Bombay High Court
Imran Abdul Wahid Hasmi vs The Dy.Commissioner Of Police on 21 June, 2016
Bench: Naresh H. Patil
rpa 1/14 wp-1784-15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1784 OF 2015
Imran Abdul Wahid Hasmi .. Petitioner
V/s.
The Dy. Commissioner of Police
& Ors. .. Respondents
......
Mr. Udaynath Tripathi, Advocate for the Petitioner.
Mr. K. V. Saste, APP for the Respondents - State.
ig ......
CORAM : NARESH H. PATIL AND
PRAKASH D. NAIK, JJ.
RESERVED ON : JUNE 14, 2016.
DELIVERED ON : JUNE 21, 2016.
JUDGMENT (Per PRAKASH D. Naik, J.) :
Rule. Rule is made returnable forthwith by consent of
parties. Learned APP waives service for Respondents - State.
The petitioner has challenged the order of
externment dated 30th December, 2014 issued by respondent no.1
under Section 56(1)(a) and (b) of the Bombay Police Act, 1951
(for short "the said Act") as well as the order dated 9 th April,
2015, passed by respondent no.3 dismissing the Appeal preferred
by the petitioner under Section 60 of the said Act.
rpa 2/14 wp-1784-15.doc
2 The factual matrix of the petition is as follows:-
(a) The Assistant Commissioner of Police Deonar Division,
Mumbai had issued a show-cause notice dated 28 th June,
2014 under Section 59 of the said Act. In the said show-
cause notice, it was mentioned that it is proposed to extern
the petitioner for a period of two years from Greater
Bombay Suburban and Thane Districts. The show-cause
notice refers to the statement of two persons recorded
in-camera. It is further stated that the acts and movements
of the petitioner are causing alarm, harm and danger to the
peace living citizens and the businessmen in the area
referred to therein. It is further mentioned that the
witnesses referred to as witnesses (a) and (b) whose
statements are recorded in-camera are not willing to come
forward to depose against the petitioner in public. It is also
mentioned that the citizens in the respective areas are not
willing to complain against the petitioner on account of
fear.
(b) The petitioner appeared before the inquiry officer and
submitted his oral as well as written reply. Inquiry officer
rpa 3/14 wp-1784-15.doc
forwarded his report to the Externing Authority for further
action.
(c) Pursuant to the aforesaid inquiry, an order of exernment
was issued on 30th December, 2014 by the respondent no.1.
In the said order, reference was made to the cases
registered and pending against the petitioner. It is further
mentioned that witnesses are not willing to come forward
to depose against him on account of fear that there will be
danger to their persons and properties. The Externing
Authority had externed the petitioner from the area of
Mumbai suburban and Thane District for a period of two
years.
(d) The Petitioner challenged the order of externment by
preferring an Appeal under Section 60 of the said Act. The
said Appeal was rejected by order dated 9th April, 2015.
3 In view of the aforesaid order of externment and
disposal of the Appeal preferred by the petitioner, he has
preferred the present petition by invoking the writ jurisdiction of
this Court under Article 226 of the Constitution of India.
rpa 4/14 wp-1784-15.doc
4 Learned counsel appearing for the petitioner
submitted that the order of externment has been issued without
application of mind. He submitted that the impugned order is
contrary to the well established principles of law and violative of
principles of natural justice. Learned counsel submitted that the
order of externment has been issued under Section 56 (1)(a) and
(b) of the said Act. He pointed out that in the notice, it is
mentioned that the witnesses referred to in paragraph 2(a) and
2(b) of the notice are not willing to come forward to depose
against the petitioner openly on account of the terror created by
him. He submitted that the said averments which is reflected in
paragraph 4 of the show-cause notice pertains to the in-camera
statements of two witnesses referred as witnesses (a) and (b). He
submitted that the show-cause notice does not refer to the
mandatory requirement for initiating the proceedings under
Section 56 (1)(a) and (b) that the witnesses are not wiling to
come forward to depose against the externee on account of fear.
He submitted that the said satisfaction is referred to in the notice
qua the aforesaid two witnesses and not in respect to the other
allegations. He further submitted that the order of externment,
however, refers to the satisfaction qua the entire allegations
which are covered by Section 56(1)(a) and (b) of the said Act.
rpa 5/14 wp-1784-15.doc
5 Learned counsel appearing for the petitioner relied
upon a decision of the Apex Court in the case of Pandharinath
Shridhar Rangnekar Vs. Deputy Commissioner of Police 1.
In the said decision, it has been observed that an order of
externment can be passed under Clause (a) or (b) of Section 56 if
and only if the Authority concerned is satisfied that witnesses are
unwilling to come forward to give evidence in public against the
proposed externee by reason of apprehension, on their part as
regards the safety of their persons or properties.
ig It is also
observed that the proposed externee is entitled before an order of
externment is passed under Section 56 of the said Act to know
the material allegations against him and the general another of
those allegations. The learned counsel further relied upon a
decision of this Court in the case of Hemant Koli Vs. State of
Maharashtra & Anr.2 In the said decision, the issue which was
under consideration is that while issuing the notice either under
Section 56 (1) (a) or (b) of the said Act, it is not just sufficient to
mention or give the general particulars of the alleged activities
which are causing disturbance in the localities but, it must also
be further stated in the notice that in the opinion of such officer,
witnesses are not willing to come forward to give evidence in
1 AIR 1973 SC 630
2 1991 (1) (Crimes) 293
rpa 6/14 wp-1784-15.doc
public against such person by reason of apprehension on their
part as regards the safety of their persons or properties. Unless
the Externing Authority was satisfied that the witnesses are not
willing to come forward to give evidence in public against the
proposed externee due to fear of their persons or properties, the
notice would be in contravention of the said provisions. The
Court was pleased to observe that the satisfaction that the
witnesses are not willing to come forward as stated above, was
not reflected in the notice and that unless the proposed externee
is appraised of the said conditions, the Externing Authority
cannot initiate the proceedings under the said Act. The learned
counsel further relied upon a decisions of this Court delivered in
Criminal Writ Petition Nos. 4393 of 2013 and 2405 of 2012.
In the first case, it was observed that the essential requirements
envisaged under the provisions of Section 56 of the said Act are
not borne out from the record justifying the order of externment.
The Authorities concerned did not address the issue as to
whether the witnesses were not willing to come forward to
depose against the petitioner. In the decision delivered in
Criminal Writ Petition No.2045 of 2012, this Court has observed
the fact that witnesses are not willing to come forward to depose
against the externee in public are not reflected in the show-cause
rpa 7/14 wp-1784-15.doc
notice, whereas, the same were referred to in the order of
externment. In the show-cause notice, which was subject matter
of the said petition, the reference to the aforesaid mandatory
requirements was in relation to two witnesses whose in-camera
statements were recorded, however, there was no assertion in the
notice to the effect that no witness in the area are willing to come
forward to depose against the externee out of fear in relation to
the other alleged activities. It was observed that the
apprehension of two witnesses cannot be equated with the
statement of fact recorded in externment order which proceeds
on the basis that no witnesses are willing to come forward to
depose against the externee as there is marked difference
between the two.
6 Learned APP Mr.Saste supported the order of
externment. He submitted that there is sufficient compliance of
the legal requirements to sustain the impugned order. He
submitted that the show-cause notice clearly refers to the
requisite satisfaction as stated hereinabove. He also submitted
that as far as the other allegations, there are averments
regarding the satisfaction. In other paragraphs of the notice,
more particularly paragraph no.2 of the show-cause notice which
rpa 8/14 wp-1784-15.doc
states that the people are not willing to come forward to complain
against the petitioner on account of fear. It is pertinent to note
that paragraph 4 of the notice refers to the satisfaction of the
witnesses not willing to come forward vis-a-vis witnesses (a) and
(b) whose statements are recorded in-camera. However, the
show-cause notice refers to various other allegations on the basis
of which the impugned order of externment has been issued. As
far as those allegations, there is no satisfaction recorded that the
witnesses are not willing to come forward to report against the
petitioner. It is required to be noted that the order of externment
has been issued on the basis of the allegations which are covered
under Section 56 (a) as well as (b) of the said Act. The Externing
Authority has recorded the satisfaction in respect to entire
allegations which are covered by the provisions of Section 56(1)
(a) and (b) of the said Act. Section 56 (1)(a) and (b) provides
that :
"[(1)] Whenever it shall appear in Greater Bombay
and other areas for which a commissioner has
been appointed under Section 7 to the
Commissioner and in other area or areas to
which the State Government may, by
notification in the Official Gazette, extend the
provisions of this section, to the District
rpa 9/14 wp-1784-15.doc
Magistrate, or the Sub-Divisional Magistrate
empowered by the State Government in that
behalf.
(a) That the movements or acts of any person are
causing or calculated cause alarm, danger or
harm to person or property or.
(b) that there are reasonable grounds for
believing that such person is engaged or is
about to engaged in the commission of an
offence involving force or violence or an
offence punishable under Chapter XII, XVI or
XVII of the Indian Penal Code, or in the
abetment of any such offence and when in the
opinion of such officer witnesses are not
willing to come forward to give evidence in
public against such person by reason of
apprehension on their part as regards the
safety of their person or property, or."
7 From the aforesaid provision, it is clear that the
Externing Authority can pass the order of externment on the
basis of criteria laid down therein. Such order can be issued on
the basis of the satisfaction of such officer that the witnesses are
not willing to come forward to give evidence in public against
such person by reason of apprehension on their part as regards
the safety of their person or properties.
rpa 10/14 wp-1784-15.doc
8 It is mandatory that before issuing the order of
externment as stated above, a notice under Section 59 of the said
Act is required to be issued and the proposed externee shall be
informed of the allegations against him and should be given an
opportunity of tendering an explanation or examining witnesses
etc.
9 On perusal of the order of externment as well as the
show-cause notice, it is apparent that the action was initiated in
exercise of powers under Section 56 (1)(a) and (b) of the said Act.
In the notice, it has been mentioned that since 2011, the
petitioners movements and activities had caused or calculated to
cause danger, harm and alarm to the persons and properties of
the residents, shop owners and businessmen from the area of
Sanjay Nagar Hutments, Sant Nirankari Hutments at Shivaji
Nagar, Vainganwadi, Govandi and adjoining areas. The petitioner
was also informed that he was involved in commission of offences
and the cases are pending against him as well as one case is
under investigation. It is further mentioned that the petitioner
has committed serious offences within the areas mentioned
therein and have committed offences punishable under Chapters
16 and 17 of the Indian Penal Code. The notice further refers to
rpa 11/14 wp-1784-15.doc
the statements of two witnesses who are not willing to come
forward to depose against him on account of fear which was
recorded in-camera. In paragraph 4 of the notice, it is mentioned
that the witnesses referred to in paragraph 2(a) and (b) are
victims at the hands of the petitioners and they are not willing to
come forward to depose against the petitioner in public. It is
pertinent to note that the aforesaid assertion is in respect to the
activities referred by witnesses (a) and (b) whose statements
were recorded in-camera. Hence, as far as the other allegations
referred to in the notice, there is no satisfaction therein that the
witnesses in connection with said activities are not willing to
come forward to depose against the petitioner in public. The
notice spells out the activities which forms the grounds under
Clause (a) and clause (b) of Section 56 (1) of the said Act,
however, the satisfaction that the witnesses are not willing to
come forward to depose against the petitioner is recorded only in
respect of the activities reflected in paragraph nos. 2(a) and 2(b)
of the notice. No such satisfaction is spelt out in respect of the
activities reflected in the introductory paragraph 1(a) of the
notice.
10 It is to be noted that the satisfaction that witnesses
are not willing to come forward to depose in public is reflected in
rpa 12/14 wp-1784-15.doc
respect of two witnesses referred to above which allegations
would be covered by Section 56 (1)(b) of the said Act. Further,
there were other allegations also which are covered by Section
56(1)(a) as well as 56(1)(b) in respect to which there was no such
assertion as stated above. In the case of Yashwant Damodar
Patil V/s. Hemant Karkare3 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.
Notice of such satisfaction must also necessarily be
given to the proposed externee under section 59 of
the Bombay Police Act."
3 1989 Mh.L.J. 1111
rpa 13/14 wp-1784-15.doc
11 The Externing Authority has issued the order in
exercise of powers under Section 56(1)(a) and (b) of the said Act.
This Court has adjudicated the similar issues in Writ Petition
Nos.1813 of 2-013 and 529 of 2014 in which the order of
externment was quashed and set aside on the ground that it is
not in accordance with law. Paragraph 28 of the said decision
reads as follows:
"28. The notice spells out the activities which
constitute grounds under clause (a) of Section 56(1)
as well as grounds under first and second part of
clause (b) of Section 56(1) of the Act. However,
satisfaction that the witnesses are not coming forward
to depose against the petitioner is recorded only in
respect of the activities stated in para 3(b) (1) and (2)
of the notice, which constitutes grounds under first
part of Clause (b) of Section 56(1) of the Act. No such
satisfaction is spelt out in respect of activities stated
in paras 2, 3 (a) & 5 of the notice, which constitute
grounds under clause (a) of Section 56(1) and second
part of clause (b) of Section 56(1) of the Act.
Nonetheless the Externing Authority has externed the
petitioner under clause (a) and second part of clause
(b) of Section 56(1) of the Act. The order is not in
accordance with the principles laid down by the
Division Bench of this Court in the case of Yeshwant
Vs. Hemant Karkare (Supra) and is in breach of rules
rpa 14/14 wp-1784-15.doc
of natural justice. The impugned order amounts to
unreasonable restriction on the fundamental right
guaranteed by Article 19 of the Constitution and
hence cannot be sustained."
12 In view of the aforesaid observations, it is clear that
the impugned order of externment is contrary to the provisions of
law. The order does not comply the mandatory requirement
stipulated in Section 56 (1)(a) and (b) of the said Act. Hence, the
impugned order is required to be quashed and set aside.
13 Hence, we pass the following order:
:: O R D E R ::
(i) Rule is made absolute.
(ii) The order of externment dated 30 th December,
2014, issued by the respondent no.1 is quashed
and set aside.
(P.D. NAIK, J.) (NARESH H. PATIL, J.)
