DEEPAK S/O LAXMAN DONGRE versus THE STATE OF MAHARASHTRA & ORS.

Citation: [2022] 8 S.C.R. 35 · Decided: 28-01-2022 · Supreme Court of India · Bench: AJAY RASTOGI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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[2022] 8 S.C.R. 35
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DEEPAK S/O LAXMAN DONGRE
 v.
THE STATE OF MAHARASHTRA & ORS.
(Criminal Appeal No. 139 of 2022)
JANUARY 28, 2022
[AJAY RASTOGI AND ABHAY S. OKA, JJ.]
Maharashtra Police Act, 1951 – s.56(1)(a)(b) – Code of
Criminal Procedure, 1973 – s.151 – Constitution of India –
Arts.19(1)(d), 19(5) – Respondent no.2 exercising powers u/
s.56(1)(a)(b) passed the impugned order of externment dtd.15.12.20
against appellant, 5 offences registered against the appellant were
relied upon – Statutory appeal and writ petition against the impugned
order were also dismissed – Held: As the order impugned takes
away fundamental right u/Art. 19(1)(d), it must stand the test of
reasonableness contemplated by clause (5) of Article 19 – However,
it shows non-application of mind and smacks of arbitrariness –
The first three offences relied upon are of 2013 and 2018 which
are stale offences in the sense that there is no live link between the
said offences and the necessity of passing an order of externment
in the year 2020 – The two offences of 2020 alleged against the
appellant are against two individuals – There is no material on record
to show that witnesses were not coming forward to depose in these
two cases – Therefore, both clauses (a) and (b) of sub-sec. (1) of
s.56 are not attracted – Non-application of mind is apparent on the
face of the record as order dtd. 02.06.20 of the Judicial Magistrate
(rejecting the proposal to detain the appellant and directing his
immediate release subject to condition as stated) is not even
considered in the impugned order though the appellant relied upon
it in his reply – This is very relevant as the appellant was sought to
be detained u/sub-sec.(3) of s.151, Cr.PC for 15 days on the basis
of the same offences which are relied upon in the impugned order
of externment – From 02.06.20 till the passing of the impugned
order of externment, the appellant is not shown to be involved in
any objectionable activity – Impugned order also does not disclose
any application of mind on recording of subjective satisfaction of
respondent no.2 on the basis of material on record that the order of
externment should be for the maximum period of two years – An
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SUPREME COURT REPORTS
[2022] 8 S.C.R.
order of externment is not an ordinary measure and must be resorted
to sparingly and in extraordinary circumstances – Impugned order
of externment and that of the High Court is set aside.
Maharashtra Police Act, 1951 – s.56 – Nature of power under
– Duty of Competent Authority – Discussed.
Maharashtra Police Act, 1951 – s.56 – Order of externment
– Judicial review – Held: Court while testing the order of externment
cannot go into the question of sufficiency of material based on
which the subjective satisfaction has been recorded – However, it
can always consider whether there existed any material on the basis
of which a subjective satisfaction could have been recorded – As in
the case of any other administrative order, the judicial review is
permissible on the grounds of mala fide, unreasonableness or
arbitrariness.
Maharashtra Police Act, 1951 – ss.56 and 58 – Held: On a
plain reading of s.58, it is apparent that while passing an order u/
s.56, the competent authority must mention the area or District or
Districts in respect of which the order has been made – Moreover,
the competent authority is required to specify the period for which
the restriction will remain in force – Maximum period provided for
is of two years – Therefore, an application of mind on the part of
the competent authority is required for deciding the duration of the
restraint order u/s.56 – On the basis of objective assessment of the
material on record, the authority has to record its subjective
satisfaction that the restriction should be imposed for a specific
period.
Allowing the appeal, the Court
HELD: 1.1 Under clause (d) of Article 19(1) of the
Constitution of India, there is a fundamental right conferred on
the citizens to move freely throughout the territory of India. In
view of clause (5) of Article 19, State is empowered to make a law
enabling the imposition of reasonable restrictions on the exercise
of the right conferred by clause (d). An order of externment
passed under provisions of Section 56 of the 1951 Act imposes a
restraint on the person against whom the order is made from
entering a particular area. Thus, such orders infringe the
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fundamental right guaranteed under Article 1

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