caselaws
Supreme Court of India
Deepak vs The State Of Maharashtra on 28 January, 2022Author: Ajay Rastogi
Bench: Ajay Rastogi, Abhay S. Oka
1
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.
Comments