DEEPAK S/O LAXMAN DONGREversusTHE STATE OF MAHARASHTRA & ORS.

                         [2022] 8 S.C.R. 35                              35


                DEEPAK S/O LAXMAN DONGRE                                 A
                                  v.
            THE STATE OF MAHARASHTRA & ORS.
                 (Criminal Appeal No. 139 of 2022)
                        JANUARY 28, 2022                                 B
         [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/
                                                                         C
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,       D
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
                                                                         E
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        F
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
                                                                         G
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            H
                                 35
36            SUPREME COURT REPORTS                      [2022] 8 S.C.R.


A    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.
B
           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
C    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
D    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
E    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.
F
           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
G    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
H    entering a particular area. Thus, such orders infringe the
     DEEPAK S/O LAXMAN DONGRE v. THE STATE OF                          37
                MAHARASHTRA & ORS.

fundamental right guaranteed under Article 19(1)(d). Hence, the        A
restriction imposed by passing an order of externment must stand
the test of reasonableness. [Paras 4 and 12][43-F-H]
       1.2 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    B
free movement throughout the territory of India. In practical terms,
such an order prevents the person even from staying in his own
house along with his family members during the period for which
this order is in subsistence. In a given case, such order may
deprive the person of his livelihood. It thus follows that recourse
                                                                       C
should be taken to Section 56 very sparingly keeping in mind
that it is an extraordinary measure. 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         D
harm to persons or property. For passing an order under clause
(b), there must be objective material on the basis of which the
competent authority must record subjective satisfaction that there
are reasonable grounds for believing that such person is engaged
or is about to be engaged in the commission of an offence              E
involving force or violence or offences punishable under Chapter
XII, XVI or XVII of the IPC. Offences under Chapter XII are
relating to Coin and Government Stamps. Offences under Chapter
XVI are offences affecting the human body and offences under
Chapter XVII are offences relating to the property. In a given
case, even if multiple offences have been registered which are         F
referred in clause (b) of sub-section (1) of Section 56 against an
individual, that by itself is not sufficient to pass an order of
externment under clause (b) of sub-section (1) of Section 56.
Moreover, when clause (b) is sought to be invoked, on the basis
of material on record, the competent authority must be satisfied       G
that witnesses are not willing to come forward to give evidence
against the person proposed to be externed by reason of
apprehension on their part as regards their safety or their
property. The recording of such subjective satisfaction by the
                                                                       H
38            SUPREME COURT REPORTS                      [2022] 8 S.C.R.


A    competent authority is sine qua non for passing a valid order of
     externment under clause (b). [Para 7][46-C-H; 47-A-B]
            1.3 The power under sub-section (3) of Section 151 as
     amended for the State of Maharashtra is to arrest a person on
     the basis of an apprehension that he is likely to continue the
B    design to commit, or is likely to commit a cognizable offence after
     his release and that the circumstances of the case are such that
     his presence is likely to be prejudicial to the maintenance of public
     order. The learned Judicial Magistrate rejected the proposal to
     keep the appellant in detention for 15 days. There is nothing
     placed on record to show that the said order was challenged by
C    the police. After having failed to satisfy the learned Judicial
     Magistrate about the necessity of detaining the appellant for 15
     days, the Sub-Divisional Police Officer initiated action of
     externment against him by issuing a show-cause notice on 7th
     July 2020. It is not the case made out in the show cause notice
D    dated 7th July 2020 that after release of the appellant on 2nd
     June 2020, the appellant indulged in the commission of any offence
     or any other objectionable activity. Considering the nature of the
     power under Section 56, the competent authority is not expected
     to write a judgment containing elaborate reasons. However, the
     competent authority must record its subjective satisfaction of the
E    existence of one of the grounds in sub-section (1) of Section 56
     on the basis of objective material placed before it. Though the
     competent authority is not required to record reasons on par
     with a judicial order, when challenged, the competent authority
     must be in a position to show the application of mind. The Court
F    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, the Court can always
     consider whether there existed any material on the basis of which
     a subjective satisfaction could have been recorded. The Court
     can interfere when either there is no material or the relevant
G    material has not been considered. The Court cannot interfere
     because there is a possibility of another view being taken. As in
     the case of any other administrative order, the judicial review is
     permissible on the grounds of mala fide, unreasonableness or
     arbitrariness. [Paras 9 and 10][47-E-H; 48-A-C]
H
     DEEPAK S/O LAXMAN DONGRE v. THE STATE OF                          39
                MAHARASHTRA & ORS.

      1.4 In the facts of the case, the non-application of mind is     A
apparent on the face of the record as the order dated 2nd June
2020 of the Judicial Magistrate is not even considered in the
impugned order of externment though the appellant specifically
relied upon it in his reply. This is very relevant as the appellant
was sought to be detained under sub-section (3) of Section 151
                                                                       B
of Cr.PC for a period of 15 days on the basis of the same offences
which are relied upon in the impugned order of externment. From
2nd June 2020 till the passing of the impugned order of
externment, the appellant is not shown to be involved in any
objectionable activity. The impugned order appears to have been
passed casually in a cavalier manner. The first three offences         C
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. The first one is the daughter of the said MLA         D
and the other is the said Varsha Bankar. There is material on
record to show that the said Varsha Bankar was acting as per the
instructions of the brother of the said MLA. The said two offences
are in respect of 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 subsection (1)       E
of Section 56 are not attracted. As the order impugned takes
away fundamental right under Article 19(1)(d) of the Constitution
of India, it must stand the test of reasonableness contemplated
by clause (5) of Article 19. Considering the bare facts on record,
the said order shows non-application of mind and smacks of             F
arbitrariness. Therefore, it becomes vulnerable. The order cannot
be sustained in law. [Para 11][48-D-H]
      1.5 On a plain reading of Section 58, it is apparent that
while passing an order under Section 56, the competent authority
must mention the area or District or Districts in respect of which     G
the order has been made. Moreover, the competent authority is
required to specify the period for which the restriction will remain
in force. The 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
                                                                       H
40            SUPREME COURT REPORTS                       [2022] 8 S.C.R.


A    order under Section 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 fora specific
     period. 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
B
     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. Careful perusal of the impugned order of externment
     dated 15th December 2020 shows that it does not disclose any
C    application of mind on this aspect. It does not record the
     subjective satisfaction of the respondent no.2 on the basis of
     material on record that the order of externment should be for
     the maximum period of two years. If the order of externment for
     the maximum permissible period of two years is passed without
D    recording subjective satisfaction regarding the necessity of
     extending the order of externment to the maximum permissible
     period, it will amount to imposing unreasonable restrictions on
     the fundamental right guaranteed under clause (d) of Article 19(1)
     of the Constitution of India. [Para 13][49-D-H; 50-A]

E          Pandharinath Shridhar Rangnekar v. Dy. Commr. of
           Police, State of Maharashtra (1973) 1 SCC 372 : [1973]
           3 SCR 63 – relied on.
                            Case Law Reference
     [1973] 3 SCR 63                 relied on                Para 6
F
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     139 of 2022.
            From the Judgment and Order dated 20.08.2021 of the High Court
     of Judicature at Bombay, Bench at Aurangabad in Criminal Writ Petition
G    No.224 of 2021.
           Sandeep Sudhakar Deshmukh, Adv. for the Appellant.
          Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Ms.
     Shwetal Shepal, Advs. for the Respondents.
H
      DEEPAK S/O LAXMAN DONGRE v. THE STATE OF                               41
                 MAHARASHTRA & ORS.

      The Judgment of the Court was delivered by                             A
      ABHAY S. OKA, J.
      Leave granted.
       1. The respondent No.2 by his order dated 15th December 2020
exercised the powers under Section 56(1)(a)(b) of the Maharashtra Police     B
Act, 1951 (for short “1951 Act”). By the said order, the appellant, who is
a resident of Mandeolgaon, Taluka Badnapur, District Jalna was directed
to remove himself outside the limits of District Jalna within 5 days. By
the said order, he was externed from District Jalna for a period of two
years from the date on which he removes himself from District Jalna. In
the impugned order of externment, the respondent No.2 relied upon 5          C
offences registered against the appellant, the details of which are as
under: -


                                                                             D




                                                                             E




                                                                             F


      In addition, the respondent No.2 relied upon confidential in-camera
statements of witnesses ‘A’ and ‘B’. A statutory appeal was preferred
by the appellant against the impugned order of externment dated 15th
December 2020. The appeal was dismissed by the Appellate Authority.          G
The appellant questioned the impugned order of externment by filing a
writ petition under Article 226 of the Constitution of India before the
Bombay High Court. A Division Bench of the Bombay High Court by
the impugned Judgment and order dated 20th August 2021 dismissed the
writ petition. The impugned order of externment was passed on the            H
42             SUPREME COURT REPORTS                           [2022] 8 S.C.R.


A    ground that the confidential statements of witnesses ‘A’ and ‘B’ disclose
     that witnesses are not willing to come forward to give evidence against
     the appellant, the activities of the appellant are very dangerous and the
     offences registered against the appellant under the Indian Penal Code
     (for short “IPC”) are of grave and serious nature which are causing
     disturbance to the public at large. It was further observed by the
B
     respondent No.2 that the confidential statements of two witnesses
     demonstrate that the appellant is indulging in illegal activities which are
     causing alarm, danger or harm to the public at large.
             2. Shri Sandeep Sudhakar Deshmukh, the learned counsel
     appearing for the appellant has taken us through the impugned order of
C    externment as well as the impugned Judgment and order of the Bombay
     High Court. His submission is that the act of passing the impugned order
     of externment was a mala fide act at the instance of Shri Narayan
     Kuche, a local Member of the Legislative Assembly (MLA) with the
     object of settling family disputes. It is pointed out by the learned counsel
D    that the said MLA is a maternal uncle of the appellant. It is pointed out
     by the learned counsel that the said MLA tried to implicate the appellant
     in a false case (Crime No.15 of 2020) filed at his instance by one Varsha
     Bankar with Badnapur police station in Jalna District. He submitted that
     the said Varsha Bankar admitted in her police statement that the brother
     of the said MLA advised her to make phone calls and send messages
E    and photographs to the appellant. He submitted that after a First
     Information Report was registered against the said MLA, his brother
     and the said Varsha Bankar, on the basis of the appellant’s complaint, a
     show-cause notice dated 7th July 2020 was issued by the respondent
     No.2 to the appellant calling upon him to show cause why an order of
F    externment under Section 56 of 1951 Act should not be passed. The
     learned counsel pointed out that the in-camera statements of witnesses
     ‘A’ and ‘B’ are general in nature which do not refer to any specific
     allegation against the appellant. He submitted that out of the 5 offences
     relied upon in the impugned order of externment, one is of 2013 and two
     are of 2018. The fourth offence is of 2020 under Sections 354, 354A,
G    354D, 509 and 506 of the Indian Penal Code. The fifth offence is under
     Sections 509, 501, 506 read with Section 67 and 67(A) of the Information
     Technology Act, 2000. He submitted that the first three offences are
     stale offences and there is no live link between the said three offences
     and the object of passing the impugned order of externment. He submitted
H    that the remaining two offences registered in the year 2020 will not
      DEEPAK S/O LAXMAN DONGRE v. THE STATE OF                                43
        MAHARASHTRA & ORS. [ABHAY S. OKA, J.]

attract clauses (a) or (b) of sub-section (1) of Section 56 of the 1951       A
Act. He would, therefore, submit that the impugned order of externment
is vitiated. He urged that the exercise of power is mala fide at the
instance of the said MLA. He submitted that on the basis of the same
offences, the appellant was arrested under Section 151 of the Code of
Criminal Procedure, 1973 (for short “Cr.PC”). On 2nd June 2020, a
                                                                              B
proposal submitted by the police to detain the appellant under sub-section
(3) of Section 151 of Cr.PC for a period of 15 days was rejected by the
learned Judicial Magistrate, First Class and the appellant was ordered to
be released. He submitted that on the same set of allegations, the
impugned order of externment has been passed against the appellant. In
the alternative, he submitted that under Section 58 of the 1951 Act, the      C
maximum period for which a person can be externed is of two years.
He submitted that in the impugned order of externment, no reasons have
been assigned for externing the appellant for a maximum period of two
years.
      3. Shri Sachin Patil, the learned counsel appearing for the             D
respondents urged that while passing the order of externment, the
competent authority is not required to pass a reasoned order. The
competent authority has recorded subjective satisfaction of the existence
of the grounds provided in clauses (a) and (b) of sub-section (1) of
Section 56 of the 1951 Act. He submitted that the scope of powers
under sub-section (3) of Section 151 of Cr.PC is different from the scope     E
of powers under Section 56 of the 1951 Act. He submitted that the High
Court has in detail examined the grounds of challenge to the impugned
order of externment and has rejected each and every ground. He
submitted that no interference is called for with the impugned order of
externment and the impugned order of the High Court.                          F
       4. We have given careful consideration to the submissions. 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
                                                                              G
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 fundamental
right guaranteed under Article 19(1)(d). Hence, the restriction imposed
by passing an order of externment must stand the test of reasonableness.      H
44      SUPREME COURT REPORTS                           [2022] 8 S.C.R.


A    5. Section 56 of the 1951 Act reads thus:
     “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
B    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
C    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
D    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, or [(bb) that there are reasonable grounds for believing
     that such person is acting or is about to act (1) in any manner
     prejudicial to the maintenance of public order as defined in the
E    Maharashtra Prevention of Communal, Antisocial and other
     Dangerous Activities Act, 1980 or (2) in any manner prejudicial to
     the maintenance or supplies of commodities essential to the
     community as defined in the Explanation to sub-section (1) of
     section 3 of the Prevention of Blackmarketing and Maintenance
     of Supplies of Essential Commodities Act, 1980, or (c) that an
F    outbreak of epidemic disease is likely to result from the continued
     residence of an immigrant, the said officer may, by an order in
     writing duly served on him or by beat of drum or otherwise as he
     thinks fit, direct such person or immigrant so to conduct himself
     as shall seem necessary in order to prevent violence and alarm
G    [or such prejudicial act], or the outbreak or spread of such disease
     or [notwithstanding anything contained in this Act or any other
     law for the time being in force, to remove himself outside such
     area or areas in the State of Maharashtra (whether within the
     local limits of the jurisdiction of the officer or not and whether
     contiguous or not), by such route, and within such time, as the
H
      DEEPAK S/O LAXMAN DONGRE v. THE STATE OF                                 45
        MAHARASHTRA & ORS. [ABHAY S. OKA, J.]

      officer may specify and not to enter or return to the area or areas      A
      specified (hereinafter referred to as “the specified area or areas”)
      from which he was directed to remove himself.
      [(2) An officer directing any person under sub-section (1) to
      remove himself from any specified area or areas in the State may
      further direct such person that during the period the order made         B
      against him is in force, as and when he resides in any other areas
      in the State, he shall report his place of residence to the officer-
      in-charge of the nearest police station once in every month, even
      if there be no change in his address. The said officer may also
      direct that, during the said period, as and when he goes away            C
      from the State, he shall, within ten days from the date of his
      departure from the State send a report in writing to the said officer,
      either by post or otherwise, of the date of his departure, and as
      and when he comes back to the State he shall, within ten days,
      from the date of his arrival in the State, report the date of his
                                                                               D
      arrival to the officer-in-charge of the police station nearest to the
      place where he may be staying.
                                                      (underline supplied)
        A perusal of sub-section (1) of Section 56 shows that there are
distinct grounds specified under sub-section (1) of Section 56 for passing     E
an order of externment. The said grounds are in clauses (a), (b), (bb),
and (c). In the present case, clauses (a) and (b) of sub-section (1) of
Section 56 of the 1951 Act have been invoked. The ground in clause (a)
is that the movements or acts of any person are causing or calculated to
cause alarm, danger or harm to a person or property. The ground in             F
clause (b) is 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 in IPC, or the abetment of any such offence.
Clause (b) is qualified by a condition that the competent authority
                                                                               G
empowered to pass such order should be of the opinion that 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. Obviously, the opinion must be formed on the
basis of material on record.
                                                                               H
46                SUPREME COURT REPORTS                         [2022] 8 S.C.R.


A           6. As observed earlier, Section 56 makes serious inroads on the
     personal liberty of a citizen guaranteed under Article 19(1)(d) of the
     Constitution of India. In the case of Pandharinath Shridhar
     Rangnekar v. Dy. Commr. of Police, State of Maharashtra 1 in
     paragraph 9, this Court has held that the reasons which necessitate or
     justify the passing of an extraordinary order of externment arise out of
B
     extraordinary circumstances. In the same decision, this Court held that
     care must be taken to ensure that the requirement of giving a hearing
     under Section 59 of the 1951 Act is strictly complied with. This Court
     also held that the requirements of Section 56 must be strictly complied
     with.
C            7. 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. In practical terms, such an
     order prevents the person even from staying in his own house along with
D    his family members during the period for which this order is in subsistence.
     In a given case, such order may deprive the person of his livelihood. It
     thus follows that recourse should be taken to Section 56 very sparingly
     keeping in mind that it is an extraordinary measure. 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
E    subjective satisfaction that the movements or acts of any person are
     causing or calculated to cause alarm, danger or harm to persons or
     property. For passing an order under clause (b), there must be objective
     material on the basis of which the competent authority must record
     subjective satisfaction that there are reasonable grounds for believing
F    that such person is engaged or is about to be engaged in the commission
     of an offence involving force or violence or offences punishable under
     Chapter XII, XVI or XVII of the IPC. Offences under Chapter XII are
     relating to Coin and Government Stamps. Offences under Chapter XVI
     are offences affecting the human body and offences under Chapter
     XVII are offences relating to the property. In a given case, even if
G    multiple offences have been registered which are referred in clause (b)
     of sub-section (1) of Section 56 against an individual, that by itself is not
     sufficient to pass an order of externment under clause (b) of sub-section
     (1) of Section 56. Moreover, when clause (b) is sought to be invoked, on

     1
H        (1973) 1 SCC 372
      DEEPAK S/O LAXMAN DONGRE v. THE STATE OF                               47
        MAHARASHTRA & ORS. [ABHAY S. OKA, J.]

the basis of material on record, the competent authority must be satisfied   A
that witnesses are not willing to come forward to give evidence against
the person proposed to be externed by reason of apprehension on their
part as regards their safety or their property. The recording of such
subjective satisfaction by the competent authority is sine qua non for
passing a valid order of externment under clause (b).
                                                                             B
       8. On 2nd June 2019, the Police Inspector of Badnapur Police
Station, District Jalna submitted a proposal to the Judicial Magistrate,
First Class at Badnapur for permitting detention of the appellant for a
period of 15 days by invoking provisions of sub-section (3) of Section
151 of Cr.PC (as inserted by the Maharashtra Act No.7 of 1981). In the
said proposal, reliance was placed on the same six offences registered       C
against the appellant, which were made a part of the show-cause notice
dated 7th July 2020 on the basis of which the impugned order of
externment was passed. The police arrested the appellant and produced
him on 2nd June 2020 before the learned Judicial Magistrate, First Class
along with the aforesaid proposal. By the order dated 2nd June 2020          D
(Annexure P-4), the learned Judicial Magistrate rejected the said proposal
to detain the appellant and directed his immediate release subject to the
condition of attending the concerned Police Station between 10 am to 1
pm till 9th June 2020.
       9. The power under sub-section (3) of Section 151 as amended          E
for the State of Maharashtra is to arrest a person on the basis of an
apprehension that he is likely to continue the design to commit, or is
likely to commit a cognizable offence after his release and that the
circumstances of the case are such that his presence is likely to be
prejudicial to the maintenance of public order. The learned Judicial
Magistrate rejected the proposal to keep the appellant in detention for      F
15 days. There is nothing placed on record to show that the said order
was challenged by the police. After having failed to satisfy the learned
Judicial Magistrate about the necessity of detaining the appellant for 15
days, the Sub-Divisional Police Officer initiated action of externment
against him by issuing a show-cause notice on 7th July 2020. It is not the   G
case made out in the show cause notice dated 7th July 2020 that after
release of the appellant on 2nd June 2020, the appellant indulged in the
commission of any offence or any other objectionable activity.
     10. Considering the nature of the power under Section 56, the
competent authority is not expected to write a judgment containing           H
48             SUPREME COURT REPORTS                           [2022] 8 S.C.R.


A    elaborate reasons. However, the competent authority must record its
     subjective satisfaction of the existence of one of the grounds in sub-
     section (1) of Section 56 on the basis of objective material placed before
     it. Though the competent authority is not required to record reasons on
     par with a judicial order, when challenged, the competent authority must
     be in a position to show the application of mind. The Court while testing
B
     the order of externment cannot go into the question of sufficiency of
     material based on which the subjective satisfaction has been recorded.
     However, the Court can always consider whether there existed any
     material on the basis of which a subjective satisfaction could have been
     recorded. The Court can interfere when either there is no material or
C    the relevant material has not been considered. The Court cannot interfere
     because there is a possibility of another view being taken. As in the case
     of any other administrative order, the judicial review is permissible on
     the grounds of mala fide, unreasonableness or arbitrariness.
            11. In the facts of the case, the non-application of mind is apparent
D    on the face of the record as the order dated 2nd June 2020 of the learned
     Judicial Magistrate is not even considered in the impugned order of
     externment though the appellant specifically relied upon it in his reply.
     This is very relevant as the appellant was sought to be detained under
     sub-section (3) of Section 151 of Cr.PC for a period of 15 days on the
     basis of the same offences which are relied upon in the impugned order
E    of externment. As mentioned earlier, from 2nd June 2020 till the passing
     of the impugned order of externment, the appellant is not shown to be
     involved in any objectionable activity. The impugned order appears to
     have been passed casually in a cavalier manner. The first three offences
     relied upon are of 2013 and 2018 which are stale offences in the sense
F    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. The first
     one is the daughter of the said MLA and the other is the said Varsha
     Bankar. There is material on record to show that the said Varsha Bankar
     was acting as per the instructions of the brother of the said MLA. The
G    said two offences are in respect of 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-section (1)
     of Section 56 are not attracted.
           12. As the order impugned takes away fundamental right under
H    Article 19(1)(d) of the Constitution of India, it must stand the test of
      DEEPAK S/O LAXMAN DONGRE v. THE STATE OF                                49
        MAHARASHTRA & ORS. [ABHAY S. OKA, J.]

reasonableness contemplated by clause (5) of Article 19. Considering          A
the bare facts on record, the said order shows non-application of mind
and smacks of arbitrariness. Therefore, it becomes vulnerable. The order
cannot be sustained in law.
      13. Section 58 of the 1951 Act reads thus:
       “58. Period of operation of orders under section 55, 56, 57 and        B
      57A - A direction made under section 55, 56,57 and 57A not to
      enter any particular area or such area and any District or Districts,
      or any part thereof, contiguous thereto, or any specified area or
      areas as the case maybe, shall be for such period as may be
      specified therein and shall in no case exceed a period of two           C
      years from the date on which the person removes himself or is
      removed from the area, District or Districts or part aforesaid or
      from the specified area or areas as the case may be”.
        On a plain reading of Section 58, it is apparent that while passing
an order under Section 56, the competent authority must mention the           D
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. The 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 under Section 56. On the basis of objective assessment of the           E
material on record, the authority has to record its subjective satisfaction
that the restriction should be imposed for a specific period. 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      F
satisfaction about the necessity of passing an order of externment for
the maximum period of two years which is based on material on record.
Careful perusal of the impugned order of externment dated 15 th
December 2020 shows that it does not disclose any application of mind
on this aspect. It does not record the subjective satisfaction of the
respondent no.2 on the basis of material on record that the order of          G
externment should be for the maximum period of two years. If the order
of externment for the maximum permissible period of two years is passed
without recording subjective satisfaction regarding the necessity of
extending the order of externment to the maximum permissible period, it
will amount to imposing unreasonable restrictions on the fundamental          H
50              SUPREME COURT REPORTS                        [2022] 8 S.C.R.


A    right guaranteed under clause (d) of Article 19(1) of the Constitution of
     India.
           14. Perusal of the impugned Judgment and order of the High Court
     shows that unfortunately, the Division Bench did not notice that an order
     of externment is not an ordinary measure and it must be resorted to
B    sparingly and in extraordinary circumstances. It was the duty of the
     Constitutional Court to test the said order within the parameters which
     are well-settled by this Court.
            15. Accordingly, the appeal must succeed. The impugned order
     of externment dated 15th December 2020, as well as impugned Judgment
C    and order dated 20th August 2021 of the High Court, are hereby quashed
     and set aside.
           16. The appeal is allowed in the above terms. All the pending
     applications, if any, also stand disposed of.

D    Divya Pandey                                               Appeal allowed.
     (Assisted by : Roopanshi Virang, LCRA)




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