Bombay High Court
Bilal Gulam Rasul Patel vs Divisional Magistrate on 21 December, 2013
Bench: S.C. Dharmadhikari, R.P. Mohite-Dere
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SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL CIVIL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3950 OF 2013
Bilal Gulam Rasul Patel,
An Adult, Occu. Business,
Resident of Kashi Village, Kashimira,
Post Mira, Dist: Thane ...Petitioner
Versus
1. Divisional Magistrate,
Thane-Division, District Thane;
2. Sub-Divisional Magistrate,
Mira Road Division, Mira Road;
3. Assistant Police Inspector,
Kashimira Police Station;
4. The State of Maharashtra ...Respondents
......
Mr. Amin Solkar for Petitioner
Ms. Usha Kejriwal, A.P.P. for Respondent-State
......
CORAM:- S. C. DHARMADHIKARI &
REVATI MOHITE DERE, JJ.
DATED :- DECEMBER 21, 2013
JUDGMENT (Per Revati Mohite Dere, J.) :
1. Heard Mr. Amin Solkar, the learned Counsel for the petitioner
and Ms. Usha Kejriwal, learned A.P.P. for the State.
SQ Pathan 1/11
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2. Rule. Rule made returnable forthwith, with the consent of the
parties.
3. The petitioner, by way of this petition, has challenged the order
of externment dated 15th April, 2013 passed by the Sub-Divisional
Magistrate, Thane Division, Thane, externing him from the limits of
Thane, Pune, Nashik, Mumbai City, Mumbai Suburban Districts for a
period of one year. Although the petitioner has not preferred an appeal
against the said order of externment, we have entertained this petition only
in view of the fact that the impugned order of externment dated 15 th April,
2013 was informed to the petitioner at his residence as late as 27 th
September, 2013 and immediately thereafter in October, this petition has
been filed and is pending since then. In view of the peculiar facts of this
case, as an exception, we have entertained this petition, although an
alternate efficacious remedy was available to the petitioner by way of an
appeal.
4. At the outset, we may note that the petitioner in the year 2010
was externed from the limits of Thane, Brihan Mumbai, Mumbai Suburban
SQ Pathan 2/11
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and Raigad Districts by an order dated 18 th February, 2010 for a period of
two years by the Externing Authority. The said order came to be
challenged by the petitioner in this Court by way of a petition, being
Criminal Writ Petition No. 853/2010. This Court vide order dated 21 st
October, 2010 was pleased to quash and set-aside the said order of
externment on the ground that in the show-cause notice issued to the
petitioner and in the order of externment, there was no material to show
that on account of fear, the witnesses were not coming forward to give
evidence in public, as against the proposed externee.
5. Coming back to the facts on which the present petition is filed,
it is stated by the petitioner, that he learnt under the Right to Information
Act, that the respondent No.3 had sent a proposal to the respondent No.2
for externing him along with his report dated 31st December, 2011. It is
stated that in the said report, besides relying on the cases which were
grounds set out in the earlier externment order, there was a reference to the
in-camera statements. It is stated that after considering the said proposal
based on the report dated 31st December, 2011, the respondent No.3 issued
a letter dated 20th March, 2012 informing the petitioner about
SQ Pathan 3/11
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reconsideration of the earlier externment proceedings against him.
According to the petitioner, he was again served with a show-cause notice
dated 28th May, 2012, which was issued by respondent No.2, wherein, the
very same cases were listed, on the basis of which the earlier order of
externment was passed and which came to be quashed by this Court vide
order dated 21st October, 2010. The petitioner by the said show-cause notice
was informed, that it was proposed to extern him from the limits of Thane,
Brihan Mumbai, Raigad, Nashik and Ahmednagar for a period of two years
under Section 56 of the Bombay Police Act, 1951 (hereinafter referred to
as `the said Act').
6. The petitioner has stated that he appeared before the
respondent on 8th June, 2012 and participated in the inquiry proceedings.
Petitioner states that on 27th September, 2013, some police officials came to
his residence and informed him that an order dated 15 th April, 2013 was
passed by the Sub-Divisional Magistrate i.e. the Externing Authority,
externing the petitioner from the limits of Thane, Pune, Nashik, Mumbai
City and Mumbai Suburban Districts for a period of one year under Section
57 of the said Act.
SQ Pathan 4/11
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7. The learned Counsel for the petitioner Shri Solkar contended
that the in-camera statements recorded are bereft of details with regard to
time, month, year, etc., thereby depriving the petitioner of an opportunity to
explain the allegations made against him in the show-cause notice. He also
contended that the order of externment, externing the petitioner from Pune
District apart from other Districts, did not find place in the show-cause
notice, issued to the petitioner, thereby not only causing prejudice to him
but also depriving him of an opportunity to counter the same. Mr. Solkar
further urged that the show-cause notice was passed under Section 56 of the
said Act, whereas, the impugned order externing the petitioner has been
passed by the Externing Authority under Section 57 of the said Act. It was
also contended that not a single case was registered as against the
petitioner, after quashing of the last externment order by this Court vide
order dated 21st October, 2010, and that, there was an inordinate and
unexplained delay between submission of the report to the respondent No.1
and passing of the impugned order, thereby, defeating the very purpose of
initiation of externment proceedings.
SQ Pathan 5/11
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8. Per contra, the learned A.P.P. Ms. Usha Kejriwal submitted that
the impugned order has been passed taking into consideration the
prejudicial activities of the petitioner. She pointed out that there were
thirty-nine cases which were registered as against the petitioner at
Kashimira, Bhayandar and Mira Road Police Stations in Thane District and
that chapter and externment proceedings were also initiated as against the
petitioner and therefore, considering the activities of the petitioner, it was
necessary to extern him from the Districts from which he is sought to be
externed.
9. We have perused the petition along with the annexures thereto
and have given our anxious consideration to the submissions advanced by
the parties.
10. A perusal of the show-cause notice shows, that the two
in-camera statements which were recorded of the witnesses, `A' and `B', do
not reflect the time, date, year and place, etc. when the incidents are alleged
to have occurred. As regards the in-camera statement of witness
SQ Pathan 6/11
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`A', the said witness has stated that about 4 to 5 months prior, the petitioner
had called him to his Kashigaon Office and threatened him not to do his
business there and if he did, he would have to pay hafta to one Bhim Thapa
for conducting his business in Kashigaon. It is further stated by the said
witness that on his refusal to pay hafta, he was assaulted. He has further
stated that due to the fear of the petitioner, he did not approach the Police
Station. As regards the in-camera statement of witness `B', the said witness
has stated that the incident occurred 4 to 5 months ago, when he was called
by the petitioner to his Kashigaon Office and hafta came to be demanded
from him, for carrying on his business and on his refusal to pay, he was
assaulted by the petitioner and by 4/5 persons. He has further stated that
on account of the fear of the petitioner, he did not lodge any complaint as
against the petitioner and others.
11. A perusal of the in-camera statements of witnesses `A' and `B'
clearly show, that there is no mention in the said statements with regard to
the date, time, month, year, etc. when the incidents allegedly took place.
The allegations in the said in-camera statements are vague, and do not give
any definite instance of the incident, thereby depriving the petitioner of an
SQ Pathan 7/11
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opportunity to explain the allegations made against him in the show-cause
notice.
12. It is pertinent to note, that a show-cause notice which is issued
to the proposed externee, before an order of externment is passed, is issued
in order to enable him to meet the allegations made against him by the
witnesses. This Court in Kishor Rajaram Durge v. Deputy
Commissioner of Police & Ors.1, in the facts of that case, while
interpreting the provisions of Section 56, held that, mere mention of vague
allegations, without giving any definite details as to the incident, deprived
the petitioner therein from meeting the said allegations made against him.
This Court in the case of Kishor Durge (supra) in Para 7, held as under:
"7. A perusal of the show cause notice shows that the in-
camera statement of witness `A' was recorded which indicated
that the witness has stated that the petitioner had assaulted the
witness on a trifle reason, about one year ago, that about three
months ago, the petitioner had demanded money from him and
had threatened to beat him if the money was not paid.
However, bare perusal of these statements would indicate that
there is no mention as to the place, date, time, etc. when the
incident alleged to have occurred. There is also no mention of
exact date, month and year. The mention is only about one
year ago. Apart from this, there is not mention of any specific
place, where these incidents occurred.
1 2004 (Supp) Bom. C. R. 481
SQ Pathan 8/11
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As regards the in-camera statement of witness `B', the witness
has stated that the incident occurred about six months ago,
when he was threatened by the petitioner to give money. Here
again, there is no mention as to the place, date, time and
months of the incident.
Thus, it is clear that the in-camera statements of the two
witnesses, which are mentioned in the show cause notice, are
vague allegations, without giving any definite details as to the
incident and thereby the petitioner was deprived of meeting out
those allegations made against him."
13. Therefore, in the facts of the present case, it can be said that the
petitioner was deprived of an opportunity to explain the allegations made
against him in the show-cause notice by witnesses `A' and `B', as they were
bereft of details with regard to date, time, month, year, etc., thereby
rendering the order of externment, illegal.
14. The other ground on which the order of externment also ought
to be quashed, is that the show-cause notice dated 28 th May, 2012 records
that why the proposed externee i.e. the petitioner ought not to be externed
for a period of two years from the Districts of Thane, Brihan Mumbai,
Raigad, Nashik and Ahmednagar, whereas, the order of externment passed
by the Externing Authority, externing the petitioner is from Thane, Pune,
Nashik, Mumbai City and Mumbai Suburban. It is pertinent to note, that
SQ Pathan 9/11
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although the show-cause notice includes the Districts of Thane, Brihan
Mumbai, Raigad, Nashik and Ahmednagar from where the proposed
externee is sought to be externed, the order of externment which has been
passed, externs him from Pune District, which was not incorporated in the
show-cause notice dated 28th May, 2012. We are of the opinion, that the
inclusion of Pune District in the order of externment dated 15 th April, 2013,
which was not the Districts in the show-cause notice issued to the
petitioner, clearly shows non-application of mind by the Externing
Authority, thereby vitiating the order of externment. We may note, that the
proposed externee cannot be sprung with a surprise, by including districts
which were not proposed in the show-cause notice, thereby depriving the
petitioner of an opportunity of replying to the same.
15. Considering the peculiar facts and circumstances of the case,
we have entertained this petition, as an exception, instead of directing the
petitioner to avail of an alternative efficacious remedy, which is an appeal
before the State Government. In view of the findings recorded by us
hereinabove, and without going into the other submissions canvassed
SQ Pathan 10/11
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before us, the impugned order of externment is quashed and set-aside and
Rule is made absolute in terms of prayer clause (a), which reads thus:
"(a) To call for the record and proceedings and after
perusing the same to quash and set aside the Externment
Order No. TD/PRS/T4/Externment/SR-45/11, dated
15.4.2013 passed by Respondent No.1 against the
Petitioner."
(REVATI MOHITE DERE, J.) (S. C. DHARMADHIKARI, J.)
SQ Pathan 11/11
