Case Note & Summary
The petitioner, Subhash Jethu Patil, challenged an externment order passed by the Appropriate Authority under Section 56(1)(a) and (b) of the Bombay Police Act, 1951, which was confirmed by the Appellate Authority. The petitioner contended that the externment order did not record the subjective satisfaction of the authority that witnesses were unwilling to come forward to depose against him out of fear, which is a cardinal requirement for invoking Section 56. The High Court, after hearing counsel for both sides, found that the order passed by the Externing Authority and the Appellate Authority conspicuously lacked this subjective satisfaction. The court relied on the Supreme Court's decision in Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, State of Maharashtra, AIR 1973 SC 630, which held that an externment order under Section 56 can be passed only if the authority is satisfied that witnesses are unwilling to give evidence in public due to apprehension for their safety. The court rejected the argument that the show-cause notice mentioning the fact could substitute for the subjective satisfaction in the final order, emphasizing that the subjective satisfaction must be reflected in the order itself. Since the absence of this jurisdictional fact was fatal, the court quashed and set aside the externment order and the appellate decisions dated 10th December 2010 and 20th April 2011, making the rule absolute.
Headnote
A) Criminal Law - Externment - Section 56(1)(a) and (b) Bombay Police Act, 1951 - Subjective Satisfaction - The externment order must record the authority's subjective satisfaction that witnesses are unwilling to come forward to give evidence against the proposed externee due to fear for their safety. Absence of such recording renders the order invalid and without jurisdiction. (Paras 3-4)
B) Criminal Law - Externment - Jurisdictional Fact - Section 56 Bombay Police Act, 1951 - The subjective satisfaction regarding witnesses' unwillingness is a jurisdictional fact; its non-mention in the externment order is fatal and cannot be cured by reference to the show-cause notice. (Para 4)
Issue of Consideration
Whether the externment order passed under Section 56(1)(a) and (b) of the Bombay Police Act, 1951 is valid when it does not record the subjective satisfaction of the authority that witnesses are unwilling to come forward to depose against the petitioner out of fear.
Final Decision
The High Court quashed and set aside the impugned externment order and the decisions of the Appellate Authority dated 10th December 2010 and 20th April 2011. Rule made absolute.
Law Points
- Externment order under Section 56(1)(a) and (b) of Bombay Police Act
- 1951 requires subjective satisfaction that witnesses are unwilling to come forward to depose out of fear
- absence of such satisfaction in the order is fatal and vitiates the order
- show-cause notice mentioning the fact cannot substitute for subjective satisfaction in the final order.
Case Details
2012 LawText (BOM) (08) 86
Criminal Writ Petition No.1406 of 2011
A.M. Khanwilkar, R.Y. Ganoo
Mr. U.N. Tripathi i/b Mr. Rahul Walvekar for Petitioner, Ms. M.H. Mhatre, A.P.P. for Respondents
State of Maharashtra, Deputy Commissioner of Police, Division-2, Panvel
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Nature of Litigation
Criminal writ petition challenging an externment order under the Bombay Police Act, 1951.
Remedy Sought
Quashing of the externment order passed by the Appropriate Authority and confirmed by the Appellate Authority.
Filing Reason
The externment order did not record the subjective satisfaction that witnesses were unwilling to come forward to depose against the petitioner out of fear.
Previous Decisions
Externment order passed by Appropriate Authority; confirmed by Appellate Authority on 10th December 2010 and 20th April 2011.
Issues
Whether the externment order under Section 56(1)(a) and (b) of the Bombay Police Act, 1951 is valid without recording subjective satisfaction regarding witnesses' unwillingness to testify.
Submissions/Arguments
Petitioner argued that the externment order and appellate order do not record subjective satisfaction that witnesses were unwilling to come forward to depose out of fear, which is a cardinal requirement.
Respondent (State) argued that the show-cause notice mentioned the fact, and the externment order was passed in continuation, so the satisfaction can be inferred.
Ratio Decidendi
An externment order under Section 56(1)(a) and (b) of the Bombay Police Act, 1951 must record the subjective satisfaction of the authority that witnesses are unwilling to come forward to give evidence against the proposed externee due to fear for their safety. This is a jurisdictional fact; its absence renders the order invalid and cannot be cured by reference to the show-cause notice.
Judgment Excerpts
The Apex Court in the case of Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, State of Maharashtra reported in AIR 1973 SC 630 has observed that an order of externment can be passed under clause (a) or (b) of Section 56 if, and only if, the authority concerned is satisfied that witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety of their person and property.
That subjective satisfaction must be reflected in the order of Externing Authority. In absence of recording of that subjective satisfaction, the Externing Authority would not acquire jurisdiction to invoke Section 56 of the Act at all.
Procedural History
The Appropriate Authority passed an externment order under Section 56(1)(a) and (b) of the Bombay Police Act, 1951. The petitioner appealed, and the Appellate Authority confirmed the order on 10th December 2010 and 20th April 2011. The petitioner then filed Criminal Writ Petition No.1406 of 2011 before the Bombay High Court, which was heard and decided on 27th August 2012.
Acts & Sections
- Bombay Police Act, 1951: 56, 56(1)(a), 56(1)(b)
