The Division Bench of the Supreme Court consisting of Justices Ajay Rastogi and Abhay S. Oka while setting aside an impugned order of externment, as well as impugned Judgment and order of a High Court held that Division Bench did not notice that an order of externment is not an ordinary measure, and it must be resorted to sparingly and in extraordinary circumstances. It was the duty of the Constitutional Court to test the said order within the parameters which are well-settled by this Court.
Facts
The respondent No.2 by his order exercised the powers u/s 56(1)(a)(b) of the Maharashtra Police Act, 1951 (“1951 Act”). By the said order, the appellant was directed to remove himself outside the limits of his residence at District Jalna within 5 days. By the said order, he was externed from District Jalna for a period of two years from the date on which he removes himself from District Jalna. In the impugned order of externment, the respondent No.2 relied upon 5 offences registered against the appellant. In addition, the respondent No.2 relied upon confidential in-camera statements of two witnesses.
Procedural History
A statutory appeal was preferred by the appellant against the impugned order of externment. The appeal was dismissed by the Appellate Authority. The appellant questioned the impugned order of externment by filing a writ petition under Article 226 of the Constitution of India before the Bombay High Court, which was dismissed. The impugned order of externment was passed on the ground that the confidential statements of witnesses ‘A’ and ‘B’ disclose that witnesses are not willing to come forward to give evidence against the appellant, the activities of the appellant are very dangerous and the offences registered against the appellant under the IPC are of grave and serious nature which are causing disturbance to the public at large. It was further observed by the respondent No.2 that the confidential statements of two witnesses demonstrate that the appellant is indulging in illegal activities which are causing alarm, danger, or harm to the public at large.
Contentions Made
Appellant: The act of passing the impugned order of externment was a mala fide act at the instance of a local Member of the Legislative Assembly (MLA) with the object of settling family disputes. The said MLA is a maternal uncle of the appellant who tried to implicate the appellant in a false case. The in-camera statements being general in nature do not refer to any specific allegation against the appellant. Out of the 5 offences relied upon in the impugned order of externment, the first three offences are stale offences and there is no live link between the said three offences and the object of passing the impugned order of externment. The remaining two offences will not attract clauses (a) or (b) of sub-section (1) of Section 56 of the 1951 Act. Hence, the impugned order of externment is vitiated.
Respondent: While passing the order of externment, the competent authority is not required to pass a reasoned order. The competent authority has recorded subjective satisfaction of the existence of the grounds provided in clauses (a) and (b) of sub-section (1) of Section 56 of the 1951 Act. High Court has in detail examined the grounds of challenge to the impugned order of externment and has rejected each ground. No interference is called for with the impugned order of externment and the impugned order of the High Court.
Observations of the Court
The Bench observed that:
“An order of externment passed under provisions of Section 56 of the 1951 Act imposes a restraint on the person against whom the order is made from entering a particular area. Thus, such orders infringe the fundamental right guaranteed under Article 19(1)(d). Hence, the restriction imposed by passing an order of externment must stand the test of reasonableness. For invoking clause (a) of sub-section (1) of Section 56, there must be objective material on record on the basis of which the competent authority must record its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to persons or property. For passing an order under clause (b), there must be objective material on the basis of which the competent authority must record subjective satisfaction that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or offences punishable under Chapter XII, XVI or XVII of the IPC.”
“In the facts of the case, the non-application of mind is apparent on the face of the record as the order of the learned Judicial Magistrate is not even considered in the impugned order of externment though the appellant specifically relied upon it in his reply. The impugned order appears to have been passed casually in a cavalier manner. The first three offences relied upon are of 2013 and 2018 which are stale offences in the sense that there is no live link between the said offences and the necessity of passing an order of externment in the year 2020. The two offences of 2020 alleged against the appellant are against two individuals. There is material on record to show that the said Varsha Bankar was acting as per the instructions of the brother of the said MLA. There is no material on record to show that witnesses were not coming forward to depose in these two cases. Therefore, both clauses (a) and (b) of subsection (1) of Section 56 are not attracted.”
“When the competent authority passes an order for the maximum permissible period of two years, the order of externment must disclose an application of mind by the competent authority and the order must record its subjective satisfaction about the necessity of passing an order of externment for the maximum period of two years which is based on material on record. Careful perusal of the impugned order of externment shows that it does not disclose any application of mind on this aspect.”
Judgment
Considering the bare facts on record, the said order showed non-application of mind and smacks of arbitrariness. Therefore, the impugned order of externment as well as impugned Judgment and order of the High Court were set aside.
Case Name: Deepak S/O Laxman Dongre vs The State of Maharashtra & Ors.
Citation: CRIMINAL APPEAL NO. 139 OF 2022
Bench: Justice Ajay Rastogi, Justice Abhay S. Oka
Decided on:28th January 2022
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