A.D. Tated, J.@mdashThis writ petition is directed against the externment order passed by the Sub-Divisional Magistrate, Nandurbar, Division Nandurbar, District Dhule, on 21st May, 1984 externing the petitioner from the limits of Dhule District.
2. Before passing the order externing the petitioner, he was served with a notice u/s 59 read with section 56(1)(a) & (b) of the Bombay Police Act, 1951, and in that notice the allegations made against the petitioner were that the criminal cases as per the schedule attached to the notice were pending against him and that he was again likely to commit such offences. After the notice was served, the petitioner filed his reply and after considering the reply, the learned Sub-Divisional Magistrate passed the impugned order.
3. The learned Counsel for the petitioner contends that the notice dated 28th April, 1984 u/s 59 of the Bombay Police Act served on the petitioner, which was issued by the Sub-Divisional Police Officer, Nandurbar, is not in accordance with the requirements of section 56(1) of the Bombay Police Act. He submits that though it is mentioned therein that in the opinion of the Sub-Divisional Police-Officer who issued the notice 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 the safety of their person or property. According to the learned Counsel, in the absence of such averments the notice does not satisfy the requirements of section 56(1)(b) of the Bombay Police Act and as such the order passed pursuant to the said notice is bad.
4. The relevant provisions of section 56(1) of the Bombay Police Act read as follows :---
"56(1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed u/s 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extent the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate specially empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or (b) 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 an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abatement of any such offence and when in the opinion of such officer 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 property".
As per the provisions of section 56(1)(b) of the Bombay Police Act reproduced above, not only there should be prosecutions for the offences punishable under Chapter XII, XVI or XVII of the Indian Penal Code, but in addition the officer concerned should be of the opinion that the witnesses are not willing to come forward to give evidence in public against the person against whom the externment proceedings have been started by reason of apprehension on their part as regards the safety of their person or property. In the present case the notice does not contain any such opinion on the part of the Sub-Divisional Police-Officer, Nandurbar, who issued the notice. Consequently, we agree with the learned Counsel for the petitioner that in the absence of such averments in the notice the externment order passed by the learned Sub-Divisional Magistrate pursuant to that notice is bad and is liable to be struck down.
5. In the result, the petition is allowed. The order of externment under challenge is set aside and the rule is made absolute. No order as to costs.
