Case Note & Summary
The petitioner, Hussain alias Bantu Mohd. Bashir, challenged an externment order dated 31.01.2023 passed by the Deputy Commissioner of Police, Zone No.5, Nagpur under Section 56 of the Maharashtra Police Act, 1951, externishing him for one year from the area. The appeal against this order was dismissed by the Divisional Commissioner, Nagpur on 26.07.2023. The petitioner contended that the orders were passed without complying with the mandatory requirements of Section 59 of the Act, which requires recording of in-camera statements and providing an opportunity to the proposed externee to cross-examine witnesses. The court examined the scope of Section 56 and Section 59, noting that externment is an extraordinary measure to be used only when witnesses are unwilling to depose publicly due to fear. The court found that the impugned order did not record any subjective satisfaction that witnesses were unwilling to come forward, nor did it comply with Section 59 by recording statements in a sealed cover. The appellate authority also failed to address these deficiencies. Consequently, the court quashed both the externment order and the appellate order, allowing the petition.
Headnote
A) Maharashtra Police Act - Externment - Section 56 - Subjective Satisfaction - The externment order must be based on subjective satisfaction of the authority that witnesses are unwilling to come forward due to fear of violence, and such satisfaction must be recorded in the order - Held that failure to record subjective satisfaction renders the order invalid (Paras 6-8)
B) Maharashtra Police Act - Externment - Section 59 - In-camera Statements - The authority must record statements of witnesses in a sealed cover and provide an opportunity to the proposed externee to cross-examine or explain - Held that non-compliance with Section 59 vitiates the externment order (Paras 9-10)
C) Maharashtra Police Act - Externment - Section 56 - Opportunity of Hearing - The proposed externee must be given a meaningful opportunity to defend himself, including access to the substance of allegations - Held that denial of such opportunity violates principles of natural justice (Paras 11-12)
Issue of Consideration
Whether the externment order dated 31.01.2023 passed under Section 56 of the Maharashtra Police Act, 1951 and the appellate order dated 26.07.2023 are sustainable in law
Final Decision
The petition is allowed. The order dated 31.01.2023 passed by respondent No.1 under Section 56 of the Maharashtra Police Act, 1951 and the order dated 26.07.2023 passed by respondent No.4 in Appeal No.5/2023 are quashed and set aside. Rule is made absolute in those terms.
Law Points
- Externment order under Section 56 of Maharashtra Police Act
- 1951 requires strict compliance with Section 59
- subjective satisfaction based on credible material
- recording of in-camera statements
- and opportunity of hearing
Case Details
2023 LawText (BOM) (09) 160
Criminal Writ Petition No.548/2023
Mr. B. Dafle for petitioner, Ms S. Haider, A.P.P. for respondents
Hussain alias Bantu Mohd. Bashir
Deputy Police Commissioner, Zone No.5, Nagpur City, Nagpur and others
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Nature of Litigation
Criminal writ petition challenging externment order under Section 56 of Maharashtra Police Act, 1951
Remedy Sought
Quashing of externment order dated 31.01.2023 and appellate order dated 26.07.2023
Filing Reason
Petitioner was externed for one year without compliance with mandatory procedural requirements under Section 59 of the Act
Previous Decisions
Externment order passed by Deputy Commissioner of Police on 31.01.2023; appeal dismissed by Divisional Commissioner on 26.07.2023
Issues
Whether the externment order under Section 56 of the Maharashtra Police Act, 1951 was passed without recording subjective satisfaction as required by law
Whether the mandatory provisions of Section 59 of the Act regarding in-camera statements and opportunity of hearing were complied with
Submissions/Arguments
Petitioner argued that the externment order was passed without complying with Section 59, as no in-camera statements were recorded and no opportunity to cross-examine was given
Respondents argued that the order was valid and based on material on record
Ratio Decidendi
An externment order under Section 56 of the Maharashtra Police Act, 1951 must be based on subjective satisfaction that witnesses are unwilling to depose publicly due to fear, and must comply with Section 59 by recording in-camera statements and providing an opportunity of hearing to the proposed externee. Failure to do so renders the order invalid.
Judgment Excerpts
The Supreme Court in the case of Gurbachan Singh Vs. The State of Bombay and anr.; reported in 1952 AIR 221, has, while determining the procedural reasonableness of the restriction in the light of Article 19 of the Constitution of India, held that the provisions of Section 27(1) of the Bombay Police Act, 1902, (which is pari materia to Section 56 of the Act), is certainly an extraordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitutes a menace to the safety of the public residing therein.
The Supreme Court, in the case of Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, the State of Maharashtra, reported in 1973 SCC (1) 372, in the context of the challenge to the constitutionality of Section 56 of the Act, has held that although Section 56 makes a serious inroad on personal liberty, but such restraints have to be...
Procedural History
The Deputy Commissioner of Police, Zone No.5, Nagpur passed an externment order under Section 56 of the Maharashtra Police Act, 1951 on 31.01.2023, externishing the petitioner for one year. The petitioner filed an appeal before the Divisional Commissioner, Nagpur, which was dismissed on 26.07.2023. The petitioner then filed the present criminal writ petition before the Bombay High Court, Nagpur Bench.
Acts & Sections
- Maharashtra Police Act, 1951: 56, 59
