Zarar Ali S/O. Mohd. Sharif Khan vs The State Of Maharashtra And Ors
2016 Latest Caselaw 3861 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION




                                                               
                      CRIMINAL WRIT PETITION NO. 471 OF 2016

      Zarar Ali S/o Mohd. Sharif Khan
      Aged 40 years, Occ: Business




                                                              
      R/o Balajisharan Building,
      A-Wing, Room No. 105, Sector 17,
      Khanda Colony, New Panvel,
      Navi Mumbai.                                                  .. Petitioner




                                                       
                   Versus

      1.
                                      
           The State of Maharashtra through
           The Deputy Commissioner of Police,
           Parimandal-6, Mumbai and ors.                            .. Respondents
                                     

      Mr. Anand S. Patil i/by Mohsin Khan Latif Khan Pathan for petitioner.
             


      Mrs. M. M. Deshmukh, APP for State.
          



                                            CORAM: NARESH H. PATIL &
                                                   PRAKASH D. NAIK, JJ.

                              RESERVED ON           : JULY 11, 2016.

                       PRONOUNCED ON                :   JULY 15, 2016





      JUDGMENT [ Per Naresh H. Patil, J.] :

1. Rule. Rule made returnable forthwith. Heard by consent of

parties.

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2. The petitioner challenges externment order passed by the

Deputy Commissioner of Police, Zone - 6, Mumbai on 23/2/2015,

externing the petitioner for a period of two years from Mumbai District,

Mumbai Suburbs and Thane District. The said order was challenged by

the petitioner in an appeal before the Divisional Commissioner, Konkan

Division. By an order dated 31/8/2015, Divisional Commissioner partly

allowed the appeal. The externment order was maintained but by restricting

the area of externment to Commissionerate, Brihan Mumbai. The

petitioner has questioned both these orders by present writ petition.

3. The learned counsel for the petitioner submits that show-cause

notice was issued to the petitioner on 9/9/2014 under Section 56(1)(a)(b) of

the Maharashtra Police Act, 1951. 29 past cases registered against the

petitioner since the year 1993 were listed along with 7 preventive actions.

In the show-cause notice itself, reference was made to the earlier cases

registered against the petitioner, which itself demonstrates that the

respondent-authority placed reliance on past several cases which were not

relevant for issuance of a show-cause notice. The show-cause notice

though mentions that for the purposes of externment, reliance was placed

on Crime No. 145 of 2014 and preventive action No. 58 of 2002, but it

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could be gathered that the show-cause notice was issued with a prejudiced

mind.

4. On the impugned order of externment passed by the Deputy

Commissioner of Police, it was submitted that reference to the old cases

was given while passing externment order. It referred to 14 cognizable, 5

non-cognizable cases registered against the petitioner in past. Though the

order states that for the purposes of externment a crime registered against

the petitioner in Mankhurd Police Station and two in-camera statements

were taken into consideration, but the order itself reflects that other

material in respect of registration of old cases since after the year 1993 was

subject matter of consideration by the authority. The order is, therefore,

bad in law and deserves to be quashed and set aside.

5. The respondent-State filed affidavit-in-reply through Mr.

Sangramsinh Nishandar, Deputy Commissioner of Police on 24/6/2016.

The deponent supported the action taken against the petitioner in paras 4

and 5 which reads as under :

"4. At the out-set, I say that notice shows u/s 59 of Bombay Police Act since the year 1993, the petitioner has engaged in the commission of various offences involving force or violence or

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an offence punishable under the Indian Penal Code. I say that on 23.02.2015 the Externment Order was passed by me and the

same was confirmed by appellate authority State of Maharashtra

and Appellate Authority modify my order and extern and deleted Thane District and Externed petitioner from Mumbai and Mumbai Suburban.

I say that while passing the Externment order I had not considered the stale offences by consider the offence of 2014 to in camera statement and thereafter Extern Petitioner.

I say that it was informed to me that the petitioner had

committed fresh offences during the Externment order Dtd.23.02.2015 which is for period of 2 years. And the L.A.C.

are registered against the petitioner as under :-

          Sr. Police           C.R./.L.A.C.    Under Section C.C. No.              Status
          No. Station          No.
      


                                (Date of
                               Registration)
   



          1     Mankurd        19/2015         142               1659/PS/15        Pending
                Police                         Maharashtra                         Trial
                Station        (02.06.2015)    Police Act
          2     Colaba         16/2015         142               111/P/02          Pending





                Police                         Maharashtra                         Trial
                Station        (20.06.2015)    Police Act

5. I say that the movements or acts of the Petitioner were

found to be causing or calculated to cause harm, alarm, or danger to the person or property and that there were / are reasonable grounds for a believing that the petitioner is engaged in commission of an offence involving force or violence or an offence punishable under Chapter XVI or XVII of the Indian

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Penal Code and the witnesses were not willing to come forward to give evidence in public against the petitioner and his

associates by reason of apprehension and fear on their part as

regards the safety of their person and/or property."

6. Learned APP supported the order passed by the respondent -

Authority. It was submitted that though criminal cases were mentioned in

the show-cause notice as well as in externment order, but they were not

considered for the purpose of externment. One C.R. and two in-camera

statements were the basis for passing externment order. Considering the

overall conduct of the petitioner, who violated the earlier orders passed, no

interference is warranted.

7. We have perused the record, considered the submissions

advanced by the learned counsel for the parties. There is substance in the

submissions of the learned counsel for the petitioner that while passing

impugned order of externment old cases which were registered against the

petitioner since the year 1993 onwards were referred. Placing reliance on

one C.R. and two in-camera statements and one preventive action would

not justify action of the respondent-authority in externing the petitioner.

In fact, the externing authority referred to the conduct of the petitioner

who was allegedly involved in various acts, offences falling under the

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Indian Penal Code under Chapter XVI and XVII. In most of the old cases

the petitioner was acquitted. The chart mentioned in the externment order

demonstrates the same.

8. In the facts of this case, one crime registered against the

petitioner and two in-camera statements were not sufficient for curtailing

the liberty of the petitioner. We are of the view that there was no sufficient

material to extern the petitioner.

ig Taking into consideration the record

placed before us and the settled principles of law, we find that the

externment order requires to be interfered with. The alleged violation of the

externment order twice has been explained by the petitioner. In the light of

the facts, circumstances and reasons stated above, we are of the view that

the petition deserves to be allowed.

ORDER

(i) Impugned order dated 31/8/2015 passed by the

Divisional Commissioner, Konkan Division and the Impugned order of externment dated 23/2/2015 passed by the Deputy Commissioner of Police, Zone - 6,

Mumbai are hereby quashed and set aside.

                  (ii)     Rule is made absolute in above terms.



     (PRAKASH D. NAIK, J.)                                 (NARESH H. PATIL,J.)