The state has the power to pass an Externment order or a direction barring certain people entry to the specified area should be exercised only in “Exceptional cases”: Bombay High Court

 on 18 09 2021 on 18 09 1 10WP 2603 202157022006 EQ0 158032001 EQ262442005 2 MH.L.J. 384.Bhagyawant Punde on 18 09 2021 on 18 09 4 10WP 2603 2021in the case of Yashwant Damodar Patil Vs. Hemant Karkare Deputy Commissioner of Police Thane & Anr5 relying upon thejudgment of Hon’ble Supreme Court in the case of PandharinathShridhar Vs. Deputy Commissioner of Police6 in paragraphs 9 and11 held thus: “9. We have already after examining theprovisions of section 56(1) of theBombay Police Act held that in everycase of acts involved on the part of theproposed externee where an order ofexternment is proposed to be passed itis necessary that the offcer concernedmust be satisfed that witnesses are notwilling to come forward to give evidenceagainst him. Notice of such satisfactionmust also necessarily be given to theproposed externee under section 59 ofthe Bombay Police Act. In the presentcase though notice of the fact thatwitnesses are not coming forward to give51989 Mh.L.J. 11116AIR 1973 SC 630Bhagyawant Punde on 18 09 2021 on 18 09 8 10WP 2603 2021is concerned no suchnotice has been given in so far as theground mentioned in the second part ofsection 56(1)(b) is concerned. In otherwords when the authority proceeded togive notice to the proposed externee onthe ground that he is engaged in thecommission of offences punishableunder Chapter XVI of the Indian PenalCode he failed to mention also that thewitnesses are not coming forward to giveevidence against him.11.Before parting with thisjudgment it would not be inappropriateto mention a couple of facts which wehave noticed while dealing with orders ofexternment passed by the authorities inthis part of Maharashtra and especiallyby the authorities in Thane District.While giving notice under section 59 ofthe Act the clear distinction betweenclauseand the frst part of clauseis not always borne inmind. Vague words mentioning that thepetitioner is involved in the activitiescausing alarm or danger and also inacts of violence etc. are freely used.Though the law does not require theauthorities under the Bombay Police Actto give the details of the activities of theproposed externee it is still necessary as required by section 59 of the Act togive to the proposed externeeinformation about the general nature ofthe material allegation against him.What the general nature of the materialallegation against the proposed externeeis has been explained by the SupremeCourt in Pandharinath Shridhar Vs.Bhagyawant Punde on 18 09 2021 on 18 09 9 10WP 2603 2021 (J).docDeputy Commissioner of Police AIR1973 SC 630. Some of the orders ofexternment have been set aside on theground that the allegations against theproposed externee mentioned in thenotices are too vague to enable theproposed externee to represent againstthe proposed orders of externment. Itmay also be noted that very often theperiod during which the prejudicialactivities of the proposed externee arecommitted is also not mentioned. In ouropinion this is absolutely necessarybecause without the notice of the periodwith reference to which action isproposed to be taken the proposedexternee obviously cannot defendhimself properly.”[Emphasis supplied]11.In an externment proceedings initiated against anyperson it is necessary to scrupulously follow the procedure andmandate of said sections. Once the person is externed hisfundamental right to stay at the place of his choice or to move fromone place to another gets curtailed.12.Learned counsel for the petitioner during the course ofhearing submitted that the wife of the petitioner is illiterate andchildren are dependent upon the petitioner. The said ground in thefacts of the present case cannot be overlooked.Bhagyawant Punde on 18 09 2021 on 18 09 10 10WP 2603 2021 (J).doc13.In view of discussion in foregoing paragraphs we are ofthe opinion that the impugned order of externment cannot be legallysustained and the writ petition deserves to be allowed. Accordingly the writ petition is allowed.14.The impugned order of externment dated 23rd March 2021 passed by Divisinal Commissioner Konkan Division inCriminal Appeal No. 21 2021 is quashed and set aside.15.Rule is made absolute to above extent.16.The writ petition stands disposed of.17.It is made clear that this order is passed in the peculiarfacts and circumstances of this case and the petitioner will not beable to derive any beneft out of it in other proceedings initiatedagainst him including trials arising out of the offences registeredagainst the petitioner.18.Parties to act upon an authenticated copy of this order.( N. J. JAMADAR J.)(S. S. SHINDE J.)Bhagyawant Punde 

Summary:   The Externment proceedings initiated against any person should necessary to scrupulously follow the procedure as held by the Hon’ble Bombay High Court before the Hon’ble S. S. Shinde &amp; N.J. Jamadar, JJ in the matters of Shri Arshad Sahil Khan v. State of Maharashtra [Criminal Writ Petition No.2603 of 2021].    The facts of the case related to the Criminal writ petitioner wherein the respondent issued a show-cause notice to the petitioner and specific materials against the petitioner is not proven in the notice due to lack of evidence, on this count the notice is legally unsustainable. Petitioner submitted that there is no live link between the alleged commission of offenses and passing of Externment order by the Respondent authority. No such material evidence against the Petitioner and the Externment order passed by the respondent authority is unsustainable in law and the Appeal needs to be quashed.    Eventually, it was figured out numerous Offences are registered against the petitioner by different persons. It is proven that petitioners have a habit of assaulting common citizens by using sharp weapons residing in the same territory. Additional petitioner was involved in the Extortion of money from citizens. In the camera statement of witnesses ‘A’ and ‘B’ were recorded by the Police officer. The statement prescribed by the witness demonstrates all the activities of the petitioner. With the assistance of learned counsel of the state with the proven pleadings and grounds concerning the Externment proceeding initiated against the petitioner.  The offense mentioned in the show-cause notice is true and punishable under Section 392, 504, 506 read with 34 of the Indian Penal Code of 1860. The Externing authority has not specifically recorded the findings that the witness is unwilling to come forward in public to give evidence against the petitioner because of apprehension to the safety of the witness, persona, and property. Under Section 56 of Maharashtra Police Act, 1951, it is necessary to record specific findings that the witnesses are unwilling to come forward in public to give evidence against the petitioner so the Externment order is not legally sustained.    The Hon’ble Bombay High Court held that Externment order is not legally sustainable then the person is externed then the fundamental right to stay at the place of his choice or to move from one place to another will not be curtailed. “The impugned order of externment cannot be legally sustained and the writ petition is allowed”.   Click Here to read Judgement.