Pankaj Prakash Shimpi vs The Dy. Commissioner Of Police And ...
2016 Latest Caselaw 5923 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                       CRIMINAL APPELLATE JURISDICTION




                                                    
                    CRIMINAL WRIT PETITION NO.2742 OF 2016

     Pankaj Prakash Shimpi,
     Age 26 years, R/o.15, Sai Sankul,
     Anand Nagar, Kamat Wade, Nashik                                  Petitioner




                                                   
                       versus

     1.  The Deputy Commissioner of Police,




                                        
     Zone-II, Nashik City.
                             
     2.  The Divisional Commissioner,
     Nashik Division, Nashik.
                            
     3.  The State of Maharashtra,
     through Secretary, Home Department,
     Government of Maharashtra.                                    Respondents
      


     Mr.Udaynath Tripathi, Advocate for Petitioner.
   



     Mrs.M.M.Deshmukh,   Assistant   Public   Prosecutor,   for   Respondents-
     State.

                               CORAM :   NARESH H. PATIL AND





                                         PRAKASH D. NAIK, JJ.

Date of Reserving the Judgment : 23rd September 2016

Date of Pronouncing the Judgment : 10th October 2016

CAV JUDGMENT - (Per : Prakash D. Naik, J.) :-

1. Rule. Rule is made returnable forthwith. Learned Assistant Public Prosecutor waives service for Respondents-State. Taken up for hearing with the consent of parties.

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2. Petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India and takes exception to the

externment proceedings initiated against him.

3. Factual matrix of the facts, which are relevant to address the issues, involved in this petition are as follows :

(a) It was proposed to initiate externment proceedings against the Petitioner under Section 56 of Maharashtra Police Act,

1951 (hereinafter referred to as "the said Act" for the sake of

brevity). The Assistant Commissioner of Police, Division-III, Nashik issued a show cause notice under Section 59 of the said Act to the

Petitioner on 13 November 2015. In pursuant to the said notice, Petitioner was afforded an opportunity to tender his explanation and documents in support of his defence;

(b) The Assistant Commissioner of Police forwarded his report to the Deputy Commissioner of Police, Zone-II, Nashik City. On scrutinizing the said report, the said authority also issued a notice

dated 31 December 2015 to the Petitioner. In the said notice, a reference was made to the inquiry conducted by the Assistant Commissioner of Police on issuance of the show cause notice issued

to the Petitioner under Section 59 of the said Act;

(c) In the notice dated 31 December 2015, it was stated that the Petitioner had committed several acts and offences and his acts and movements are causing harm, alarm and danger to the life and property of the citizens in the enumerated areas and that on account

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of his terror, the witnesses are not willing to come forward to depose against him openly. The notice made reference to C.R.No.412 of

2009 registered with Ambad Police Station under Section 379 of

Indian Penal Code (`IPC'). The notice also specifies the role played by the Petitioner in the said offence. The notice further refers to C.R. No.420 of 2009 registered with the same police station for offence

under Section 302 of IPC and specifies the overt act of the Petitioner in the said crime. The notice also made a reference to C.R.No.270 of 2014 registered with same police station for offfence under Sections

399 and 402 of IPC and C.R.No.205 of 2015 for offences under

Sections 452, 504, 506, 427 read with Section 34 of IPC. In respect to the said offences also, the overt acts attributed to the Petitioner

have been spelt out in the notice. The said notice further gave reference of the statements of witnesses-A and B, which were recorded in-camera on 25 October 2015, and also discloses the

details of the incident referred to by the said witnesses;

(d) The Deputy Commissioner of Police, Zone-II, Nashik City thereafter proceeded to issue an order of externment dated 25

January 2016 under Section 56(1)(a)(b) of the said Act. The order made a reference to the offences reflected in the notice dated 31 December 2015, except C.R.No.420 of 2009. The order also refers to

the statements of two witnesses which were recorded in-camera. The order clarified that the Petitioner has been acquitted in C.R.No.420 of 2009 and hence material relating to the said offence has not been taken into consideration for the purpose of issuing the said order of externment;

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              (e)      In   the   order   of   externment,   it   is   mentioned   that   the 

externing authority is satisfied that the acts and movements of the

externee are causing harm, alarm and danger to the life and property

of the people residing in Ambad and Nashik City and that it is necessary to initiate the externment proceedings against him. It is also recorded that on account of terror created by the Petitioner, no

witnesses are coming forward to depose against the Petitioner in public. The Petitioner was directed to remove himself from the area of Nashik City Police Commissionerate and Nashik Rural District for a

period of one year;

(f)

Petitioner challenged the said order of externment by

preferring an appeal before the Divisional Commissioner, Nashik Division, Nashik. The appellate authority rejected the said appeal vide order dated 29 April 2016.

4. Mr.Tripathi, learned counsel appearing for the Petitioner, made following submissions :

(i) There is non application of mind while issuing the order of externment;

(ii) The impugned order is based on stale cases which defeats the purpose of order of externment;

(iii) Petitioner has been acquitted in connection with C.R.No.420 of 2009 which was registered under Section 302 of IPC in which witnesses had deposed before the Court, which belies the

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satisfaction of the externing authority that the witnesses are not willing to come forward to depose against the Petitioner;

(iv) Criminal cases referred to in the order of externment are pending in the Court of law and, therefore, there is no material to come to the subjective satisfaction that the witnesses in relation to

said cases are not willing to depose against the Petitioner, which would vitiate the externment proceedings;

(v) The order directing externment should show existence of

material warranting an order of externment; and

(vi) The order must disclose the material on the basis of which externing authority has recorded satisfaction that witnesses are not willing to come forward to depose against the externee in

public.

5. Learned counsel for Petitioner relied upon following decisions in support of his submissions :

(i) State of NCT of Delhi and another Vs. Sanjeev Alias Bittoo1;

(ii) Lt.Governor, NCT and others Vs. Ved Prakash and Vedu2;

(iii) Barku Chendha Datir Vs. The Sub Divisional Magistrate and another3;

1 2005-SCC (Cri) - 1025 2 2006-ALL MR (Cri) - 2645 (SC) 3 1983(2)-Bom.C.R.-761

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(iv) Ram Narayan Patil Vs. The State of Maharashtra and others4;

(v) Changdeo Chandar Bahira Vs. Deputy Commissioner

of Police, Zone-II, Panvel5;

(vi) Sunil Pundalik Handage Vs. The Sub Divisional Magistrate, Nashik and others6;

6. Learned Assistant Public Prosecutor Mrs.M.M.Deshmukh appearing for Respondents-State vehemently opposed the prayers of

the Petitioner. It is submitted that the externing authority has passed the order by complying the provisions of law. It is submitted that

there was sufficient material to record satisfaction that the witnesses were not willing to come forward to depose against the Petitioner. It

is further submitted that material on record was sufficient to invoke the order of externment in exercise of power under Section 56(1)(a)

and (b) of the said Act. Learned APP places heavy reliance upon the judgment delivered by Constitution Bench of Apex Court in case of

Bhagubhai Dullabhbhai Bhandari Vs. District Magistrate, Thana and others7.

7. We have perused the documents on record. The notice dated 31 December 2015 refers to the pending cases against the Petitioner as well as statements of two witnesses recorded in-camera. The

notice refers to the material allegations on the basis of which it is proposed to extern the Petitioner. The order of externment also refers to the allegations which were taken into consideration by the

4 1987(1)-Bom.C.R. - 471 5 Criminal Writ Petition No.253 of 2007, decided on 20 July 2007 6 Criminal Writ Petition No.1533 of 2015, decided on 3 August 2015 7 1956-S.C.-585 (S)

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externing authority while issuing the order of externment. In the order, the satisfaction is recorded that on account of the terror

created by the Petitioner, the witnesses are not willing to come

forward to depose against the Petitioner. From the tenor of the order of externment, it is apparent that the externing authority has applied its mind while issuing the impugned order. There was sufficient

material before the authority for initiating an action under Section 56 of the said Act against the Petitioner.

8. As far as first submission of learned counsel for the Petitioner

that the externing authority has based its order on the basis of stale cases, we do not find any substance in the said submission. Although

the first case registered vide C.R. No.412 of 2009 arising out of incident of 28 July 2009, there are subsequent activities which are subject matter of the offences committed in 2014 and 2015, which

are subject matter of C.R.No.270 of 2014 and C.R.No.205 of 2015. It

is also pertinent to note that two witnesses whose statements were recorded in-camera on 25 October 2015 have referred to the incidents dated 4 October 2015 and 11 October 2015. In view of the

said material, we do not find that the order of externment would vitiate on the ground that the same is based on stale material.

9. The next submission raised by learned counsel for Petitioner that the Petitioner has been acquitted in C.R.No.420 of 2009 and that the witnesses were examined before the Trial Court in connection with said proceedings, which falsifies satisfaction that the witnesses are not willing to come forward to depose against the Petitioner. It is necessary to note that the externing authority has not relied upon the

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said case. This fact has been categorically mentioned in the order of externment wherein it has been stated that the Petitioner has been

acquitted in the said case and that the said proceedings are not relied

upon while issuing the impugned order of externment.

10. It was strongly agitated by learned counsel for Petitioner that

the externing authority has based its order on the cases which are pending in the Court of law and the witnesses are yet to be examined in connection with said cases. It is submitted that when the cases are

pending, it is not possible to arrive at the satisfaction that the

witnesses are not willing to come forward to depose against the Petitioner. It is submitted that to justify the order of externment,

satisfaction must be genuine and based on material. In absence of such material being put forth by the externing authority, the order would stand vitiated. Learned counsel for Petitioner has relied upon

the decisions referred to hereinabove. In case of Barku Chendha

Datir Vs. The Sub Divisional Magistrate and another (supra) 3 referred to by learned counsel for Petitioner, a Division Bench of this Court has observed that there is nothing to show as to what are the

allegations made in the cases which are registered and pending against the externee and hence it would not be possible for the Government to contend that movements and the acts of the accused

were causing or calculated to cause alarm, danger or harm as contemplated by Section 56(1)(a) of the Act. It is further observed that the cases which are relied upon by the authority, do not pertain to the offences under Chapters-XII, XVI or XVII of IPC. It is in this context, it was observed that it is only if the offences are under these

3 1983(2)-Bom.C.R.-761

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chapters and if the witnesses are not willing to come forward to give evidence, that Sub Divisional Magistrate can pass an order under

Section 56(1)(b) of the said Act. The ratio of the said decision is not

applicable in the present proceedings. The case in which the Petitioner was acquitted has not been relied upon by the authority. The offences are covered by the relevant chapters of IPC and the

allegations in respect to cases relied upon are reflected in the order.

11. In another decision relied upon by learned counsel for

Petitioner in the case of Ram Narayan Patil Vs. The State of

Maharashtra and others4, the Division Bench of this Court has observed that charge sheets in two criminal cases relied upon by the

authority were produced before the Court, which refers to the witnesses whose statements were recorded in the said charge sheets. The Court has referred to the version of the witnesses in the said

charge sheets. It is further observed that the witnesses have been

named and there is no grievance that these witnesses are not coming forward to give testimony against the Petitioner in the said cases, and the said cases are still pending in the criminal Courts. In this

context, it was observed that it is difficult to understand the allegation of the externing authority that the Petitioner was indulging in goondaism against the people in general and further

that no witnesses were coming forward to depose against the Petitioner in the said case. By placing reliance upon said decision, learned counsel for Petitioner submitted that in the present proceedings also, the cases are pending in the Court of law and therefore, there was no occasion for the externing authority to record

4 1987(1)-Bom.C.R.-471

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satisfaction about witnesses not coming forward to depose against the Petitioner.

12. Learned counsel for Petitioner further submitted that in an unreported decision of this Court in case of Changdeo Chandar Bahira Vs. Deputy Commissioner of Police, Zone-II, Panvel and

another5, this Court observed that if there is no material on record before the competent authority to form an opinion that there were no witnesses willing to depose against the Petitioner in public due to

apprehension or fear to their personal security or property or such an

opinion has not been recorded in the externment order, such an order passed under clause (b) of Section 56(1) of the said Act would

be unsustainable. In another unreported decision relied upon by learned counsel for the Petitioner delivered by another Division Bench of this Court in case of Sunil Pundalik Handage Vs. The Sub

Divisional Magistrate, Nashik and others 6, this Court considered

the issue of stale case being relied upon by the externing authority. It was observed by this Court that the authority has relied upon two cases pertaining to the year 2006 and 2009 and the order of

externment was issued in 2014, which were not proximate in time and they date back to several years. It was observed that stale prosecutions cannot be the basis for externing the Petitioner.

13. The learned counsel further submitted that the externment order must disclose the material to justify the satisfaction recorded by the authority regarding unwillingness of witnesses to depose in public on account of fear. He relied upon two decisions of the Apex

5 Criminal Writ Petition No.253 of 2007, decided on 20 July 2007 6 Writ Petition No.1533 of 2015, decided on 3 August 2015

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Court in the case of State of NCT of Delhi Vs Sanjeev (supra) and Lt.Governor, NCT Vs. Ved Prakash (supra).

14. We have given our anxious consideration to the submissions made by learned counsel for Petitioner and the judgments relied upon by him in support of his submissions. In the present case, there

was sufficient material to arrive at the requisite satisfaction while issuing the order of externment. There was sufficient material on record to substantiate the conclusion that the acts and movements of

the Petitioner are causing harm, alarm and danger to the person and

property of people. The externing authority has also recorded satisfaction that the witnesses are not willing to come forward to

depose against the Petitioner on account of fear in public. It is not necessary to scrutinize the charge sheets which are filed against the Petitioner to scan the satisfaction recorded by the externing

authority. Law requires that the externing authority has to record

satisfaction that the witnesses are not willing to come forward to depose against the externee while issuing the order under Section 56(1)(a) or (b) of the said Act.

15. The relevant excerpt of Section 56(1)(a) and (b) of the said Act reads as follows :

"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 Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-

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Divisional Magistrate 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 (XLV of 1860), 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, ... ... ... ..."

Summaring the aforesaid provision, it is implicit that the externing authority may pass an order of externment for any of the activities stipulated therein. However, while issuing such an order, the

externing authority is required to record satisfaction that the

witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards safety of the person or property. However, law do not

require that the order should furnish details qua unwillingness of witnesses to depose.

16. Learned Assistant Public Prosecutor Mrs.M.M.Deshmukh has submitted that the externing authority has exercised its power within the parameters of Section 56(1)(a) and (b) of the said Act. It is submitted that there is no flaw in the order of externment and it is based on cogent material which is required to issue such an order. It is submitted that there is no infirmity in the satisfaction recorded by

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the externing authority and there is ample material before the authority to arrive at such a satisfaction that the witnesses are not

willing to come forward to depose against the Petitioner. It is

submitted that the externing authority is required to record such a satisfaction before passing such an order, which has been done in the present case. She further submitted that the words "no witnesses" do

not signify that unless each and every witness is unwilling to give evidence in open, the provisions of Section 56 of the Act are not available to the authority. She has placed reliance upon the decision

of Apex Court in case of Bhagubhai Dullabhbhai Bhandari Vs.

District Magistrate, Thana and others 7. In paragraph 11 of the said decision, it is observed as follows :

"11. In Petition No.439 of 1955, it was said that this Court had laid down in the case of - `Gurbachan Singh Vs. State of Bombay 1952-SC-221 (AIR V 39) (B) as follows :

"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 constitutes a menace to the safety of the public residing therein."

The words "no witnesses" have been emphasized as supporting the argument that unless all the witnesses before

the police are unwilling to give evidence in open Court the provisions of section 56 cannot be taken recourse to. In our opinion, it is reading too much into the observations of this Court quoted above, made by Mukherjea J. (as he then was).

The learned Judge did not mean to lay down, and we do not understand him as having laid down, that unless each 7 1956-S.C.-585 (S)

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and every witness is unwilling to give evidence in open Court, the provisions of S.56 are not available to the police.

The words of S.56 quoted above do not lend themselves to that extreme contention. If such an extreme interpretation were to be put on the part of section 56, it is not difficult to

imagine a situation where it will become almost impossible to apply that section to any case."

(emphasis is ours)

17. The constitution bench, therefore, observed that the words "no witnesses" have been emphasized as supporting the argument that

unless all the witnesses before the police are unwilling to give

evidence in open Court, the provisions of Section 56 cannot be taken recourse to. It was observed that it is reading too much into the

observations made by the Apex Court in the earlier decision in case of Gurbachan Singh Vs. State of Bombay - 1952-SC-221 9AIR V 39) (B). It cannot be said that unless each and every witness is unwilling

to give evidence in open Court, the provisions of Section 56 are not available to police. The words of Section 56 do not lend themselves

to that extreme contention. It was, therefore, observed that if such an extreme interpretation were to be put on that part of section 56, it

is not difficult to imagine a situation where it will become almost impossible to apply that section to any case. In the present proceedings, the satisfaction is recorded that the witnesses are not willing to come forward to depose. The submission of learned

counsel for Petitioner that the cases are pending in Court of law and there is no basis for such satisfaction and that externing authority should justify its satisfaction, does not need further scrutiny in the light of observations of the Apex Court in the aforesaid decision.

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18. From the observations of the Apex Court in the aforesaid decision, it has to be observed that it is not necessary that every

witness is not willing to come forward to depose against the person.

It would not be necessary for us to go through the charge sheets which are filed in connection with the cases pending in the Court of law against the Petitioner and scan the statements of the witnesses to

find out whether the said witnesses were willing to come forward or not to depose against the externee.

19. It is not possible to scrutinise the varacity of subjective

satisfaction of the externing authority. Law empowers him to record satisfaction and not to explain in the the order of externment as to

how and in what manner the witnesses are not willing to come forward to depose against the externee. The material nature of allegations have been stipulated in the notice as well as order of

externment and it was not necessary to mention in detail as to how

and in what manner each and every witness which is part of the cases pending against the Petitioner, is not willing to depose against the Petitioner.

20. In the decision of Apex Court in case of State of NCT of Delhi and another Vs. Sanjeev Alias Bittoo 1, the Apex Court had

considered the scope and ambit of Sections 47 and 51 of Delhi Police Act, 1978. The provisions were pari materia with Section 56 of Maharashtra Police Act, 1951. In the said decision it was observed that it is the existence of material and not the sufficiency of material which can be questioned as the satisfaction is primarily subjective

1 2005-SCC (Cri)-1025

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somewhat similar to one required to be arrived at by the detaining authority under the preventive detention laws. The scope of judicial

review of administrative orders is rather limited. The consideration

is limited to the legality of decision making process and not legality of the order per se. Mere possibility of another view cannot be ground for interference. In paragraph 15 of the decision, the Apex

Court observed as follows :

"15. One of the points that falls for determination is the

scope for judicial interference in matters of administrative decisions. Administrative action is stated

to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and

quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.

(See State of U.P. Vs. Renusagar Power Co. AIR-1988-SC- 1737). At one time, the traditional view in England was

that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edition, at pp.285-87 states

the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarised as follows : The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular

manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant

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considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien

to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously.

These several principles can conveniently be grouped in two main categories : (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant

considerations have been taken into account, and where an authority hands over its discretion to another body in acts ultra vires."

(emphasis is ours)

The Apex Court further observed that it is true that some material must exist but what is required is not an elaborate decision akin to a

judgment. On the contrary the order directing externment should show existence of some material warranting an order of externment.

While dealing with the question mere repetition of the provision

would not be sufficient. Reference is to be made to some material on record and if that is done, the requirements of law are met. As noted

above, it is not the sufficiency of material but the existence of material which is sine qua non . In the light of aforesaid observations,

it can be seen that in the impugned proceedings, the externing authority has highlighted the material allegations which are relied upon while issuing the order of externment. A reference is made to the pending cases against the Petitioner. The role played by the

Petitioner is also spelt out in the order of externment. A reference is also made to the statements of two persons which were recorded in- camera along with other acts attributed to the Petitioner. After giving the particulars of allegations, satisfaction is recorded that witnesses are not willing to come forward to depose against the

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Petitioner for the reasons stipulated therein. Hence, it was not necessary to give further details as to how the witnesses are not

coming forward although cases are pending.

21. The Apex Court in the aforesaid decision had summarised the scope of judicial review of administrative action in paragraphs 19, 20

and 21, which reads as follows :

"19. Before summarising the substance of the principles

laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture

Houses Ltd. Vs. Wednesbury Corpn. (KB at P.229 : ALL ER pp. 682 H-683 A). It reads as follows :

                       `... ...         It is true that discretion must be  
                       exercised   reasonably.    Now   what   does   that  
                       mean?     Lawyers   familiar   with   the  

phraseology used in relation to exercise of

statutory discretions often use the word `unreasonable' in a rather comprehensive

sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a

discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to

what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting `unreasonably'.

Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. ... ... In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be

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described as being done in bad faith; and in fact, all these things run into one another.'

Lord Greene also observed (KB p.230 : ALL ER p. 683 F-

G)

`... ... it must be proved to be unreasonable in the sense that the Court considers it to be a decision that no

reasonable body can come to. It is not what the Court considers unreasonable. ... ... The effect of the legislation is not to set up the Court as an arbiter of the correctness of one

view over another.'

Therefore, to arrive at a decision on "reasonableness", the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors.

The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide

one. The decision could be one of many choices open to the authority but it was for that authority to decide upon

the choice and not for the Court to substitute its view.

20. The principles of judicial review of administrative action were further summarised in 1985 by Lord Diplock

in CCSU Case as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community.

Lord Diplock observed in that case as follows : (ALL ER p.950 h-j) :

`Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the

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grounds on which administrative action is subject to control by judicial review. The

first ground I would call `illegality', the second `irrationality' and the third

`procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the

principle of `proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community.'

Lord Diplock explained `irrationality' as follows (ALL ER

p.951 a-b)

`By `irrationality' I mean what can by now

be succinctly referred to as `Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no

sensible person who had applied his mind to the question to be decided could have arrived

at it."

21. In other words, to characterise a decision of the administrator as "irrational", the Court has to hold, on

material, that it is a decision "so outrageous" as to be in total defiance of logic or moral standards. Adoption of "proportionality" into administrative law was left for the future."

(emphasis is ours)

In the light of aforesaid observations, we do not find any illegality in the order of externment which is under challenge in present petition.

We do not find it appropriate to review the subjective satisfaction recorded by the authority.

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22. In the case of Gazi Saduddin Vs. State of Maharashtra 8, the

Apex Court has observed that satisfaction of the authority can be

interfered with, if the satisfaction recorded is demonstratively perverse based on no evidence, misreading of evidence or which a reasonable man could not form or that the person concerned was not

given due opportunity resulting in prejudice. To that extent, objectivity is inbuilt in the subject satisfaction of the authority.

23. In another decision of the Apex Court in case of Lt.Governor,

NCT and others Vs. Ved Prakash @ Vedu 2, the Apex Court has considered the scope of externment proceedings under Delhi Police

Act, 1978 as well as Bombay Police Act, 1951. The Apex Court had observed that in proceedings under the said Acts, all statutory and constitutional requirements must be fulfilled and that before an

order of externment is passed, an externee is entitled to an

opportunity of hearing and the test of procedural safeguards contained in the Act, must be scrupulously complied with. It was also observed that satisfaction of the authority must be based on

objective criteria. In paragraph 18, the Apex Court has observed as follows :

"18. The law operating in the field is no longer res integra which may hereinafter be noticed :

(i) In a proceeding under the Act, all statutory and constitutional requirements must be fulfilled;

(ii) An externment proceeding having regard to the

8 (2003)7-SCC-330 2 2006-ALL M.R. (Cri) - 2645 (S.C.)

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purport and object thereof, cannot be equated with a preventive detention matter;

(iii) Before an order of externment is passed, the

proceedee is entitled to an opportunity of hearing;

(iv) The test of procedural safeguards contained in the Act must be scrupulously complied with;

(v) The satisfaction of the authority must be based on objective criteria;

(vi) A proceeding under Section 47 of the Delhi Police

Act stands on a different footing than the ordinary proceeding in the sense that whereas in the latter the

details of the evidence are required to be disclosed and, thus, giving an opportunity to the proceedee to deal with them, in the former, general allegations would serve the

purpose."

Although the Apex Court in paragraph 19 has observed that High

Court ordinarily should insist on production of the records including statements of witnesses to express their intention to keep their

identify in secret so as to arrive at a satisfaction that such statements are absolutely voluntary in nature and had not been procured by the

police officers themselves, in paragraph 20, the Apex Court observed that High Court had held that the allegations made in the notice satisfy the statutory requirement, but, in our opinion, the High Court was not correct in coming to the finding that the third appellant was

bound to disclose the cases in which the witnesses had not deposed against the respondent out of fear or because of threat, etc. If an attempt is made to communicate the cases in which witnesses were not forthcoming due to the activities of the proceedee, the same would violate the secrecy required to be maintained and would

23 of 26 WP.2742.2016-R

otherwise defeat the purpose for which Section 47 of the Act had been enacted.

24. Learned counsel for Petitioner submitted that the authority must disclose the material allegations against him. He submitted that the authorities have not discussed the details as to how

witnesses in pending cases are not willing to come forward to depose. We have dealt with the subject in the aforesaid paragraphs. Before passing an order, the externee is entitled to know the material

allegations against him. In case of Pandharinath Shridhar

Rangnekar Vs. Deputy Commissioner of Police, State of Maharashtra9, one of the issue raised before the Apex Court is that

the allegation that the witnesses were not willing to come forward to depose against the Appellant in public, is falsified by very record of the said proceedings. Other issue which was raised was that the

particulars in notice were vague and that the externing authority

must pass a reasoned order. In paragraph 9, it has been observed as follows :

"9. These provisions show that the reasons which necessitate or justify the passing of an externment order arise out of extraordinary circumstances. An order of externment can be passed under clause 9a) or (b) of Section 56, and only if, the authority concerned is

satisfied that witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety of their person or property. A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding. If the show cause notice were to

9 (1973)1-SCC-372

24 of 26 WP.2742.2016-R

furnish to the proposed externee concrete data like specific dates of incidents or the names of persons

involved in those incidents, it would be easy enough to fix the identity of those who out of fear of injury to their

person or property are unwilling to depose in public. There is a brand of lawless element in society which is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence. And legal evidence is

impossible to obtain, because out of fear of reprisals witnesses are unwilling to depose in public. That explains why Section 59 of the Act imposes but a limited obligation on the authorities to inform the proposed

externee "of the general nature of the material allegations against him". That obligation fixes the limits of the co-

relative right of the proposed externee. He is entitled, before an order of externment is passed under Section 56, to know the material allegations against him and the

general nature of those allegations. He is not entitled to be informed of specific particulars relating to the material allegations."

(emphasis is ours)

25. It was also observed in the said decision that as held by that

Court in Bhagubhai Dullabhbhai Bhandari Vs. District Magistrate, Thana and others (supra), though in order to attract the operation of

Section 56 of the Act, the officer concerned has to satisfy himself that witnesses are not willing to come forward to give evidence in public.

It is not necessary that all the witnesses must be found unwilling to give evidence. The Apex Court has also observed that it is true that

provisions of Section 56 of the Act make a serious inroad on the personal liberty but such restraints are to be suffered in the larger interest of society. In view of the aforesaid observations also, it was not necessary to disclose as to how the externing authority has arrived at subjective satisfaction and to disclose the details in respect

25 of 26 WP.2742.2016-R

of such subjective satisfaction. It was also not necessary to mention as to why the authority has arrived at such satisfaction when cases

are pending against the Petitioner in the Court of law.

26. In the decision of this Court in case of Gafoor Dastagir Sheikh Vs. State of Maharashtra and another 10, a learned Single Judge of

this Court (A.M.Khanwilkar, J.) has observed in the said decision that the fact that some of the witnesses had deposed in the full fledged trial held against the Petitioner, cannot be the basis to doubt the

subjective satisfaction reached by the concerned authority on the

basis of material to support the position that the witnesses are not coming forward to depose against the Petitioner. In another decision

of this Court in case of Amit @ Pappi Sugandhilal Kanojiya Vs. State of Maharashtra and another 11, a learned Single Judge of this court (R.K.Batta, J.) has also observed that an externment order

passed after satisfaction about the truthfulness of the material on

record, cannot be set aside. The order in substance refers to the material which has been taken into consideration on the basis of which satisfaction has been arrived at and as such, subjective

satisfaction cannot be doubted.

27. In the light of these aforesaid observations and applying the

tests laid down in the decisions of Cpex Court, we are satisfied that the externing authority has exercised the power within parameters of Section 56 of the Act and no interference is called for in the externment proceedings.

     10 2005-ALL MR (Cri) - 2216
     11 2001-ALL MR (Cri) - 1862





                                         26 of 26                       WP.2742.2016-R

28. In view of above, we are not inclined to allow this petition and

hence we pass following order :

ORDER

(a) Rule is discharged;

(b) Petition stands dismissed. No order as to costs.

              (PRAKASH D. NAIK, J.)           (NARESH H. PATIL, J.)
                            
     MST