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TMI Blog1972 (12) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, that he was given to assaulting the residents of those localities either because, they were suspected to be, police informants or because they failed to accede to the demands of money, that he had committed robberies in the particular localities, that since March 1969 he had committed several acts of the above description and that witnesses were not willing to come forward to depose against him in public. The appellant appeared before the Assistant Commissioner of Police, offered his explanation and examined 16. witnesses to refute the, allegations. He contended that the allegations were vague and general, that they were made at the instance of one Damayanti Deshpande who was inimical to him, that he was a social worker of some standing, that he was, a member of the Congress Party and that in two criminal cases which were filed against him he was acquitted in spite of the evidence led by the prosecution. Later, the appellant was heard by Shri G. K. Nadkarni, Deputy Commissioner of Police, Zone-IV, Greater Bombay. On a consideration of the explanation and the evidence tendered by the appellant, the Dy. Commissioner passed an order dated July 23, 1970 under section 59 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) The allegation that witnesses were not willing to come forward to depose against the appellant in public is falsified by the very record of the present proceedings. (ii)The particulars contained in the notice issued under section 59 of the Act are so vague that the appellant could not possibly meet the allegations made against him and thus he was denied reasonable opportunity to defend himself. (iii)The externing authority must pass a reasoned order or else the right of appeal would become illusory. (iv)The State Government also ought to have given reasons in support of the order dismissing the appeal. Its failure to state reasons show non-application of mind, and (v) The order of externment imposes unreasonable restrictions on the personal liberty of the appellant in that, whereas his activities are alleged to be restricted to an area within the jurisdiction of the Vile Parle police station, the order of externment not only extends to the Whole District of Greater Bombay but to the District of Thana also. Regarding the first point, it is urged that in Criminal Cases No. 2106/P of 1969 and 2337/P of 1969 which were filed against the appellant in the court of the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the enquiry of the said proceedings. Should you fail to appear before me and to pass the bond as directed above, I shall proceed with the enquiry in your absence. Take note. Allegations:- 1.Since March 1969 in the localities of Nehru Road, Azad Road, Monghibai Road, Mahatma Gandhi Road, Ram Mandir Road and the areas adjoining thereto in the jurisdiction of Vile Parle Police Station, Great of Bombay your acts and movements are causing harm, alarm and danger to the residents of the aforesaid localities 'and areas. 2.That you assault the residents of the aforesaid localities and areas either suspecting them of giving information to the police about your illegal activities or because they fail accede to your demand of money which offences are punishable under chapter XVI of. the Indian Penal Code. 3.That you commit robberies by extorting money and articles from the residents of the aforesaid localities and areas by means of assault and/or under threats of assault which are offences punishable under chapter XVII of the Indian Penal Code. 4.That since March,, 1969, you have committed several-acts of the matter described in paras 1, 2 and 3 above. 5.That the witnesses to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces. An order of externment can be passed under clause (a) or (b) of section 56 if, 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 furnish to the proposed externee concrete data like specific dates of incidents or the names of persons involved in-these 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 it 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 Illegal 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 authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en court who should be cross- examined by the party against whom they were deposing.' The provisions we are now examining are plainly intended to be used in special cases requiring special treatment, that is, cases which cannot be dealt with under the preventive sections of the Code of Criminal Procedure." In State of Gujarat and Anr. etc. v. Mehboob Khan Usman Khan etc. ([1968] 3 S.C.R. 746) this Court, reversing the judgment of the High Court of Gujarat, rejected the argument that a notice substantially similar to the one in the instant case was bad for vagueness. It was held that the person proposed to be extend was entitled to be informed of the general nature of the material allegations and not to the particulars of those allegations. As to the meaning of the phrase "general nature of the material allegations", it was observed : "Without attempting to be exhaustive we may state that when a person is stated to be a 'thief, that allegation is vague. Again, when it is said that 'A' stole a watch from X on a particular day and at a particular place', tie allegation can be said to be particular. Again, when it is stated that' X is see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to collect in the externment proceedings. There are cases and cases and therefore no general formulation can be made that the order of externment must always be restricted to the area to which the illegal activities of the externee extend. A larger area may conceivably have to be comprised within the externment order so as to isolate the externee from his moorings. An excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be permitted that is reasonable in the circumstances of the case. The decision of the Bombay High Court in Balu Shivling Dombe v. The Divisional Magistrate, Pandharpur (71 Bombay Law Reporter 79) is an instance in point where an externment order was set aside on the ground that it was far wider than was justified by the exigencies of the case. The activities of the externee therein were confined to the city of Pandharpur and yet the externment order covered an area as extensive as the districts of Sholapur, Satara and Poona. These areas are far widely removed from the locality in which the externee had committed but two supposedly illegal acts. The exercise of the power was therefore arbitrary and excessive, the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " A similar view taken by Palekar and Gatne JJ. in Criminal Applications 30 and 93 of 1970 decided on February 23, 1970 by Tulzapurkar J. in 73 Bombay Law Reporter 442 at pp. 453- 454 and by Bhasme and Kania JJ. in Criminal Application No. 149 of 1972 decided on March 3, 1972. As against the judgment last mentioned the externee had filed special leave petition No. 487 of 1972 in this Court, one of the grounds stated therein being that the externment order was void because the externee was asked to remove himself not only out of the district of Greater Bombay but from the limits of Thana district as will. The petition was dismissed by this Court (Palekar and Dwivedi JJ.) on September 20, 1972. These judgments of the Bombay High Court have taken the view that the districts of Greater Bombay and Thana form, so to say, a single unit. Palekar J. observes in his judgment in Criminal Applications Nos. 30 and 93 of 1970 : "It may be that the area of operation may be in a particular locality, but if the externment is limited only to that area, then it might be impossible to prevent the externee from visiting- that area every day. Any part in Bombay is easily connected by trans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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