Criminal Writ Petition No. 270 of 1996

4th July, 1997

Petitioner Counsel: S/Shri S.A. JAISWAL and P.S. JAISWAL
Respondent Counsel: Shri. S.B.WAHANE

Cases Cited:
AIR 1973 SC 630 [Para 5]

JUDGMENT

JUDGMENT :- This petition is directed against the order of externment passed under Section 56(1)(a) of the Bombay Police Act, 1951, in an externment proceeding No. 59/1996, dated 16th October, 1996 by the Deputy Commissioner of Police, Zone-III, Nagpur, externing the petitioner for a period of two years from the area of Nagpur Police Commissionerate and Nagpur Rural District.

2. The learned counsel appearing for the petitioner objected to the said order on the following grounds, namely :

(a) Non-application of mind by the authority.

(b) Secret complaints are false and concocted.

(c) Non-compliance of Section 10(2) of The Bombay Police Act, 1951, as the Assistant Commissioner of Police has no power to issue notice and record the evidence of the witnesses; and.

(d) Notice issued is under Section 56(1)(a); however, ingredients referred to in the notice are of Section 56(1)(b).

3. The learned Additional Public Prosecutor appearing for the respondents submitted that the grounds raised by the learned counsel for the petitioner are without any merit and the externment order has been properly passed by following the procedure as provided in Sections 56 and 59 of The Bombay Police Act, 1951.

4. The notice under Section 59 of the said Act was issued on 9th August, 1996 and thereafter, after giving an opportunity to file explanation and to lead evidence by the petitioner, the order has been passed on 16th October, 1996. There is proximity in the order. The learned counsel tried to submit that there is delay in passing the order. However, on perusal of the facts, it will be seen that there is no delay in passing the order. Therefore, the said challenge does not survive.

5. The learned counsel for the petitioner then submitted that there is non-application of mind by the authority. He submitted that the order does not disclose in what manner the facts were appreciated. It was further being submitted that the petitioner has no earlier criminal history and that there is no finding recorded in respect of the acts of the petitioner being alarming to the residents of that area - Ganga Jamuna. It is further submitted that the offences, which are pointed out, are the minor offences and for that purpose, the externment proceedings is improper and all these considerations are not reflected in the order. With due respect to the learned counsel, the said aspect cannot be expected in the order and the ratio laid down in the case of Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, State of Maharashtra, reported in AIR 1973 SC 630, is answer to the said ground raised by the learned counsel.

6. The learned counsel further submitted that the secret complaints are false one. He has produced on record the affidavit of one of the persons, whose statement was recorded by the police, namely Vishnu Govind Chinor, to point out that his statement was recorded by misconception by the police and he was not knowing the contents of the said statements and, therefore, this submission was tried to be developed that some complaints recorded by the police are concocted one. I do not agree with this submission. Firstly, the secret statements are required to be recorded by the police, because the witnesses are not coming forward against the petitioner. However, the activities of the petitioner are menace to the Society or the area of Ganga Jamuna and the near locality wherefrom he is externed by the authority. The particulars of these secret complaints are not disclosed to the petitioner, because as observed in the case of Pandharinath Shridhar Rangnekar, cited supra, if such information is disclosed either in the notice or in the order, there will be a danger to the life and property of those persons, who were otherwise not ready to come forward to depose against the petitioner. On the contrary, the attempt on the part of the petitioner to obtain an affidavit of a person, who has given secret statement or complaint to the police with the background, which is stated in the notice, shows that the petitioner has tampered the said witness and obtained the affidavit from that person. Such affidavits in the facts and circumstances of the case stated in the externment order, will not have any effect on the mind of the Court. This affidavit has no value in order to assess the correctness or otherwise of the order of externment.

7. The ground that notice issued is under Section 56(1)(a) of The Bombay Police Act, 1951, but the ingredients are of Section 56(1)(b), is without any merit and it stands rejected. The learned counsel could not satisfy me as to how the ingredients are overlapping in the present matter.

8. Then the next submission is in respect of the non-application of Section 10(2) of the said Act. According to the learned counsel, the Deputy Commissioner of Police is not entitled to carry on externment proceeding, unless there is a notification issued by the State Government to that effect. The said submission is without any merit, because the words, which were appearing in sub-section (2) of Section 10 at the end, "in accordance with the general or special orders of the State Government made in this behalf:" have been deleted vide amendment carried to the said Section on 24th June, 1994. As per the said amendment, these words are deleted and shall be deemed to be always deleted and, therefore, the said infirmity does no survive after the enforcement of The Bombay Police (Amendment and Validation) Act, 1994.

9. The next submission made by the learned counsel is to the effect that the notice issued under Section 59 of the said Act has been signed by the Assistant Commissioner of Police and the witnesses were examined by the Assistant Commissioner of Police. The learned counsel submitted that Section 11 of the said Act provides for the Assistant Commissioner of Police. It is submitted that sub-section (2) of Section 11 lays down that an Assistant Commissioner appointed under sub-section (1) shall exercise such powers and perform such duties and functions as can be exercised or performed under the provisions of this Act or any other law for the time being in force or as are assigned to him by the Commissioner under the general or special orders of the State Government. On the basis of this provision, the learned counsel submitted that the general or special order of the State Government is necessary wherein the Commissioner can assign the duties under this Act to the Assistant Commissioners. The learned Additional Public Prosecutor appearing for the respondents, pointed out that Section 59, which provides for the procedure for hearing in respect of the matters under Section 56 along with the other Sections, provides that before an order under Section 55, 56, 57 or 57A is passed against any person, the officer acting under any of the said sections or any officer above the rank of an Inspector authorised by that officer, shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such application; and examine such witness. It was submitted that the officer acting under the said Sections has power to authorise any officer above the rank of an Inspector to issue in writing the general nature of material allegations and examine the witnesses if tendered by such person. The learned Additional Public Prosecutor submitted that the authority under Section 56 has been already empowered by Section 59 to authorise any officer above the rank of an Inspector for the purposes of inquiry under section 59 and this authorization is independent of the provisions of Section 11 on which the learned counsel for the petitioner relied on. It is submitted that if the provisions of Section 11(2) are read along with the provisions of Section 59(1), it will be clear that the first part of Section 11(2), which speaks about the duties and functions to be exercised under the Act or under any other law for the time being in force, has been connected to the other part of Section 11(2) by way of conjunction and. "And therefore, the general or special order is not required where the functions and duties are to be performed under the provisions of the Act or under any other law for the time being in force. It is necessary only where the functions and duties are assigned by the Commissioner of Police to the Asst. Commissioner of Police and, therefore, viewed from this angle also, it will be found that the authorization can be made by the officer conducting inquiry under Section 56 to any officer above the rank of an Inspector and that is a provision in the Act itself for which no general or special order is necessary.

10. With the help of the learned counsel, I have perused the concerned provisions. On reading those provisions, I hold that there is no merit in the submission made by the learned counsel. Section 59 itself provides for the manner of inquiry if conducted by the officer externing the person from a particular area. Section 59 provides that the said officer can authorise any officer above the rank of an Inspector to issue in writing the general nature of material allegations to the externee and to accept his explanation and record and examine the witnesses tendered by him. This is a statutory provision permitting an authorization to an officer exercising the power of the externment. Therefore, the authorization by the Deputy Commissioner of Police to the Assistant Commissioner of Police is not in any way affected or bad in law. I therefore accept the submission of the learned Additional Public Prosecutor that for the functions and duties to be performed under the provisions of the Act or under any other law for the time being in force, no general or special order is necessary. Such order is necessary when the functions and duties are assigned to the Assistant Commissioner of Police by the Commissioner of Police. That means the functions and duties, which are not assigned by the provisions of law but they are being assigned to the Assistant Commissioner of Police because of the order of the Commissioner of Police; for such delegation of power, the general or special order is necessary. However, as I have already found that Section 59 itself is clear enough to delegate the power to any officer above the rank of an Inspector, and therefore the reference to Section 11, as pointed out by the learned counsel for the petitioner, was needless. In the result, the submission made by the learned counsel for the purposes of the non-application of Section 10(2) and issuance of the notice under Section 56 by the Assistant Commissioner of Police and the act of recording the statement by the said Assistant Commissioner of Police relying on Section 11 are without any merit and, therefore, they are rejected.

11. The last submission made by the learned counsel is that the age of the petitioner is hardly 18 years when the externment proceeding was commenced and looking to his young age, the maximum externment order issued under Section 56 of the said Act is a harsh one and, therefore, a sympathetic attitude may be taken against the petitioner. No doubt, the petitioner is a youthful offender. However, looking to the activities in which he is indulging and have indulged into, if he is not properly checked at the inception, he is likely to be converted into a hardened criminal. However, as he is a young person with an improper company, he appears to have indulged in such activities. Therefore, taking a reformative approach I hold that by reducing the externment period to one year, he may properly stand corrected and, therefore, I hold that a modification from two years to one year will be necessary in the present facts and circumstances of the case. Therefore, I pass the following order :

The petition is partly allowed. The externment order dated 16th October, 1996 is modified and instead of two years, the petitioner stands externed from the area mentioned in the said order for a period of one year only.

Order accordingly.