Section 59 Notice Is the “Heart and Soul” of Externment: Non‑service Renders Orders Void; Stale Cases and Non‑Speaking Orders Impermissible — Commentary on Bharat Shatrughna Bhosale v. Divisional Commissioner (Bombay High Court, 2025)

Court: High Court of Judicature at Bombay, Nagpur Bench

Coram: M.M. Nerlikar, J.

Date: 15 September 2025

Case: Criminal Writ Petition No. 517 of 2025

Citation: 2025:BHC-NAG:9199

Introduction

In Bharat Shatrughna Bhosale v. Divisional Commissioner, the Bombay High Court (Nagpur Bench) decisively reaffirmed that strict compliance with Section 59 of the Maharashtra Police Act, 1951 (formerly the Bombay Police Act) is a non-derogable precondition to any valid externment under Section 56. The petitioner, a 48-year-old labourer from Buldhana district, was externed for six months from two districts based on seven registered crimes spanning from 2000 to 2024. He challenged the externment order passed by the Sub-Divisional Magistrate (SDM) on 29.04.2025 and the appellate order of the Divisional Commissioner dated 19.06.2025.

The key issues were: (i) whether the mandatory hearing requirements under Section 59 had been complied with; (ii) whether reliance on stale and dated offences without contemporaneous material could sustain an externment; (iii) whether non-speaking orders that ignore critical material (like in-camera statements) are valid; and (iv) what is the appellate authority’s duty under Section 60 in reviewing externment orders. The State fairly conceded that, although a Section 59 notice had been issued, it was never served on the petitioner. The Court set aside both the externment and the appellate orders, refusing the State’s request for a remand.

Summary of the Judgment

• Section 59 compliance is mandatory and foundational. The Court described Section 59 as the “heart and soul” of externment proceedings. Non-service of the Section 59 notice vitiates the entire exercise.
• Audi alteram partem, as embedded in Section 59, is linked to the fundamental right to move freely under Article 19(1)(d) of the Constitution. Its violation renders the order unconstitutional and void.
• Subsequent participation at a later stage (before the SDM under Section 56) does not cure the fatal defect of non-compliance with Section 59.
• Orders must show application of mind. Mere listing of criminal cases is insufficient. The authority must record reasons showing why those cases justify externment at present.
• Stale cases (from 2000, 2009, 2010, 2013) cannot, by themselves and without contemporaneous material, justify interference with personal liberty in 2025.
• In-camera statements cited in the Section 59 report must be considered and reflected upon in the final order; their complete omission bespeaks non-application of mind.
• The appellate authority (Divisional Commissioner) failed in its duty by mechanically affirming the externment without engaging with the petitioner’s specific grounds or the age/status of the cases.
• Given the foundational procedural violation and non-application of mind, the Court refused to remand the matter; both orders were quashed.

Detailed Analysis

Precedents Cited and Their Influence

• Pandharinath Shridhar Rangnekar v. Commissioner of Police, (1973) 1 SCC 372
  The Supreme Court upheld the constitutionality of externment powers but emphasized strict compliance with Sections 56 and 59, noting that the safeguards are “slender” and must be scrupulously observed. It clarified that the proposed externee is entitled to be informed of the “general nature of material allegations,” to file a written statement, appear through counsel, and examine witnesses (unless the request is vexatious or for delay). The High Court invoked this authority to insist on rigorous adherence to Section 59 and to underline that non-compliance vitiates the externment.
• Nawabkhan Abbaskhan v. State Of Gujarat, (1974) 2 SCC 121
  This decision firmly locates externment proceedings within the constitutional matrix of Article 19. The Supreme Court held that where hearing is statutorily obligated before restricting a fundamental right, failure to comply makes the order void, not merely voidable. The Bombay High Court relies on this to hold that non-service of Section 59 notice—an embodiment of fair hearing—renders the externment order ab initio void and its violation no offence.
• Aniuddin Shamsuddin Solanki v. Superintendent Of Police, 2020 SCC OnLine Bom 945
  A Bombay High Court decision synthesizing the above Supreme Court principles for Maharashtra’s externment regime: violation of Section 59’s mandate vitiates the entire proceeding. The present judgment cites Aniuddin to reaffirm that Section 59 is not a dispensable formality but a jurisdictional prerequisite.

Legal Reasoning Applied by the Court

1. Section 59 as the “heart and soul” of externment
   Section 59(1) requires the competent officer to inform the proposed externee in writing of the general nature of material allegations and to give a reasonable opportunity to explain, including the right to produce and examine witnesses, file a written statement, and appear through counsel. Section 59(2) provides tools (securing attendance by bond) to ensure the hearing occurs.
   In this case, the State conceded the Section 59 notice was not served. Proceeding without service—and without using the bond mechanism under Section 59(2)—is a fundamental procedural lapse. The Court held that the entire proceeding is vitiated for want of this mandatory hearing.
2. Constitutional dimension: Article 19(1)(d) and audi alteram partem
   Externment curtails the fundamental right to move freely. The hearing requirement in Section 59 is not a mere statutory nicety; it operationalizes reasonableness under Article 19. The Court, echoing Nawabkhan, characterized breach of this duty as a constitutional violation rendering the order void ab initio.
3. Subsequent participation cannot cure the Section 59 breach
   Although the petitioner later appeared before the SDM and filed a say before the Section 56 order, this did not salvage the process, because the dedicated, pre-decisional hearing contemplated by Section 59 had not been conducted in the manner prescribed. Each stage has its own purpose; failure at the Section 59 stage is fatal.
4. In-camera statements: mandatory consideration and verification
   The Section 59 report referenced four in-camera statements. The final externment order did not even mention them. Such complete omission indicates non-application of mind and violates the mandate to consider the entire material. If reliance is placed on in-camera statements, the authority must verify, summarize their gist (respecting confidentiality), and demonstrate that they influenced the decision.
5. Reliance on stale cases is impermissible without contemporaneous material
   The externment drew on cases from 2000, 2009, 2010, and 2013, along with two from 2024. The petitioner claimed acquittals/discharges in most older cases. The Court criticized the authorities for placing liberty “in peril” on “stale grounds” and observed that the age of the older cases itself warranted ignoring them absent reasoned analysis showing current propensity. This aligns with the broader principle of proximity: externment should be based on a present and continuing threat, not on remote, dated incidents.
6. Reasoned orders are essential; mere enumeration of cases is insufficient
   Authorities must explain why the cited incidents, viewed as a whole and in context, justify the extraordinary measure of externment now. The SDM’s order lacked reasons and failed to show subjective satisfaction grounded in relevant material; the appellate order repeated this error.
7. Appellate scrutiny under Section 60 must be substantive
   The Divisional Commissioner treated the appeal perfunctorily, demanding “cogent evidence” from the appellant while overlooking that the age and status of the cases were self-evident and that Section 59 had not been complied with. The High Court emphasized that the very purpose of a statutory appeal is defeated if appeals are dismissed mechanically without engaging with the merits or the record.
8. Refusal to remand
   The State sought remand to cure defects by giving a post-facto opportunity. The Court refused. Given the foundational breach (non-service under Section 59) and cascading non-application of mind, a remand would reward procedural shortcuts and dilute constitutional safeguards. This sets an important practical deterrent against mechanical externments.

Procedural Lapses Identified

• Non-service of Section 59 notice; no use of Section 59(2) mechanism to secure attendance.
• Proceeding to recommend externment despite the conceded non-service.
• Failure to consider or even mention in-camera statements in the final order.
• Reliance on dated (stale) cases without analysis of present threat or propensity.
• Non-speaking orders lacking reasons and failing to deal with the petitioner’s explanations.
• Mechanical appellate affirmation without engaging with substantive grounds or the record.

Constitutional Setting and Doctrinal Anchors

• Article 19(1)(d): Freedom of movement is a fundamental right; externment is a severe restraint and must be narrowly and reasonably applied.
• Audi alteram partem: The right to be heard, concretized in Section 59, is a constitutional minimum when curtailing fundamental rights.
• Void vs. voidable: Per Nawabkhan, breach of a statutorily mandated hearing in such contexts is a constitutional defect rendering the order void ab initio, not merely voidable.
• Strict construction: Because externment is an extraordinary power restricting liberty, procedural safeguards are strictly construed and must be fully observed.

Impact and Prospective Significance

This ruling will have tangible effects across the externment landscape in Maharashtra:

• Service of Section 59 notice is non-negotiable: Police and executive authorities must ensure proper, provable service of Section 59 notices. If service fails, they must resort to Section 59(2) (securing attendance by bond) and create a paper trail before proceeding. Proceeding without compliance invites quashing without remand.
• Quality of reasons and contemporary relevance: Authorities must articulate why externment is necessary now, demonstrating a present and continuing propensity to disturb public order. Reliance on aged cases without analysis will be treated as arbitrary.
• Handling in-camera statements: Their verification and consideration must be documented. Orders should reflect that confidential statements were evaluated, with their gist captured to the extent permissible.
• Appellate rigor: Divisional Commissioners must conduct a genuine, reasoned review. Mechanical affirmations risk being set aside; Section 60 appeals must be meaningful.
• No “curative” participation: Later-stage participation by the proposed externee does not repair a Section 59 breach. Authorities cannot shortcut the distinct hearing contemplated by Section 59.
• Deterrent against mechanical externments: Refusal to remand signals that courts will not enable after-the-fact regularization of procedurally defective orders that trench upon fundamental rights.

Complex Concepts Simplified

• Externment (Section 56): A preventive measure allowing removal of a person from a specified area if their acts or movements cause alarm or are linked to certain offences. It is preventive, not punitive, but seriously restricts liberty.
• Section 59 Hearing: Before externment, the person must be informed in writing of the general nature of allegations and given a real chance to respond, produce witnesses, and be represented by counsel. It is the procedural safeguard around which externment revolves.
• Section 59(2) Security Bond: A tool to secure attendance. If a person fails to appear after being required to execute a bond, the authority may proceed. Skipping both service and this mechanism is impermissible.
• In-camera statements: Confidential statements recorded to protect informants. They can be relied on, but the authority must verify them and reflect their consideration in the order while maintaining confidentiality.
• Subjective satisfaction: The authority’s satisfaction must be formed on relevant material. Courts review whether the satisfaction was reached lawfully, with application of mind and reasons—especially where fundamental rights are curtailed.
• Stale cases/proximity: Old incidents, especially those ending in acquittal/discharge or with long gaps, usually lack probative value for present externment unless linked to current behavior indicating ongoing risk.
• Void vs. voidable: A voidable order is valid until set aside; a void order has no legal effect from inception. In externment, failure to afford the mandated hearing (Section 59) renders the order void because it violates constitutional requirements tied to Article 19.

Conclusion

Bharat Shatrughna Bhosale v. Divisional Commissioner is a strong reaffirmation that externment is an exceptional power hedged with strict procedural and constitutional safeguards. Section 59 is not a dispensable ritual but the “heart and soul” of the process. Non-service of the Section 59 notice—and failure to use statutory means to secure attendance—renders the externment void. Authorities must provide reasoned, contemporaneously justified orders, engage with all material (including in-camera statements), and avoid reliance on stale cases. Appellate scrutiny must be real, not perfunctory. The Court’s refusal to remand underscores that fundamental procedural breaches in liberty-infringing actions will not be retrospectively cured. The judgment thus fortifies due process in externment jurisprudence and sets practical benchmarks for police and executive authorities across Maharashtra.

Key Takeaways

• Strict, provable compliance with Section 59 is a jurisdictional prerequisite; non-service is fatal.
• Audi alteram partem in externment is a constitutional safeguard linked to Article 19(1)(d).
• Externment orders must be reasoned and contemporaneously justified; stale cases, without more, will not suffice.
• In-camera statements must be verified, considered, and acknowledged in the order.
• Appellate authorities must conduct meaningful review; mechanical affirmations will be struck down.
• Foundational procedural violations will not be cured by remand or later-stage participation.