M.L. Tahaliyani, J.@mdashHeard. Admit.
2. Heard finally by consent.
3. The petitioner is aggrieved by the order passed by Deputy Commissioner of Police, Zone II, Nagpur (hereinafter referred to as ""respondent No.
1"") on 9th July, 2012 in exercise of his powers u/s 56 of the Bombay Police Act. The petitioner has been directed to remove himself from
territorial jurisdiction of Police Commissionerate, Nagpur and Superintendent of Police, Nagpur (for the sake of brevity ""Nagpur City"" and
Nagpur Rural"") for a period of one year. The petitioner has already removed himself in obedience of the order passed by respondent No. 1.
4. It is admitted position that an inquiry was held by respondent No. 2 before respondent No. 1 could pass order which is impugned in the present
petition. It is also not disputed that about 21 criminal cases were pending against the petitioner in the Courts at Nagpur, mainly pertaining to
Gittikhadan Police Station, Nagpur. The said 21 cases pending against the petitioner cover variety of cases including cases under the Arms Act,
Robbery, Extortion, Mischief, Criminal Intimidation, contravention of prohibitory orders issued under the Bombay Police Act, Criminal House
Trespass, Preparation to commit Dacoity, causing hurt while committing robbery and kidnapping for ransom. It may be noted here that the
petitioner had also been prosecuted for the offence punishable u/s MCOC Act. It is submitted by learned counsel Mr. Barapatre that the petitioner
has been acquitted in majority of cases including the cases under the MCOC Act. Though certified copies of the judgments of the trial Court have
not been produced before me, it is submitted that only 8-9 criminal cases are pending against the petitioner. Mr. Barapatre has submitted that the
last offence allegedly committed by the petitioner, according to the impugned order, itself is of the year 2010 which pertains to Gittikhadan Police
Station and was recorded as First Information Report No. 3885 of 2010. The learned counsel for the petitioner has further submitted that
respondent No. 1 has not explained in his order as to what made him to pass externment order suddenly after lapse of two years from the last
offence committed by the petitioner. It is contended that the petitioner has been maintaining peace and good behavior after the year 2010.
5. Learned Additional Public Prosecutor Ms Deshpande has submitted that, according to the impugned order the petitioner had been acquitted of
the offences in five cases only and rest of the cases are pending. Since neither the petitioner nor the respondent has submitted certified copy of any
document to substantiate their respective contentions, it can safely be assumed that a considerable number of cases are pending against the
petitioner. Crime chart of the petitioner shows that the petitioner was involved in criminal cases from 2003 onwards. It is submitted by Ms
Deshpande that the petitioner has committed few more offences in the year 2012 but have not been reported to the police because of fear of the
petitioner. In brief, it is submitted by the learned counsel for the petitioner that there was no application of mind and that the impugned order has
been passed mechanically only on the basis of the report submitted by the Enquiry Officer i.e. respondent No. 2 Assistant Commissioner of Police.
6. I have gone through the impugned order. The impugned order clearly states that respondent No. 1 was satisfied that the witnesses were not
willing to come forward to give evidence in public against the petitioner by reason of apprehension on their part as regards safety of their person or
property. This satisfaction of respondent No. 1 is recorded in paragraph 6 of the impugned order. He has gone through almost all the documents
produced before him and has come to a conclusion that there was no improvement in the conduct of the petitioner and therefore, he was of the
view that an order u/s 56 was necessary to be passed. In my considered opinion, there is no substance in the arguments of learned counsel Mr.
Barapatre that there was no application of mind by respondent No. 1. The order clearly shows that not only respondent No. 1 has seriously
considered all the allegations made against the petitioner but he has recorded his subjective satisfaction to come to a conclusion that a case was
made out for passing externment order against the petitioner.
7. Other issue raised by Mr. Barapatre is that there was inordinate delay in passing the order from the date of last offence allegedly committed by
the petitioner in the year 2010. This argument does not hold water inasmuch as there is no hard and fast rule as to at which point of time the
authority shall exercise jurisdiction u/s 56 of the Bombay Police Act. The subjective satisfaction of the authority concerned is of the prime
importance in such cases. In the present case, it may be noted here that a large number of criminal cases are pending against the petitioner in which
the prosecution has to examine its witnesses to establish the charges against the petitioner though last offence allegedly committed by the petitioner
is of the year 2010 the cases arising out of the earlier first information reports are still pending in the Courts at Nagpur. This pendency of the cases
is the prime consideration and not last date of offence allegedly committed by the petitioner. At the same time reluctance of the witness to give
evidence has to be taken into consideration. Though the petitioner claims that the last offence alleged to be committed by him is of the year 2010,
he does not deny that a large number of criminal cases are pending against him in which witnesses are to be examined. The respondent No. 1 has
taken due note of the pendency of cases and reluctance of witnesses to give evidence. The petitioner is allowed to enter Nagpur with prior
permission of the respondent No. 1. As such he can attend his cases personally if he so desires.
8. The scope of Section 56 and the authority of the officer concerned was discussed by the Hon''ble Supreme Court in the case of Pandharinath
Shridhar Rangnekar Vs. Dy. Commr. of Police, The State of Maharashtra, (1). Paragraphs 9 and 10 of the said judgment run as under:
9. 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 cl. (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 those 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 legal 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 authorities to inform the proposed externee ""of the general nature of the material allegations against him"". That obligation fixes the
limits of the correlative right of the proposed externee. He is entitled, before an order of externment is passed u/s 56, to know the material
allegations against him and the general nature of those allegations. He is not entitled to be informed of specific particulars relating to the material
allegations.
10. It is true that the provisions of Section 56 make a serious inroad on personal liberty but such restraints have to be suffered in the larger interests
of society. This Court in Gurbachan Singh Vs. The State of Bombay and Another, had upheld the validity of Section 27(1) of the City of Bombay
Police Act, 1902, which corresponds to Section 56 of the Act. Following that decision, the challenge to the constitutionality of Section 56 was
repelled in Bhagubhai Dullabhabhai Bhandari Vs. The District Magistrate, Thana and Others, . We will only add that care must be taken to ensure
that the terms of Sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to
the proposed externee.
In view of the discussion of facts of the present case and rejection of all the contentions of the learned counsel for the petitioner and keeping in
view the observations made by the Hon''ble Supreme Court, I have come to the conclusion that there is no substance in the petition.
The petition stands dismissed. Interim order, if any, stands vacated.
