Case Note & Summary
The petitioner filed a criminal writ petition under Articles 226 and 227 of the Constitution of India challenging the externment order dated 06.09.2016 passed by the Sub Divisional Magistrate, Ausa, externing him from Latur and Osmanabad Districts for two years, and the appellate order dated 25.11.2016 by the Divisional Commissioner, Aurangabad, which partly allowed the appeal restricting externment to Latur District. The externment was sought under Section 56(1)(a)(b) of the Maharashtra Police Act on the basis of a police proposal citing four offences registered against the petitioner. However, the petitioner was already acquitted in three of those offences even before the proposal was made. The petitioner contended that the externment order was illegal for multiple reasons: no incamera statements of witnesses were recorded as required under Section 56(1)(b); the authority did not form the mandatory opinion that witnesses were unwilling to come forward; the order relied on acquitted offences; the externment area extended to Osmanabad District without any justification; the show cause notice did not mention the ground of communal hatred later used in the order; and the order was passed in the absence of his advocate and without providing copies of the proposal, violating natural justice. The State defended the orders. The High Court examined the statutory scheme and the precedents in Yeshwant Damodar Patil vs. Hemant Karkar and Balu vs. Divisional Magistrate, Pandharpur. The Court held that Section 56(1)(b) unequivocally requires recording of incamera statements and a specific opinion of witness unwillingness, which was entirely absent in the impugned order. Further, the externment authority failed to consider that the petitioner stood acquitted in three out of four predicate offences, thereby severing any live link between the alleged past conduct and the externment. The Court also noted that extending the externment to Osmanabad District was excessive when all alleged activities were confined to Latur District, and the appellate authority’s subsequent restriction did not cure the original illegality. The proceedings further suffered from procedural infirmities as the reply was not properly considered and natural justice was violated. Consequently, the writ petition was allowed, and both impugned orders were quashed and set aside. Rule made absolute with no order as to costs.
Headnote
A) Criminal Procedure - Externment - Mandatory Incamera Statements - Maharashtra Police Act, Section 56(1)(b) - An externment order under clause (b) requires the designated officer to record incamera statements of witnesses and form an opinion that they are unwilling to come forward in public due to apprehension about safety of their person or property. Non-compliance renders the order invalid (Paras 12-13, 15). B) Criminal Procedure - Externment - Live Link of Offences - Maharashtra Police Act, Section 56(1)(a)(b) - Offences in which the externed person stands acquitted prior to the externment proposal lose their live link and cannot form the basis for externment. The authority must consider such acquittals and not mechanically rely on them (Paras 10-11). C) Criminal Procedure - Externment - Proportionality of Area - Maharashtra Police Act, Section 56 - The area of externment must be confined to the geographic locality where the alleged activities occurred; extending it to far-flung districts without justification is arbitrary and illegal (Paras 14-15). D) Constitutional Law - Natural Justice - Fair Hearing - Constitution of India, Articles 226 and 227 - Externment proceedings must adhere to principles of natural justice; non-supply of the police proposal and deciding the matter ex-parte in the absence of the advocate vitiates the order (Paras 4, 9-10).
Issue of Consideration
Whether the externment order dated 06.09.2016 and the appellate order dated 25.11.2016 are legal and valid under the Maharashtra Police Act; specifically, whether the mandatory requirements of Section 56(1)(b) were complied with and whether reliance on already acquitted offences vitiates the externment order
Final Decision
Writ Petition allowed. Impugned orders dated 25.11.2016 and 06.09.2016 quashed and set aside. Rule made absolute. No costs.
Law Points
- Externment under Section 56(1)(b) of Maharashtra Police Act requires the designated officer to record incamera statements of witnesses and form an opinion that witnesses are not willing to come forward due to apprehension of safety
- acquittal in predicate offences severs the live link and such offences cannot justify externment
- the area of externment must be proportionate to the locality of alleged activities
- violation of natural justice occurs when the proposal is not supplied and ex-parte order is passed without sufficient reason
