Safarali @ Gappu Mohammad Yusuf ... vs The Deputy Commissioner Of Police ...
2017 Latest Caselaw 5876 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              CRIMINAL APPELLATE JURISDICTION

       CRIMINAL WRIT PETITION NO.3106 OF 2017



Shri Safarali @ Gappu Mohammad
Yusuf Sheikh
Age-32 Years, Occupation: Driver,
Residing at- Opp.Awaliya Masjid,
Gaibinagar, Bhiwandi,
District: Thane                                      ......Petitioner

                 V/s.

1] The Deputy Commissioner of Police,
Zone-2, Bhiwandi, Dist: Thane,

2] The State of Maharashtra
Through Senior Police Inspector,
Shantinagar, Police Station, Bhiwandi,
District: Thane,

3] The Divisional Commissioner,
Konkan Division,
Mumbai                                            .......Respondents.


Mr. Sandeep Mishra, Advocate for Petitioner.
Mr. K.V.Saste, APP for Respondent-State.


                          CORAM : R.M.SAVANT &
                                  SANDEEP K. SHINDE, JJ.

DATE : August 11, 2017.

JUDGMENT : (Per Shri Sandeep K. Shinde, J.)

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The Competent Authority under the Maharashtra

Police Act (Hereinafter referred to as the ' Said Act ') in

exercise of the powers under Section 56(1)(a)(b) of the said

Act externed the Petitioner from Thane District for two years

vide order dated 1.3.2017. This order was confirmed by the

Divisional Commissioner, Konkan Division in the Appeal

No.37 of 2017 vide order dated 24.7.2017. Thus, aggrieved by

the order of externment and the order passed in the appeal,

this petition is preferred under Articles 226 and 227 of the

Constitution of India.

2 On 10.3.2016, the Assistant Commissioner of

Police, East Division, Bhiwandi held the preliminary enquiry

under Section 59(1) of the Said Act proceeded by the notice

dated 10.3.2016 issued under Section 59(1) of the said Act.

The Assistant Commissioner of Police submitted the report

dated 31.5.2016 to the Deputy Commissioner of Police, Zone 2,

Bhiwandi whereupon the Deputy Commissioner of Police was

pleased to issue notice under Section 59 of the said Act. It may

be stated that while preliminary enquiry was in progress,

the Petitioner had committed offences under Sections

307, 336, 427 of the IPC which was registered as

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Crime No.94 of 2016 with Shanti Nagar Police Station,

Bhiwandi. That, as such in the notice dated 8.2.2017, the

Deputy Commissioner of Police also referred to the said crime

no.94 of 2016 being a relevant material for initiating the

action against the Petitioner for the proposed externment.

3 It may be stated that the Deputy

Commissioner of Police in his notice has referred to six crimes

out of which four crimes were committed within the

jurisdiction of Shanti Nagar Police Station, Bhiwandi; one at

Mira Road Thane Rural and one at Vadivarhe Police Station ,

Nashik. Besides, the Externing Authority has relied upon in-

camera statement recorded on 25.2.2016. Thus, entire

material on the basis of which, externment proceedings were

initiated was made known to the Petitioner in the subject

notice dated 8.2.2017 issued under Section 59 of the said Act

and, therefore, there was complete compliance of provisions of

Section 59 of the said Act.

4 It appears from the record that the Assistant

Commissioner of Police forwarded his report dated 31.5.2016

and proposed that the Petitioner may be externed from Thane,

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Palghar, Mumbai , Mumbai Suburban Districts and Nashik

Districts for a period of two years. Immediately thereafter

show-cause notice was caused on 6.6.2016 to the Petitioner.

However, the notice could not be served as the Petitioner was

absconding in-as-much as Crime No.94 of 2016 was registered

against him under Sections 307, 336, 427 of the IPC on

9.6.2016. In view of this fact, though the report was received

from the Assistant Commissioner of Police on 31.5.2016,

proceedings could not be taken further since the Petitioner

was absconding. It is only when the Petitioner was released on

bail in C.R.No.94 of 2016, the notice dated 8.2.2017 under

Section 59 of the said Act was served upon him.

5 The Externing Authority after affording sufficient

opportunity of being heard to the Petitioner, by the order

dated 1.3.2017 externed the Petitioner from Thane District

for a period of two years which came to be confirmed by the

Divisional Commissioner, Konkan Division vide the order

dated 24.7.2017 passed in the Appeal No.37 of 2017.

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6                Heard the learned counsel for the Petitioner and

the learned APP for the State. That the proceedings before the

Externing Authority were placed before this Court for perusal.

7 The learned counsel for the Petitioner would

submit that the Externing Authority incorrectly invoked the

provisions of Sections 56(1)(a) and 56(1)(b) in-as-much

offences allegedly committed by the Petitioner were not falling

under Chapters XII, XVI and XVII of the IPC. This submission

is contrary to the evidence/material on record in-as-much the

offences registered against the Petitioner are under Sections

143, 324, 307 and 336 of the IPC.

8 Next ground urged by him is that the Petitioner

was acquitted in C.R.No.225 of 2013; (corresponding Regular

Criminal Case No.88 of 2015) by the Court of J.M.F.C.,

Bhiwandi and, therefore, there was no material before the

Court to exercise the powers under Section 56 of the said Act.

In our view, besides Crime No.225 of 2013, there were other

crimes registered against him and it may also be stated that

externment order was passed on 1.3.2017 whereas the

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Petitioner was acquitted in Crime No.225 of 2013 vide

judgment and order dated 25.4.2017. We, therefore, reject this

contention. The learned counsel further submitted that the

Petitioner was not afforded sufficient opportunity to file

detailed written statement and the Externing Authority while

passing the order also failed to evaluate the evidence of seven

witnesses examined in the enquiry under Section 59(1) of the

said Act.

We have perused the record of the proceedings before

the Assistant Commissioner of Police as well as before the

Deputy Commissioner of Police. Roznama as recorded by the

Deputy Commissioner of Police clearly shows that the very

first notice issued under Section 59 of the said Act could not be

served upon the Petitioner as he was absconding in Crime

No.94 of 2016, which was registered on 9.6.2016. It is for this

reason that the fresh notice was issued on 8.2.2017 after the

Petitioner was released on bail in the aforesaid crime. Notice

was served upon him on 13.2.2017 and in response thereto,

the Petitioner remained present before the Externing

Authority on 16.2.2017. Though he sought 15 days' time, he

was directed to remain present on 27.2.2017. The Petitioner

did not file his written statement but pleaded that all the

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offences registered against him were false. Besides, he pleaded

that he did not want to file any written statement. He also

pleaded that he may not be externed as there is nobody in the

family to look after his wife and children. In view of roznama

recorded as aforesaid, it cannot be said that he was not

afforded opportunity to file the written statement. It may also

be stated that the Externing Authority in the roznama itself

has recorded the satisfaction as to why the Petitioner is

required to be externed. It is also recorded in the roznama

that though proceedings under Chapter VIII were initiated and

adopted, there was no improvement in the Petitioner and

more so, he has committed an offence under Section 307 of

IPC when the externment proceedings were ongoing against

him.That in view of these facts, we do not see any merit in the

contention of the Petitioner that he was not afforded sufficient

opportunity to defend his case.

Last ground urged by the Petitioner is that the Externing

Authority has not evaluated the evidence of seven witnesses

examined by him during the course of enquiry under Section

59(1) of the said Act. We have perused the report dated

31.5.2016 submitted by the Assistant Commissioner of Police

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to the Externing Authority, i.e., Deputy Commissioner of

Police. This report makes reference to the statements of seven

witnesses produced by the Petitioner. These statements are

general in nature at Pages 227 to 239 of the record of the

proceedings. We have perused the statements. In these

statements, witnesses have requested that the externment

order may not be passed against the Petitioner and sympathy

may be shown by condoning his acts. In these statements, the

witnesses have stated that the Petitioner is helping poor

people and if he is externed, his family would suffer. We have

also perused the report dated 31.5.2016 submitted by the

Assistant Commissioner of Police. We have also perused the

order of the Externing Authority which in so many words

makes reference to the report of the Assistant Commissioner

of Police dated 31.5.2016 which incorporates and refers to the

statements of seven witnesses. In view of this fact, the

contention of the Petitioner that the Externing Authority has

not considered the evidence of his witnesses cannot be

accepted and the same is rejected and therein, the Externing

Authority has recorded the satisfaction that the witnesses are

unwilling to come forward to give evidence in public against

the proposed externee by reason of apprehension on their part

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as regards the safety of their person and property. The

Externing Authority has also recorded the satisfaction that

the movements and the acts of the Petitioner are causing

danger and harm to the person or the property in the area

under his jurisdiction. Considering the facts of the case, we do

not see any infirmity and/or illegality in the order passed by

the Externing Authority and/or by the appellate authority. As

such, there is no merit in the writ petition and the same to

accordingly stand dismissed.

(SANDEEP K. SHINDE, J)                       (R.M.SAVANT, J)




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