Criminal Writ Petition No. 384 of 2017

25th April, 2017.

Petitioner Counsel: Mr. B.G. SAGADE
Respondent Counsel: Mr. D.R. KALE

Cases Cited:
Yashwant Damodar Patil Vs. Hemant Karkare, Deputy Commissioner of Police, Thane and another, 1989 Mh.L.J. 1111 [Para 2,5,6,8]
Pandharinath Shridhar Vs. Deputy Commissioner of Police, AIR 1973 SC 630 [Para 5]

JUDGMENT

S. S. SHINDE, J. :- Heard. Rule. Rule made returnable forthwith. Heard finally by consent of parties.

This petition is filed with the following substantive prayer :-

C. By issue of writ of certiorari or any other appropriate writ, order or directions in the like nature, the impugned order dated 28.02.2017 passed by the respondent No. 2 in Externment Appeal No. 58/2016 thereby confirming and modifying the order dated 29.10.2016 passed by respondent No. 3 in Externment proposal No. 16/2016 may kindly be quashed and set aside."

2. Learned counsel for the petitioner invited our attention to the contents of the show cause notice issued by the respondent No.2 and submits that in the said show cause notice, there is no whisper about the recording of any in-camera statements of the witnesses by the respondent No.3 so as to arrive at subjective satisfaction that due to apprehension or fear in the minds of the witnesses, they are not coming forward in public to depose against the petitioner. He submits that on the said ground alone, the entire proceeding initiated by respondent No.3 stands vitiated, inasmuch as, the requirement of Provisions of Section 56(1)(b) of the Bombay Police Act, contemplates that the competent authority who has initiated the externment proceedings shall make mention/reference about any in-camera statements recorded and gist of the version stated by those witnesses in the show cause notice. It is submitted that in the first place, neither there is reference of recording of in-camera statements of the witnesses in the show cause notice and secondly, nor there is detailed reference or the gist of allegations stated by the said witnesses in the order passed by the respondent No.3. In support of the said contention, learned counsel appearing for the petitioner placed reliance upon the ratio laid down by the division Bench of the Bombay High Court, in the matter of Yashwant Damodar Patil Vs. Hemant Karkare, Deputy Commissioner of Police, Thane and another, 1989 Mh.L.J. 1111. He specifically invites our attention to para. Nos. 3 and 11 of the said judgment and submits that the ratio laid down in the said judgment on interpretation of Section 56(1)(b) of the Bombay Police Act is applicable in the present facts of the case, and, therefore, the writ petition deserves to be allowed.

3. On the learned APP, relying upon the original record and also the notice issued by the SDPO, Srirampur and submits that there was a reference in the said notice about the recording of in-camera statements of the witnesses. He submits that even in the order passed by the respondent No.3, there is reference to the fact that in-camera statements of witnesses have been recorded by respondent No.3. He also invites our attention to the reasons assigned by the respondent authority while passing the externment order and restraining the petitioner initially from six districts and subsequently restricting the externment by the appellate authority to the extent of two talukas i.e. Rahata and Shrirampur in Ahmednagar District. Therefore, he submits that the petition is devoid of any merits and same may be rejected.

4. We have given anxious consideration to the submissions of the counsel for the petitioner, learned APP and with their able assistance, we have perused the grounds taken in the petition, annexures thereto, the reasons assigned by the respondent No.3, while passing the impugned order of externment and also reasons assigned by the Appellate Authority. The original record of the case was also made available for our perusal.

5. Upon careful perusal of the contents of the show cause notice which was issued by the respondent No.3 to the petitioner, there is no mention/reference of in-camera statement of witnesses recorded by the respondent No.3. The contention of the learned APP appearing for the State that in the notice issued by the SDPO, Shrirampur, there is reference to such in-camera statements, is of no use, since the mandate of the provision of Section 56(1)(b) of the Bombay Police Act, contemplates that there has to be specific reference of such in-camera statements in show cause notice issued to the proposed externee, so as to enable him to file his reply/put forth his contention to such notice. Even upon careful perusal of the discussion in the impugned order passed by the respondent No.3, we find that there is only a passing reference about recording of in-camera statements of the witnesses by the Sub Divisional Police Officer. It is true that in view of the judgment of the Supreme Court in the case of "Pandharinath Shridhar vs. Deputy Commissioner of Police" reported in AIR 1973 SC 630, it is not necessary or desirable to mention the name and date of the incident in the gist of incamera statements of the witnesses, however, it is necessary to make a reference of those in-camera statements and gist of such statements, so as to enable the proposed externee to reply to the show cause notice. The issue raised in this petition is no longer res-integra and is covered by the authoritative pronouncement in the case of Yashwant Damodar Patil (Supra).

6. It would be gainful to reproduce hereinbelow the observations of the Division Bench of this court in para.3 and 11 of the judgment in the matter of Yashwant Damodar Patil (Supra) :-

"3. Section 56(1) of the Bombay Police Act visualises three situations in which the order of externment could be passed by the designated officer. We will, however, ignore, for the purpose of the disposal of this petition, the third type of situation and only analyse the two situations which are covered by clauses (a) and (b) of section 56 (1) of the Act. An order of externment can be passed against a person whose movement or acts are causing or calculated to cause alarm, danger or harm to person or property. That is what is provided in clause (a). The order of externment can also be passed against a person if there are reasonable grounds for believing that such a person is engaged or is about to be engaged in the commission of an offence involving force or violence. It is so provided in the first part of clause (b) of section 56(1) of the Act. An order of externment can also be passed against a person if that person is engaged or about to be engaged in the commission of an offence punishable under Chapter XII, or Chapter XVI, or Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause (b) of section 56(1) of the Act. But it is not enough that these conditions alone are satisfied. In addition to this, the designated officer should be of the opinion that witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property.

11. Before parting with this judgment, it would not be inappropriate to mention a couple of facts which we have noticed while dealing with orders of externment passed by the authorities in this part of Maharashtra and especially by the authorities in Thane District. While giving notice under section 59 of the Act, the clear distinction between clause (a) and the first part of clause (b) of section 56(1) is not always borne in mind. Vague words mentioning that the petitioner is involved in the activities causing alarm or danger and also in acts of violence, etc., are freely used. Though the law does not require the authorities under the Bombay Police Act to give the details of the activities of the proposed externee, it is still necessary, as required by section 59 of the Act, to give to the proposed externee information about the general nature of the material allegation against him. What the general nature of the material allegation against proposed externee is has been explained by the Supreme Court in Pandharinath Shridhar Vs. Deputy Commissioner of Police, AIR 1973 SC 630. Some of the orders of externment have been set aside on the ground that the allegations against the proposed externee mentioned in the notices are too vague to enable the proposed externee to represent against the proposed orders of externment. It may also be noted that very often the period during which the prejudicial activities of the proposed externee are committed is also not mentioned. In our opinion, this is absolutely necessary because without the notice of the period with reference to which action is proposed to be taken, the proposed externee obviously cannot defend himself properly.

7. In the light of the discussion hereinabove, admittedly, there is no reference about recording the in-camera statements of witnesses by the respondent No.3 in the show cause notice and also there is only a passing reference in the impugned order passed by the respondent No.3 about the recording of the in-camera statements by the SDPO.

8. In that view of the matter, keeping in view the exposition of law by the Divison Bench of this Court in the matter of Yashwant Damodar Patil (supra) we are inclined to allow this petition.

9. In the result, the writ petition succeeds. Rule is made absolute in terms of prayer clause (C). Criminal Writ Petition is allowed to the above extent. Same stands disposed of accordingly.

Petition allowed.