Age About 26 Years vs The Asst. Commissioner Of Police
2013 Latest Caselaw 273 Bom

     pmw                                          1                     cri.wp-3544.13

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION




                                                                          
                  CRIMINAL WRIT PETITION NO.3544 OF 2013

     Imtiyaz Afzal Hussain Shaikh                  )




                                                  
     Age about 26 years, Occu. Business            )
     Residing at Gully No.26/A,                    )
     Sayyad Nagar, Hadapsar, Pune                  )                ... Petitioner




                                                 
           V/s.

     1.    The Asst. Commissioner of Police        )
           Wanavadi Division, Pune                 )




                                     
     2.    The Deputy Commissioner of Police, )
           Zone IV, Pune City
                       ig                     )

     3.    The Ld. Principal Secretary,            )
           Home Department, Mumbai                 )
                     
     4.    The State of Maharashtra                )       ... Respondents
                                                           (Orig. Authorities)
      


     Mr. S.G. Deshmukh i/by Mr. G.T. Kanchanpurkar, for the Petitioner.
     Mr. J.P. Yagnik, APP, for Respondent - State.
   



                               CORAM  :  A.S. OKA &  S.C. GUPTE , JJ.

                               DATE      : 4th DECEMBER, 2013





     ORAL JUDGMENT (PER A.S. OKA, J.):-
                                 
     .        Rule.  The learned APP waives service for the Respondents. 

Forthwith taken up for final disposal. The challenge in this petition is to

the order dated 22nd April, 2013 passed by the Deputy Commissioner of

Police under clause (b) of Sub-section (1) of Section 56 of the Bombay

Police Act, 1951 (for short "the said Act"). The challenge is also to the

order dated 15th July, 2013 passed by the Appellate Authority by which

1 of 13

pmw 2 cri.wp-3544.13

the order of the Deputy Commissioner has been confirmed. By the

impugned order of the Deputy Commissioner, the Petitioner has been

ordered to be externed from Pune City and Pune District for a period of

two years.

2. The first submission of the learned counsel appearing for

the Petitioner is that there is no subjective satisfaction recorded by the

Deputy Commissioner that due to prejudicial activities of the Petitioner,

witnesses are not willing to depose against the Petitioner. He relied

upon a decision of the Division Bench of this Court in the case of

Yashwant Damodar Patil Vs. Hemant Karkare, Deputy Commissioner

of Police, Thane and another1. Secondly, he submitted that the alleged

prejudicial activities of the Petitioner are confined to the area falling

within the jurisdiction of Wanavadi Police Station and, therefore, the

order of externment which extends to the entire Pune District is

certainly excessive. He placed reliance on an unreported Judgment of

this Court in the case of Amjad Afjal Hussein Shaikh Vs. The State of

Maharashtra2. His third submission is based on the reliance placed in

in the show cause notice under Section 59 of the said Act on the in-

camera statement of two witnesses. He urged that the date on which

the in-camera statements have been recorded has not been disclosed

1 (1989 Mh.L.J.) 1111

2 Cr. Writ Petition No.2930 of 2013

2 of 13

pmw 3 cri.wp-3544.13

both in the show cause notice and in the impugned order of externment

passed by the Deputy Commissioner. He placed reliance on a decision

of Division Bench of this Court in the case of Sunil Mani Shetty Vs. The

Deputy Commissioner of Police and others3.

3. We have given careful consideration to the submissions.

The Deputy Commissioner has exercised power under clause (b) of Sub-

section (1) of Section 56 of the said Act. We have perused the show

cause notice under Section 59 of the said Act issued by the Assistant

Commissioner of Police on the basis of which impugned order of

externment has been passed. In the said show cause notice, reliance

has been placed on in-camera statements of two witnesses. It is alleged

that considering the prejudicial activities of the Petitioner, members of

the public are not willing to come forward as the witness to depose in

public against the Petitioner. In the case of Yashwant Damodar Patil

(Supra), in paragraph 5 of the said decision it is stated as thus :

"5. ....... (1) If action is proposed to be taken against him on the ground that the proposed externee is engaged or is,

about to be engaged in the commission of an offence involving force or violence, then he must be told so and he must also be informed that in the opinion of the officer witnesses are not willing to come forward to give evidence in public against him. (2) Similarly, if an action

3. Cr. Writ Petition No.1583 of 2013

3 of 13

pmw 4 cri.wp-3544.13

is proposed to be taken against the proposed externee on the ground that he is engaged or is likely to be

engaged in the commission of offences punishable under Chapter XII or Chapter XVI or Chapter XVII of the Indian

Penal Code, then he must be informed about the same and he must also be necessarily informed that witnesses are not coming forward to depose against him. (3) The

fact that the proposed externee is engaged or is about to be engaged in one or the other type of the activity or

movements in clauses (a) and (b) of Section 56(1) of the Bombay Police Act, is not sufficient by itself to

warrant an order of externment. That fact, coupled with the opinion formed by the designated officer that

witnesses are not willing to come forward to give evidence in public for the reasons mentioned in clauses

(a) and (b) of section 56(1) of the Bombay Police Act,

will provide a proper basis for the exercise of the power

of externment under the provisions of the Act.

Thereafter, in paragraph 9, the Division Bench held thus :-

"9. We have already, after examining the provisions of section 56(1) of the Bombay Police Act, held that in every case of acts involved on the part of the proposed

externee, where an order of externment is proposed to be passed it is necessary that the officer concerned must be satisfied that witnesses are not willing to come forward to give evidence against him."

(underline added)

4 of 13

pmw 5 cri.wp-3544.13

4. We have perused the impugned order dated 22 nd April,

2013. Perusal of the impugned order shows that the Deputy

Commissioner has not recorded the subjective satisfaction that the

witnesses are not coming forward to give evidence in public against the

Petitioner for the reasons mentioned in clauses (a) and (b) of Sub-

section (1) of Section 56. Satisfaction recorded by him is that due to

terror created by the Petitioner, members of public are not showing

courage of filing complaints with the police. This satisfaction recorded

is completely different from the one which is required to be recorded

while passing order on the grounds mentioned in Clauses (a) and (b) of

Sub-section (1) of Section 56 of the said Act. In fact, in the impugned

order, there is no specific reference at all to the two in-camera

statements which are referred to in the show cause notice which are

based on allegation in the show cause notice. Therefore, in absence of

satisfaction recorded as aforesaid, the impugned order is vitiated.

Unless such subjective satisfaction is recorded, the exercise of powers of

passing of order of externment under clauses (a) or (b) of Sub-section

(1) of Section 56 cannot be made. We have perused the order of the

Appellate Authority. In clause (g) of the said judgment and order, the

Appellate Authority has relied upon the on in-camera statements of the

witnesses. Though the Deputy Commissioner who passed the order of

externment has not at all referred to the in-camera statements of the

5 of 13

pmw 6 cri.wp-3544.13

two witnesses in his order, the Appellate Authority has chosen to rely

upon the in-camera statements of the witnesses. Therefore, approach of

the Appellate Authority is completely erroneous. The duty of the

Appellate Authority was to test whether the subjective satisfaction

recorded by the Externing Authority was legal and proper. The

Appellate Authority could not have supplemented his own reasons for

upholding the order of the Deputy Commissioner.

5. The other contention is that the date on which in-camera

statements were recorded is not set out in the show cause notice and

the impugned order. Reliance has been placed on the decision of the

Division Bench in the case of Sunil Mani Shetty (Supra). Paragraph 7

of the said decision reads thus :-

"7. It is seen from the impugned order that its foundation is constituted by statements of three witnesses recorded

confidentially and some criminal cases pending against the petitioner. Show cause notice, a copy of which is available vide Exhibit-A, page 13 of the record, also

refers to the same material. It is no where mentioned in either the show cause notice or the impugned order as to on what date the statements of witnesses (A), (B) & (C) were recorded. It is also particularly seen that the places of incidents as referred by these three witnesses have not been either properly described or have been described in such a manner as to lead no clue

6 of 13

pmw 7 cri.wp-3544.13

whatsoever regarding the exact area or the location where the alleged incidents took place. These

inadequacies,in our opinion, are material in nature and have caused prejudice to the defence of the petitioner.

In the absence of dates on which the statements of witnesses were recorded, it cannot be said that sufficient opportunity was given to the petitioner to

meet out case sought to be made against him."

(underline added)

6. In the present case, perusal of the show cause notice shows

that all material particulars including the date and time of alleged

incidents have been incorporated in the in-camera statements. The

incidents are of 15th December, 2012 and 31st December, 2012

respectively and the show cause notice has been issued on 28 th January,

2013. We find that all material particulars of the alleged prejudicial

activities forming part of the in-camera statements of the witnesses

have been set out in the show cause notice. In the facts of the case, the

show cause notice has been given within a period of a month or so from

the specific dates of the incidents mentioned in the in-camera

statements. Whether the failure to give particulars such as date on

which in-camera statements are recorded in the show cause notice will

by itself amount to breach of principles of natural justice will depend on

facts of each case. In the present case, the show cause notice has been

issued in reasonable proximity of the dates of incidents specifically

7 of 13

pmw 8 cri.wp-3544.13

mentioned in the in-camera statements. The dates of the alleged

incidents and material particulars have been set out in the show cause

notice. Therefore, in the facts of the case, on this ground, the

impugned order of externment cannot be set aside.

7. Now, we deal with the third ground, based on the

submission that the order is excessive. The submission of the learned

counsel appearing for the Petitioner is that all the prejudicial activities

alleged against the Petitioner are confined to territorial limits of

Wanavadi Police Station at Pune and, therefore, there is no reason to

extend the order of externment to a very large area of Pune District.

Reliance has been placed on the unreported decision of this Court in the

case of Shri Amjad Afjal Hussein Shaikh Vs. The State of

Maharashtra and others and in particular what is held in paragraph 8

of the said Judgment and order. The relevant part of paragraph 8 of the

said decision reads thus :-

"8. There remains the question of the territorial extent of the Externment Orders. All six offences said to have

been registered against the Petitioner are only at Wanwadi Police Station. Yet the Petitioner has been purported to be externed from Pune City and Pune District. We find this to be excessive and wholly unjustified. There is nothing in either the Externment Order or the Appellate Order to show that the

8 of 13

pmw 9 cri.wp-3544.13

Petitioner's externment from such a large area was necessary."

(underline added)

8. The law on this aspect has been laid down by the Apex

Court in the case of Pandharinath Shridhar Rangnekar Vs. Deputy

Commissioner of Police4. Paragraphs 15 and 16 of the said decision

read thus :-

"15. As regards the last point, it is primarily for the externing authority to decide how best the externment order can

be made effective, so as to subserve its real purpose. How long, within the statutory limit of 2 years fixed by

Section 58, the order shall operate and to what territories, within the statutory limitations of Section 56

it should extend, are matters which must depend for their decision on the nature of the data which the

authority is able to collect in the externment proceedings. There are cases and cases and therefore no

general formulation can be made that the order of externment must always be restricted to the area to which the illegal activities of the externee extend. A larger area may conceivably have to be comprised within

the externment order so as to isolate the externee from his moorings.

16. An excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be

4. AIR 1973 S.C. 630

9 of 13

pmw 10 cri.wp-3544.13

permitted than is reasonable in the circumstances of the case. The decision of the Bombay High Court in 71 Bom

LR 79 = (AIR 1969 Bom 351) is an instance in point where an externment order was set aside on the ground

that it was far wider than was justified by the exigencies of the case. The activities of the externee therein were confined to the city of Pandharpur and yet the

externment order covered an area as extensive as the districts of Sholapur, Satara and Poona. These areas are

far widely removed from the locality in which the externee had committed but two supposedly illegal acts.

The exercise of the power was therefore arbitrary and excessive, the order having been passed without

reference to the purpose of the externment."

(underline added)

9. Thus, the law laid down by the Apex Court is that no

general principle can be laid down that an order of externment must

always be restricted to the area in which the externee is indulging in the

illegal activities. In a given case, depending upon the peculiar facts of

the case, the order of externment need not be restricted to the area in

which the externee is carrying on prejudicial activities. There may be

cases where prejudicial activities are being carried out in a particular

district and a geographically contiguous district is shown to be

intimately connected to the said district. Considering the propensity of

the externee and the nature and extent of prejudicial activities carried

10 of 13

pmw 11 cri.wp-3544.13

out by him, the order of externment can be extended to such intimately

connected area provided subjective satisfaction is recorded by the

Externing Authority of existence of necessity of extending the order to

the larger area. In the case of Pandharinath Shridhar Rangnekar

(supra), while making a reference to the city of Mumbai, in paragraph

17, the Apex Court observed thus :-

"17. But Balu Shivling's case furnishes no analogy in the

instant matter. A vast city like Bombay presents its own

peculiar problems of law and order. It has an ever- growing industrial complex and the city has spread its

arms far and wide. A fair proportion of its teeming population is mobile, with large multitudes streaming in and out of the city in the pursuit of their daily

avocations. An order of externment restricted to the

particular area chosen by the externee for his unlawful activities and to a small periphery thereof would in such circumstances fail of its true purpose. It would be

impossible to secure obedience to such an order and its enforcement would raise practical problems which would impair the efficacy of the order. An order in the

instant case if restricted, say, to the areas within the jurisdiction of the Vile Parle police station and its periphery would not serve its purpose. Rather than solving a problem of law and order, it would create yet one more."

                                      (underline added)



                                                                                          11 of 13


      pmw                                                   12                    cri.wp-3544.13

10. The observations made by the Apex Court above about 40

years back will now apply to the City of Pune as well. In fact, the Apex

Court quoted with approval to the orders passed by this Court by which

the orders of externment extending to Bombay and Thane Districts were

upheld on the ground that the said two districts were intimately

connected by several fast and easy modes of transport.

11. In the facts of the case, the Competent Authority has

recorded in the impugned order that for the period between 23 rd

December, 2011 to 23rd September, 2012, the Petitioner was externed

from Pune city and Pune district. During the said period of externment,

he entered the district and city and five offences have been recorded

against him during the period of externment. Therefore, in the facts of

the case, the order cannot be said to be excessive. Moreover, the

observations of the Apex Court in the case of Pandharinath (Supra) in

paragraph 17 thereof will certainly apply with all force to the city of

Pune. During the last two decades, the City of Pune has spread its arms

far and wide. Contiguous to Pune City is the Municipal Corporation

area of Pimpri and Chinchwad, which is a growing industrial area. The

growth of Pune City has now crossed beyond the Municipal Corporation

limits. Therefore, in the facts of the case, the view taken by the

Authority to extend the order to entire Pune district cannot be faulted

with. In the facts of the case, restricting the order to a smaller area

12 of 13

pmw 13 cri.wp-3544.13

would impair the efficacy of the order. We find that the decision in the

case of Amjad Afjal Hussein Shaikh (supra) has been rendered by the

Division Bench in the facts of the case before it and what continues to

bind this Court is the law laid down by the Apex Court in the case of

Pandharinath. Therefore, on the ground of being excessive, the

impugned order of externment cannot be set aside.

12. However, on the ground of failure to record subjective

satisfaction as required by Sub-section (1) of Section 56 of the said Act,

the impugned order will have to be quashed and set aside. Accordingly,

we pass the following order :-

ORDER

(i) Rule is made absolute in terms of prayer clause (B) which reads thus:-

"(B) After perusing the records and proceedings the Order dated 15.7.2013 passed by the Respondent No.3 i.e

the Learned Principal Secretary, Home Department, Mumbai arising out of the Externment Order No.11 of 2013 dated 22.04.2013 passed by the Respondent

No.2 i.e the Deputy Commissioner of Police, Zone IV, Pune City be quashed and set aside."

(ii) All concerned to act upon an authenticated copy of this order.

      ( S.C. GUPTE, J )                                         ( A.S. OKA, J ) 

                                                                                      13 of 13