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Banas Domnic Miranda Vs. A.K. Ankola and Others - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 2127 of 1981
Judge
Reported in1982CriLJ2059
ActsConstitution Of India - Articles 14,19, 21 and 141
AppellantBanas Domnic Miranda
RespondentA.K. Ankola and Others
Excerpt:
criminal - externment - articles 14, 19 and 141 of constitution of india and sections 56 and 59 of bombay police act - show cause notice under section 59 giving opportunity to petitioner for tendering explanation regarding certain allegations of assault, molest, rape, robbery and extortion - deputy commissioner of police after hearing explanation passed order of externment - externment order challenged on ground of validity of provisions of sections 56 and 59 - validity of section 59 upheld by supreme court - externment order based on reasonable grounds believing that petitioner engaged in commissioning of offence - externment order valid - liberal approach to be taken considering family condition of petitioner. - maharashtra scheduled castes, scheduled tribes, de-notified tribes.....dharmadhikari, j.1. in this writ petition the petitioner has challenged the order of externment dated 27the april, 1981 passed by the deputy commissioner of police, zone iii greater bombay externing him outside limits of greater bombay and thane district for a period of 18 months from the date on which he removes himself or is removed outside the limits of greater bombay and thane district.2. it appears from the record that a usual show cause notice under section 59 of the bombay police act was issued on 18th march, 1980 giving the petitioner an opportunity of tendering his explanation regarding the allegations made in the notice. the allegations made in the notice read as under :'(i) that since january 1979 (except during the period you were in custody), in the localities of marol.....
Judgment:

Dharmadhikari, J.

1. In this writ petition the petitioner has challenged the order of externment dated 27the April, 1981 passed by the Deputy Commissioner of Police, Zone III Greater Bombay externing him outside limits of Greater Bombay and Thane district for a period of 18 months from the date on which he removes himself or is removed outside the limits of Greater Bombay and Thane district.

2. It appears from the record that a usual show cause notice under section 59 of the Bombay Police Act was issued on 18th March, 1980 giving the petitioner an opportunity of tendering his explanation regarding the allegations made in the notice. The allegations made in the notice read as under :

'(i) That since January 1979 (except during the period you were in custody), in the localities of Marol Village, Sak Baug, Mohili Village, Uday Nagar, Takpada, Chimatpada, Kurla, Andheri Road and the areas adjoining thereto in Greater Bombay your acts and movements are causing and are calculated to cause alarm, harm and danger to the residents, shop-keepers and visitors of the aforesaid localities and areas in that -

(a) That you assault, molest and rape the women and girls of the aforesaid localities and areas, which are offences punishable under Chap. XVI of I.P.C.

(b) That you commit robberies by extorting money and valuable articles from the residents, shop-keepers of the localities and areas, on assaults, threats of assaults and/or at the point of knife which are offences punishable under Chapt. XVII, I.P.C.

(ii) That since January, 1979 you have committed several acts and offences mentioned in para I - sub-paras (a) (b) above'.

3. In reply to this show cause notice the petitioner submitted his reply on 14th July, 1980 and also filed copies of various documents in support of his case. Thereafter Shri Bapat Assistant Commissioner of Police gave an opportunity to the petitioner to adduce evidence in his defence. After considering all the material placed before him and giving an opportunity of being heard to the petitioner, the Assistant Commissioner of Police Crime Branch (Preventive), Zone III Bombay forwarded all the material to the Commissioner of Police together with his report. Thereafter on 27th November, 1980 the Deputy Commissioner of Police heard the petitioner through his Advocate and ultimately passed the impugned order of externment.

4. Being aggrieved by this order the petitioner filed an appeal before the State of Maharashtra. The said appeal was dismissed vide communication dated 8th November, 1981. At the appellate stage also the petitioner was heard through his advocate by the Minister of State for Home. As already observed it is this order of externment as confirmed in appeal, which is challenged in this petition on various grounds. Shri Gumaste, learned Counsel appearing for the petitioner contended before us that the provisions of Sections 56 and 59 of the Bombay Police Act are ultra vires of the petitioner's fundamental right guaranteed under Art. 21 read with Arts. 14 and 19 of the Constitution of India. According to Shri Gumaste, the externment order contemplated by the provisions of the Bombay Police Act causes a serious injury to the externee and his family. It virtually throws the externee and his family on the street. Thus it violates his fundamental right under Art. 19 of the Constitution. The said order of externment amounts to deprivation of his personal liberty and the procedure prescribed for passing such an order is wholly unreasonable and unjust. The procedure is not only arbitrary and oppressive but is unfair and fanciful.

Under S. 56 of the Bombay Police Act an externee may be externed on the basis of the subjective satisfaction of the externing authority and that too without giving him any reasonable opportunity of being heard or to defend. Under S. 59 the externee is only informed in writing of the general nature of the material allegations made against him and while doing so, names and addresses of the victims and the date, time and place of the alleged incidents are not required to be disclosed. Thus practically the explanation which the proposed externee can offer is merely a total denial of the allegations. Therefore the provisions of S. 59 are wholly unreasonable, unjust and are violative of the fundamental rights under Arts. 14 and 19 of the Constitution. Shri Gumaste further contended that no checks or counter-checks are provided by the statute to protect an innocent person from abuse of power. Power of externment is not conferred upon the highest officer but is conferred upon an officer who is comparatively lower in rank. Under S. 59 an officer of the rank of the Assistant Commissioner of Police is authorised to hold an inquiry into the matter and on the inquiry held by the Assistant Commissioner of Police the Deputy Commissioner of Police is expected to pass an order of externment. Thus, the authority passing the externment order is not the authority who records evidence or holds inquiry and, therefore, the officer passing the order may never see the witnesses or their demeanour or may not have an opportunity to judge their veracity. While holding an inquiry under S. 59 of the Act the principles underlying rules of evidence need not necessarily be followed and, therefore, quality and quantity of evidence is distinct and different than the one expected under the Evidence Act. Further even if some witnesses are not coming forward to give evidence, action under S. 56 read with S. 59 can be taken and that too without examining witnesses who are willing to come forward to depose against the proposed externee in his presence. He is also not entitled to cross-examine them. The officers of the rank of the Assistant Commissioner of police or Deputy Commissioner of police can pass such an order against anybody with impunity because it is nowhere laid down in the Act that they should inform the higher authorities about the action taken by them in the matter of externment. Therefore, according to Shri Gumaste if the various provisions of the Bombay police Act, viz., Sections 55, 56, 57, 57A, 59, 60 and 61 are read together, it is clear that they impose unreasonable and unfair restrictions upon the fundamental right of the petitioner guaranteed by Art. 21 of the Constitution. The right of appeal prescribed under section 60 of the Bombay Police Act is wholly illusory because no reasoned order is expected from the externing authority. Unless such a reasoned order is passed, it is not possible for an externee to draft any grounds of appeal while filing in appeal under S. 60. In support of his contention Shri Gumaste has placed strong reliance upon the decision of Supreme Court in Maneka Gandhi v. Union of India, : [1978]2SCR621 and has contended before us that since the procedure prescribed by the Bombay Police Act is not just and fair, the provisions of S. 56 read with S. 59 thereof are ultra vires of the provisions of Art. 21 of the Constitution as interpreted by the Supreme Court in Maneka Gandhi's case. He has also placed reliance upon another decision of the Supreme Court in Premchand Paniwala v. Union of India, : 1981CriLJ5 and has contended that if the said decision is read with the decision of the Supreme Court in Maneka Gandhi's case, then it will have to be held that various provisions of the Bombay Police Act are wholly ultra vires. Shri Gumaste further contended that the procedure prescribed by the various provisions of the Act is wholly arbitrary and cannot be termed as just and fair. Apart from the fact that no obligation is cast upon the externing authority to make a report in that behalf to higher authorities, it does not provide for appointment of a public defendant who could conduct proceedings in confidence without disclosing material to the externee. Law does not make any provision for establishing any Advisory Board consisting of judicial officers, to scrutinise the cases of externee, nor the law provides for periodical review of the orders of externment. Not only this, even the procedure followed for holding inquires is so unreasonable that on the basis of an inquiry held by some other officer, who is lower in rank, a Deputy Commissioner of police can pass an order of externment. Therefore, in substance, it is contended by Shri Gumaste that the procedure prescribed by Section 56 read with S. 59 of the Bombay Police Act is wholly unfair, unjust, capricious, arbitrary and fanciful. On the basis of such unjust, unfair, capricious, arbitrary and fanciful procedure, persons like the petitioner are deprived of their fundamental rights guaranteed under Articles 19 and 21 of the Constitution. Therefore, according to Shri Gumaste these provisions of the Bombay Police Act are liable to be declared as ultra vires of Article 21 read with Articles 14 and 19 of the Constitution.

5. So far as the challenge to the impugned externment order on merits is concerned, it is contended by Shri Gumaste that though admittedly arguments were heard by the Deputy commissioner of Police on 27th November, 1980, the order of externment is passed on 27th April, 1981, i.e. after about 5 months. This delay in passing the order is fatal. Because of this delay the live link between the dangerous activities relied upon is snapped and it throws considerable doubt on the genuineness of the subjective satisfaction. Hence the externment order is liable to be declared illegal on this ground, also. He also contended that the allegations made in the show cause notice issued under S. 59 of the Bombay Police Act are hopelessly vague and do not afford any opportunity to the petitioner to give any explanation or adduce evidence in his defence. It is also contended by Shri Gumaste that the order of externment is issued by the Police authorities at the instance of one Sadashiv Patil who was inimically disposed against the petitioner and, therefore, the order of externment is not issued in bona fide exercise of the power, and is, therefore, mala fide. He also contended that the said order is also bad in law as the same is based on complaints filed by certain persons against the petitioner relating to non-cognizable offences. According to Shri Gumaste the order of externment cannot be passed on the basis of such complaints relating to non-cognizable offences in view of the specific provisions of S. 56 of the Bombay Police Act.

6. On the other hand, it is contended by Shri Sawant, learned Advocate General that so far as the challenge regarding the validity of the provisions of the Bombay Police Act and particularly Sections 56 and 59 thereof is concerned, the same is no more res integra in view of the various decisions of the Supreme Court as well as this court. According to Shri Sawant only because the petitioner feels that in the previous decisions, of this High Court or the Supreme Court, specific reference is not made to the Art. 21 of Constitution it is not open to this court to reopen the whole question, more so when the decisions of the Supreme Court are binding upon this Court under Article 141 of the Constitution. According to Shri Sawant the validity of the various provisions of the Bombay Police Act and particularly Sections 56 and 59 thereof is already decided by this Court and the Supreme Court in the following decisions : (1) Dr. N. B. Khare v. State of Delhi : [1950]1SCR519 ; (2) Abdul Rehaman Shamsoodin v. Emperor, : AIR1950Bom374 (FB); (3) Gurbachan Singh v. State of Bombay, : 1952CriLJ1147 ; (4) In re, Govind Pandurang : AIR1956Bom61 ; (5) Hari Khemu Gawali v. Deputy Commr. of Police, : 1956CriLJ1104 ; (6) Bhagubhai Dullabhbhai District Magistrate, : 1956CriLJ1126 : (7) State of Gujarat v. Mehboob Khan : 1969CriLJ26 (8) Pandharinath Rangnekar v. Dy. Commr. of Police, : 1973CriLJ612 : (9) State of M.P. v. Baldev Prasad, : 1961CriLJ442 ; (10) Bharat Singh v. State of M.P. : AIR1964MP175 ; (11) Nabukhan Mohammad Hussein v. S. Rammurthi : (1971)73BOMLR442 and (12) A. K. Roy v. Union of India, : 1982CriLJ340 .

7. It cannot be disputed nor it is disputed by Shri Gumaste that the validly of the various provisions of the Bombay Police Act has been upheld by the Supreme Court in the aforesaid decisions. However, according to Shri Gumaste, the later decisions of the Supreme Court in Maneka Gandhi's case : [1978]2SCR621 , which is of a larger Bench and the decision of the Supreme Court in Premchand Paniwala's case : 1981CriLJ5 has changed the whole colour of the challenge. In substance it is contended by Shri Gumaste that in none of the earlier decisions the Supreme Court or this High Court had an occasion to test the validity of the provisions of the Bombay Police Act in the light of Art. 21 of the Constitution. Therefore, according to him in view of the decision of the Supreme Court in Maneka Gandhi's case it will have to be held that the earlier decisions of the Supreme Court are impliedly overruled.

8. It is not possible for us to accept these contentions of Shri Gumaste for more than one reason. The Supreme Court had an occasion to consider the law laid down in Maneka Gandhi's case in a subsequent decision i.e. in Bachan Singh v. State of Punjab, : 1980CriLJ636 . After making a reference to the said judgment this is what the Supreme Court has observed in paras 135 and 136 of the judgment :-

'In Maneka Gandhi's case which was a decision by a Bench of seven learned Judges, it was held by Bhagwati J. in his concurring judgment that the expression 'person liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of men and some of them have been raised to the status of distinct fundamental rights under Art. 19. It was further observed that Arts. 14, 19 and 21 are not to be interpreted in water-tight compartments and consequently, a law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of Art. 21 has to stand the test of one or more of the fundamental rights conferred under Art. 19 which may be applicable in a given situation; ex hypothesi it must also be liable to be tested with reference to Art. 14. The principle of reasonableness pervades all the three Articles, with the result that the procedure contemplated by Art. 21 must be 'right and just and fair' and not 'arbitrary, fanciful or oppressive', otherwise, it should be no procedure at all and the requirement of Art. 21 would not be satisfied.

Article 21 reads as under :

'No person shall be deprived of his life or personal liberty except according to procedure constituted by law'.

If the article is expanded in accordance with the interpretative principle indicated in Maneka Gandhi, it will read as follows :

'No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law'. In the converse positive form, the expanded Article will read as below :

'A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law'. Thus expanded and read for interpretative purposes Art. 21 clearly brings out the implication that the Founding Fathers recognised the right of the State of deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law'.

therefore, the main contention of Shri Gumaste is that the procedure incorporated in Sections 56 and 59 and other relevant provisions of the Bombay Police Act is not fair, just and reasonable.

9. In this context it cannot be forgotten that the challenge to this very provision of the Bombay Police Act based on Art. 14 was negatived by the Supreme Court in Dr. N. B. Khare v. State of Delhi, : [1950]1SCR519 as well as in Gurbachan Singh v. State of Bombay, : 1952CriLJ1147 . While testing reasonableness or otherwise of the procedure to be followed under the Bombay Police Act, this is what the Supreme Court has observed in Gurbachan v. State of Bombay, : 1952CriLJ1147 :-

'As regards the procedure to be followed in such cases S. 27(4) of the Act lays down that before an order of externment is passed against any person, the Commissioner of Police or any officer authorised by him shall inform such person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of explaining these allegations. He is permitted to appear through an Advocate or an Attorney and can file a written statement and examined witnesses for the purpose of clearing his character. The only point which Mr. Umrigar attempts to make in regard to reasonableness of this procedure is that the suspected person is not allowed to cross-examine the witnesses who deposed against him and on whose evidence the proceedings were started. In our opinion, this by itself would not make the procedure unreasonable having regard to the avowed intention of the legislature in making the enactment. The law is certainly an extraordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitute a menace to the safety of the public residing therein. This object would be wholly defeated if a right to confront or cross-examine these witnesses was given to the suspect. The power to initiate proceedings under the Act has been vested in a very high and responsible officer and he is expected to act with caution and impartially while discharging his duties under the Act. This contention of Mr. Umrigar must therefore fail.

The last point made by Mr. Umrigar does not seem to us to be tenable. It is true that a procedure different from what is laid down under the ordinary law has been provided for a particular class of persons against whom proceedings could be taken under S. 27(1) of the City of Bombay Police Act, but the discrimination if any is based upon a reasonable classification which is within the competency of the legislature to make. Having regard to the object which the legislature has in view and the policy underlying it, a departure from the ordinary procedure can certainly be justified as the best means of giving effect to the object of the legislature'.

Then in Hari Khemu Gawali v. Dy.C.P. : 1956CriLJ1104 and Bhagubhai v. Dist. Magistrate, : 1956CriLJ1126 , the Supreme Court had an occasion to consider precisely these very provisions i.e. Sections 56 and 59 of Bom. P. Act and their validity has been upheld. In Pandharinath v. Dy.C.P. : 1973CriLJ612 a reference has been made to all the earlier decisions and it is held that these provisions show that for the reasons which necessitate and justify the passing of the externment order arising out of extraordinary circumstances, the order of externment can be passed under S. 56 of the Bombay Police Act if the authority concerned is satisfied that the witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards safety of their person and property. If show cause notices were to furnish to the proposed externee the correct data like specific dates of incidents or names of persons involved in those incidents, it will be easy to individually fix up identity of those who out of fear of injury to their person or property are unwilling to depose in public. Therefore, S. 59 of the Act imposed a limited obligation on the authorities to inform the proposed externee of the general nature of the material allegations against him. The proposed externee is entitled to give his reply to the show cause notice. It may be open to him to take defence that the action to be taken was due to mala fides, malice or mistaken identity or he may be able to tender proof of his general good conduct and alibi during the period covered by the notice. Therefore, having regard to the objectives sought to be achieved by the legislature, the procedure prescribed is the only possible procedure and, therefore, in our opinion it cannot be said to be arbitrary, capricious, unjust or fanciful. As a matter of fact while testing validity of Goonda Act in State of M.P. v. Baldeo Prasad : 1961CriLJ442 the Supreme Court in para 11 of the judgment has observed, 'In this connection we may refer to the corresponding Bombay statute the material provisions of which has been examined and upheld by this Court. S. 27 of the City of Bombay Police Act, 1902 (4 of 1902) which provides for the dispersal of gangs and bodies of persons has been upheld by this Court in Gurbachan Singh v. State of Bombay, : 1952CriLJ1147 whereas S. 56 and S. 57 of the subsequent Bombay Police Act 1951 (22 of 1951) have been confirmed respectively in Bhagubhai Dullabhbhai Bhandari v. District Magistrate, Thane : 1956CriLJ1126 , and Hari Khemu Gawali v. Dy. Commr. of Police, Bombay : 1956CriLJ1104 . It would be noticed that the relevant provisions in the latter Act, the validity of which has been upheld by this Court indicate how the mischief apprehended from the activities of undesirable character can be effectively checked by making clear and specific provisions in that behalf and how even in meeting challenge to public peace and order sufficient safeguards can be included in the statute for the protection of the innocent citizens. It is not clear whether the opportunity to be heard which is provided for by S. 4(2) would indicate an opportunity to the person concerned to lead evidence. Such an opportunity has, however, been provided by S. 59(1) of the Bombay Act of 1951. As we have already mentioned there can be no doubt that the purpose and object of the Act are above reproach and that it is the duty of the State Legislature to ensure that public peace and tranquillity is not disturbed by the prejudicial activities of the criminal and undesirable characters in society'.

Section 59 of the Bombay Police Act provides for a show cause notice and giving of opportunity of hearing by the competent authority before an order under the said section is passed. The proposed externee can give his explanation and also can file a written statement. He is entitled to examine witnesses in his defence and also appear before the Officer concerned through an advocate or an attorney for the purpose of tendering his explanation and examining witnesses produced by him. Not only this, under S. 60 of the Bombay Police Act a provision is also made for filing an appeal. It is no doubt true that it is contended by Shri Gumaste that the provisions relating to filing of appeal before the State Government is wholly illusory. However, it is not possible for us to accept this contention of Shri Gumaste in view of the specific observations of the Supreme Court in Hari Khemu Gawali v. Dy. Commer. of Police, : 1956CriLJ1104 , in para 10 wherein it is observed :

'We cannot agree that the right of appeal to the State Government granted to a person proceeded against by the order under S. 57 is illusory because it is expected that the State Government which has been charged with the duty of examining the material with a view to being satisfied that circumstances existed justifying a preventive order of that nature will discharge its function with due care and caution'.

This aspect of the matter is also considered by Tulzapurkar J. (as he then was) in Nabukhan Mohammad Hussein Khan v. S. Rammurthi : (1971)73BOMLR442 , wherein it is observed :

'The appellate authority also, it is clear from the observations of the Supreme Court in Hari Gawali's case : 1956CriLJ1104 has to decide the matter in appeal objectively by applying its own mind to all the materials that would be placed before it. It is true that under S. 60(2) the externee is required to set out in his memorandum of appeal 'the grounds of objection to the order appealed against' but in the very nature of things if his explanation in reply to notice under S. 59 has got to be of general nature and he would take defences of the type indicated in the observations of the Supreme Court in State of Gujarat v. Mehboobkhan : 1969CriLJ26 , I fail to see why the grounds of objection in appeal could not be of similar nature and he could certainly press similar type of grounds in his appeal which he would press before the officer concerned in the first instance. Having regard to the scheme of the relevant provisions and the nature of proceedings undertaken against the proposed externee and for reasons indicated above, I am not inclined to accept Mr. Nadkarni's contention that the right of appeal conferred upon the externee under S. 60 of the Act is rendered illusory if reasons in the externment order are not communicated to the externee'.

As a matter of fact in Pandharinath Ranganekar v. Dy.C.P. : 1973CriLJ612 in para 14 of the judgment while negativing such a contention it is held by the Supreme Court that :

'Precisely, the reasons for which the proposed externee is only entitled to be informed of the general nature of the material allegations, neither the externing authority nor the State Government in appeal can be asked to write reasoned order in the nature of a judgment. If those authorities were to discuss the evidence in the case it would be easy to fix the identity of witnesses who were unwilling to depose against the proposed externee. A reasoned order containing a discussion of the evidence led against the externee would probably spark off another round of tyranny and harassment'.

If this is so, then having regard to the scheme of the legislation it cannot be said that the right of appeal conferred under S. 60 of the Bombay Police Act is any way illusory. Further, it cannot be forgotten that the order of externment passed under S. 56 of the Act and the order passed in appeal under S. 60 is also subject to challenge under Art. 226 of the Constitution of India. Therefore it cannot be said that the said provisions confer any arbitrary or unbridled power either upon the externing authority of even the appellate authority. It is also not possible for us to hold that the procedure prescribed for filing and hearing of an appeal is in any way unjust, arbitrary or fanciful.

10. So far as the contentions raised by Shri Gumaste regarding holding of an inquiry by one officer and passing of an order by another officer is concerned, in our opinion the said question also stands concluded by the decision of the Supreme Court Hari Khemu Gawali v. Dy.C.P. : 1956CriLJ1104 . While dealing with such a contention this is what the Supreme Court has observed at page 567 (of AIR) : (at p. 1112 of Cri LJ) :

'The evidence or material on the basis of which a person may be proceeded against under any one of the Sections 55, 56 or 57 may have been collected by Police Officers of the rank of an Inspector of Police or of lower rank. The proceedings may be initiated by a Police Officer above the rank of Inspector who has to inform the person proceeded against of the general nature of the material allegations against him. But the order of externment can be passed only by a Commissioner of Police or a District Magistrate or a Sub-Divisional Magistrate specially empowered by the State Government in that behalf.

Hence the satisfaction is not that of the person proceeding, if that word can at all be used in the context of those sections. The person proceeded against is not prosecuted but is put out of the harm's way. The legislature has advisedly entrusted officers of comparatively higher rank in the police or in the magistracy with the responsible duty of examining the material and of being satisfied that such person is likely again to engage himself in the commission of an offence similar to that for which he had previously been convicted'.

This very question was also considered by Tulzapurkar J. (as he then was) in Nabukhan Mohammad Hussein Khan v. S. Rammurthi : (1971)73BOMLR442 :

'Besides the provisions of Sections 56, 57 and 59 clearly imply that the officer duly authorised in that behalf, after he holds the inquiry has to send the entire record of the enquiry to the Commission of the Dy. Commissioner who ultimately passes the externment order after considering the entire material so sent to him. It was not disputed by Mr. Nadkarni, before me that in this case the entire material which was produced before the Assistant Commissioner was actually sent by him to respondent No. 1 who ultimately passed the externment order against the petitioner. In face of such statutory provision contained in S. 59(1) of the Act, it is difficult to accept Mr. Nadkarni's contention that the course adopted in the present case could be regarded as unjustified or contrary to law'.

The said decision of Tulzapurkar J. was followed by the Division Bench of this Court in Criminal Appln. No. 495 of 1974 decided on 22nd January, 1975 by Padhye and Naik JJ. Similar view was taken by the Division Bench of this Court in Criminal Appeal No. 1201 of 1969 decided on 3/4th January, 1970 by Palekar and Gatne JJ. Therefore, it cannot be said that the procedure prescribed by S. 59 of the Bombay Police Act is in any way unreasonable or unjust. Ultimately it is the externing authority who has to satisfy itself subjectively about the necessity of passing the externment order on the basis of the material placed before it. Ultimate decision is taken by the externing authority and not by the subordinate officer.

11. It is no doubt true that Shri Gumaste has suggested that some more safeguards should be incorporated in the Bombay Police Act as to avoid possible abuse of power. To say the least, abuse of power cannot be presumed. There is also a presumption that public officials will discharge their duties honestly and in accordance with the rules of law. As already observed, in the earlier decisions it is held by this Court as well as by the Supreme Court that the procedure prescribed by the Bombay Police Act is just and reasonable having regard to the object of the legislature. The law is an extraordinary one and has been enacted to meet exceptional cases. Reasonableness or justness of the procedure will have to be tested in this background and if so tested, it will have to be held that the procedure prescribed provides sufficient safeguards to an innocent person to protect himself and is otherwise reasonable, fair and just. Once such a finding is recorded, then even on the basis of the law laid down by the Supreme Court in Maneka Gandhi's case : [1978]2SCR621 it cannot be said that any of the provisions and particularly provisions of Sections 56 and 59 of the Bombay Police Act are in any way ultra vires of the petitioner's fundamental right to liberty as authorised in Art. 21 of the Constitution. Further the law laid down by the Supreme Court in Maneka Gandhi's case will have to be understood in the context of the provisions of the Passport Act. It is well settled that the rules of natural justice are not embodied rules. The doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula and its application must also depend upon framework of law under which enquiry is held. So considered, in our opinion the procedure prescribed by Sections 56 and 59 and other relevant provisions of the Bombay Police Act cannot be termed to be unjust or unreasonable having regard to the object sought to be achieved and the mischief or the defect with which the Legislature wanted to deal with. If the relevant provisions of the Bombay Police Act are tested in this background, then it will have to be held that the procedure prescribed is not violative of Art. 21 read with Art. 14 of the Constitution of India.

12. So far as the decision in Prem chand Paniwala v. Union of India, : 1981CriLJ5 is concerned, in our opinion the said decision will have to be read in the context of its peculiar facts. Though in para 9 of the judgment a reference is made to Maneka Gandhi's case : [1978]2SCR621 the Supreme Court did not go deep into the question because another appeal was pending where the constitutionality of the identical provisions was in issue and secondly the learned counsel for the State fairly conceded that no action will be taken even by way of surveillance against the petitioner. Then in para 10 of the judgment the Supreme Court in terms left the question of vires open for final investigation. Therefore the validity the the provisions of Sections 47 to 50 of the Delhi Police Act was not finally adjudicated upon nor decided in the said decision. Hence in view of the earlier decisions of the Supreme Court wherein precisely the question relating to the validity of the provisions of Sections 56 and 59 of the Bombay Police Act was tested and decided, it cannot be held that because of certain observations of the Supreme Court in Premchand Paniwala's case the weight of the authority in earlier decisions is in any way diminished or it has lost its binding effect.

13. So far as the challenge on merits is concerned, it is no doubt true that the arguments were heard by the Deputy Commissioner of Police on 27th November, 1980 and the order of externment is passed on 27th April, 1981, that is, about five months later. However, from this alone an inference cannot be drawn that live link was snapped. Ultimately under S. 56 of the Bombay Police Act it is the subjective satisfaction of the externing authority which is relevant. Delay in passing an order of externment is not ipso facto fatal to the externment order, for in certain cases delay may be unavoidable and reasonable. It appears from the affidavit filed by the Dy. Commissioner of Police that after the issue of show cause notice petitioner himself took time on various occasions for filing written statement and producing witnesses. For some time petitioner was admitted to the hospital for treatment and on that count inquiry was required to be postponed. In this case it is neither argued nor demonstrated that the incidents alleged were not sufficiently proximate in time. If the externing authority on the basis of the material placed before it came to conclusion that there were reasonable grounds for believing that the petitioner was engaged and was going to be engaged in the commission of the offence referred to in S. 56 of the Bombay police Act, then only because there is some delay in passing the order, it cannot be said that the subjective satisfaction arrived at is wholly vitiated. This is more so in view of the order passed in appeal by the State Government confirming the order passed by the Deputy Commissioner of Police. By S. 60 of the Act an appeal is provided in general terms and the State Government is expected to apply its independent mind to the material placed before it and that too after giving a reasonable opportunity to the appellant of being heard either in person or through Advocate. In the present case after considering the whole material the State Government also came to the conclusion that there were reasonable grounds for believing that the petitioner was engaged or was about to be engaged in commission of offences referred to in S. 56 of the Bombay Police Act.

14. In the show cause notice served on the petitioner-extreme no reference is made to his alleged activities relating to non-cognizable offences. The allegations made in the behalf in the petition are specifically denied by the Deputy Commissioner of Police in his affidavit. In the affidavit it is also stated in clearest terms that the externment proceedings were neither initiated at the instance of Sadashiv Patil, nor Sadashiv Patil had anything to do with the externment proceedings. In para 12 of his affidavit the Deputy Commissioner of Police has further stated that the petitioner had indulged in offences of rape, assault and molestation of women. The statements of these women were duly recorded and verified. According to the Deputy Commissioner of Police these women are neither relatives of nor are concerned with Sadashiv Patil or any of the adversaries of the petitioner. It is also clear from the externment order that the alleged complaints relating to non-cognizable offences were neither considered nor taken into consideration while passing the externment order. Thus the externment order is not based on these complaints. In these circumstances it cannot be said that the order of externment is neither issued in mala fide exercise of power or is based on irrelevant grounds. In this view of the matter, there is no substance in this criminal application. Hence rule is discharged.

15. After the judgment was delivered, Shri Gumaste, learned Counsel appearing for the petitioner made a request that having regard to the subsequent events a recommendation should be made to the detaining authority that the petitioner should not be asked to remove himself out of the territories referred to in the externment order for remaining period of externment. It is contended by Shri Gumaste that the wife of the externee has delivered only two days back and she is in the hospital. There is nobody to look after his wife as well as the newly born child. He has also brought to our notice that vide order dated 11th February, 1982 this Court suspended execution of the order of externment and after the said order the externee is living in Bombay peacefully and there are no complaints against him. The externee is prepared to give an undertaking to this Court that he will behave peacefully and will not give any chance to anybody to complain against him. The petitioner-extreme is also prepared to execute a bond of Rs. 5000/- (five thousand) with one surely in the like amount to keep peace and be of good behaviour for a period of two years. The bond will be executed in favour or the Deputy Commissioner of Police. He will also report to the Police Station at Marol in Gr. Bombay once a week and shall inform the Police his residential address. He will also inform the Police about his activities and whenever he wants to shift his residence or leave the city of Greater Bombay he will inform the concerned Police Station. The petitioner-extreme to file a written undertaking in that behalf in a form of an affidavit by 13th April, 1982. In our opinion on giving such an undertaking and executing the necessary bond, this is a fit case wherein the externing authority should consider the externee's case favourably as to whether it is now necessary to execute the order of detention for the remaining period, or should be kept in abeyance.

16. Put up on 28th April, 1982 for further orders.

17. In the meantime ad interim stay granted by this Court to continue on the condition that the petitioner-extreme shall report to Marol Police Station in Greater Bombay once in a week.

18. Order accordingly.


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