Case Note & Summary
The petitioner, threatened with externment, challenged the order of the Divisional Commissioner confirming the Sub-Divisional Magistrate's externment order. The externment was based on provisions of Section 56(1)(a)(b) of the Maharashtra Police Act. The petitioner's main contention was two-fold: first, the order was excessive as it restricted him from talukas far beyond Kopargaon where the alleged offences occurred, without any reasons for including areas in Nashik and Aurangabad districts; second, the mandatory requirement under Section 56(1)(b) that the designated officer forms an opinion that witnesses are unwilling to come forward due to apprehension was not complied with. The show-cause notice issued by the Sub-Divisional Magistrate did not mention that witnesses were unwilling to testify publicly, and the Magistrate did not personally apply his mind to that condition. The State argued that the Sub-Divisional Police Officer's notice had contained such details and the Magistrate's notice referenced it, claiming sufficient compliance. The High Court examined the legal requirements and held that the officer who ultimately passes the externment order must independently form the opinion about witness unwillingness. The externment order restricts fundamental rights, so strict adherence to the statute is necessary. The Court found that the Sub-Divisional Magistrate's notice lacked any mention of the witnesses' unwillingness and there was no independent formation of opinion. Additionally, no reasons were given for extending the externment to talukas of Nashik and Aurangabad districts. Consequently, the writ petition was allowed, and the externment order was quashed.
Headnote
A) Maharashtra Police Act, 1951 - Externment - Requirement of Independent Opinion on Witness Unwillingness - Section 56(1)(b) - The Sub-Divisional Magistrate must himself form the opinion that witnesses are not willing to come forward to give evidence in public due to apprehension; reliance on the police officer's notice is insufficient; the notice to the externee must indicate the general nature of the allegation of witness unwillingness - Here, the Magistrate's notice lacked such mention and he did not independently apply his mind - Held that non-compliance vitiated the order, petition allowed (Paras 5-8, 11-12).
B) Maharashtra Police Act, 1951 - Externment - Extent of Area - Section 56 - Externment order must contain specific reasons for extending the externment to talukas of other districts beyond those where the offences were registered; absence of reasons renders the order excessive - Here, the order externed the petitioner from talukas of Nashik and Aurangabad districts without any discussion - Held that the order was not sustainable for lack of reasons (Paras 3, 9).
Issue of Consideration
Whether the externment order under Section 56(1)(b) of the Maharashtra Police Act was valid when the Sub-Divisional Magistrate did not independently form the opinion about witness unwillingness and the notice did not mention it; and whether externment from talukas of adjacent districts without specific reasons was sustainable.
Final Decision
The High Court allowed the petition and quashed the order dated 28.04.2017 passed by the Divisional Commissioner as well as the underlying externment order. The externment order was held invalid for non-compliance with Section 56(1)(b) of the Maharashtra Police Act and for lack of reasons for externment beyond the jurisdictional police station area.
Law Points
- The designated officer under Section 56(1)(b) of the Maharashtra Police Act must personally form the opinion that witnesses are unwilling to come forward to give evidence in public due to apprehension regarding safety
- reliance on a police officer's notice is insufficient. The notice to the proposed externee must indicate the general nature of material allegations
- including the fact that witnesses are unwilling to come forward. Externment from areas beyond the jurisdictional police station requires specific reasons.
Case Details
2017 LawText (BOM) (08) 42
CRIMINAL WRIT PETITION NO. 872 OF 2017
S.S. Shinde, S.M. Gavhane
Mr. K.B. Borde Patil for the petitioner; Mr. M.M. Nerlikar, A.P.P. for respondents/State
1) The Divisional Commissioner, Nashik Division, Nashik; 2) The Sub-Divisional Police Officer, Shirdi Division, Shirdi; 3) The Sub-Divisional Magistrate, Shirdi Division, Shirdi
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Nature of Litigation
Criminal writ petition challenging externment order
Remedy Sought
Petitioner sought quashing of externment order dated 28.04.2017 passed by the Divisional Commissioner and the underlying order of the Sub-Divisional Magistrate.
Filing Reason
The petitioner was externed from multiple talukas under Section 56(1)(a)(b) of the Maharashtra Police Act without proper compliance of the requirement to form an opinion about witness unwillingness and without specific reasons for externment from adjacent districts.
Previous Decisions
The Sub-Divisional Magistrate passed an externment order; the Divisional Commissioner confirmed that order in Externment Appeal No. 24 of 2017.
Issues
Whether the externment order under Section 56(1)(b) of the Maharashtra Police Act was valid when the Sub-Divisional Magistrate did not independently form the opinion that witnesses were unwilling to come forward to give evidence in public due to apprehension?
Whether externment from talukas of Nashik and Aurangabad districts without specific reasons was sustainable?
Submissions/Arguments
Petitioner argued that the Sub-Divisional Magistrate's order was void for non-compliance with Section 56(1)(b) because the show-cause notice did not mention that witnesses were unwilling to testify and the Magistrate did not himself form the required opinion; also argued that sending the petitioner out of talukas far from his residence was excessive and without reasons.
State argued that the Sub-Divisional Police Officer's notice contained the required details about incamera statements and witness unwillingness, and the Magistrate's notice referenced that proceeding, which constituted sufficient compliance; further argued that reasons for the wider externment were present in the order.
Ratio Decidendi
For an externment order under Section 56(1)(b) of the Maharashtra Police Act to be valid, the designated officer (in this case the Sub-Divisional Magistrate) must personally apply his mind and form the opinion that witnesses are not willing to come forward to give evidence in public due to apprehension as to safety; reliance on a police officer's notice is not sufficient. The show-cause notice to the proposed externee must indicate the general nature of the material allegations, including the fact that witnesses are unwilling. Additionally, externment from talukas of other districts requires specific reasons.
Judgment Excerpts
Admittedly, in the notice which was issued by respondent No.3 i.e. Sub-Divisional Magistrate, Shirdi, there is no mention about the general nature of material allegations against the petitioner, that the witnesses are not willing to come forward to give evidence against him in public by reason of apprehension on their part as regards safety of their person or property.
The Designated officer who exercises powers under section 56 of the Act is the Officer, who ultimately passes the order of an externment under the said Act. Said officer has to form his opinion that witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. It is not a mechanical process.
Procedural History
The petitioner was issued a show-cause notice by the Sub-Divisional Police Officer. Subsequently, the Sub-Divisional Magistrate passed an externment order. The petitioner appealed to the Divisional Commissioner, who confirmed the order. The petitioner then filed the present writ petition challenging the appellate order dated 28.04.2017.
Acts & Sections
- Maharashtra Police Act, 1951: 56(1)(a), 56(1)(b), 59
- Indian Penal Code, 1860: Chapters XII, XVI, XVII
