IMRAN ABDUL WAHID HASMI V/S THE DY. COMMISSIONER OF POLICE & ORS

Officer acting under Section 56 or any officer above the rank of an Inspector authorised by that Officer should inform such person in writing of the general nature of the material allegations against such person and give him a reasonable opportunity of tendering an explanation regarding them

Case name: Imran Abdul Wahid Hasmi v. The Dy. Commissioner of Police & Ors.
Case number: Criminal writ petition 1784 of 2015
Court: The high court of Bombay               Criminal appellate jurisdiction
Bench: JUSTICE NARESH H.PATIL, JUSTICE PRAKASH .D. NAIK
Decided on: JUNE 21, 2016
Relevant Act/Sections: Section 56(1)(a) and (b), 60, 59 of the Bombay Police Act, 1951, Article 226 of the Constitution of India
  • BRIEF FACTS AND PROCEDURAL HISTORY:
  • The Assistant Commissioner of Police Deonar Division, Mumbai had issued a show-cause notice dated 28th June, 2014 under Section 59 of the said Act. In the said show-cause notice, it was mentioned that it is proposed to extern the petitioner for a period of two years from Greater Bombay Suburban and Thane Districts. The show-cause notice refers to the statement of two persons recorded in-camera.
  • It is further stated that the acts and movements of the petitioner are causing alarm, harm and danger to the peace living citizens and the businessmen in the area referred to therein. It is further mentioned that the witnesses referred to as witnesses (a) and (b) whose statements are recorded in-camera are not willing to come forward to depose against the petitioner in public. It is also mentioned that the citizens in the respective areas are not willing to complain against the petitioner on account of fear.
  • The petitioner appeared before the inquiry officer and submitted his oral as well as written reply. Inquiry officer forwarded his report to the Externing Authority for further action.Pursuant to the aforesaid inquiry, an order of exernment was issued on 30th December, 2014 by the respondent no.1. In the said order, reference was made to the cases registered and pending against the petitioner. It is further mentioned that witnesses are not willing to come forward to depose against him on account of fear that there will be danger to their persons and properties. The Externing Authority had externed the petitioner from the area of Mumbai suburban and Thane District for a period of two years.
  • The Petitioner challenged the order of externment by preferring an Appeal under Section 60 of the said Act. The said Appeal was rejected by order dated 9th April, 2015.In view of the aforesaid order of externment and disposal of the Appeal preferred by the petitioner, he has preferred the present petition by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India.
  • ISSUE BEFORE THE COURT:
  • Whether the witnesses were not willing to come forward to depose against the petitioner?
  • Whether the order of externment dated 30th December, 2014 issued by respondent no.1under Section 56(1)(a) and (b) of the Bombay Police Act, 1951 justifiable?
  • Whether the order dated 9th April, 2015, passed by respondent no.3 dismissing the Appeal preferred by the petitioner under Section 60 of the said Act is valid?
  • RATIO OF THE COURT
  • It is clear that the Externing Authority can pass the order of externment on the basis of criteria laid down therein. Such order can be issued on the basis of the satisfaction of such officer 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 the safety of their person or properties.
  • It is mandatory that before issuing the order of externment as stated above, a notice under Section 59 of the said Act is required to be issued and the proposed externee shall be informed of the allegations against him and should be given an opportunity of tendering an explanation or examining witnesses etc.
  • On perusal of the order of externment as well as the show-cause notice, it is apparent that the action was initiated in exercise of powers under Section 56 (1)(a) and (b) of the said Act. In the notice, it has been mentioned that since 2011, the petitioners movements and activities had caused or calculated to cause danger, harm and alarm to the persons and properties of the residents, shop owners and businessmen from the area of Sanjay Nagar Hutments, Sant Nirankari Hutments at Shivaji Nagar, Vainganwadi, Govandi and adjoining areas. The petitioner was also informed that he was involved in commission of offences and the cases are pending against him as well as one case is under investigation. It is further mentioned that the petitioner has committed serious offences within the areas mentioned therein and have committed offences punishable under Chapters 16 and 17 of the Indian Penal Code.
  • The notice further refers to the statements of two witnesses who are not willing to come forward to depose against him on account of fear which was recorded in-camera. In paragraph 4 of the notice, it is mentioned that the witnesses referred to in paragraph 2(a) and (b) are victims at the hands of the petitioners and they are not willing to come forward to depose against the petitioner in public. It is pertinent to note that the aforesaid assertion is in respect to the activities referred by witnesses (a) and (b) whose statements were recorded in-camera. Hence, as far as the other allegations referred to in the notice, there is no satisfaction therein that the witnesses in connection with said activities are not willing to come forward to depose against the petitioner in public. The notice spells out the activities which forms the grounds under Clause (a) and clause (b) of Section 56 (1) of the said Act, however, the satisfaction that the witnesses are not willing to come forward to depose against the petitioner is recorded only in respect of the activities reflected in paragraph nos. 2(a) and 2(b) of the notice. No such satisfaction is spelt out in respect of the activities reflected in the introductory paragraph 1(a) of the notice.
  • The court observed that the satisfaction that witnesses are not willing to come forward to depose in public is reflected in respect of two witnesses referred to above which allegations would be covered by Section 56 (1)(b) of the said Act. Further, there were other allegations also which are covered by Section 56(1)(a) as well as 56(1)(b) in respect to which there was no such assertion as stated above.
  • In the case of Yashwant Damodar Patil V/s. Hemant Karkare (1989 Mh.L.J. 1111) this court has held that : “The Fact that the in Clauses (a) and (b) of Section 56 (i) of the Bombay Police Act, is not sufficient by itself to warrant an order of externment. That fact, coupled with the opinion formed by the designated officer that witneses are not willing to come forward to give evidence in public for the reasons mentioned in clauses (a) and (b) of Section 56(i) of the Bombay Police Act, will provide a proper proposed externee is engaged or is about to be engaged in one or the other type of the activity or movement basis for the exercise of the power of externment under the provisions of the Act in any case of acts involved on the part of the proposed externee, where an order of externment proposed to be passed, it is necessary that the officer concerned must be satisfied that witnesses are not willing to come forward to give evidence against him. Notice of such satisfaction must also necessarily be given to the proposed externee under section 59 of the Bombay Police Act.”
  • The Externing Authority has issued the order in exercise of powers under Section 56(1)(a) and (b) of the said Act. This Court has adjudicated the similar issues in Writ Petition Nos.1813 of 2-013 and 529 of 2014 in which the order of externment was quashed and set aside on the ground that it is not in accordance with law.
  • DECISION HELD BY COURT:
  • The court held that the impugned order of externment is contrary to the provisions of law.  The order does not comply the mandatory requirement stipulated in Section 56 (1)(a) and (b) of the said Act.  Hence, the impugned order is required to be quashed and set aside and rule made is absolute.

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