Supreme Court quashes externment order due to lack of evidence and non-application of mind: Deepak vs. State of Maharashtra (2022)

Date of the Judgment: 28 January 2022

Citation: 2022 INSC 1102

Judges: Ajay Rastogi, J., Abhay S. Oka, J.

Can an externment order be upheld if it’s based on old offenses and doesn’t show that the authority properly considered all the facts? The Supreme Court recently addressed this question in a case where an individual was ordered to leave his district for two years. The court examined whether the externment order was justified, given the circumstances and the legal requirements. The Supreme Court bench comprised Justices Ajay Rastogi and Abhay S. Oka, with Justice Oka authoring the judgment.

Case Background

The appellant, a resident of Jalna district, Maharashtra, was issued an externment order on 15th December 2020 by the Sub-Divisional Magistrate. This order, made under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, directed him to leave Jalna district for two years. The order cited five offenses registered against him, along with confidential statements from two witnesses, as reasons for the externment. The appellant challenged this order, first through an appeal, which was dismissed, and then through a writ petition in the Bombay High Court, which was also dismissed. The High Court upheld the externment order, stating that the confidential statements showed the appellant’s activities were dangerous and causing public disturbance.

Timeline

Course of Proceedings

The appellant initially appealed the externment order to the Appellate Authority, which was dismissed. Subsequently, the appellant filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court. The Bombay High Court dismissed the writ petition, upholding the externment order. The High Court reasoned that the confidential statements of witnesses ‘A’ and ‘B’ indicated the appellant’s dangerous activities and unwillingness of witnesses to testify publicly, justifying the externment order. The appellant then appealed to the Supreme Court.

Legal Framework

The Supreme Court referred to Article 19(1)(d) of the Constitution of India, which guarantees the fundamental right to move freely throughout the territory of India. However, Article 19(5) allows the State to impose reasonable restrictions on this right through law. The court highlighted Section 56 of the Maharashtra Police Act, 1951, which allows for the externment of individuals under certain conditions. The relevant portion of the section reads as follows:

“56. Removal of persons about to commit offence-
[(1)] Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend 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 abetment 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…”

The court noted that Section 56(1) has distinct grounds for externment, including clauses (a) and (b). Clause (a) pertains to movements or acts causing alarm or harm, while clause (b) concerns reasonable grounds to believe a person is engaged in offenses involving force, violence, or property-related crimes under Chapters XII, XVI, or XVII of the Indian Penal Code, with the added condition that witnesses are unwilling to testify due to fear.

Arguments

Appellant’s Submissions:

• The externment order was a mala fide act, influenced by a local MLA due to family disputes.
• The MLA had previously attempted to falsely implicate the appellant in a case.
• The in-camera statements of witnesses were general and lacked specific allegations.
• Out of the five offenses, three were old (2013 and 2018) and lacked a live link to the externment order.
• The two offenses from 2020 did not meet the criteria of Section 56(1)(a) or (b) of the Maharashtra Police Act, 1951.
• The appellant was previously arrested under Section 151 of the Code of Criminal Procedure, 1973 (CrPC) on the same grounds, but the detention proposal was rejected by the Judicial Magistrate.
• The externment order was for the maximum period of two years without any specific reasons.

Respondents’ Submissions:

• The competent authority is not required to pass a reasoned order but only needs to record subjective satisfaction of the grounds under Section 56(1)(a) and (b) of the Maharashtra Police Act, 1951.
• The scope of powers under Section 151(3) of CrPC is different from Section 56 of the Maharashtra Police Act, 1951.
• The High Court had thoroughly examined and rejected the grounds of challenge to the externment order.

Innovativeness of the argument: The appellant’s argument that the externment order was a mala fide act due to family disputes and the involvement of a local MLA is innovative. This argument highlights the potential for misuse of power for personal vendettas, which is a significant concern in cases of externment.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section, but the issues can be inferred from the arguments and the court’s analysis:

1. Whether the externment order passed under Section 56 of the Maharashtra Police Act, 1951, was valid, given the circumstances and the legal requirements.
2. Whether the competent authority had applied its mind while passing the externment order, particularly considering the rejection of the detention proposal under Section 151 of CrPC.
3. Whether the externment order was justified, given the nature of the offenses relied upon and the lack of specific evidence.
4. Whether the externment order for the maximum period of two years was justified, given the lack of specific reasons.

Treatment of the Issue by the Court

The following table demonstrates how the Court decided the issues:

Authorities

The Supreme Court relied on the following authorities:

The Supreme Court also considered the following legal provisions:

• Article 19(1)(d) of the Constitution of India: Guarantees the fundamental right to move freely throughout India.
• Article 19(5) of the Constitution of India: Empowers the State to make laws imposing reasonable restrictions on the right under Article 19(1)(d).
• Section 56 of the Maharashtra Police Act, 1951: Provides for the removal of persons about to commit offenses.
• Section 58 of the Maharashtra Police Act, 1951: Specifies the period of operation of orders under Section 56, not exceeding two years.
• Section 151 of the Code of Criminal Procedure, 1973 (CrPC): Deals with the arrest of a person to prevent the commission of cognizable offenses.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Pandharinath Shridhar Rangnekar v. Dy. Commr. of Police, State of Maharashtra [(1973) 1 SCC 372]: The Court followed this precedent, emphasizing that an externment order is an extraordinary measure and must be strictly complied with. The Court reiterated that the reasons for such an order must arise from extraordinary circumstances.

The Supreme Court emphasized that the competent authority must record its subjective satisfaction based on objective material. The Court noted that while a detailed judgment is not required, there must be evidence of the application of mind. The Court found that the externment order was passed without considering the rejection of the detention proposal under Section 151 of CrPC. The Court also noted that the offenses relied upon were either stale or related to individual disputes and did not demonstrate a public disturbance. The Court also stated that the order for the maximum period of two years did not show any application of mind.

What weighed in the mind of the Court?

The Supreme Court was primarily concerned with the protection of fundamental rights and the proper application of law. The court emphasized that externment orders are extraordinary measures that infringe upon the fundamental right to free movement and should be used sparingly. The court was also concerned about the potential for misuse of power and the need for authorities to act judiciously and with due consideration of all relevant facts. The court emphasized the need for the competent authority to record its subjective satisfaction based on objective material. The court was also concerned about the non-application of mind by the competent authority.

The Court’s reasoning was influenced by both the factual aspects of the case (such as the stale offenses, the rejection of the detention proposal, and the lack of specific evidence) and the legal principles related to fundamental rights and the proper application of law. The factual aspects weighed more heavily in this case.

The court considered alternative interpretations but rejected them because they did not align with the principles of fundamental rights and the requirement for a proper application of mind by the competent authority. The court concluded that the externment order was arbitrary and unsustainable in law.

The court’s decision was based on the following reasons:

• The competent authority did not consider the rejection of the detention proposal under Section 151 of CrPC.
• The offenses relied upon were either stale or related to individual disputes.
• There was no evidence to show that witnesses were unwilling to testify due to fear.
• The order for the maximum period of two years did not show any application of mind.

The Supreme Court quoted the following from the judgment:

“There cannot be any manner of doubt that an order of externment is an extraordinary measure. The effect of the order of externment is of depriving a citizen of his fundamental right of free movement throughout the territory of India.”

“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.”

“When the competent authority passes an order for the maximum permissible period of two years, the order of externment must disclose an application of mind by the competent authority and the order must record its subjective satisfaction about the necessity of passing an order of externment for the maximum period of two years which is based on material on record.”

There was no minority opinion in this case. The decision was unanimous.

The Court’s analysis focused on the procedural and substantive aspects of the externment order. The Court emphasized the importance of following due process and ensuring that such orders are based on valid grounds and a proper application of mind. The court’s interpretation of Section 56 of the Maharashtra Police Act, 1951, highlighted the need for objective material and subjective satisfaction by the competent authority.

The implications of this judgment for future cases are significant. It reinforces the need for authorities to be cautious and judicious while passing externment orders. It also emphasizes the need for a proper application of mind and the consideration of all relevant facts and circumstances. This judgment will serve as a guide for lower courts and authorities when dealing with externment orders.

The judgment did not introduce any new doctrines or legal principles but reaffirmed the existing principles of fundamental rights and the need for a proper application of law.

Key Takeaways

• Externment orders are extraordinary measures that should be used sparingly.
• Competent authorities must demonstrate a proper application of mind based on objective material.
• Stale offenses and individual disputes are not sufficient grounds for externment orders.
• The maximum period of externment should be justified with specific reasons.
• Authorities must consider all relevant facts and circumstances before passing an externment order.

This judgment will likely lead to greater scrutiny of externment orders and ensure that such orders are not passed arbitrarily. It will also serve as a reminder to authorities to act judiciously and with due consideration of all relevant facts and circumstances.

Directions

The Supreme Court quashed and set aside the externment order dated 15th December 2020, as well as the impugned Judgment and order dated 20th August 2021 of the High Court.

Development of Law

The ratio decidendi of this case is that an externment order must be based on objective material, a proper application of mind by the competent authority, and must not be based on stale offenses or individual disputes. This decision reinforces the existing legal principles related to fundamental rights and the need for authorities to act judiciously. There is no change in the previous position of law, but the judgment clarifies the application of existing principles.

Conclusion

The Supreme Court’s decision in Deepak vs. State of Maharashtra (2022) underscores the importance of protecting fundamental rights and ensuring that externment orders are not passed arbitrarily. The court quashed the externment order, emphasizing that such orders must be based on objective material, a proper application of mind, and not on stale offenses or individual disputes. The judgment serves as a critical reminder for authorities to act judiciously and with due consideration of all relevant facts and circumstances.