Krishna @ Gotia Bajarang Chikne vs The Dy. Commissioner Of Police
2013 Latest Caselaw 52 Bom

                                                                     CRWP3451-13


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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                    
                     CRIMINAL APPELLATE JURISDICTION


                        WRIT PETITION NO.3451 OF 2013




                                                   
          Krishna @ Gotia Bajarang Chikne,




                                          
          Age 29 years, residing at Flat No.19,
          Kamalabai Zopadpatti Road No.11,
                            
          Vaishnav Wadi, Govandi,
          Mumbai - 400 043                                          ...Petitioner
                           
                      Versus

          1)    The Dy. Commissioner of Police,
                Zone - VI, Mumbai.
            


          2)    Secretary (Spl),
         



                Home Department, Mantralaya,
                Mumbai.





          3)    The State of Maharashtra                        ...Respondents

          Mr. U.N. Tripathi for the Petitioner.
          Mr. K.V. Saste, APP for the State.





                                   CORAM : S.C. Dharmadhikari, &
                                           G.S. Patel, JJ.

                                   DATE      : 19th October 2013



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    JUDGMENT : (Per G.S. Patel, J.)




                                                                          

1. Rule. Mr. Saste, learned APP, waives service on behalf of the Respondents. By consent, Rule made returnable forthwith, and

petition taken up for hearing and final disposal.

2. On 11th March 2013, the Assistant Commissioner of Police,

Chembur Division, issued a show-cause notice to the Petitioner proposing his externment from the Districts of Greater Mumbai, Mumbai Suburban, Thane and Raigad for a period of two years.

Following this show-cause notice, on 11th June 2013, the 1st

Respondent, the Dy. Commissioner of Police, Zone VI, Mumbai issued an Externment Order against Petitioner under Section 56(1)

(a) and Section 56(1)(b) of the Bombay Police Act, 1951 in terms of that show-cause notice. The Petitioner filed an Appeal, and this was dismissed by the 2nd Respondent, the Appellate Authority on 28th August 2013. The Petitioner has, therefore, filed this Writ Petition

under Article 226 of the Constitution of India impugning the

Externment Order and the Appellate Order.

3. We have heard Mr. Tripathi, learned Advocate for the

Petitioner and Mr. Saste, learned APP appearing on behalf of the Respondents. We have also carefully considered the Petition and its various annexures, including the show-cause notice, the Externment

Order and the Appellate Order.

4. Mr. Tripathi's first submission is that the Externment Order is clearly excessive as it externs the Petitioner for a period of two years from a vast geographical area covering the Districts of Greater

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Mumbai, Mumbai Suburban, Thane, and Raigad. In our view, this

submission is well-founded. The Externment Order and the show- cause notice both referred to a number of previous criminal cases

said to have been registered against the Petitioner. However, all of these are within the local limits of the Shivaji Nagar and the Deonar Police Stations. There is no material whatsoever in either the

Externment Order or the Appellate Order, justifying the externment of the Petitioner from such a vast geographical area. When this point about the Externment Order being excessive was canvassed

before the Appellate Authority, the Appellate Authority dealt with the same in a most cursory manner by saying merely that the

availability of fast moving transport justified the action. We find this to be entirely unsatisfactory, and incorrect in law.

5. The law on the subject is well-settled. It is ordinarily for the Authorities to decide what is the area from which a person should be

externed and for how long. There is no law that requires that any

person should be externed only from the local limits of a police station within whose jurisdiction the person is said to have committed crimes. However, any order of the Externment must be

non-arbitrary and cannot be excessive. It cannot be more than the situation demands.1 In this case, the Petitioner has been externed for a period of two years, and that too from a vast geographical area. Absent any material justifying both the extent and the duration, we

find that the Externment Order and the Appellate Order both suffer from the vice of being excessive and, therefore, cannot be sustained. In itself this is sufficient to strike down both orders. However, there

1 Pandharinath Shridhar Rangnekar v Dy Commissioner of Police, (1973) 1 SCC 372

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are other submissions advanced by Mr. Tripathi and we will

consider these as well.

6. The show-cause notice and the Externment Order refer to as many as 13 cases said to have been previously registered against the Petitioner. These cases date back in time as far as 2001. We are

unable to understand how cases of such antiquity can have any possible bearing on externment proceedings taken in the year 2013. We have repeatedly stated that in matters of externment, there has

to be some degree of imminence and that references to previous cases separated by large gaps in time, are insufficient as a foundation

for externment proceedings. In other words, there has to be some live link between the criminal activities attributed to the externee

and the proposed externment.2 It is also to be noted that in at least 3 of these 13 cases, the Petitioner has admittedly been acquitted. How those cases in which the Petitioner has been acquitted could have

been referred either in the show-cause notice or in the Externment

Order remains unclear.

7. Mr. Tripathi also submits that the show-cause notice refers to

two in-camera statements, and that these are vague and stated only in the generalities. In any event, whether, or not this submission has any force is a matter that is almost entirely academic, for in the

Externment Order, there is no reference at all to these in-camera witness statements. It is difficult to understand how if in the show- cause notice reliance was proposed to be placed on these in-camera 2 Dattatraya Ramchandra Jadhav v The State of Maharashtra, Cri WP No.1666 of 2013, decided on 21st August 2013; Karan Ramesh Ghuge v Dy Commissioner of Police, Cri WP No 1305 of 2013, decided on 4th July 2013.

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witness statements, these were then found to be unworthy of

reliance in the Externment Order itself. Finally, there is no finding in the Externment Order that witnesses are unwilling to come

forward to depose against the Petitioner in public fearing for their lives or property. This is an essential requirement of Section 56(1)

(b) of the Bombay Police Act, 1951. It is altogether missing in the

Externment Order.

8. The Petition succeeds. Rule is made absolute in terms of

prayer clause (b) and (c). There will be no order as to costs.

          (G.S. Patel, J.)                  (S.C. Dharmadhikari, J.)
                     
      
   






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