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1972 (12) TMI 87

andrachud, This appeal by special leave is directed against the judgment dated August 11, 1971 of the High Court at Bombay, dismissing the petition filed by the appellant under Articles 226 and 227 of the Constitution to challenge an order of externment passed by the 1st respondent. On October 9, 1969 a notice of even date was served on the appellant under section 59 of the Bombay Police Act, 22 of 1951, asking him to appear before the Assistant Commissioner of Police, 'M' Division, Bombay, in answer to allegations contained in the notice. Briefly, the allegations were that the appellant's_acts and movements were causing harm, 6- L63lSup.CI/73 alarm and danger to the residents of certain localities within the, jurisdiction of Vile Parle Police Station, 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 ap .....

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heir opinion, it was inconsistent with the view taken by this Court in State of Gujarat and Anr. v. Meliboob Khan Usman Khan etc.([1968] 3 S.C.R. 746). On the second contention, distinguishing the judgment of a Division Bench of the High Court in Balu Shivling Dombe v. The Divisional Magistrate, Pandharpur (71 Bombay Law Reported 79) and following a judgment dated March 17, 1968 of another Division Bench in Criminal Application No. 1427 of 1966, the Iearned Judges held that in the circumstances of the case it was reasonable to extern the appellant from the Emits of Greater Bombay as also of the Thana District. The correctness of this view is under challenge before US. Learned counsel appearing on behalf of the appellant has raised the following points :- (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 .....

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st), Bombay-57. Under Section 59 of the Bombay Police Act, 1951 (Bom. XXIII of 1951) you are hereby informed that the following allegations are made against you in proceedings against you under section 56 of the said Act. In order to give you opportunity of tendering your explanation regarding the said allegations, I have appointed 9 A.M. on 16-10-1969 to receive your explanation and to hear you and your witness, if any, in regard to the said allegations I Shri N. S. Joshi, Assistant Commissioner of Police 'M' Division, Bombay therefore require you to appear before me at Vile Parl e Police Station on the said date viz. 16-10-1969 at 9 A.M. for the said purpose and to pass a bond in the the sum of ₹ 5001- for your attendance 'during 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 ha .....

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s that before an order under section 56 is passed against any person, the officer shall inform that person in writing "of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding those allegations. The proposed externee is entitled to lead evidence unless the authority takes the view that the application for examination of witnesses is made for the purpose of vexation or delay. Section 59 also confers on the person concerned a right to file a written statement and to appear through an advocate or attorney. 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 (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 .....

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ed to the externee, and ,that it would be difficult for him to get the matter judicially examined. Sinha J., speaking for the majority, observed: "The grounds available to an externee had necessarily to be very limited in their scope because if evidence were available which could be adduced in public, such a person could be dealt with under the preventive sections of the Code of Criminal Procedure, for example, under section 107 or section 110. But the special provisions now under examination proceed on the basis that the person dealt with under any of the sections 55, 56 or 57 is of such a character as not to permit the ordinary laws of the land being put in motion in the ordinary way mainly of examining witnesses in open 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 Guja .....

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it would be easy to fix the identity of witnesses who were unwilling to depose in public against the proposed externee. A reasoned order con- taining a discussion of the evidence led against the externee would probably spark off another round of tyranny and harassment. As regards the last point, it is primarily for the externing, authority to decide how best the externment order can be made effective, so as to subserve its real purpose. Now long, within the statutory limit of 2 years fixed by section 58, the order shall operate and to what territories, within the statutory limitations of section 56 it should extend, are matters which must depend for their decision on the nature of the data which the authority is able ,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 .....

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e that Thana town in the surrounding area is also an area where large industries have grown contiguous with the industrial area of Greater Bombay and that the entire industrial area is connected together by several means of communication Including suburban trains of which there are several during each day,, by taxis plying to and from Greater Bombay and by bus services operating between Greater Bombay and several parts of Thana District. Therefore, the Police could reasonably have thought that it would not be sufficient to ask the petitioner to keep off only from the area of Greater Bombay which has an equally busy and highly industrialised area contiguous to it. Therefore, the order was extended to Thana District." 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 be .....

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