DEEPAK S/O LAXMAN DONGRE VS THE STATE OF MAHARASHTRA

FACTS OF THE CASE

The appellant is a resident of Mandeolgoan, Taluka Badnapur, District Jalna was directed to leave the peripheries of District Jalna within 5 days, and he was externed from the district for a period of two years from the date he removes himself from District Jalna.

This said order was based on the confidential statements of witnesses ‘A’ and ‘B’, according to which, the appellant is indulging in illegal activities, causing harm, and danger to the public at large, and that these witnesses were not willing to come forward to give evidence against the appellant. A statutory appeal was filed by the appellant to combat the said order, which was however dismissed by the Appellate Authority. 

The aggrieved appellant reached the Bombay High Court, however his writ petition was dismissed. 

ISSUES

• On what grounds can clauses (a) and (b) of sub-section (1) of Section 56 of the Maharashtra Police Act, 1951 be invoked?

ARGUMENTS

Contentions of the Appellant – The appellant’s counsel submits that the passing of the impugned order of externment and the order of the Bombay High Court was a malicious act due to the involvement of Shri Narayan Kuche, A Member of the Legislative Assembly who is the maternal uncle of the appellant. The said MLA, tried to show involvement of the appellant in a false case and that the in-camera statements of the witnesses are general in nature, which does not refer to any specific allegation against the appellant. He points out that based on the 5 offences on which the order of externment has been passed, the first three offences are stale and does not have any link between the passing of the order and the said three offences and the remaining two offences does not attract clauses (a) or (b) of sub-section (1) of Section 56 of the Maharashtra Police Act, 1951. He therefore submits that the impugned order of the externment is wrong and does not seem fit in this case and the order has not provided any reasons for externing the appellant. 

Contentions of the Respondent – The counsel of the respondent contended that while passing the order of the externment, the authority is not required to pass a reasoned order, it only needs recorded subjective satisfaction of the existence of grounds provided in clauses (a) and (b) of sub-section (1) of section 56 of the 1951 Act.  He mentioned that the High Court has examined the grounds that challenge the impugned order of externment and has rejected each and every ground and that there can be no interference in the impugned order of the High Court.

JUDGEMENT

The Court recognises that passing an order of externment must be reasonable as it takes away the fundamental right of the person to be externed under Article 19(1)(d) of the Constitution of India. Even if multiple offences have been registered which are referred in clause (b) of sub-section (1) of Section 56, that by itself is not sufficient to pass an order of externment under clause (b) of sub-section (1) of Section 56. Moreover, when the authority wishes to invoke clause (b), on the basis of material on record, the competent authority must be satisfied that the witnesses are not willing to come forward to give evidence against the person externed by reason of fear on their part under any external influence regarding their safety or their property.  The recording of such subjective satisfaction is essential for passing a valid order of externment under clause (b).

The Court also recognised that nothing was placed on record to show that the appellant indulged in the commission of any offence or any other objectionable activity, after his release. The order dated 2^nd June 2020 of the learned Judicial Magistrate is not even considered in the impugned order of externment and the impugned order appears to have passed in a cavalier manner. No material on records shows that the witnesses were not coming forward to depose in these cases, therefore both the clauses (a) and (b) of sub-section (1) of Section 56 are not attracted. 

The Court observed that under the section 58 of the said act, the order of externment must disclose an application of mind by the authority and the order must record its subjective satisfaction about the necessity of passing an order of externment, however the impugned order of the externment does not disclose any application of mind on this aspect. The Court pointed out that if the order of externment for maximum two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will impose unreasonable restrictions on the fundamental rights guaranteed under clause(d) of Article 19 of the Constitution of India. This appeal was allowed.

This Article is written by Divya Kapoor, a student at Lloyd Law College, intern at Legal Vidhiya

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