HEMANT JAYWANT KOLI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner an externee has filed this writ petition under Art. 226 of the Constitution of India challenging the legality and correctness of (1) show-cause notice dated 31st May, 1989 issued under Section 59 of the Bombay Police Act, 1951, (2) Externment Order dated 4-4-1990 passed by Dy. Commissioner of Police, Zone-I, Thane Cross-examination on appeal under Section 60 of the Bombay Police Act the confirmed by the appellate authority vide its order dated 15th November, 1989.

(2.) MR. Gupte, learned counsel appearing for the petitioner drew our attention to the show-cause notice at EX. A and the order of externment at Ex. B. After taking us through both these documents, counsel urged that the notice at EX. A is per se unsustainable in view of the mandatory requirement contained under Section 56 (1) (a) and (b) of the Act. To be more precise, it must be stated that the show-cause notice was issued alleging that the petitioner's activities are causing disturbance in the localities mentioned therein arid such activities are found covered under Section 56 (1) (b) of the Bombay Police Act. Mr. Gupte, therefore urged that while issuing the notice either under Section 56 (1) (a) or (b) of the Bombay Police Act, it is not just not sufficient to mention and/or give the general particulars of the alleged criminal activities which are causing disturbance in the localities but it must also be further stated in the said notice that 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. Relying upon the phraseology used in Section 56 (1) (a) and (b) of the said Act, Mr. Gupte urged that unless the externing authority was satisfied that the witnesses are not willing to come forward to give evidence in public against the proposed externee due to fear of their person or property, the notice would be in contravention of the said provisions. After going through the said notice, we rm4 that the relevant and material prerequisite condition as regards the opinion of the externing authority that the witnesses are not willing to come forward to give evidence in public against the externee by reason of apprehension on their part as regards the safety of their person or property is missing. Unless the proposed externee is appraised of this condition, in our opinion, the externing authority cannot initiate the proceedings for externment under the Bombay Police Act After going through the notice in our opinion, there is patent illegality in the show-cause notice at Ex. A. The said notice is contrary to the mandatory provisions contained in Section 56 (1) (a) and (b) of the Bombay Police Act.

(3.) MR. Gupte in support of his submission drew our attention to an unreported decision of this Court in Prakash A. Shinde v. Hemant Karkare. Dy, Commissioner of Police -Zone-I, Thane1 to which one of us Kurdukar, J. is the party where it has been held that unless the pre-requisite condition is satisfied, notice under Section 56 (l) (a) and (b) would render illegal and invalid.