Sunil vs Divisional Commissioner And Others

Vinay Joshi, J

Heard. Considering the controversy involved in the matter and by consent of the learned Counsel for the parties, Criminal Writ Petition is taken up for final disposal at the stage of admission by issuing Rule, making the same returnable forthwith.

The petitioner has been externed for a period of two years from entire Nagpur District vide order dated 18.02.2022 passed by respondent no.2 Deputy Commissioner of Police, Zone-II, Nagpur City. The externment order has been based on 12 prior offences, as has been set out in the externment order.

The impugned order is assailed on the ground of absence of live link, non supply of particulars of in-camera statements and no justification for imposing restriction for maximum period of two years. In support of said contention, the petitioner has relied on some reported judgments.

The State has justified the action of externment by filing reply-affidavit. It is contended that there are several offences registered against the petitioner which are of serious in nature. The last offence has been registered on 24.10.2020, whilst the first show cause notice was issued on 26.11.2020 in terms of Section 59 of the Maharashtra Police Act (hereinafter referred to as “the Police Act” for short), however, as the notice was not served, again it was re-issued on 25.05.2021 and 06.01.2022. In-camera statements have been recorded on 19.10.2021 and 21.10.2022. The petitioner remained present on 14.01.2022 and therefore, the impugned order passed on 18.02.2022 was well connected with the last offence, meaning thereby there exists a live link.

Perusal of the impugned order reveals that several offences under Indian Penal Code have been registered against the petitioner from 19.01.2018 to 24.10.2020. It further reveals that time and again externment notice was tried to be served on the petitioner, however, the petitioner avoided which consumed some time. The learned A.P.P. has submitted a chart in tabular form to show efforts made by the Authority to serve the notice, and therefore, it cannot be said that the authorities were at fault meaning thereby absence of live link.

It is argued that particulars of in-camera statements have not been supplied to the petitioner, and therefore, the action vitiates. Though the petitioner is not entitled to have copies of in-camera statements, however, substance has to be informed to the petitioner to obtain his explanation. The petitioner has not filed copy of the show cause notice issued in terms of Section 59 of the Act to state that no particulars have been supplied. In absence of said material, it cannot be said that the particulars of in-camera statements have not been supplied, and therefore, the said submission carries no weight.

The last ground is about absence of reasons and non-application of mind while externing the petitioner for maximum permissible period of two years. In support of said contention, the petitioner has relied on the decision of Supreme Court in case of Deepak .vrs. State of Maharashtra – 2022 SCC Online SC 99, of which paragraph nos. 16 and 17 are relevant for our purpose, which reads as under :

“16. 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.”

In view of said clear dictum the authority has to record its subjective satisfaction about the necessity to pass order for permissible period of two years and the order of externment must disclose application of mind to that extent. The impugned order is totally silent in this regard, and therefore, on said sole count the externment order vitiates. In view of that, Writ Petition is allowed. The impugned order of externment dated 18.02.2022 passed by respondent no.2 Deputy Commissioner of Police, Zone-II, Nagpur City, Nagpur is hereby quashed and set aside. However, the authorities are at liberty to initiate fresh process of externment strictly in accordance with law, if circumstances warrants so. It is expected from the Authority concerned that they should keep in mind the true spirit and import of the above referred decision of Supreme Court in case of Deepak (supra), while passing orders of externment.

Rule is made absolute in aforesaid terms with no order as to costs.