Holding

The State is not obligated to give reasons for dismissing an appeal or for an externment order; the High Court’s quashing of the externment order was erroneous.

Summary

The State of Maharashtra issued an externment order against Salem Hasan Khan under Section 56 of the Bombay Police Act, alleging involvement in narcotics, riots and intimidation. Khan appealed the order under Section 60 and, while the appeal was pending, filed a writ petition under Article 226. The State Government dismissed the appeal by a short order without giving reasons. The Bombay High Court quashed both the dismissal order and the original externment order on the ground that the State had not provided reasons. On appeal, the Supreme Court held that the State is not required to give reasons for dismissing an appeal or for an externment order, as a reasoned order would defeat the purpose of such proceedings and could endanger witnesses. Consequently, the Court set aside the High Court judgment, allowed the State’s appeal, and directed that the externment order not be enforced further.

Issues considered

Whether the State Government must give reasons when dismissing an appeal under Section 60 of the Bombay Police Act.
Whether a reasoned order is required in externment proceedings under Section 56 of the Bombay Police Act.
Whether the High Court erred in quashing the externment order on the ground of lack of reasons.

Legislation cited

Bombay Police Acts. 56, s. 60

Subjects

ExternmentBombay Police ActSection 56Section 60Reasoned orderWrit petitionArticle 226State GovernmentAppeal dismissalWitness protection

Judgment

[
1 .,

A STATE OF MAHARASHTRA & ANR
v.
SALEM HASAN KHAN

MARCH 9, 1989
B
[LALIT MOHAN SHARMA ANDS. RATNAVEL
PANDIAN, JJ.)
t

Bombay Police Act: Sections 56 and 60--Externment proceed-
ings-Not necessary for State Government to give reasons while making ~>
externment order or disposing of an appeal in respect of such order-
c Reasoned order would cause harassment and frustrate purpose of
externment proceedings.
1
An externment order was passed against the respondent under
section 56 of the Bombay Police Act on the ground that he was found to
D be frequently engaged in illegal business of narcotics and was also
involved in several cases of riot and criminal intimidation. The res-
pondent filed an appeal under section 60 of the Act and while the appeal
was pending moved the High Court with a writ application. The State
Government dismissed the appeal by a short order.

E
Before the High Court it was urged that since the State Govern-
ment omitted to give reasons in support of the order of dismissal of the
"'
appeal, the same was vitiated in Law. The High Court agreed with the
petitioner and allowed the writ application quasing the appellate order ,..
as well the initial externment order.
I

F Allowing the appeal by the State to the extent of correcting the
error oflaw only, it was, "
;.

HELD: (I) The High Court was in error in quashing the order of
externment as confirmed by the State Government in appeal, on the
ground that the State Government omitted to give reasons.
G
(2) A full and complete disclosure of particulars, as is requisite in
an open prosecution, will frustrate the very purpose of an externment
proceeding. There is a brand of lawless elements in society which it is
impossible to bring to book by established methods of judicial trial
because in such trials there can be no conviction without legal evidence.
H And legal evidence is impossible to obtain, because out of fear of
reprisal witnesses are unwilling to depose in public. [972C-E, GI
970
STATE OF MAHARASHTRA v. S.H. KHAN [SHARMA, J.] 971

(3) If the authorities were to discuss the evidence in the case, it A
would he easy to fix the identity of the witnesses who were unwilling to
depose in public against the proposed externee. A reasoned order con·
taining a discussion would probably spark off another round of harass-
ment. "[972G I

Pandarinath Sridhar Rangnekar v. Deputy Commissioner of B
Police; [1973 I 3 SCR 63, followed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
... -( No. 205 of 1989 .
From the judgment and Order dated 24.2.1987 of the Bombay
High Court in Crl. W.P.No. 67 of 1986.
c
).-·
A.M. Khanwilkar for the Appellant .
..
Syed Ali Ahmad, Tanweer Ahmad, Mohan Pandey and Ms. J.
Ahmed for the Respondent .. D
.-1
.. The Judgment of the Court was delivered by·

SHARMA, J. 1. Special leave granted.
'Ii
.
2. The respondent was served with an extemment order passed E
under Section 56 of the Bombay Police Act {hereinafter referred to as
the Act) directing him to leave the districts of Aurangabad and Jalna
""."-
for a period of two years. The order stated that from 11.5.1980 the
respondent was found to be frequently engaged in illegal business of
;.< narcotics and since he was involved in several cases of riot and criminal
intimidation causing physical hurts to tlie residents of the locality on F
-.,\
account of his suspicion. that they were supplying information to the
police about his illegal activities, witnesses were not willing to come
forward and depose against him. He filed an appeal under Section 60
of the Act and while the appeal was pending. he moved the Bombay
High Court with a writ application under Article 226 of the Consti·
~ution. During the pendency of the writ application the State Govern· G ;;,
ment. dismissed, the respondent's appeal: by a ~hort order. The writ
y petitioner thereafter challenged the appellate order also in the pendirig
writ case.

3. At the time of the final hearing of the writ case before the
High Court, four points were raised on behalf of the petitioner. As the H
~..•
'

972 'SUPREME COURT REPORTS {1989] 1 S.C.R.

first point, it was urged that since the State Government omitted to
A ~
give reasons in support of the order of dismissal of the appeal, the
same was vitiated in law. The High Court agreed ·with the petitioner
and allowed the writ application quashing the appellate order as well
as the initial extemment order on this ground alone without going to
the other questions. The State Government has challenged the High
B Court judgment in the present appeal.
'1-
4. On behalf of the appellant reliance has been placed on the
decision of this Court in Pandarinath Sridhar Rangnekar v. Deputy
Commissioner of Police, I1973] 3 SCR 63 wherein a similar plea was I
\ '>'
taken by the appellant before this Court. It was contended that the
c failure on the part of the State Government indicated non-application
of mind. The appellant had also urged that the allegations contained in
the show cause notice were too vague in absence of details to afford
-i
him reasonable opportunity to defend himself. Rejecting the argu-
ment, this Court held that a full and complete disclosure of particulars,
as is requisite in an'open prosecution, will frustratecthe very purpose
D of an externment proceeding. There is abrand of lawless elements in '
society which it is impossible to bring to book by established methods
of judicial trial because in such· trials there can be no conviction with-
out legal evidence. And legal evidence is impossible to obtain, because
out of fear of reprisal witnesses are unwilling to depose in public.
)'
While dealing with the contention that the State Government was
E under a duty to give reasons in support of its order· dismissing the
appeal, the point was rejected in the following terms:-
~
"Precisely for the reason for which the p'roposed externee
is only entitled to be informed of the general nature of the \
material allegations, neither the externing authority nor '>'.
F the State Government in appeal can be asked to write a '
I'
reasoned order in the nature of a judgment."

As observed, if the authorities were to discuss the evidence in the case,
to
it would be easy fix the identity of the witnesses who were unwilling
to de.pose in public against the proposed extemee. A reasoned order
G containing a discussion would probably spark off another round of
harassment. We are, therefore, of the view that the High Court was in
error in quashing the order as confirmed by the state Government in ~
appeal.

. 5. The externment order was made several years back and the
H learned counsel for the appellant rightly stated that although the
STATE OF MAHARASHTRA v. S.H. KHAN [SHARMA, J.] 973

impugned order need not be revived now, it was necessary to correct A
the error in the High Court's judgment as it is likely to prejudice other
similar cases, Accordingly in' the circumstances we set aside the
i_mpugned judgment but make it cle_ar that the exterrunent order shall
not be enforced against the respondent any further, the appeal is
accordingly allowed to _this extent.
B
R.S.S. Appeal allowed.

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'y

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