[Cites 13, Cited by 0]
Bombay High Court
Abhishek Prakash Gadarla vs Sdpo Sub Division Mul Dist Chandrapur on 5 December, 2025
2025:BHC-NAG:13606
Judgment Cr.WP-972-2025
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 972 OF 2025
...
Abhishek s/o Prakash Gadarla,
Aged 25 years, Occup: Private,
R/o. Shriram Ward Ballapur,
District: Chandrapur.
... PETITIONER
--VERSUS--
1] SDPO, Sub Division Mul,
District: Chandrapur.
2] Superintendent of Police,
District: Chandrapur.
3] Divisional Commissioner,
Nagpur Division, Nagpur.
... RESPONDENTS
-------------------------------------------------------------------------------------
Mr. R.M. Daga, Advocate for the Petitioner.
Mr. Bhagwan M. Lonare, A.P.P. for the Respondents/State.
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PIYUSH MAHAJAN
Judgment Cr.WP-972-2025
2
CORAM : M.M. NERLIKAR, J.
DATE : DECEMBER 05, 2025.
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally
with the consent of learned counsel for the parties.
2. The two grounds which are raised by the petitioner
are firstly that the notice which is issued under Section 59 of
the Maharashtra Police Act, 1951, does not contemplate
recording of in-camera statements, and secondly, though the
petitioner was externed for a period of two years, there is no
reason in the impugned order given for externing the petitioner
for two years.
3. The learned A.P.P. submits that notice was issued by
the Superintendent of Police, wherein the gist of the in-camera
statement is referred, and to this notice the petitioner has filed
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Judgment Cr.WP-972-2025
reply, meaning thereby, the petitioner is aware of the fact that
the in-camera statements are recorded and there are material
allegations against him, therefore, there is no force in the
contention that the notice issued under Section 59 of the
Maharashtra Police Act, does not have a reference to in-camera
statements. So far as the externment for two years is concerned,
it is necessary to substantiate it with reason and in the present
case the reason can be gathered, if the entire order is read as a
whole, therefore, he submits that the petition lacks merit and
deserves to be dismissed.
4. Upon hearing the learned counsel for the petitioner
and the learned A.P.P., it appears that the notice was issued on
06/09/2024 by the S.D.P.O., Sub-Division Mul. This notice
contains chart showing criminal history of the petitioner. Apart
from that, in the said notice there is no gist or whisper about
recording of in-camera statements. Section 59 of Maharashtra
Police Act reads thus:-
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Judgment Cr.WP-972-2025
"59. Hearing to be given before order under sections
55, 8 [56, 57 or 57A] is passed.--
(1) Before an order under section 55, 9 [56, 57 or
57A] is passed against any person the officer acting
under any of the said sections or any officer above the
rank of an Inspector authorised by that officer shall
inform the person in writing of the general nature of the
material allegations against him and give him a
reasonable opportunity of tendering an explanation
regarding them. If such person makes an application for
the examination of any witness produced by him, the
authority or officer concerned shall grant such
application; and examine such witness, unless for reasons
to be recorded in writing, the authority or officer is of
opinion that such application is made for the purpose of
vexation or delay. Any written statement put in by such
person shall be filed with the record of the case. Such
person shall be entitled to appear before the officer
proceeding under this section by an advocate or attorney
for the purpose of tendering his explanation and
examining the witness produced by him.
(2) The authority or officer proceeding under sub-
section (1) may, for the purpose of securing the
attendance of any person against whom any order is
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Judgment Cr.WP-972-2025
proposed to be made under section 55, 1 [56, 57 or 57A]
require such person to appear before him and to pass a
security bond with or without sureties for such
attendance during the inquiry. If the person fails to pass
the security bond as required or fails to appear before the
officer or authority during the inquiry, it shall be lawful
to the officer or authority to proceed with the inquiry and
thereupon such order as was proposed to be passed
against him may be passed."
5. After perusal of Section 59 (supra), it is evident that
it is mandatory on the part of the Enquiry Officer, who is
conducting enquiry under Section 59, that he should inform the
person in writing of the general nature of the material
allegations against him and give him a reasonable opportunity
of tendering an explanation regarding it. Therefore, it is a
mandatory requirement that all the allegations which are
levelled against the petitioner should be furnished to him, so
that he may tender an explanation to all the allegations. Failure
on the part of the Enquiry Officer to give the gist of the in-
camera statements would vitiate the entire proceedings.
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Judgment Cr.WP-972-2025
Insofar as impugned orders are concerned, they also do not
disclose any reasons as to why or under what circumstances the
respondent No. 2 has come to the conclusion that the petitioner
is required to be externed for two years. In the absence of such
reasoning, the impugned order are unsustainable in law.
6. The Supreme Court in the case of Deepak S/o
Laxman Dongre Vs The State of Maharashtra & Ors., in
categorical terms has laid down the law in Para Nos.12 and 13,
which reads thus:-
"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 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
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Judgment Cr.WP-972-2025
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 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
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Judgment Cr.WP-972-2025
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."
7. Therefore, considering the ratio laid down by the
Supreme Court, it is necessary for the externing authority to
satisfy himself subjectively on the basis of the objective material
which was placed before him, that it is necessary to pass an
order of externment for the maximum period of two years.
However, the impugned order does not show that the
respondent No.2 is subjectively satisfied on the basis of the
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Judgment Cr.WP-972-2025
materials which were placed before him for externing the
petitioner for a period of two years. The Divisional
Commissioner also failed to take into consideration the above
facts of the case and committed grave error while passing the
impugned order. Therefore, considering the above facts and
circumstances of the case, the petition deserves to be allowed.
Hence, the following order:-
ORDER
(i) The Criminal Writ Petition is allowed;
(ii) The impugned order dated 02/10/2024
passed by the Superintendent of Police, Chandrapur in
Externment Case No.3303/2024 and the impugned
order dated 20/11/2025 passed by the Divisional
Commissioner, Nagpur, in Appeal No.121/2025, are
hereby quashed and set aside.
(iii) Rule is made absolute in above terms.
[ M. M. NERLIKAR, J ]
PIYUSH MAHAJAN
