2014 ALL MR (Cri) 2530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
S.C. DHARMADHIKARI AND G.S. PATEL, JJ.
Ganesh Balasaheb Changle Vs. The Dy. Commissioner of Police & Ors.
Writ Petition No.3371 of 2013
19th October, 2013
Petitioner Counsel: Mr. U.N. TRIPATHI
Respondent Counsel: Mrs. M.H. MHATRE
Bombay Police Act (1951), S.56(1)(b) - Externment order - Challenge - Petitioner was externed for a period of two years from limits of Nasik Rural District - Externment order showing that there were four criminal cases pending against petitioner - Though petitioner pointed out that in two cases he was acquitted however both these cases were shown as pending - Also appellant authority merely saying that externing authority had considered cases of acquittal - Externment order liable to be quashed. (Paras 5, 6)
Yeshwant Damodar Patil Vs. Hemant Karkare, 1989 (3) SCR 240 [Para 4]
Vinayak Dynaneshwar Mainkar Vs. State of Maharashtra & Ors, 2013 ALL MR (Cri) 3528=Cri. W.P. No.3257/2013, Dt.6/9/2013 [Para 4]
2. On 29th March 2013, the Petitioner was served with a show-cause notice issued under Section 56(1)(b) of the Bombay Police Act, 1951 asking him to show cause why he should not be externed from the limits of Nashik City, Nashik Commissionerate and Nashik Rural Districts for a period of two years. The Externing Authority passed an Externment Order in terms of that show-cause notice. The Externment Order is dated 21st May 2013. The Petitioner filed an Appeal. That Appeal was dismissed on 28th August 2013. Hence this Petition under Article 226 of the Constitution of India.
3. We have heard Mr. Tripathi, learned Advocate for the Petitioner, and Mrs. Mhatre, learned APP. We have also perused the petition and carefully considered the two orders under challenge. In our view, Mr. Tripathi is entirely justified in saying that although the Externment Order purports to be under Section 56(1)(b) of the Bombay Police Act, 1951, all the material in the Externment Order is under, and only under, Section 56(1)(a) of the Bombay Police Act, 1951. This was a ground of challenge specifically taken by the Petitioner before the Appellate Authority. We regret to note that the Appellate Authority has dealt with this submission in the most unsatisfactory manner in paragraph 6 of the Appellate Order. That paragraph is worth quoting in full, if only for the reason that it makes no sense whatsoever:
"6. The Appellant has contended that the externing authority has considered the extraneous material pertaining to Section 56(1)(a) i.e. the Appellant is causing alarm, danger and harm to person and property whereas the externment order is issued under Section 56(1)(b) wherein the Appellant is not required to cause alarm, danger, harm to person and property. The Appellant argued that recording the extraneous facts in the externment order vitiates the order itself. The inclusion of alarm, danger or harm caused by Appellant in the order is found as matter of fact though the order is issued u/sec. 56(1)(b). I don't consider it to be extraneous material and the impugned order cannot be said to be illegal on this count."
4. We must confess that in our extremely limited understanding and appreciation of the law and, particularly, the Bombay Police Act, 1951, we are unable to understand what, if anything, this is supposed to mean. The show cause notice is under one section. The externment order is under the same section. That section has specific requirements. Every one of those requirements must be met. This has been the law for a quarter of a century. (Yeshwant Damodar Patil v Hemant Karkare, 1989 (3) SCR 240) Yet the material in the body of the externment order is under an entirely different section. How this can be said to be sufficient compliance with the law and with the requirements of Article 22 of the Constitution of India defeats us. When we said, in an earlier case, that this Appellate Authority seems to believe that "facts are merely an inconvenience, the law but a nuisance, and the Constitution might as well not exist", findings of this stripe are precisely what we had in mind. (Vinayak Dynaneshwar Mainkar v State of Maharashtra & Ors, Cri WP No.3257 of 2013, decided on 6th September 2013 : [2013 ALL MR (Cri) 3528].)
5. But that is not all. The show-cause notice and the Externment Order also refer to previous criminal cases said to have been registered and filed against the Petitioner. There are four such cases. One case was registered in 2008, another in 2010 and two in 2012. The Petitioner pointed out to the Externing Authority, as also to the Appellate Authority, that although in two cases, namely, C.R. No.384 of 2008 and C.R. No.60 of 2012, he has been acquitted, in the show-cause notice both these cases are shown as pending. This error is continued in the Externment Order. When this was pointed out to the Appellate Authority, the result was as unsurprising as it was expected. The Appellate Authority only said that the Externing Authority had considered the case of acquittals and, therefore, there was nothing wrong in a reference being made to these two acquittals in the Externment Order. We are at a loss to understand how, if the Petitioner had been acquitted, a reference to those two cases could be of any possible value or assistance in justifying any order of externment. This goes beyond a mere non-application of mind. This is sheer perversity in administrative and quasi-judicial action.
6. Mr. Tripathi is also justified in contending that the two incamera witness statements relied on by the Externing Authority are entirely vague and without all particulars as to dates, times, and places. Once again, the Appellate Authority has brushed aside the Appellant's submissions in this regard by falling back on his standard, stereotypical and formulaic approach in such matters by saying that "the contents from said statements essential to have an idea of the incident are provided to the Appellant. The contents provided to the Appellant are sufficient enough." Once again, we are unable to understand how this can ever be said to be an adequate application of mind and consideration of the grounds taken in Appeal.
7. In our view, the two impugned orders are both illegal and cannot be sustained. The Petition must succeed. Rule is made absolute in terms of prayer clauses (b) and (c). There will be no order as to costs.