Case Note & Summary
The petitioner, Shaikh Dayan Shaikh Lukman, was externed by the Sub-Divisional Magistrate, Buldana, by order dated 21st September 2010 from several districts including Buldana, Akola, Washim, Jalna, Beed, Parbhani, Jalgaon (Khandesh) and Aurangabad under Section 56 of the Maharashtra Police Act, 1951. The petitioner appealed to the appellate authority, which partly allowed the appeal and restricted the externment to Buldana district only by order dated 24th December 2010. The petitioner challenged both the original externment order and the appellate order before the Bombay High Court, Nagpur Bench, urging that the externment order was without legal basis and without jurisdiction. The court examined the provisions of Section 56 of the Maharashtra Police Act, which requires the authority to be satisfied that witnesses are unwilling to come forward to depose in public due to fear of the person sought to be externed. The court found that the show cause notice and the externment order did not record any such satisfaction. The notice merely stated that the petitioner was a dangerous person and his movements were causing alarm and danger to persons, but did not indicate that witnesses were unwilling to come forward. The court held that the satisfaction required under Section 56 is a sine qua non for passing an externment order, and in its absence, the order is without jurisdiction. The court also noted that the appellate authority did not cure this defect. Consequently, the court quashed both the externment order and the appellate order, allowing the petition.
Headnote
A) Criminal Law - Externment - Section 56 of Maharashtra Police Act, 1951 - Subjective Satisfaction - The externment order was quashed as the authority failed to record satisfaction that witnesses were unwilling to come forward to depose in public due to fear of the petitioner. The court held that mere apprehension of breach of peace is not sufficient; the authority must be satisfied that witnesses are unwilling to come forward, and such satisfaction must be based on material on record. (Paras 5-8) B) Criminal Law - Externment - Appellate Order - Section 60 of Maharashtra Police Act, 1951 - Appellate Authority's Duty - The appellate authority must independently apply its mind to the legality and propriety of the externment order. In this case, the appellate order was also set aside as it did not cure the defect in the original order. (Para 9)
Issue of Consideration
Whether the externment order passed under Section 56 of the Maharashtra Police Act, 1951 was valid when the authority did not record satisfaction that witnesses were unwilling to come forward to depose in public due to fear of the petitioner.
Final Decision
The petition is allowed. The externment order dated 21st September 2010 and the appellate order dated 24th December 2010 are quashed and set aside. Rule is made absolute in those terms.
Law Points
- Externment order under Section 56 of Maharashtra Police Act requires subjective satisfaction of the authority that witnesses are unwilling to come forward to depose in public
- mere apprehension of breach of peace is insufficient
- order must be based on material on record
- appellate authority must independently apply mind
