Case Note & Summary
In a criminal writ petition before the Bombay High Court, the petitioner challenged an externment order passed by the Sub-Divisional Police Officer and its subsequent modification by the Divisional Commissioner. The petitioner, who was externed from Ahmednagar District under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, contended that the show cause notice lacked specific grounds and that the externing authority had not adhered to the statutory mandate. The externment order was based on allegations that the petitioner’s movements or acts were causing alarm, danger, or harm to person or property, and that witnesses were not coming forward due to fear of reprisal. The petitioner argued that the authority failed to record its subjective satisfaction in the order that witnesses were unwilling to testify publicly due to apprehension for their safety. He also contended that the appellate authority did not properly consider these legal infirmities when it modified the externment area to only village Supa. The State defended the orders, asserting they were based on material on record and within jurisdiction. The High Court, after examining the records, found that the externment order indeed did not mention that the officer was subjectively satisfied about the witnesses’ fear. The Court relied on the precedent of Yeshwant Damodar Patil v. Hemant Karkare, which interpreted Sections 56(1)(a)(b) and 59 of the Act to require such recorded satisfaction. The Court noted that the appellate authority too had failed to address this crucial legal aspect. Consequently, the Court held that the externment order was vitiated for not complying with the statutory conditions. The writ petition was allowed, the impugned appellate order was quashed, and the externment proceedings were set aside.
Headnote
A) Criminal Law - Prevention of Crime - Externment Order - Maharashtra Police Act, 1951, Sections 56(1)(a)(b), 59 - Requirement of Subjective Satisfaction and Live Link - An externment order under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 can only be passed if the designated officer records in the order a subjective satisfaction that witnesses are not coming forward to give evidence in public against the person by reason of apprehension as to the safety of their person or property; the order must also demonstrate a live link between the offences relied upon and the territorial area from which the person is externed. The appellate authority must consider these legal requirements. (Paras 7-12). Held, where the externment order did not record such satisfaction and the appellate authority modified the order without addressing the legal flaws, the order was quashed as vitiated.
Issue of Consideration
Whether the externment order passed under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 is valid when the authority failed to record a subjective satisfaction that witnesses were unwilling to come forward to give evidence in public due to apprehension of safety of person or property, and whether the appellate authority properly considered the legal aspects.
Final Decision
The writ petition was allowed. The impugned order dated 29-10-2016 passed by respondent No. 2 (Divisional Commissioner) in Externment Appeal No. 39 of 2016 was quashed and set aside. Consequently, the externment proceedings were quashed. Rule was made absolute.
Law Points
- Externment order under Section 56(1)(a)(b) of Maharashtra Police Act
- 1951 must record subjective satisfaction that witnesses are unwilling to testify due to fear
- Appellate authority must consider legal flaws in externment order
- Externment order must demonstrate live link between offences and area of externment.
Case Details
2017 LawText (BOM) (01) 83
Criminal Writ Petition No. 1564 of 2016
S.S. Shinde, K.K. Sonawane
Kanifnath Radhakishan Popalghat
The State of Maharashtra Through Principal Secretary Home Department, The Divisional Commissioner Nashik Division Nashik, The Sub-Divisional Police Officer Shrigonda-Parner Division Ahmednagar
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal writ petition challenging an externment order and the appellate authority's modification thereof.
Remedy Sought
Quash the order dated 29-10-2016 passed by respondent No. 2 (Divisional Commissioner) in Externment Appeal No. 39 of 2016 and consequently set aside the externment proceedings.
Filing Reason
The externment order passed by respondent No. 3 under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 was allegedly without recording the requisite subjective satisfaction and in violation of the statutory mandate.
Previous Decisions
Respondent No. 3 (Sub-Divisional Police Officer) passed an externment order dated 10-02-2016 externing the petitioner from Ahmednagar District. Respondent No. 2 (Divisional Commissioner) modified the order, confining the externment to village Supa, and dismissed the appeal.
Issues
Whether the externment order under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 is valid in the absence of a recorded subjective satisfaction that witnesses were unwilling to give evidence in public due to apprehension of safety of person or property.
Whether the externment order demonstrated a live link between the offences relied upon and the area from which the petitioner was externed.
Submissions/Arguments
Petitioner argued that the show cause notice lacked specific grounds; the mandate of Section 56(1)(a)(b) was not followed; the externment order failed to record the authority's subjective satisfaction regarding witness fear; and the appellate authority did not consider these legal flaws even when modifying the order.
Respondent State argued that the orders were in consonance with the material on record and the authorities exercised jurisdiction within permissible limits, thus the petition should be rejected.
Ratio Decidendi
An externment order passed under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 must contain a recorded subjective satisfaction of the designated officer that witnesses are unwilling to come forward to give evidence in public against the person by reason of apprehension for the safety of their person or property. The order must also demonstrate a live link between the offences relied upon and the territorial area from which externment is ordered. Non-compliance vitiates the order.
Judgment Excerpts
Upon careful perusal of the show cause notice and order passed by respondent No. 2, it is not mentioned that, as a matter of fact, respondent No. 3 was subjectively satisfied that witnesses are not coming forward to give evidence against the petitioner in public by reason of apprehension on their part as regards the safety of their person or property.
the respondent No. 3 did not record subjective satisfaction or reached to the definite conclusion that due to fear of the petitioner the witnesses are not coming forward to give evidence against the petitioner in public by reason of apprehension on their part as regards the safety or their person or property.
Procedural History
The petitioner was served with a show cause notice under the Maharashtra Police Act, 1951. The Sub-Divisional Police Officer (respondent No. 3) passed an externment order on 10-02-2016 externing the petitioner from Ahmednagar District. The petitioner appealed to the Divisional Commissioner (respondent No. 2), who modified the order on 29-10-2016, confining the externment to village Supa. The petitioner then filed the present criminal writ petition challenging the appellate order.
Acts & Sections
- Maharashtra Police Act, 1951: 56(1)(a)(b), 58, 59
