a full and complete disclosure of particulars, as is requisite in an open prosecution, will frustrate the very purpose of an externment proceedings. There is a brand of lawless elements in society which it is impossible to bring into book by established methods of judicial trial because in such trials there can be no conviction without any legal evidence. And legal evidence is impossible to obtain, because out of fear of reprisal witnesses and unwilling to depose in public. 7. Proceedings for externment are taken to afford protection to the public against hardened or habitual criminals or bullies or a dangerous and desperate class of persons who are a menace to the security of other persons or their property and are meant particularly for those who cannot be readily -8- be brought under the ordinary penal law and who for some reasons cannot be convicted for offences said to be committed by them. The proceedings are preventive and not punitive and its purpose is to secure future good behaviour. 8. As regards the locus of Superintendent of Police to file this Writ Petition, Counsel on behalf of the respondent has placed reliance on the case of Village Panchayat of Velim Vs. Shri Valentine S.K.F. Rebello and another (1990 (1) Goa L.T. 70), wherein a Division Bench of this Court has held that the Village Panchayat has no locus standi to challenge the order of appellate authority by way of Writ Petition as it would amount to subversion of judicial discipline. Reliance is also placed by learned Counsel on the decision of Mahanagar Telephone Nigam -9- Limited Vs. Chairman, Central Board, Direct Taxes (AIR 2004 SC 2434), wherein the Apex Court has held that two Departments of a State or Union of India and/or a Department of the Government and a public sector undertaking ought not fight a litigation in a Court of law, as such a course is detrimental to public interest as it entails avoidable wastage of public money and time. These are all limbs of the Government and must act in co-ordination and not confrontation. 9. In the case of State of Maharashtra Vs. Marwanjee F. Desai (2002 (2) SCC 318), the Apex Court held that the view that the competent authority being an arm or wing of the Government, the latter cannot be permitted to lodge a protest against its own order, is a total misreading of the statute and even in the event the same stands -10- accepted, it will lead to a dangerous proposition having far-reaching consequences. 10. On the other hand, Shri C. A. Ferreira on behalf of the petitioner has placed reliance on the case of State of T. N. Vs. G. N. Venkataswamy [(1994) 5 SCC 314] which was a case with reference to Section 52-A of the Tenancy and Land Laws, it was held that the Collector was exercising powers under the Act which was an Act of the State Legislature. He was invested with the powers to decide the controversy between the State and the defaulter and there was in existence a lis between the State and the defaulter. There is assertion and denial and the dispute involved the rights and obligations of the parties which were decided by the Collector. 11. In Writ Petition no. 462 of 2006 -11- decided on 23.11.2006 in the case of Shri Santosh Narayan Naik Vs. The State of Goa, it was observed that the Act was enacted by the Legislative Assembly of Goa with a view to provide for the maintenance of public order and safety in the State of Goa. Section 2 deals with definition and Clause (a) of sub- Section (1) thereof defines the expression district to mean a territorial division constituting a district for the purpose of the Code of Criminal Procedure, 1973. Clause (c) defines person to include any company or Association, or body of persons whether incorporated or not and clause (d) defines State Government to mean the Government of Goa. 12. Section 7 provides for Appeals against Order under Section 3 or Section 4. Sub-Section (1) thereof provides that any -12- person aggrieved by an order made under Section 3 or Section 4 may appeal to the State Government or any Officer authorized by the State Government in this behalf (hereinafter referred to as the Appellate Authority ) within thirty days from the date of the service of such order on him. Sub- Section (2) provides that an appeal under this Section shall be preferred in duplicate in the form of a memorandum, setting forth concisely the grounds of objection to the order appealed against and shall be accompanied by that order or a certified copy thereof. Sub-Section (3) provides that on receipt of such appeal, the Appellate Authority may, after giving a reasonable opportunity to the appellant to be heard either personally or by a counsel and after such further inquiry, if any, as it may deem necessary, confirm, vary or set aside the -13- order appealed against. 13. A right to appeal has always been considered as a substantive right and unless it is specially provided it cannot be exercised. The Act does not make any provision for revision by the State Government, to test the correctness of the orders passed by the District Magistrates in exercise of their powers under Section 3 or Section 4 of the Act. As already seen, the expression person and State Government have been defined in Clauses (c) and (d) of sub-Section (1) of Section 2 of the Act respectively. The expression any person aggrieved by an order, appearing in sub- Section (1) of Section 7 could be the only person as defined by Clause (c) of sub- Section (1) of Section 2 of the Act and certainly it could not refer to the -14- expression State Government appearing in Clause (d) of sub-Section (1) of Section 2. Orders under Sections 3 and 4 can be made only against persons as defined under Section 2 (1)(c) and it is only such persons who could be aggrieved and who can file appeals under Section 7 of the Act. That apart, an appeal is provided to the State Government and it cannot be said that the State Government can file an appeal to itself. The Superintendent of Police cannot be included within the definition of person as contemplated by Clause (c) of sub-Section (1) of Section 2 and therefore the appeal filed by him was clearly not maintainable. It may also be stated that the maintenance of public order and safety is primarily the duty of the District Magistrate and in the absence of any provision for appeal by the police against such orders or revisional jurisdiction given -15- to the State Government, such an order has to be considered to be final being not amenable to appeal at the behest of the police. Since, the Additional District Magistrate has refused to take action against the respondent, that order has now attained finality. It is the District Magistrate who is primarily saddled with the maintenance of public order and the police are expected to work in tandem with him and not in confrontation. Since the Additional District Magistrate rightly or wrongly decided not to extern the respondent, the Superintendent of Police is expected to abide by that decision. It would be improper on the part of the District Superintendent of Police to challenge the same in writ jurisdiction as such a course would also amount to subversion of discipline. I am therefore not inclined to entertain this petition at the behest of -16- the Superintendent of Police. Hence, the petition is hereby dismissed. 14. In view of the matter, I am not inclined to entertain this Writ Petition and accordingly the same is hereby dismissed. N. A. BRITTO J. *am/-