Bombay High Court
Shafi And Saddam Shoukat Qureshi vs The Assistant Police ... on 11 August, 2016
Bench: Naresh H. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2032 OF 2016
Shafi & Saddam Shoukat Qureshi .. Petitioner
V/s.
The Assistant Police Commissioner
& Ors. .. Respondents
......
Mr. U. N. Tripathi i/b. Mr. U. R. Agandsurve, Advocate for the
Petitioner.
Mr. D. P. Adsule, APP for Respondent - State.
......
ig CORAM : NARESH H. PATIL AND
PRAKASH D. NAIK, JJ.
RESERVED ON : JULY 26, 2016.
PRONOUNCED ON : AUGUST 11, 2016.
JUDGMENT (Per PRAKASH D. NAIK, J.) :
Rule. Rule is made returnable forthwith.
2 Learned APP waives service for Respondent - State.
3 The petitioner has challenged the order of
externment dated 21st January, 2016 passed by the Deputy
Commissioner of Police (Zonal), Solapur city under Section 56(1)
(a)(b) of the Maharashtra Police Act, 1951 (for short "the said
Act"). Petitioner has also challenged order dated 1st April, 2016
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passed by respondent no.3 - Divisional Commissioner, Pune
Division, Pune dismissing the Appeal preferred by petitioner
under Section 60 of the said Act.
4 The factual aspects of the petition are as follows:
(a) The Assistant Commissioner of Police Police, Division - II,
Solapur city had issued a notice under Section 59 of the
said Act on 15th October, 2015. In the said notice, it is
stated that two offences are registered against the
petitioner in the year 2015 vide C.R.No. 113 of 2015 and
234 of 2015. It is also mentioned that the acts and
movements of the petitioner are causing alarm, harm and
danger to the people residing in the areas mentioned
therein. It is also mentioned that statements of two persons
referred to as witnesses (A) and (B) were recorded in-
camera in relation to the activities and offences referred to
in paragraph 2(a) and (b) of the notices are not willing to
come forward to openly depose against the petitioner on
account of threats given by him and/or apprehending
danger to the person and property.
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(b) The petitioner submitted his reply to the aforesaid show-
cause notice. He denied the allegations made in the notice.
He also stated that he has been falsely implicated in the
cases registered against him. He also stated that the cases
were registered against him on account of personal and
political enmity.
(c) The report was submitted to respondent no.3. Vide order
dated 21st January, 2016 the petitioner was directed to be
externed for a period of two years from areas of police
Commissionerate Solapur city and Solapur district. In the
order, a reference was made to the activities causing harm,
alarm and danger which were reflected in the show-cause
notice. The reference is also made to two cases registered
against him vie C.R.No.113 of 2015 with Sadarbazar Police
Station for the offence punishable under Section 354(A)(D),
504, 5016 of the Indian Penal Code and C..No.143 of 2015
for the offences punishable under sections 143, 17, 148,
149, 323, 326, 504 and 506 of the Indian Penal Code. The
order also refers to the statements of persons recorded in-
camera. After directing me, activities of the petitioner
which has influenced the externing authority while issuing
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the said order, the satisfaction was recoded that the
witnesses who are the victims at the hands of the externee
are not willing to come forward to depose against him. The
said satisfaction was recorded in respect to the entire
allegations on the basis of which the impugned order of
externment has been issued.
(d) The order of externment was challenged by the petitioner
by preferring
ig an Appeal before the Divisional
Commissioner, Pune Division, Pune. The said Appeal was
dismissed vide order dated 1st April, 2016.
(e) learned counsel Mr. Tripathi appearing for the petitioner
submitted that the externment order is bad in law and the
order of the Appellate Authority dismissing the Appeal
reflects non-application of mind. Learned counsel submitted
that the impugned order can be set aside on a sole ground
that there is total non-application of mind on the part of the
Externing Authority who had issued the impugned order on
extraneous consideration.
(f) We have perused the documents on record. We have seen
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the contents of show-cause notice as well as order of
externment. Show-cause notice was issued proposing an
action under Section 56(1)(a) and (b) of the said Act and
final order is also issued by invoking the said provisions.
Learned counsel for petitioner submitted that in show-
cause notice, it was mentioned that witnesses in connection
with the activities referred to in paragraph no.2(a) and (b)
of notice are not willing to come forward to depose against
petitioner. He submitted that whereas in the order of
externment, satisfaction was recorded that witnesses qua
all the activities reflected in order of externment (which are
causing harm, alarm and danger), the witnesses are not
willing to come forward to depose against the externee. We
have noticed that paragraph 2(a) and (b) of the show-cause
notice refers to the purported statements of witnesses
recorded in-camera who are referred to as witnesses A and
B. Therefore, assertion as stated above, was only in respect
to the said witnesses whose statements were recorded in-
camera as referred to in notice. It is pertinent to note that
notice referred to various other allegations. However, in
order of externment, which is based on two in-camera
statements as well as other materials which are purportedly
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causing harm, alarm and danger, the satisfaction is
recorded that witnesses are not willing to come forward to
depose against the externee. Thus, the satisfaction of the
Externing Authority in respect to the other activities was
absent in the show-cause notice and it is obvious that
Externing Authority has arrived at the conclusion for
passing the order of externment on extraneous material
which was not reflected in show-cause notice. The whole
purpose of issuing show-cause notice is to give opportunity
to proposed externee to tender an explanation. In view of
the circumstances, order is bad in law and deserves to be
quashed and set aside on this ground alone.
5 Learned counsel appearing for petitioner placed
reliance upon the decision of this Court delivered in Criminal Writ
Petition No.1784 of 20151 in support of his submission wherein
identical situation the order of externment was set aside. It has to
be noted that allegations that witnesses are not willing to come
forward to depose against petitioner reflected in notice with
reference to the two witnesses would be covered by Section 56(1)
(b) of the said Act. However, notice and order also referred to
1 Imran Abdul Wahid Hasim Vs. The Dy. Commissioner of Police & Ors. dt.21.7.2016
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allegations which are covered by Section 56(1)(a) as well as 1(b)
of the said Act. The notice therefore records satisfaction only in
respect to allegations covered by Section 56(1)(b) and not 1(a) of
the said Act. However, order records said satisfaction in respect
to allegations covered by both the parts of Section 56 of the said
Act. In the case of Yashwant Damodar Patil V/s. Hemant
Karkare2 this court has held that :
"The Fact that the proposed externee is engaged or is
about to be engaged in one or the other type of the
activity or movement in Clauses (a) and (b) of Section
56 (i) of the Bombay Police Act, is not sufficent by
itself to warrant an order of externment. That fact,
coupled with the opinion formed by the designated
officer that witneses are not willing to come forward
to give evidence in public for the reasons mentioned
in clauses (a) and (b) of Section 56(i) of the Bombay
Police Act, will provide a proper basis for the exercise
of the power of externment under the provisions of
the Act...
... in any case of acts involved on the part of the
proposed externee, where an order of externment
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.
2 1989 Mh.L.J. 1111
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Notice of such satisfaction must also necessarily be
given to the proposed externee under section 59 of
the Bombay Police Act."
6 In view of the above, we are satisfied that order of
externment has been issued without application of mind and is
contrary to well established principles of law. Appellate Authority
has mechanically passed order confirming order of externment.
It may be noted that Appellate Authority has stated that order
passed under Section 56(1)(b) of the said Act deserves to be
confirmed. It shows total non-application of mind on the part of
the said authority as order was issued under Section 56(1)(a)and
(b) of the said Act. Hence, impugned order is required to be
quashed and set aside.
7 Hence, we pass the following order:
:: O R D E R ::
(i) Rule is made absolute;
(ii) Impugned order of externment dated 21 st
January, 2016 passed by respondent no.2 as well
as order dated 1st April, 2016 confirming the
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externment order in Externment Appeal No. SP-
Externment/Appeal/SR/EA-23-2016 passed by
Appellate Authority are quashed and set aside;
(iii) Parties to act on an authenticated copy of this
order.
(PRAKASH D. NAIK, J.) (NARESH H. PATIL, J.)
