Case Note & Summary
The petitioner challenged an externment order dated 7th February 2012 passed by the Deputy Commissioner of Police, Zone-4, Mumbai, under Section 56(1)(a)(b) of the Bombay Police Act, 1951, externing him from Greater Mumbai and Thane for two years, and the appellate order dated 1st November 2012 dismissing his statutory appeal. The petitioner had been served a show-cause notice on 20th October 2011 under Section 59 of the Act. After hearing him, the externment order was passed. He initially filed a writ petition which was disposed of with liberty to file an appeal; the appeal was dismissed. The petitioner's counsel argued that neither the externment order nor the appellate order recorded the authorities' subjective satisfaction that witnesses were in apprehension of danger by the petitioner and unwilling to come forward to give evidence in public against him, which is an essential requirement under Section 56(1)(a)(b). The court examined the plain language of Section 56(1)(a) and (b) and found that the requirement of recording subjective satisfaction is mandatory. Since both impugned orders were silent on this aspect, the court held that the orders could not be sustained. The court allowed the petition, quashed both the externment order and the appellate order, and made the rule absolute.
Headnote
A) Bombay Police Act - Externment - Section 56(1)(a)(b) - Subjective Satisfaction - The authorities must record their subjective satisfaction that witnesses are unwilling to come forward to give evidence in public against the person sought to be externed due to apprehension of danger to their person or property. In the absence of such recording, the externment order is invalid. (Paras 4-5)
Issue of Consideration
Whether the externment order and appellate order under Section 56(1)(a)(b) of the Bombay Police Act, 1951 are valid when the authorities have not recorded their subjective satisfaction that witnesses are in apprehension of danger by the petitioner and unwilling to give evidence in public against him.
Final Decision
The petition is allowed. The Externment Order dated 7th February 2012 passed by the 2nd Respondent and the order dated 1st November 2012 passed by the 4th Respondent are quashed and set aside. Rule is made absolute.
Law Points
- Externment order under Section 56(1)(a)(b) of Bombay Police Act
- 1951 requires recording of subjective satisfaction that witnesses are unwilling to come forward due to apprehension of danger
- Failure to record such satisfaction renders order invalid
Case Details
2013 LawText (BOM) (09) 40
Writ Petition No.490 of 2013
S.C. Dharmadhikari, G.S. Patel
Mr.A.H.H. Ponda for the petitioner, Mrs.A.S. Pai, APP for the respondents
Shri Badiun Jamal S/o. Akbar Badsha Kaimatjan Pasha
The State of Maharashtra, The Deputy Commissioner of Police, Zone – 4, Mumbai, The Assistant Commissioner of Police, Sion Division, Mumbai, Shri Vineet Agarwal, Secretary (Special), Home Department, Government of Maharashtra, Mantralaya, Mumbai
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Nature of Litigation
Writ petition challenging externment order and appellate order under Bombay Police Act, 1951
Remedy Sought
Quashing of externment order dated 7th February 2012 and appellate order dated 1st November 2012
Filing Reason
Authorities failed to record subjective satisfaction that witnesses were unwilling to testify due to apprehension of danger
Previous Decisions
Earlier writ petition (Writ Petition No.232 of 2012) was disposed of relegating petitioner to statutory appeal; appeal was dismissed on 1st November 2012
Issues
Whether the externment order and appellate order under Section 56(1)(a)(b) of the Bombay Police Act, 1951 are valid when the authorities have not recorded their subjective satisfaction that witnesses are in apprehension of danger by the petitioner and unwilling to give evidence in public against him.
Submissions/Arguments
Petitioner's counsel contended that neither the externment order nor the appellate order recorded the authorities' subjective satisfaction that witnesses were in apprehension of danger by the petitioner and unwilling to come forward to give evidence in public against him, which is an essential requirement under Section 56(1)(a)(b) of the Bombay Police Act, 1951.
Ratio Decidendi
Under Section 56(1)(a)(b) of the Bombay Police Act, 1951, the authorities must record their subjective satisfaction that witnesses are unwilling to come forward to give evidence in public against the person sought to be externed due to apprehension of danger to their person or property. Failure to record such satisfaction renders the externment order invalid.
Judgment Excerpts
Mr.Ponda, learned counsel for the Petitioner, contended that in neither of the impugned orders have the authorities recorded their respective subjective satisfactions that witnesses are, in apprehension of danger by the Petitioner to their persona or property, unwilling to come forward to give evidence in public against the Petitioner.
On a plain reading of Section 56(1)(a) and (b) of the Bombay Police Act, 1951, it is clear that there are several distinct requirements that must each be satisfied.
Procedural History
On 20th October 2011, show-cause notice under Section 59 of Bombay Police Act, 1951 was served on petitioner. After hearing, externment order dated 7th February 2012 was passed. Petitioner filed Writ Petition No.232 of 2012 which was disposed of relegating him to statutory appeal. Petitioner filed appeal which was dismissed on 1st November 2012. Thereafter, petitioner filed the present writ petition.
Acts & Sections
- Bombay Police Act, 1951: 56(1)(a)(b), 59
