RAHMAT KHAN @ RAMMU BISMILLAH versus DEPUTY COMMISSIONER OF POLICE on 25 August 2021

[2021] 8 S.C.R. 571

RAHMAT KHAN @ RAMMU BISMILLAH

v.

DEPUTY COMMISSIONER OF POLICE

(Criminal Appeal No. 912 of 2021)

AUGUST 25, 2021

[INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]

Maharashtra Police Act, 1951 – s.56(1)(a)(b) – Externmentorder – The State Government introduced a scheme for the upliftmentof the Muslim community by providing quality education to Muslimchildren – The State announced the disbursement of grants to 33Madrasas of Amravati District for the Financial Year 2014-2015 –Appellant came to know of irregularities in the running of Madrasas,including misappropriation of public money distributed to Madrasasin the said District – Pursuant thereto, various complaints were made– The appellant requested the Collector as also the police toinvestigate misappropriation of Government grants by Madrasasin collusion with Government officials – In retaliation, affectedpersons filed complaints against the Appellant u/ss.384, 452, 294,506(B), 34 IPC – The appellant also filed a Public Interest Litigation– Thereafter, appellant received a notice u/s. 56(1)(a)(b) of 1951Act and externment proceedings were initiated against the appellantby Police – By an order of externment dated 07.05.2018, theappellant was directed not to enter or return to the District for aperiod of one year from the date on which he leaves, or is taken outof the District – Held: An externment order may sometimes benecessary for maintenance of law and order – However the drasticaction of externment should only be taken in exceptional cases, tomaintain law and order in a locality and/or prevent breach of publictranquility and peace – In the instant case, it is patently clear thatthe impugned externment order was an outcome of the complaintslodged by the appellant against government officials, some Madrasasand persons connected with such Madarasas who later lodged FIRsagainst the appellant – The FIRs are clearly vindictive, retaliatoryand aimed to teach a lesson to the Appellant and stifle his voice –On perusal of the responses of government authorities to queriesraised by the appellant under the Right to Information Act clearlyindicate that the complaints are not frivolous ones, without substance

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[2021] 8 S.C.R.

A– Thus, the impugned externment order cannot be sustained and isset aside.

Allowing the appeal, the Court

HELD: 1. The Sections 56 to 59 of the Maharashtra PoliceAct, 1951 are intended to prevent lawlessness and deal with aBclass of lawless elements in society who cannot be brought tobook by established methods of penal action, upon judicial trial.[Para 33][587-F]

2. An externment order may sometimes be necessary formaintenance of law and order. However the drastic action ofCexternment should only be taken in exceptional cases, to maintainlaw and order in a locality and/or prevent breach of publictranquility and peace. In this case, it is patently clear that theimpugned externment order was an outcome of the complaintslodged by the Appellant against government officials, someDMadrasas and persons connected with such Madarasas who laterlodged FIRs against the Appellant. The FIRs are clearlyvindictive, retaliatory and aimed to teach a lesson to the Appellantand stifle his voice. [Para 34][587-G-H; 588-A]

3. In the facts and circumstances of this case, the noticesEof externment and the impugned externment order based onCrime Nos 344 of 2017, 352 of 2017 registered with NagpuriGate Police Station and Crime No.501 of 2017 registered withthe Kotwali Police Station in Amravati City are patently arbitrary,mala fide, unsustainable in law and liable to be set aside. [Para35][588-B]F

4. It is patently clear that pursuant to a complaint dated14.9.2017 an inquiry was conducted by the Deputy DistrictCollector against the Director (previously Deputy Director) ofEducation, District Planning Officer Ravindra Kale, ExtensionOfficer Sandip Bodhke. The Inquiry Report along withGexplanation of the officers has been sent to the Chamber Officerof the Minority Development Department, Mantralaya, Mumbaifor further action. The Director (previously Deputy Director) ofEducation, District Planning Officer lodged FIR No.501/2017dated 13[th] October 2017 against the Appellant under Section 384of the Indian Penal Code, exactly within one month from the dateH

of the Appellant’s complaint against him, in respect of illegalitiesin relation to disbursal of funds to Madarsas. [Para 37][589-A-C]

5. The deplorable allegation of demand for ransom by threat,prima facie, appears to have been concocted to give the complainta colour of intense gravity. It been argued that the Appellant hadbeen extorting money under threat of exposing the illegalactivities of certain officials and certain Madrasas or educationalinstitutions. Even assuming that there was substance in theallegation, which appears to be doubtful, an order of externmentwas unwarranted. There was no reason for the complainants wholodged the FIRs to get terrorized by the alleged threats, allegedlymeted out by the Appellant, for if those complainants had notindulged in unlawful acts, they had nothing to fear. Even otherwise,threat to lodge a complaint cannot possibly be a ground for passingan order of externment under Section 56 of the MaharashtraPolice Act, 1951, more so, when the responses of governmentauthorities to queries raised by the Appellant under the Right toInformation Act clearly indicate that the complaints are notfrivolous ones, without substance. A person cannot be denied hisfundamental right to reside anywhere in the country or to movefreely throughout the country, on flimsy grounds. [Para 40][590-C-E]

6. Having regard to the special facts and circumstances ofthis case, where on the basis of complaints lodged by theAppellants inquiry had been started by the concerned authoritiesagainst government officials and educational institutions includingthe complainants, who lodged the FIRs against the Appellant,the impugned externment order which followed, cannot besustained. [Para 41][590-F]

Pandharinath Shridhar Rangnekar v. Dy. Commr. ofPolice, the State of Maharashtra (1973) 1 SCC 372 :[1973] 3 SCR 63; State of Maharashtra and Ors. v.Salem Hasan Khan (1989) 2 SCC 316 : [1989] 1 SCR970 – relied on.

Gazi Saduddin v. State of Maharashtra (2003) 7 SCC330 : [2003] 2 Suppl. SCR 966 – referred to.

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ACase Law Reference

BCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.884 of 2021.

From the Judgment and Order dated 31.03.2021 of the High Courtof Gujarat at Ahmedabad, in Criminal Miscellaneous ApplicationNo.19358 of 2020.C

Anshin H. Desai, Sr. Adv., D.N. Ray, Nandish H. Thacker, DillipKumar Nayak, Ms. Disha Ray, Mrs. Sumita Ray, Advs. for the Appellant.

Manoj Swarup, Sr. Adv., Shakti Kanta Pattanaik, Dhruv K. Dave,Kalpesh N. Soni, Kanu Agrawal, Advs. for the Respondents.

DThe following order of the Court was passed:INDIRA BANERJEE, J.

1. Leave granted.

2. This appeal is against a final judgment and order dated 29[th]EJanuary, 2021 passed by the Nagpur Bench of the High Court ofJudicature at Bombay, dismissing the Criminal Writ Petition No. 490 of2018 filed by the Appellant, challenging an order of Externment dated07.05.2018 passed by the Deputy Commissioner of Police, Zone-1,Amravati City, under Section 56(1)(a)(b) of the Maharashtra Police Act,1951, whereby the Appellant has been directed not to enter or return toFAmravati City or Amravati Rural District for a period of one year fromthe date on which he leaves, or is taken out of Amravati City and/orAmravati Rural District.

3. Paragraphs 1 and 2 of the impugned Externment Order areextracted hereinbelow for convenience:G

“Whereas as per the Order under section 10(2) of the BombayPolice Act (Mumbai 22 of 1951) the Govt. of Maharashtraby Order No.Maharashtra Ordinance No.9/94 dt.24[th] June,1994 has directed that, Deputy Commission of Police (Zonal)Amravati will implement the power, work and duties conferredHupon him under section 56 of the said Act.

Whereas against Rahematakhan @ Rammu Bismillakhan,age 48 years, R/o Chaman Chhaoni, University Road,Amravati the proof of following nature has been submittedbefore me.

1. Since 2017 due to his act and movement fear has beencreated in the locality under Police Station, Nagpurigate andKotwali and to the property of people residing in the nearbysurroundings and un-safety has been created in their mind.In future, also there is every possibility of creation of un-safety.

(a) The said person by accompanying with his companions isengaged in serious offence like threatening to kill by abusingand demanding ransom to the people residing in area specifiedabove.

Offence registered against aforesaid person.

Prohibitory Action

In this way he is liable to be punished as per Chapter 17 ofthe I.P.C.

(b) The aforesaid person accompanying with his companionsis engaged in serious offence like threatening to kill byabusing and demanding ransom to the people residing in areaspecified above.

2. He has committed activities of the nature as mentioned inparagraph No.1 sub-para No.A and B, so also has committed A

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Aseveral activities of the nature mentioned in the show causenotice….”

4. On or about 11[th] October, 2013, the Government of Maharashtraintroduced a scheme called “Dr. Zakir Hussain Madrasa AdhunikikaranYojana” hereinafter referred to as ‘the Scheme’ for the upliftment ofBthe Muslim community by providing quality education to Muslim children.

5. As per the Scheme, the Madrasas registered with the office ofCharity Commissioner or Waqf Board which had completed three yearswere to be given priority for allotment of funds for basic amenities,remuneration of teachers, scholarship of students, etc.

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6. Pursuant to a Government Resolution dated 20[th] March 2015,the State of Maharashtra announced the disbursement of grants totalinga sum of Rs.1,35,70,000/- to 33 Madrasas of Amravati District for theFinancial Year 2014-2015.

7. The Appellant claims to be a religious minded journalist andDsocial worker, who has been fighting against corruption and misuse ofpublic funds. The Appellant used to publish the newspaper “kalam KiTakat” till 2009.

8. According to the Appellant, his daughter was studying in aMadrasa in Amravati District in Maharashtra. At that time, the AppellantEcame to know of irregularities in the running of Madrasas, includingmisappropriation of public money distributed to Madrasas in AmravatiDistrict, by the State of Maharashtra.

9. The Appellant has alleged that complaints were received bythe Government of Maharashtra, of illegalities in distribution of grantsFunder the Scheme, during the Financial Years 2014-2015 and 2015-2016.The appellant had also made such complaints.

10. In view of the complaints as aforesaid, all Collectors weredirected to initiate inquiry into the disbursement of grants to Madrasasduring the Financial Years 2014-2015 and 2015-2016.

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11. On or about 9[th]August, 2017 the Appellant made an applicationunder the Right to Information Act, 2005, seeking information from theDistrict Planning Committee, Amravati of the outcome of the inquiryand details of distribution of grants in Amravati District in the FinancialYears 2014-2015 and 2015-2016.

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12. By a communication dated 18[th] September, 2017 the Appellantwas informed that a Government Order dated 24[th] May, 2017 had beenpassed for enquiry, but no Enquiry Report had been received by theoffice of the District Planning Committee. The Appellant was furnishedwith a list of grantees to whom grants had been disbursed during theyears 2014-2015 and 2015-2016, with particulars of the amounts grantedto the respective granters.

13. The Appellant claims that he came to know that certaingovernment officers, including one C.R. Rathod, the then Deputy Directorof Education, Amravati, had disbursed grants under the Scheme incontravention of the Government Resolution dated 11[th] October, 2013.

14. On or about 14[th] September, 2017, the Appellant filed acomplaint with the Collector, Amravati seeking appropriate action againstthe concerned officers including the said C.R. Rathod, allegedlyresponsible for illegal distribution of grants. The Appellant also requestedthe Collector to stop the distribution of Government grants under thescheme, in contravention of Rules, to certain educational institutions andMadrasas including the institutions run by Joha Education and CharitableWelfare Trust and Madrasi Baba Education Welfare Society.

15. On 13[th] October, 2017, the Appellant requested the Collectoras also the police to investigate misappropriation of Government grantsby Madrasas in collusion with Government officials. In retaliation,affected persons filed complaints against the Appellant, particularswhereof have been mentioned in paragraph 1 of the impugned ExternmentOrder extracted above. The Appellant applied for and was granted bailby the Sessions Court, on condition that the Appellant would attend tothe Police Station concerned till the chargesheet was filed.

16. The Appellant appears to have filed applications under Section482 of the Code of Criminal Procedure in the High Court, for quashingthe criminal cases referred to above, which are pending adjudication.

17. On or about 30.01.2018, the Appellant filed a Public InterestLitigation in the Nagpur Bench, praying for the following orders:

“(i) issue a writ, order or direction in the nature of Mandamuscommanding the State Minority Development Department totake action and stop distribution of grants to the respondentno. 11 to 29 and all concerned Madarssa’s, into the matter ofthe selection of the Madarsa’s under the said scheme, which AB

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Aare not registered with charity commissioner or Wakf Boardand regarding the same inquiry has been already done in theyear 2017 as of the Annexure F and report of it already beenprepared and submitted by the residential collector Amravatito the respondent no.2 further be pleased to direct therespondent no.1 to 2 to submit the details of the action takenBagainst all the concerned Madarsas, before this Hon’bleCourt in stipulated time.

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(ii) issue a writ, order or directions to take action against therespondent no. 2-10 who are responsible for the selection ofthe Madarsas under the scheme.

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(iii) issue a writ, order or direction in the nature of Mandamusdirecting an independent, impartial enquiry to be conductedregarding all the Madarsas running in the state ofMaharashtra and are receiving grants under the scheme, byany retired High Court Judge for submitting its report beforeDthis Court in a stipulated time.

(iv) issue a writ, order or direction in the nature of Mandamuscommanding the Respondent no. 2 to 6 to furnish the recordof the funds distributed under the schemes to the differentMadarsas.

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(v) issue a writ, order or direction in the nature of Mandamuscommanding the respondents 1 to initiate the departmentaland disciplinary proceeding against the Respondents no.2-10 who are responsible for selection of the 36 Madarsas.

F(vi) issue a writ, order or direction which this Hon’ble Courtmay deem fit and proper under the facts and circumstancesof the case.

(vii) award the cost of the petition to the petitioner.”

18. Some time thereafter, a Show Cause Notice dated 3rd AprilG2018 was issued to the Appellant from the office of the Assistant PoliceCommissioner, Gadge Nagar Division, Amravati informing him of theinitiation of Externment proceeding against him under Section 56(1)(a)(b)of the Maharashtra Police Act, 1951. According to the Appellant, hereceived the show cause notice on 12[th] April, 2018.

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RAHMAT KHAN @ RAMMU BISMILLAH v. DEPUTYCOMMISSIONER OF POLICE [INDIRA BANERJEE, J.]

19. By a letter dated 16[th] April, 2018 the Appellant replied to theShow Cause Notice dated 3[rd] April, 2018, inter alia, contending- “1. In the show cause notice the reference of three criminaloffences pending against me are reflecting which includes CrimeNo. 344/17, 352/17 registered with Police Station Nagpuri gateand Crime No. 501/17 registered with Police Station Kotwali. Itappears that in the show cause notice the date of the said offencesis deliberately not shown.

2. First offence i.e. Crime No. 344/17 registered against me is onthe complaint filed by one Shamim Azahar Khan Jafar Ali Khandt. 12/10/2017 in which it is alleged by him that I the undersignedhad threatened him on 20/9/2017 at about 9.30 A.M. to 10 A.M.and demanded Rs.50,000/-. On the basis of said complaint FIRwas lodged against me for the offences punishable u/s 294, 34,384, 452, 506(B) of IPC. I have filed application u/s 482 CrPCbefore the Hon’ble High Court Bench at Nagpur challenging thesaid FIR vide Criminal Application (APL) no. 921/2017. In whichHon’ble High Court was pleased to issue notices and same ispending as on today. I submit that the FIR in question is maliciouslylodged as I have pursued the matter of misappropriation by thevarious schools including the office bearers of the EducationDepartment while implementing the Scheme of Government videG.R. dt. 11/10/2013.

3. Second Offence i.e. Crime No. 352/17 registered against me ison the complaint filed by one Irfan Ahmed Mohd. Sheikh dt.23/10/2017 in which it is alleged by him that I the undersignedalong with three other had threatened him and demandedRs.5,00,000/-. On the basis of said complaint FIR was lodgedagainst me for the offences punishable u/s 448, 384, 294, 504,506(B) and 34 of IPC. I have filed application u/s 482 CrPCbefore the Hon’ble High Court Bench at Nagpur challenging thesaid FIR vide Criminal Application (APL) no. 922/2017. In whichthe Hon’ble High Court was pleased to issue notices and same ispending as on today. I submit that the FIR in question is maliciouslylodged as I have pursued the matter of misappropriation by thevarious schools including the office bearers of the EducationDepartment while implementing the Scheme of Government videG.R. dt. 11/10/2013.

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SUPREME COURT REPORTS

A4. Third Offence i.e. Crime No. 501/17 registered against me ison the complaint filed by one Chandansingh Ramsingh Rathod dt.13/10/2017 in which it is alleged by him that I the undersigned haddemanded Rs.25,000/- from him for not lodging complaint againsthim with collector. On the basis of said complaint FIR was lodgedagainst me for the offences punishable u/s. 384 of IPC. I haveBfiled application u/s 482 CrPC before the Hon’ble High CourtBench at Nagpur challenging the said FIR vide Criminal Application(APL) no. 924/2017. In which the Hon’ble High Court was pleasedto issue notices and same is pending as on today. I submit that theFIR in question is maliciously lodged as I have pursued the matterCof misappropriation by the various schools including the officebearers of the Education Department while implementing theScheme of Government vide G.R. dt. 11/10/2013.

5. That the impugned action is nothing but a pressurized tactics onme for not pursuing the matter of misappropriation before theDconcerned authorities as the impugned action is initiated againstme only after I have approached the Hon’ble High Court by filingapplication for quashing of the three FIRs referred in the notice inquestion. As such the action is with ulterior motive and malafide.

6. That all the three FIRs are output of personal allegations levelledEagainst me and no allegations which satisfies a requirement ofSection 56(1)(a)(b) of the Bombay Police Act. Thus the threeFIRs cannot be a ground of externing me from entire AmravatiDistrict.”

20. On 25[th] April, 2018 the Appellant received another notice datedF20[th] April, 2018 from the Office of the Deputy Commissioner of Police,Zone 1, Amravati City, under Section 59 of the Maharashtra Police Act1951. Thereafter externment proceedings were initiated against theAppellant, which culminated in the impugned Externment order.

21. The impugned Externment Order refers to three Crime Cases,Gbeing Crime Case Nos. 344/17, 352/17 and 501/17, which were initiatedpursuant to three First Information Reports (FIRs); (i) the first FIR dated12.10.2017 lodged at the Nagpuri Gate Police Station, by Shamim AzaharKhan Jafal Ali Khan, Headmaster of Priyadarshani Urdu Primary andPre Secondary School, run by Madrasi Baba Education Welfare Societyat Azad Colony, Amravati, (ii) the second FIR dated 23.10.2017 alsoH

lodged at the Nagpur Gate Police Station by Irfan Ahmed MohammadSheikh, Headmaster of Al-Haram International English School, run byJoha Educational and Charitable Trust at Jamiya Nagar, Lal Khadi RingRoad, Amravati, and (iii) the third FIR dated 13[th] October, 2017 lodgedat the Kotwali Police Station in Amravati City, by C. R. Rathod , thethen Deputy Director of Education, Amravati.

22. The Appellant had been filing applications under the Right toInformation Act, 2005, seeking information from concerned authorities,in relation to illegalities in disbursement of funds to various Madrasasincluding Al Haram International English School run by Joha Educationand Charitable Welfare Trust, and Priyadarshini Urdu Primary andPre-Secondary School run by Madrasi Baba Education Welfare Society.Pursuant to such applications, the Office of the Education Officer hadsought information from the concerned Headmasters videcommunications dated 23.8.2017 and 25.9.2017 respectively.

23. It is the case of the Appellant that Crime Nos. 352/2017 and344/2017 were initiated as a counterblast, in retaliation to the steps takenby the Appellant to put an end to illegal misappropriation of public fundsand to initiate action against those involved in illegal practices. TheCriminal Case No.501/2017 filed by the said C.R. Rathod, Deputy Directorof Education, Amravati is also retaliatory, according to the Appellant.

24. It is not in dispute that the three FIRs were filed soon after theAppellant started making complaints and raising queries under the Rightto Information Act, 2005. Reference may be made to a response dated7.9.2018 of the Office of the District Collector in response to a query ofthe Appellant vide an application dated 16.8.2018. The response isextracted below for convenience.

“As per the terms and conditions of Government Resolutionof 11[th] October, 2013 on the order of District Collector on thecomplaint dated 14.9.2017 of Rahemat Khan Bismilla Khanin the year 2016-17 inquiry of total 36 Madarsas was doneon 15.11.2017 and 26.11.2017 who have taken GovernmentGrant. After this inquiry with the signature of Resident Dy.District Collector and District Collector in office note in theproposal of 36 Madarsa there is certificate of registrationwith the office of Charity Commissioner. But there is noregistration Certificate in the name of Madarsa in the office A

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Aof Waqf Board or Charity Commissioner. In the year 2016-17the Directors of total 36 Madarsa have been found guiltyhence further proposal has been sent to the Govt for necessaryaction. After getting directives from the Govt further actionwould be taken.”

B25. After investigation of Crime No. 344/2017 (initiated pursuantto the FIR lodged by Shamim Azahar Khan of Priyadarshani UrduPrimary and Pre-Secondary School), charge sheet was submitted in theCourt of the Judicial Magistrate, First Class, Court No. 11, Amravati.Charges were framed and the case was registered as Reg. Crl. CaseNo. 421. The appellant has been acquitted by a judgment and orderCdated 26[th] February, 2020 of the Judicial Magistrate.

26. The impugned Externment Order records that witnesses arenot ready to adduce evidence publicly against the Appellant for fear ofphysical harm as also loss of their property. By a notice sent on 20[th]April, 2018 the Appellant was called for a hearing to submit his reply.DThe Appellant submitted his reply which as per the impugned ExternmentOrder “does not feel to be cogent”.

27. Allegedly on the basis of statement made by undisclosedpersons whose identity, it is claimed, cannot be disclosed, to protect themfrom the danger of retribution, the Deputy Commissioner issued an orderErecording the finding extracted hereinbelow :-

“… I am sure that, the said person named Rahematkhan aliasRammu Bismillakhan age 48 years, R/o Chaman Chhaoni,University Road, Amravati Alongwith his colleagues is engaedin illegal acts, serious offence like threatening to kill byFabusing and demanding tribute in the Police Commissionerateto the people residing in the localities under Nagpurigate andKotwali. As he is having backing of Grundyism he alongwithhis companions he threatens the residents of aforesaid localityand part.

GThe said offences are punishable under Chapter XVII of theI.P.C.

Whereas as per my opinion as it is felt that the safety ofproperty of witnesses will be endangered, the witnesses arenot ready adduce evidence publicly by coming forwardHagainst the said person. The Police Inspector by making utmost efforts took two witnesses in confidence and after assuringthem that, if they record their statement/evidence then theirnames and identification will be kept secret. They will notcall before any Court or open Forum to adduce evidence.On such assurance their evidence has been recorded in closeddoors. Perused the said closed door statements and got sureabout its factual condition. On perusing all the documents,there is no effect of cases filed in Court against the saidperson….”

28. The scope and ambit of Sections 56 to 59 of the MaharashtraPolice Act, 1954 was considered in Pandharinath Shridhar Rangnekarv. Dy. Commr. Of Police, the State of Maharashtra reported in (1973)1 SCC 372 cited by Mr. Patil, appearing for the State, where this Courtheld:

“8. Section 56 of the Act provides, to the extent material, thatwhenever it shall appear in Greater Bombay to theCommissioner: (a) that the movements of acts of any personare causing or are calculated to cause alarm, danger or harmto person or property, or (b) that there are reasonable groundsfor believing that such person is engaged or is about to beengaged in the commission of an offence involving force orviolence or an offence punishable under Chapter XII, XVI orXVII of the Penal Code, 1860, and when in the opinion ofsuch officer witnesses are not willing to come forward to giveevidence in public against such person by reason ofapprehension on their part as regards the safety of theirperson or property, the said officer may by order in writingdirect such person to remove himself outside the area withinthe local limits of his jurisdiction or such area and any districtor districts or any part thereof contiguous thereto, within suchtime as the said officer may prescribe and not to enter orreturn to the said area from which he was directed the removehimself. Under Section 58, an order of externment passedunder Section 56 can in no case exceed a period of two yearsfrom the date on which it was made. The relevant part of Section59(1) provides that before an order under Section 56 is passedagainst any person, the officer shall inform that person inwriting “of the general nature of the material allegations AB

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against him” and give him a reasonable opportunity oftendering an explanation regarding those allegations. Theproposed externee is entitled to lead evidence unless theauthority takes the view that the application for examinationof witnesses is made for the purpose of vexation or delay.Section 59 also confers on the person concerned a right tofile a written statement and to appear through an advocateor attorney.

9. These provisions show that the reasons which necessitateor justify the passing of an externment order arise out ofextraordinary circumstances. An order of externment can bepassed under clause (a) or (b) of Section 56, and only if, theauthority concerned is satisfied that witnesses are unwillingto come forward to give evidence in public against theproposed externee by reason of apprehension on their partas regards the safety of their person or property. A full andcomplete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of anexternment proceeding. If the show-cause notice were tofurnish to the proposed externee concrete data like specificdates of incidents or the names of persons involved in thoseincidents, it would be easy enough to fix the identity of those who out of fear of injury to their person or property areunwilling to depose in public. There is a brand of lawlesselement in society which is impossible to bring to book byestablished methods of judicial trial because in such trialsthere can be no conviction without legal evidence. And legalevidence is impossible to obtain, because out of fear ofreprisals witnesses are unwilling to depose in public. Thatexplains why Section 59 of the Act imposes but a limitedobligation on the authorities to inform the proposed externee“of the general nature of the material allegations against him”.That obligation fixes the limits of the co-relative right of theproposed externee. He is entitled, before an order ofexternment is passed under Section 56, to know the materialallegations against him and the general nature of thoseallegations. He is not entitled to be informed of specificparticulars relating to the material allegations.

10. It is true that the provisions of Section 56 make a seriousinroad on personal liberty but such restraints have to besuffered in the larger interests of society. This Court inGurbachan Singh v. State of Bombay[1952 SCR 737 : AIR1952 SC 221 : 1952 SCJ 279] had upheld the validity ofSection 27(1) of the City of Bombay Police Act, 1902, whichcorresponds to Section 56 of the Act. Following that decision,the challenge to the constitutionality of Section 56 was repelledin Bhagubhai v. Dulldbhabhai Bhandari v. DistrictMagistrate, Thana. We will only add that care must be takento ensure that the terms of Sections 56 and 59 are strictlycomplied with and that the slender safeguards which thoseprovisions offer are made available to the proposed externee.

15. As regards the last point, it is primarily for the externingauthority to decide how best the externment order can be madeeffective, so as to subserve its real purpose. How long, withinthe statutory limit of two years fixed by Section 58, the ordershall operate and to what territories, within the statutorylimitations of Section 56 it should extend, are matters whichmust depend for their decision on the nature of the data whichthe authority is able to collect in the externment proceedings.There are cases and cases and therefore no generalformulation can be made that the order of externment mustalways be restricted to the area to which the illegal activitiesof the externee extend. A larger area may conceivably haveto be comprised within the externment order so as to isolatethe externee from his moorings.

16. An excessive order can undoubtedly be struck downbecause no greater restraint on personal liberty can bepermitted than is reasonable in the circumstances of the case.The decision of the Bombay High Court in Balu ShivlingDombe v. Divisional Magistrate, Pandharpur, is an instancein point where an externment order was set aside on theground that it was far wider than was justified by theexigencies of the case. The activities of the externee thereinwere confined to the city of Pandharpur and yet the externmentorder covered an area as extensive as districts of Sholapur,Satara and Poona. These areas are far widely removed from AB

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Athe locality in which the externee had committed but twosupposedly illegal acts. The exercise of the power wastherefore arbitrary and excessive, the order having beenpassed without reference to the purpose of the externment.”

29. In Gazi Saduddin v. State of Maharashtra reported in (2003)B7 SCC 330, also cited by Mr. Patil, this Court held that in passing anorder of externment, the authority passing the order must be satisfied ofthe expediency of passing the order. If the satisfaction recorded by theauthority is objective and is based on material on record then the Courtwould not interfere with the order passed by the authority, only becauseanother view can possibly be taken. However, the satisfaction of theCauthority can be interfered with if the satisfaction recorded isdemonstrably perverse, based on no evidence, misleadingevidence or no reasonable person could have, on the basis ofthe materials on record, been satisfied of the expediency/necessityof passing an order of externment.D

30. In Gazi Saduddin (supra), the externment notice referred tothree criminal proceedings registered against the appellant. It was allegedin the notice that movements and activities of the appellant had causedalarm in the locality and created an atmosphere of terror. It containeddetails of three incidents having occurred within the period of a fortnightEor a month prior to the date of notice, wherein the appellant had threatenedthe people for seeking their cooperation in teaching a lesson to a particularreligious community. It was mentioned that the appellant had establishedcontacts with an organisation engaged in activities against communalharmony and national security and had participated in a programme ofburning the effigies of leaders of that religious community, thereby causingFcommunal tension in the area.

31. The judgment of this Court in State of Maharashtra andOrs. v. Salem Hasan Khan reported in (1989) 2 SCC 316 pertained toa person found to be frequently engaged in illegal business of narcotics,who was involved in several cases of riot and also criminal intimidation,Gof the residents of the locality because of suspicion that they weresupplying information to the police about his illegal activities. Witnesseswere, therefore, not willing to come forward and depose against him.Rejecting the argument that the allegations in the show cause noticewere too vague in the absence of details to afford the externee reasonableHopportunity to defend himself, this Court held that a full a complete RAHMAT KHAN @ RAMMU BISMILLAH v. DEPUTYCOMMISSIONER OF POLICE [INDIRA BANERJEE, J.]

disclosure of particulars as was requisite in an open prosecution, wouldfrustrate the very purpose of an externment proceeding. This Courtobserved :- “4….There is band of lawless elements in society which it isimpossible to bring to book by established methods of judicialtrial because in such trials there can be no conviction withoutlegal evidence. And legal evidence is impossible to obtain,because out of fear of reprisal witnesses are unwilling todepose in public. While dealing with the contention that theState Government was under a duty to give reasons in supportof its order dismissing the appeal, the point was rejected inthe following terms: (SCC p. 378, para 14)

“Precisely for the reason for which the proposedexternee is only entitled to be informed of the general natureof the material allegations, neither the externing authoritynor the State Government in appeal can be asked to write areasoned order in the nature of a judgment.”

As observed, if the authorities were to discuss the evidence inthe case, it would be easy to fix the identity of the witnesseswho were unwilling to depose in public against the proposedexternee. A reasoned order containing a discussion wouldprobably spark off another round of harassment...”

32. Significantly, even though this Court allowed the Appeal ofthe State and set aside the order of the High Court quashing theexternment order, this Court made it clear that the externment ordershould not be enforced against the externee any further.

33. From the judgments cited on behalf of the State, it is patentlyclear that Sections 56 to 59 of the Act are intended to prevent lawlessnessand deal with a class of lawless elements in society who cannot bebrought to book by established methods of penal action, upon judicialtrial.

34. An externment order may sometimes be necessary formaintenance of law and order. However the drastic action of externmentshould only be taken in exceptional cases, to maintain law and order in alocality and/or prevent breach of public tranquility and peace. In thiscase, it is patently clear that the impugned externment order was anoutcome of the complaints lodged by the Appellant against government AB

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Aofficials, some Madrasas and persons connected with such Madarasaswho later lodged FIRs against the Appellant. The FIRs are clearlyvindictive, retaliatory and aimed to teach a lesson to the Appellant andstifle his voice.

35. In the facts and circumstances of this case, the notices ofBexternment and the impugned externment order based on Crime Nos344 of 2017, 352 of 2017 registered with Nagpuri Gate Police Stationand Crime No.501 of 2017 registered with the Kotwali Police Station inAmravati City are patently arbitrary, mala fide, unsustainable in law andliable to be set aside.

C36. It would be pertinent to refer to communication No. KS-8/ALP0S/K.L./KV/2018 dated 25.7.2018 from the office of DistrictCollector, Amravati in response to queries raised by the Appellant. It isextracted hereinbelow for convenience:- “In view of the above subject the Annexure-A of yourDapplication submitted under Right to Information Act 2005has been received by this Office. Regarding Point No.1 and4 as mentioned in your application you have asked for theinformation. The information related to point No.1 and 3 isavailable in this office; but the information related to pointNo.4 is not available in record of this office. Hence availableEinformation is being provided to you whereas the informationthat is not available is not being provided.

Sr. Information demanded by the applicant Information provided to the applicant No. 1 Information of point No. 1, 2 and 3 would Would be given as per the record. be given as per the record.F2 Point No 4: To contemporary Education In this matter in respect of the Inquiry Officer Secondary & Present Director of in view of the complaint received after Education Chandansingh Ramsingh inquiry of Dy. District Collector with Rathod, contemporary District Planning the explanation of said officers the Officer Ravindra Kale, Extension Officer inquiry report has been sent to Sandip Bodkhe with reference to the Chamber Officer, Minority Dev complaint dated 14/9/2017 in respect of Department, Mantralaya, Mumbai for Bogus Madarse about the letter given for further necessary action. After receipt Gsubmitting say in view of explanation of further order any action about the letter dated 13/10/2017, 26/9/2017 and complaint can be taken. 3/10/2017 returned back to the Officer of District Collector, if the concerned Office is satisfied and trusting that letter then in view of that letter the true copy may be given duly attested.

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37. It is patently clear that pursuant to a complaint dated 14.9.2017an inquiry was conducted by the Deputy District Collector against theDirector (previously Deputy Director) of Education, C.R. Rathod, DistrictPlanning Officer Ravindra Kale, Extension Officer Sandip Bodhke. TheInquiry Report along with explanation of the officers has been sent tothe Chamber Officer of the Minority Development Department,Mantralaya, Mumbai for further action. C.R. Rathod lodged FIR No.501/2017 dated 13[th] October 2017 against the Appellant under Section 384of the Indian Penal Code, exactly within one month from the date of theAppellant’s complaint against him, in respect of illegalities in relation todisbursal of funds to Madarsas.

38. As observed above, the Appellant was acquitted in CrimeNo.344 of 2017. FIR No.352/2017 dated 23.10.2017 which led to initiationof Crime No.352/2017 was apparently filled soon after the complainantof the said FIR/Crime case being the Head Master, Al-HaramInternational School received a communication from the Office of theEducation Officer (Primary), Zila Parishad, Amravati directing him tofurnish information sought by the Appellant by filing an application underthe Right to Information Act, 2005.

39. From the tenor of the complaint lodged by Irfan Ahmed Mohd.Sheikh, Headmaster of the Al Haram International English School withthe Nagpuri Gate Police Station, it is patently clear that there were disputeswith regard to the manner of operation of the school. Accordingly, in theFIR it is stated:- “This School is formed after obtaining requisite permissionas per rule. Their U-Dise Number is is 27071502112. On 8[th]August 2017 the non-applicant Rehemat Khan filed anapplication for getting certain information under Right toInformation Act. On 4/10/2017 the non-applicant No 1 camein the office of the applicant and demanded the informationthat was given to him. The applicant verbally told him andgiven in writing that this is a private school hence informationcannot be given under Right to Information.

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The applicant tried to convince the non-applicant No 1 thatin this school no any malfunction takes place, hence there isno question arises to pay him anything. On that he got AB

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Adelirious with anger and said the applicant that TUMBHADKHAU HO, MAI TUMHARA HISAB KARTA HOON.Saying this he aimed the pistol towards me and tried to comenear to me. Hearing this noise the Staff Members, School BusDriver Shakil Ahmed, Teacher of the school Hafiz RiyazHuseni, Watchman of the School Abdul Sayeed all entered inBthe office and seeing the situation they stopped the non-applicant and attempted to control him.”

40. The deplorable allegation of demand for ransom by threat,prima facie, appears to have been concocted to give the complaint acolour of intense gravity. Mr. Patil argued that the Appellant had beenCextorting money under threat of exposing the illegal activities of certainofficials and certain Madrasas or educational institutions. Even assumingthat there was substance in the allegation, which appears to be doubtful,an order of externment was unwarranted. There was no reason for thecomplainants who lodged the FIRs to get terrorized by the alleged threats,Dallegedly meted out by the Appellant, for if those complainants had notindulged in unlawful acts, they had nothing to fear. Even otherwise, threatto lodge a complaint cannot possibly be a ground for passing an order ofexternment under Section 56 of the Maharashtra Police Act, 1951, moreso, when the responses of government authorities to queries raised bythe Appellant under the Right to Information Act clearly indicate that the Ecomplaints are not frivolous ones, without substance. A person cannotbe denied his fundamental right to reside anywhere in the country or tomove freely throughout the country, on flimsy grounds.

41. Having regard to the special facts and circumstances of thiscase, where on the basis of complaints lodged by the Appellants inquiryFhad been started by the concerned authorities against government officialsand educational institutions including the complainants, who lodged theFIRs against the Appellant, the impugned externment order whichfollowed, cannot be sustained.

42. The Appeal is accordingly allowed, and the impugnedGexternment order is set aside.

Ankit Gyan

Appeal allowed.

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