Recording of subjective satisfaction by competent authority is sine qua non for passing valid order of externment u/s 56(b) of Maharashtra Police Act, 1951: SC

Read Judgment: Deepak S/o Laxman Dongre V. State of Maharashtra & Ors.

Pankaj Bajpai

New Delhi, February 2,2022: The Supreme Court has opined that an order of externment passed under provisions of Section 56 of the Maharashtra Police Act, 1951 imposes a restraint on the person against whom the order is made from entering a particular area, and thus, such orders infringe the fundamental right guaranteed under Article 19(1)(d) of the Constitution. 

Hence, the restriction imposed by passing an order of externment must stand the test of reasonableness, added the Court. 

A Division Bench of Justice Ajay Rastogi and Justice Abhay S. Oka observed that recording of subjective satisfaction by the competent authority is sine qua non for passing a valid order of externment under clause (b) of Section 56 of 1951 Act.

The background of the case was that, the second Respondent by his order, exercised powers u/s 56(1)(a)(b) of the Maharashtra Police Act, 1951 any relying upon five criminal offences registered against Deepak (Appellant) who is a resident of Mandeolgaon, directed him to remove himself outside the limits of District Jalna within 5 days. By the said order, he was externed from District Jalna for a period of two years. 

This was challenged before Bombay High Court but dismissed observing that order of externment was passed on the ground that the confidential statements of witnesses disclose that witnesses are not willing to come forward to give evidence against the appellant, the activities of the appellant are very dangerous and the offences registered against the appellant under the Indian Penal Code are of grave and serious nature which are causing disturbance to the public at large. Hence, present appeal. 

After considering the submissions, the Top Court observed that under clause (d) of Article 19(1) of the Constitution of India, there is a fundamental right conferred on the citizens to move freely throughout the territory of India, and in view of clause (5) of Article 19, State is empowered to make a law enabling the imposition of reasonable restrictions on the exercise of the right conferred by clause (d).

An order of externment is an extraordinary measure and the effect of the order of externment is of depriving a citizen of his fundamental right of free movement throughout the territory of India, added the Court. 

Speaking for the Bench, Justice Oka observed that recourse should be taken to Section 56 very sparingly keeping in mind that it is an extraordinary measure, as for invoking clause (a) of sub-section (1) of Section 56, there must be objective material on record on the basis of which the competent authority must record its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to persons or property. 

For passing an order under clause (b), there must be objective material on the basis of which the competent authority must record subjective satisfaction that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or offences punishable under Chapter XII, XVI or XVII of the IPC, added the Bench. 

The Top Court noted that power under sub-section (3) of Section 151 as amended for the State of Maharashtra is to arrest a person on the basis of an apprehension that he is likely to continue the design to commit, or is likely to commit a cognizable offence after his release and that the circumstances of the case are such that his presence is likely to be prejudicial to the maintenance of public order. 

“The Judicial Magistrate rejected the proposal to keep the appellant in detention for 15 days. There is nothing placed on record to show that the said order was challenged by the police. After having failed to satisfy the Judicial Magistrate about the necessity of detaining the appellant for 15 days, the Sub-Divisional Police Officer initiated action of externment against him by issuing a show-cause notice on 7th July 2020. It is not the case made out in the show cause notice dated 7^th July 2020 that after release of the appellant on 2nd June 2020, the appellant indulged in the commission of any offence or any other objectionable activity”, added the Court. 

Accordingly, the Apex Court allowed the appeal and concluded that the High Court did not notice that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances.