Criminal Writ Petition No. 2829 of 2013

1st October, 2013

Petitioner Counsel: Mr. U.N. TRIPATHI
Respondent Counsel: Ms. P.H. KANTHARIA

Cases Cited:
Vinayak Dynaneshwar Mainkar Vs. State of Maharashtra & Ors., Cri. W.P. No.3257/2013, Dt.6/9/2013 [Para 1]
Noida Entrepreneurs Association Vs. Noida & Ors., (2011) 6 SCC 508 [Para 3]
Pandharinath Shridhar Rangnekar Vs. Dy Commissioner of Police, (1973) 1 SCC 372 [Para 3]
Yeshwant Damodar Patil Vs. Hemant Karkare, 1989 (3) SCR 240 [Para 6]
Zahoor Ismail Fakie Vs. The State of Maharashtra, Cr. W.P. No.2382/2013, Dt.23.8.2013 [Para 6,18]
Shri Badiun Jamal Vs. State of Maharashtra & Ors., Cri. W.P. No.490/2013, Dt.4.9.2013 [Para 6]
Prakash Mogal Londhe Vs. Dr S. Swami, Cri. W.P. No. 3391/2012, Dt.25.7.2013 [Para 6]
Mohd. Jalaluddin Mohd. Amin Khan Vs. The Dy Commissioner of Police, Cri. W.P. No. 2247/2013, Dt.23.8.2013 [Para 6]
Somnath Vilas Kalbhor Vs. State of Maharashtra, Cri. W.P. No. 2807/2013, Dt.24.9.2013 [Para 8]
Sunil Mani Shetty Vs. Dy Commissioner of Police, Cri. W.P. No. 1583/2013, Dt.4.7.2013 [Para 18]
Pradeep Somnath Gupta Vs. State of Maharashtra & Ors., Cri. W.P. No. 2635/2013, Dt.23.8.2013 [Para 18]
Shri Ragunath Nago Pardhi Vs. State of Maharashtra & Ors., Cri. W.P. No.3125/2013, Dt.6.9.2013 [Para 19]
Mohammed Sagar Idris Ansari Vs. Vineet Agarwal & Ors., 2013 ALL MR (Cri) 3882=Cri.W.P. No.2950/2013, Dt.4.9.2013 [Para 19]

JUDGMENT

G. S. PATEL, J. :- Since June 2013, we have had to deal with a quite extraordinary number of petitions challenging appellate orders under Section 60 of the Bombay Police Act, 1951 in externment proceedings. Those appellate orders have been passed by one Mr. Vineet Agarwal, the 2nd Respondent in this case. In Vinayak Dynaneshwar Mainkar v State of Maharashtra & Ors we had occasion to criticize Mr. Agarwal for his approach in these matters. Cri WP No.3257 of 2013, judgment dated 6th September 2013. We found it formulaic and unthinking. There was little or no attention to facts. Settled law was ignored. It seemed to us that his orders were issued mechanically, using standardized phrasing. Since the time of that order, we have encountered other cases, too. Cri WP No. 2807 of 2013; Cri WP No. 2744 of 2013; Cri WP No. 3035 of 2013; Cri WP No. 3207 of 2013. In fairness to Mr. Agarwal, his appellate orders in these cases were all before our decision in Mainkar, as is the appellate order in the case at hand. We expected that following Mainkar the government would, in the larger public interest, and to avoid further adverse orders, withdraw such appellate orders. That has not happened.

2. In Mainkar, we noted, among other things, that the cause that Mr. Agarwal professed to serve, that of the State Government and its law and order machinery, was precisely the one most betrayed by his appellate orders, all of which we found to be vulnerable and unsustainable in law. We are fully conscious of the problems faced by the government and the administration in enforcing law and order in this state. That there is rampant and growing criminality in our cities and towns. That this is a problem of serious dimensions is a matter to which we are not blind. But to remain mute in the face of palpable distortions in the law and in its administration, to be only silent bystanders as citizens' fundamental liberties are abrogated, would be to betray our Constitutional mandate. That we will not permit. Nothing in our Constitution permits the deprivation of a person's liberty except according to law and within the framework of Constitutional safeguards. When a high functionary of the state acts otherwise than in conformity with the law, and personal liberties are sacrificed, perhaps at the altar of political or administrative expediency, then we will always step in to protect those rights. We will do so again and again, till the requirements of law are met. This Court has a very long and proud history of defending personal liberty and Constitutionally guaranteed freedoms. It has stood by the citizen in the darkest of times. We will not betray our past. To do so would be to imperil our future.

3. Those who hold public office act on behalf of the State as trustees. They are accountable to the people, for in the people vests sovereignity. Every such holder of public office must exercise his powers for, and only for, the public good and to promote public interest. These are not our words. They are the words of the Supreme Court, and they are possessed of the gravitas and heft that attach to all pronouncements of our highest court. Noida Entrepreneurs Association v Noida & Ors, (2011) 6 SCC 508 Our task is to ensure that these words receive their fullest respect, that there is adherence to the law as pronounced by the Supreme Court, in both letter and spirit. Every externment order is a restraint on personal liberty. That restraint must be one that is reasonable in the facts of case. Pandharinath Shridhar Rangnekar v Dy Commissioner of Police, (1973) 1 SCC 372 Every such restraint is an action by the State and, therefore, must not be arbitrary. It must satisfy the tests of Article 14 of the Constitution of India. It must meet the tests of reason and relevance; for "the rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law ... public authorities cannot play fast and loose with the powers vested in them." Noida, supra.

4. These prefatory remarks are, we believe, essential to an understanding of just how far wrong Mr. Agarwal's orders that come before us tend to be when he exercises his statutory powers. This will become plain when we consider the facts of the present case.

5. The Petitioner challenges an externment order dated 19th March 2013 issued by the 1st Respondent, and an appellate order dated 4th July 2013 passed by the 2nd Respondent, Mr. Agarwal. The Petitioner was ordered to be externed for one year from Nashik City and Rural District.

6. These are proceedings supposedly under Section 56(1)(b) of the Bombay Police Act, 1951. That, at least, is what the externment order says. It does not reference Section 56(1)(a) at all. But, as Mr. Tripathi, Learned Advocate for the Petitioner points out, the body of the externment order refers to considerations and factors that are to be found in Section 56(1)(a) of that Act. Section 56(1)(b) permits externment when the externing authority has reasonable ground to believe that a person is engaged or is about to be engaged in the commission of an offence involving force or violence, or an offence punishable under certain specified chapters of the Indian Penal Code, 1860. It also requires the authority to be subjectively satisfied and form an opinion that witnesses are unwilling to depose in public against the proposed externee out of fear or apprehension as regards the safety of their person or property. Every one of these tests must be satisfied. The law on this is well-settled. Yeshwant Damodar Patil v Hemant Karkare, 1989 (3) SCR 240; Zahoor Ismail Fakie v/s. The State of Maharashtra, Cr. Writ Petition No.2382 of 2013 decided on 23rd August 2013; Shri Badiun Jamal v State of Maharashtra & Ors, Cri. Writ Petition No.490 of 2013, decided on 4th September 2013; Prakash Mogal Londhe v Dr S. Swami, Cri WP No. 3391 of 2012, decided on 25th July 2013; Mohd. Jalaluddin Mohd. Amin Khan v The Dy Commissioner of Police, Cri WP No. 2247 of 2013, decided on 23rd August 2013. Section 56(1)(a), on the other hand, requires the authority to be satisfied that the "movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property." This is a very different consideration from the one under Section 56(1)(b) and the legislature has, for good reason, separated the two. The distinction, as we conceive it, is both fundamental and vital. It is possible for an authority to act under both or either of these sections. But having proposed action under one of them, it cannot sustain that action if its satisfaction and reasons are recorded under the other. That, in our assessment, would be fatal. In the present case, the externment order records, among other things, that the authority is satisfied that the Petitioner's movements are causing "alarm, danger and harm" in Nashik City and surrounding areas. This was a satisfaction that the externing authority could have arrived at if he was making an externment order under Section 56(1)(a) or under both Sections 56(1)(a) and 56(1)(b). But where the order is said to be only under Section 56(1)(b) - as the next but one paragraph of the externment order makes clear - then no such finding or satisfaction could have been recorded. That this was done demonstrates, ex-facie, a want of application of mind that is fatal. Restraints on liberty receive strict construction. An imposition of a restraint must remain within the narrow confines permitted by statute; else there is, inevitably, a violation of Constitutional guarantees of freedom.

7. How did Mr. Agarwal deal with this issue? In paragraph 5(b) of the Appellate Order he says this:

5(b). The preventive action u/s 56(1)(b) of Maharashtra Police Act, 1951 [sic] was taken to maintain peace in the said area and is of preventive nature. The Appellant's contentio that the impugned order is passed under section 56(1)(b) whereas the provisions of section 56(1)(a) are considered, does not hold.

8. We do not even pretend to understand what this is supposed to mean. Only because it comes from one who holds - or, till recently, held Somnath Vilas Kalbhor v State of Maharashtra, Cri WP No. 2807 of 2013, decided on 24th September 2013 - high public office, we will attempt to parse this paragraph. He begins by saying that the order under appeal is passed to maintain peace. Presumably, this is a reference to proceedings under Chapter VIII of the Code of Criminal Procedure, 1973. It has nothing whatever to do with Section 56 of the Bombay Police Act, 1951. How that concept of [public] peace could inveigle itself into the Bombay Police Act is a mystery that perhaps only Mr. Agarwal can unravel. [The phrase "public peace" is used verbtaim later in the appellate order.] He then proceeds to suggest that it matters not under what section of the Bombay Police Act, 1951 the action is proposed so long as some action is taken. This may seem to Mr. Agarwal to be a robust way of assessing the appeal before him. To us, it seems utterly cavalier and off-hand, a striking example of precisely that which the Supreme Court deplored, a public authority acting fast and loose. Externment matters are not to be dealt with in these generalised terms as if they lie in some amorphous universe of discourse. They require particularity and attention to detail; and this details is not a technical nicety, as Mr. Agarwal seems to think. It speaks to freedom and liberty, and contrary to whatever Mr. Agarwal may imagine, our Constitutional safeguards are not the preserve of the privileged.

9. What is truly alarming, though, is that this phrasing seems to be part of Mr. Agarwal's standard repertoire. In his order dated 15th July 2013, the subject matter of Criminal Writ Petition No.3035 of 2013, he said, again in paragraph 5(b):

5(b). The preventive action is under Section 56(1)(b) of Maharashtra Police Act, 1951 was taken to maintain peace in the said area and is of preventive nature.

10. Here is paragraph 5(b) of Mr. Agarwal's order dated 17th June 2013 challenged in yet another matter, Criminal Writ Petition No.2744 of 2013:

5(b). The preventive action is under Section 56(1)(b) of Maharashtra Police Act, 1951 was taken to maintain peace in the said area and is of preventive nature.

11. It is, in our view, simply not open to a public authority to exercise his powers in this rote fashion, parading the same one-sizefits-all appellate finding irrespective of issues of law or questions of fact.

12. Reverting to the case at hand: Mr. Tripathi submitted that the show cause notice refers to two in-camera witness statements. No dates of recording of these witness statements are disclosed. There is also no disclosure of the area or locality where the incidents alleged in the witness statements took place. Given that externment is, by definition, area-specific, this is vital information. Mr. Tripathi is, in our view, justified in saying that this is a failure of natural justice sufficient to invalidate the externment as, without these details, the Petitioner was denied an adequate opportunity to show cause.

13. Again, let us see how Mr. Agarwal dealt with this. We find his appellate pronouncement in paragraph 5(f ) of his order:

5(f). The in camera statements of witnesses are recorded as people are reluctant to depose against the Appellant. These statements are recorded on assurance that the names of witnesses will not disclosed [sic]. The contents from the said statements essential to have the idea of the incident are provided to the appellant. The contents provided to the Appellant are sufficient enough. The victims spoke about general disrepute of the Appellant. Both the statements disclose the activities of extortion carried out by the Appellant and his criminal nature.

14. Mr. Agarwal forgets. This is supposed to be an order under Section 56(1)(b). The requirement of that section is that witnesses are unwilling to come forward to depose in public against the Petitioner. There is no such finding; indeed there cannot be, for witnesses are willing to depose against the Petitioner (or so we are told), but on condition that they be permitted to do so in camera. How then are the conditions of Section 56(1)(b) fulfilled? Mr. Agarwal does not deign to enlighten us. For our general edification, he only serves up the little nugget about victims speaking of the "general disrepute" of the Petitioner. That this is a matter wholly extraneous to externment proceedings under Section 56 does not seem to have impeded Mr. Agarwal in the least. If the statements speak of extortion, surely the dates and places of those incidents alleged were relevant. In their absence they could not have formed the basis of any subjective satisfaction.

15. This, too, is part of Mr. Agarwal's by now standardized armoury. In paragraph 5(j) of his order dated 15th July 2013 challenged in Criminal Writ Petition No. 3035 of 2013, he says:

"5(j). The in camera statements of witnesses are recorded as people did not complain to police due to his fear. These statements are recorded on the assurance that the names of witnesses will not disclosed. The contents from said statements essential to have the idea of the incident are provided to the appellant. The contents provided to the Appellant are sufficient enough. The victims spoke about harassing nature of the Appellant."

16. In his order dated 4th July 2013, challenged in Criminal Writ Petition No. 2807 of 2013, Mr. Agarwal says:

"The contents from the said statements essential to have the idea of the incident are provided to the Appellant. The contents provided to the Appellant are sufficient enough".

17. Clearly, Mr. Agarwal is as undeterred by facts as he is untroubled by law. This is not how we expect appellate proceedings in externment matters to be conducted.

18. We turn, finally, to the previous criminal cases against the Petitioner and on which the externing authority relied. There are three such cases. One is of 2008. The second is of 2009. The third is of 2012. The impugned externment order is of 19th March 2013. There is no possible continuity between these cases, and no live or tenable link between them and the externment order. Certainly the cases of 2008 and 2009 can have little or no bearing on the externment order. The plain meaning of Section 56(1) is that there be some degree of continuity and imminence in the acts alleged and these must bear a proximate tie to the proposed action. Zahoor Ismail Fakie, supra; Sunil Mani Shetty v Dy Commissioner of Police, Cri WP No. 1583 of 2013, decided on 4th July 2013; Pradeep Somnath Gupta v State of Maharashtra & Ors, Cri WP No. 2635 of 2013, decided on 23rd August 2013.

19. Here, too, Mr. Agarwal's assessment is faulty. He does not even attempt to deal with this issue of delay and intermittency. There is a recitation of the cases, what they were about, the hearings and proceedings that led to the appeal and, in the last paragraph of his findings, this:

5(g). The activities of the Appellant are creating fear in the minds of people and causes disturbance in the public peace and order. Due to his threat and criminal tendency, common people and their properties are under constant danger. The Appellant has violated the impugned order on 09.04.2013 and a case under Section 142 of the Maharashtra Police Act, 1951 is registered against him. This shows that the Appellant has no fear for Law.

The first sentence of this is, with only minor variations, the same phraseology as Mr. Agarwal uses again and again. Shri Ragunath Nago Pardhi v State of Maharashtra & Ors, Cri WP No.3125 of 2013, decided on 6th September 2013; Mohammed Sagar Idris Ansari v Vineet Agarwal & Ors., Cri WP No. 2950 of 2013 : [2013 ALL MR (Cri) 3882], decided on 4th September 2013.

20. Not for the first time, we find it impossible to sustain Mr. Agarwal's order. The non-application of mind is self-evident. It is an order contrary to law. The Petition succeeds. Rule is made absolute in terms of prayer clauses (b) and (c). The impugned externment order dated 19th March 2013 and the appellate order dated 4th July 2013 are both quashed and set aside. There will be no order as to costs. All concerned to act on an authenticated copy of this order.

21. We admit, however, to one grievous error on our part. In Mainkar, we were perhaps too gentle with Mr. Agarwal. We refrained from passing strictures. We did not impose costs. We stayed our hands in the matter of having this noted in his confidential reports. Our self-imposed moderation in these matters, it seems, has come at much too high a price.

Ordered accordingly.