Deepak vs The State Of Maharashtra

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 139 OF 2022 [@ SLP(Crl.) No.9032 of 2021]

DEEPAK S/O LAXMAN DONGRE …… APPELLANT

v.

THE STATE OF MAHARASHTRA & ORS. …… RESPONDENTS

J U D G M E N T

ABHAY S. OKA, J.

Leave granted.

1. The respondent No.2 by his order dated 15 th December 2020

exercised the powers under Section 56(1)(a)(b) of the Maharashtra Police

Act, 1951 (for short “1951 Act”). By the said order, the appellant, who is a

resident of Mandeolgaon, Taluka Badnapur, District Jalna was directed to

remove himself outside the limits of District Jalna within 5 days. By the said

order, he was externed from District Jalna for a period of two years from the

date on which he removes himself from District Jalna. In the impugned order Signature Not Verified Digitally signed by Anita Malhotra Date: 2022.01.28 17:08:33 IST Reason: 2

of externment, the respondent No.2 relied upon 5 offences registered

against the appellant, the details of which are as under: -

S.No Police Station Crime Section Status . Register No. 1. Taluka Jalna 367/2013 452, 324, 504 Acquitted and 34 of IPC 2. Kadim Jalna 247/2018 354, 354(a), 323, Pending in the 504, 506, 509, 34 court of law of IPC

3. Chandanzira 378/2018 307, 325, 323, Pending in the 341, court of law 201, 120(8), 405, 506, 507, 37 of IPC

4. Badnapur 15/2020 354, 354(a), Pending in the 354(d), 509, 506 court of law of IPC

5. Badnapur 215/2020 509, 501, 506 Under with 67, 67(a) of Investigation IT Act

In addition, the respondent No.2 relied upon confidential in-camera

statements of witnesses ‘A’ and ‘B’. A statutory appeal was preferred by the

appellant against the impugned order of externment dated 15 th December

2020. The appeal was dismissed by the Appellate Authority. The appellant

questioned the impugned order of externment by filing a writ petition under

Article 226 of the Constitution of India before the Bombay High Court. A

Division Bench of the Bombay High Court by the impugned Judgment and 3

order dated 20th August 2021 dismissed the writ petition. The impugned

order of externment was passed on the ground that the confidential

statements of witnesses ‘A’ and ‘B’ disclose that witnesses are not willing to

come forward to give evidence against the appellant, the activities of the

appellant are very dangerous and the offences registered against the

appellant under the Indian Penal Code (for short “IPC”) are of grave and

serious nature which are causing disturbance to the public at large. It was

further observed by the respondent No.2 that the confidential statements of

two witnesses demonstrate that the appellant is indulging in illegal activities

which are causing alarm, danger or harm to the public at large.

2. Shri Sandeep Sudhakar Deshmukh, the learned counsel appearing for

the appellant has taken us through the impugned order of externment as well

as the impugned Judgment and order of the Bombay High Court. His

submission is that the act of passing the impugned order of externment was

a mala fide act at the instance of Shri Narayan Kuche, a local Member of the

Legislative Assembly (MLA) with the object of settling family disputes. It is

pointed out by the learned counsel that the said MLA is a maternal uncle of

the appellant. It is pointed out by the learned counsel that the said MLA tried

to implicate the appellant in a false case (Crime No.15 of 2020) filed at his

instance by one Varsha Bankar with Badnapur police station in Jalna District. 4

He submitted that the said Varsha Bankar admitted in her police statement

that the brother of the said MLA advised her to make phone calls and send

messages and photographs to the appellant. He submitted that after a First

Information Report was registered against the said MLA, his brother and the

said Varsha Bankar, on the basis of the appellant’s complaint, a show-cause

notice dated 7th July 2020 was issued by the respondent No.2 to the

appellant calling upon him to show cause why an order of externment under

Section 56 of 1951 Act should not be passed. The learned counsel pointed

out that the in-camera statements of witnesses ‘A’ and ‘B’ are general in

nature which do not refer to any specific allegation against the appellant. He

submitted that out of the 5 offences relied upon in the impugned order of

externment, one is of 2013 and two are of 2018. The fourth offence is of

2020 under Sections 354, 354A, 354D, 509 and 506 of the Indian Penal

Code. The fifth offence is under Sections 509, 501, 506 read with Section

67 and 67(A) of the Information Technology Act, 2000. He submitted that the

first three offences are stale offences and there is no live link between the

said three offences and the object of passing the impugned order of

externment. He submitted that the remaining two offences registered in the

year 2020 will not attract clauses (a) or (b) of sub-section (1) of Section 56 of

the 1951 Act. He would, therefore, submit that the impugned order of 5

externment is vitiated. He urged that the exercise of power is mala fide at

the instance of the said MLA. He submitted that on the basis of the same

offences, the appellant was arrested under Section 151 of the Code of

Criminal Procedure, 1973 (for short “Cr.PC”). On 2 nd June 2020, a proposal

submitted by the police to detain the appellant under sub-section (3) of

Section 151 of Cr.PC for a period of 15 days was rejected by the learned

Judicial Magistrate, First Class and the appellant was ordered to be

released. He submitted that on the same set of allegations, the impugned

order of externment has been passed against the appellant. In the

alternative, he submitted that under Section 58 of the 1951 Act, the

maximum period for which a person can be externed is of two years. He

submitted that in the impugned order of externment, no reasons have been

assigned for externing the appellant for a maximum period of two years.

3. Shri Sachin Patil, the learned counsel appearing for the respondents

urged that while passing the order of externment, the competent authority is

not required to pass a reasoned order. The competent authority has

recorded subjective satisfaction of the existence of the grounds provided in

clauses (a) and (b) of sub-section (1) of Section 56 of the 1951 Act. He

submitted that the scope of powers under sub-section (3) of Section 151 of

Cr.PC is different from the scope of powers under Section 56 of the 1951 6

Act. He submitted that the High Court has in detail examined the grounds of

challenge to the impugned order of externment and has rejected each and

every ground. He submitted that no interference is called for with the

impugned order of externment and the impugned order of the High Court.

4. We have given careful consideration to the submissions. Under clause

(d) of Article 19(1) of the Constitution of India, there is a fundamental right

conferred on the citizens to move freely throughout the territory of India. In

view of clause (5) of Article 19, State is empowered to make a law enabling

the imposition of reasonable restrictions on the exercise of the right

conferred by clause (d). An order of externment passed under provisions of

Section 56 of the 1951 Act imposes a restraint on the person against whom

the order is made from entering a particular area. Thus, such orders infringe

the fundamental right guaranteed under Article 19(1)(d). Hence, the

restriction imposed by passing an order of externment must stand the test of

reasonableness.

5. Section 56 of the 1951 Act reads thus:

“56. Removal of persons about to commit offence-

[(1)] Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the 7

provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate specially empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer 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, or [(bb) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Antisocial and other Dangerous Activities Act, 1980 or (2) in any manner prejudicial to the maintenance or supplies of commodities essential to the community as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm [or such prejudicial act], or the outbreak or spread of such disease or [notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the officer or not and whether contiguous or not), by such route, and within such time, as the officer may specify and not to enter 8

or return to the area or areas specified (hereinafter referred to as “the specified area or areas”) from which he was directed to remove himself.

[(2) An officer directing any person under sub-section (1) to remove himself from any specified area or areas in the State may further direct such person that during the period the order made against him is in force, as and when he resides in any other areas in the State, he shall report his place of residence to the officer-in-charge of the nearest police station once in every month, even if there be no change in his address. The said officer may also direct that, during the said period, as and when he goes away from the State, he shall, within ten days from the date of his departure from the State send a report in writing to the said officer, either by post or otherwise, of the date of his departure, and as and when he comes back to the State he shall, within ten days, from the date of his arrival in the State, report the date of his arrival to the officer-in-charge of the police station nearest to the place where he may be staying.

(underline supplied)

A perusal of sub-section (1) of Section 56 shows that there are distinct

grounds specified under sub-section (1) of Section 56 for passing an order of

externment. The said grounds are in clauses (a), (b), (bb), and (c). In the

present case, clauses (a) and (b) of sub-section (1) of Section 56 of the

1951 Act have been invoked. The ground in clause (a) is that the

movements or acts of any person are causing or calculated to cause alarm,

danger or harm to a person or property. The ground in clause (b) is that 9

there are reasonable grounds for believing that such person is engaged or is

about to be engaged in the commission of an offence involving force or

violence or an offence punishable under Chapter XII, XVI or XVII in IPC, or

the abetment of any such offence. Clause (b) is qualified by a condition that

the competent authority empowered to pass such order should be of the

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. Obviously, the opinion must be

formed on the basis of material on record.

6. As observed earlier, Section 56 makes serious inroads on the personal

liberty of a citizen guaranteed under Article 19(1)(d) of the Constitution of

India. In the case of Pandharinath Shridhar Rangnekar v. Dy. Commr. of

Police, State of Maharashtra1 in paragraph 9, this Court has held that the

reasons which necessitate or justify the passing of an extraordinary order of

externment arise out of extraordinary circumstances. In the same decision,

this Court held that care must be taken to ensure that the requirement of

giving a hearing under Section 59 of the 1951 Act is strictly complied with.

This Court also held that the requirements of Section 56 must be strictly

complied with.

1 (1973) 1 SCC 372 10

7. There cannot be any manner of doubt that an order of externment is

an extraordinary measure. The effect of the order of externment is of

depriving a citizen of his fundamental right of free movement throughout the

territory of India. In practical terms, such an order prevents the person even

from staying in his own house along with his family members during the

period for which this order is in subsistence. In a given case, such order

may deprive the person of his livelihood. It thus follows that recourse should

be taken to Section 56 very sparingly keeping in mind that it is an

extraordinary measure. For invoking clause (a) of sub-section (1) of Section

56, there must be objective material on record on the basis of which the

competent authority must record its subjective satisfaction that the

movements or acts of any person are causing or calculated to cause alarm,

danger or harm to persons or property. For passing an order under clause

(b), there must be objective material on the basis of which the competent

authority must record subjective satisfaction that there are reasonable

grounds for believing that such person is engaged or is about to be engaged

in the commission of an offence involving force or violence or offences

punishable under Chapter XII, XVI or XVII of the IPC. Offences under

Chapter XII are relating to Coin and Government Stamps. Offences under

Chapter XVI are offences affecting the human body and offences under 11

Chapter XVII are offences relating to the property. In a given case, even if

multiple offences have been registered which are referred in clause (b) of

sub-section (1) of Section 56 against an individual, that by itself is not

sufficient to pass an order of externment under clause (b) of sub-section (1)

of Section 56. Moreover, when clause (b) is sought to be invoked, on the

basis of material on record, the competent authority must be satisfied that

witnesses are not willing to come forward to give evidence against the

person proposed to be externed by reason of apprehension on their part as

regards their safety or their property. The recording of such subjective

satisfaction by the competent authority is sine qua non for passing a valid

order of externment under clause (b).

8. On 2nd June 2019, the Police Inspector of Badnapur Police Station,

District Jalna submitted a proposal to the Judicial Magistrate, First Class at

Badnapur for permitting detention of the appellant for a period of 15 days by

invoking provisions of sub-section (3) of Section 151 of Cr.PC (as inserted

by the Maharashtra Act No.7 of 1981). In the said proposal, reliance was

placed on the same six offences registered against the appellant, which

were made a part of the show-cause notice dated 7 th July 2020 on the basis

of which the impugned order of externment was passed. The police arrested

the appellant and produced him on 2nd June 2020 before the learned Judicial 12

Magistrate, First Class along with the aforesaid proposal. By the order dated

2nd June 2020 (Annexure P-4), the learned Judicial Magistrate rejected the

said proposal to detain the appellant and directed his immediate release

subject to the condition of attending the concerned Police Station between

10 am to 1 pm till 9th June 2020.

9. The power under sub-section (3) of Section 151 as amended for the

State of Maharashtra is to arrest a person on the basis of an apprehension

that he is likely to continue the design to commit, or is likely to commit a

cognizable offence after his release and that the circumstances of the case

are such that his presence is likely to be prejudicial to the maintenance of

public order. The learned Judicial Magistrate rejected the proposal to keep

the appellant in detention for 15 days. There is nothing placed on record to

show that the said order was challenged by the police. After having failed to

satisfy the learned Judicial Magistrate about the necessity of detaining the

appellant for 15 days, the Sub-Divisional Police Officer initiated action of

externment against him by issuing a show-cause notice on 7 th July 2020. It

is not the case made out in the show cause notice dated 7 th July 2020 that

after release of the appellant on 2 nd June 2020, the appellant indulged in the

commission of any offence or any other objectionable activity. 13

10. Considering the nature of the power under Section 56, the competent

authority is not expected to write a judgment containing elaborate reasons.

However, the competent authority must record its subjective satisfaction of

the existence of one of the grounds in sub-section (1) of Section 56 on the

basis of objective material placed before it. Though the competent authority

is not required to record reasons on par with a judicial order, when

challenged, the competent authority must be in a position to show the

application of mind. The Court while testing the order of externment cannot

go into the question of sufficiency of material based on which the subjective

satisfaction has been recorded. However, the Court can always consider

whether there existed any material on the basis of which a subjective

satisfaction could have been recorded. The Court can interfere when either

there is no material or the relevant material has not been considered. The

Court cannot interfere because there is a possibility of another view being

taken. As in the case of any other administrative order, the judicial review is

permissible on the grounds of mala fide, unreasonableness or arbitrariness.

11. In the facts of the case, the non-application of mind is apparent on the

face of the record as the order dated 2nd June 2020 of the learned Judicial

Magistrate is not even considered in the impugned order of externment

though the appellant specifically relied upon it in his reply. This is very 14

relevant as the appellant was sought to be detained under sub-section (3) of

Section 151 of Cr.PC for a period of 15 days on the basis of the same

offences which are relied upon in the impugned order of externment. As

mentioned earlier, from 2nd June 2020 till the passing of the impugned order

of externment, the appellant is not shown to be involved in any objectionable

activity. The impugned order appears to have been passed casually in a

cavalier manner. The first three offences relied upon are of 2013 and 2018

which are stale offences in the sense that there is no live link between the

said offences and the necessity of passing an order of externment in the

year 2020. The two offences of 2020 alleged against the appellant are

against two individuals. The first one is the daughter of the said MLA and

the other is the said Varsha Bankar. There is material on record to show that

the said Varsha Bankar was acting as per the instructions of the brother of

the said MLA. The said two offences are in respect of individuals. There is

no material on record to show that witnesses were not coming forward to

depose in these two cases. Therefore, both clauses (a) and (b) of sub-

section (1) of Section 56 are not attracted.

12. As the order impugned takes away fundamental right under Article

19(1)(d) of the Constitution of India, it must stand the test of reasonableness

contemplated by clause (5) of Article 19. Considering the bare facts on 15

record, the said order shows non-application of mind and smacks of

arbitrariness. Therefore, it becomes vulnerable. The order cannot be

sustained in law.

13. Section 58 of the 1951 Act reads thus:

“58. Period of operation of orders under section 55, 56, 57 and 57A - A direction made under section 55, 56,57 and 57A not to enter any particular area or such area and any District or Districts, or any part thereof, contiguous thereto, or any specified area or areas as the case maybe, shall be for such period as may be specified therein and shall in no case exceed a period of two years from the date on which the person removes himself or is removed from the area, District or Districts or part aforesaid or from the specified area or areas as the case may be".

On a plain reading of Section 58, it is apparent that while passing an order

under Section 56, the competent authority must mention the area or District

or Districts in respect of which the order has been made. Moreover, the

competent authority is required to specify the period for which the restriction

will remain in force. The maximum period provided for is of two years.

Therefore, an application of mind on the part of the competent authority is

required for deciding the duration of the restraint order under Section 56. On

the basis of objective assessment of the material on record, the authority has

to record its subjective satisfaction that the restriction should be imposed for 16

a specific period. When the competent authority passes an order for the

maximum permissible period of two years, the order of externment must

disclose an application of mind by the competent authority and the order

must record its subjective satisfaction about the necessity of passing an

order of externment for the maximum period of two years which is based on

material on record. Careful perusal of the impugned order of externment

dated 15th December 2020 shows that it does not disclose any application of

mind on this aspect. It does not record the subjective satisfaction of the

respondent no.2 on the basis of material on record that the order of

externment should be for the maximum period of two years. If the order of

externment for the maximum permissible period of two years is passed

without recording subjective satisfaction regarding the necessity of extending

the order of externment to the maximum permissible period, it will amount to

imposing unreasonable restrictions on the fundamental right guaranteed

under clause (d) of Article 19(1) of the Constitution of India.

14. Perusal of the impugned Judgment and order of the High Court shows

that unfortunately, the Division Bench did not notice that an order of

externment is not an ordinary measure and it must be resorted to sparingly

and in extraordinary circumstances. It was the duty of the Constitutional 17

Court to test the said order within the parameters which are well-settled by

this Court.

15. Accordingly, the appeal must succeed. The impugned order of

externment dated 15th December 2020, as well as impugned Judgment and

order dated 20th August 2021 of the High Court, are hereby quashed and set

aside.

16. The appeal is allowed in the above terms. All the pending applications,

if any, also stand disposed of.

…………..…………………J (AJAY RASTOGI)

…………..…………………J (ABHAY S. OKA) New Delhi;

January 28, 2022.