JUDGMENT
A.D. Mane, J.
1. This Criminal Writ Petition arises out of the proceedings under sections 56 and 60 of the Bombay Police Act, 1951-(for short, the Act).
2. The respondent No. 2-Sub Divisional Magistrate, Vaijapur, in exercise of his powers under section 56(bb) of the Act, passed an order on 30-9-1993 externing the petitioner out of Districts Aurangabad, Nasik and Ahmednagar for a period of one year. That order of externment was challenged by the petitioner in an appeal under section 60 of the Act before the respondent No. 1-State of Maharashtra but his appeal was dismissed on 5-5-1994. The petitioner, therefore, challenges the impugned order on the ground of non-application of mind and also that the order of exterment suffers from mala fides.
3. The petitioner is a permanent resident of village Walad, Taluka Vaijapur, District Aurangabad. Since 4-5 years, the petitioner has, however, been residing at Aurangabad and earning his livelihood by working as a rickshaw driver. The petitioner submits that on or about 26-12-1989, he purchased a residential house from one Gangadhar Bandar for valid consideration. Said Gangadhar, however, raised certain disputes with him, for which the petitioner was required to institute a Special Civil Suit No. 341 of 1991 in the Court of Civil Judge (Senior Division), Aurangabad, inter alia, seeking the permanent injunction against him from obstructing his possession over the residential house. The petitioner further submits that as a counter blast, Gangadhar filed a false complaints with the police as Cr. No. 118 of 1991, N.C.No. 56 of 1992, N.C. No. 20 of 1992 and chapter cases 382 and 18 of 1992. The petitioner also submits that sometimes before he could receive show-cause notice on 3-9-92 he filed a Criminal Case against P.S.I. one Uttam Giri and Police Head Constable Birande for his wrongful confinement in the Court of Judicial Magistrate (First Class). Vaijapur, Dist. Aurangabad. These police officers were after him to compromise the case and also threatening him to bring him in serious trouble in the event he would not compromise the case. It has been specifically stated by the petitioner that he has not been actually residing in the village Walad since last many years, as he has been residing at Aurangabad and earning his livelihood by running the rickshaw. The petitioner also specifically submits that he was never convicted for any of the offences under Chapter XII, XIV or XVI of Indian Penal Code.
4. It is stated that to his surprise, he has, however, received a show cause notice on 3-9-1992 from the Divisional Police Officer, Vaijapur respondent No. 3, inter alia, alleging that the petitioner is indulging in gundaism in extorting money from poor people and assaulting or threatening to assault them in the event money is not paid, and that the witnesses, due to threats of the petitioner, do not come forward to give evidence before police. It was also alleged that the petitioner has demanded Rs. 5,000/- from Gangadhar and since he has not paid the amount, he was given threats at the point of knife and he was also assaulted by the petitioner. Reference is made to six cases, which includes five cases referred to above, filed by Gangadhar against the petitioner on account of civil dispute from the purchase of the house by the petitioner. The first case mentioned is of the year 1988 for offences under sections 337, 323 read with 34 of Indian Penal Code. That is also shown to be pending. The petitioner replied the said show cause notice, inter alia, denying the solitary statement in the notice regarding his gundaism. The petitioner also referred to the pending civil suit against said Gangadhar and also criminal complaint filed by him against Police Sub Inspector Giri and Police Head Constable Birande and submitted that this is not a case to invoke provisions of section 56 of the Act and it was also submitted that the proposed action was at the behest of P.S.I. Giri, who seems to have prepared and submitted a false report to bring pressure on the petitioner. By an order dated 30-9-1993, the petitioner, has however, been externed.
5. In appeal, the petitioner has re-iterated his submission but they were not accepted and his appeal was dismissed.
6. The question arises whether the impugned order of externment as confirmed in appeal was sustainable in law. It is well settled that before externing a person, a notice under section 59 of the Act is required to be served on the proposed externee. That notice should contain the general nature of material allegations against him and give him reasonable opportunity of tendering explanation regarding the allegations. A reference must be made to the movements or acts of the proposed externee and it also be stated that by reason of those movements or acts, harm or danger to person or property was caused or was calculated to be caused. That is so because the externment proceedings are largely pre-cautionary and based on suspicion, and the question whether the individual concerned should be externed or not depends upon the subjective satisfactions of the officer or the authority concerned and that the provisions pertaining to them in the Act are intended to be used in special cases requiring special treatment, that is to say, cases which cannot be dealt with under the ordinary law. In other words, the allegations in the notice should not be so vague, which would not give any idea to the petitioner at all about the locality, area or the period during which he is alleged to have conducted himself in such a manner as to create danger or alarm to person or property.
7. On going through the show cause notice, dated 3-9-1992, it cannot be disputed that it contains merely an allegation but that allegation is so vague that it does not give any idea to the petitioner about the locality, area or the period during which he is alleged to have conducted himself in such a manner as to create danger or alarm to person or property within the meaning of section 56 of the Act. That is so because, there is no dispute that out of six cases referred to in the show cause notice, cases at serial Nos. 2 to 6 were filed by Gangadhar alone. The case at Serial No. 1 is of the year 1988, which is pending. Un-doubtedly that would be stale instance. The instances at serial Nos. 2 to 6 by any stretch of imagination, can be termed as valid instances suggesting the activities of the petitioner creating alarm, danger or harm to the person or property at large, nor it could give clear idea of the petitioner’s movements or acts in the proximate area in immediate past as the movements or acts which would cause or calculated to cause alarm, danger or harm to the person or property in general. It is thus obvious from the instances quoted in the show cause notice that the dispute is between specific persons of the village and the petitioner is party to the said dispute. It may also appear that the names of witnesses have been specifically mentioned and the statement, that no witness is coming forward to give testimony against the petitioner in the said cases, is without any substance. It is, therefore, difficult to understand the allegation of externing authority that the petitioner was indulging in gundaism against the people in general and further that no witnesses are coming forward to depose against him in the said cases. No further instances with specific details could be alleged in the said show-cause notice. These facts clearly show that order of externment passed against the petitioner does not comply with the requirements of section 56(1)(a)(b) of the Act. It is well settled 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 may be made available to the proposed externee. In other words, the order of externment appears to have been passed without any material before the authority to come to a conclusion about existance of facts that are necessary for final order under section 56(1)(bb) of the Act. If regard be had to the explanation offered by the petitioner, it cannot be said that his contention that the order came to be passed mala fide is without any substance. The externing authority, therefore, seems to have mechanically applied its mind and took into consideration irrelevant and extraneous facts for his subjective satisfaction for proposed externment of the petitioner. When specially a liberty of a person is involved, a strict scrutiny of such externment order is necessary and the order which has been passed in a cavalier manner without proper application of mind cannot be sustained in law.
8. In the view that I take, the writ petition must be allowed. The Criminal Writ Petition is accordingly allowed. The impugned orders passed by the authorities below are hereby quashed and set aside. Rule is made absolute accordingly.