Imran Mohammed Hanif Khan @ Imran ... vs The State Of Maharashtra And Anr
2021 Latest Caselaw 6622 Bom

Sherla V.


                                                                        21_wp.1504.2021(R).doc


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE SIDE

                           CRIMINAL WRIT PETITION NO.1504 OF 2021

            Imran Mohammed Hanif Khan
            @ Imran Kalia
                                                                               ... Petitioner
            r/at: West View Building, 3rd floor, Flat No.302,
            Mira Road East, Thane
                              Vs.
            1. State of Maharashtra
            2. Divisional Commissioner
                                                                         ... Respondents
            Konkan Division, Konkan Bhavan
            (Through the Public Prosecutor)



            Mr.Rajendra Rathod for the Petitioner

            Mr.V.B. Konde-Deshmukh, APP, for Respondent - State


                                                 CORAM: S.S. SHINDE &
                                                        MANISH PITALE, JJ.

                       JUDGMENT RESERVED ON: APRIL 20, 2021
                     JUDGEMENT DELIVERED ON: APRIL 22, 2021


            JUDGMENT (PER S.S. SHINDE, J.):

1. Rule. Rule made returnable forthwith with the consent of the

learned Counsel appearing for the parties and heard finally.

2. The Petitioner has preferred this Writ Petition being

aggrieved by the order passed by the Appellate Authority i.e.,

Divisional Commissioner, Konkan Division, Mumbai in Appeal

21_wp.1504.2021(R).doc

No.11 of 2021 dated 2nd March, 2021, confirming the order of

externment passed by the Deputy Commissioner of Police, Zone I,

Mumbai under section 56(1)(b) of the Bombay Police Act, 1951

being Externment Order No.28/C/43/2021 dated 12 th January,

2021, thereby externing the petitioner from Mumbai and Mumbai

Suburban districts for a period of six months.

3. The learned Counsel appearing for the Petitioner has

challenged the impugned order on the following amongst other

grounds:

"a) The Appellant at the outset submits that there is a jurisdictional error committed by the Respondent authority herein. The Notice issued u/sec. 59 of the Bombay Police Act, 1951 mentioned that it is notice for contemplated action u/s 56(i)(a)(b) for the purposed externment order. However it is submitted that as a matter of fact ingredients of Section 56(i)(a)(b) and other ingredients are finding place in the impugned order. And therefore, on that same ground Appellant submits that there is breach of Principal (sic) of Natural Justice and there is Jurisdiction error Committed by the Respondent as formation of opinion for the passing of order is even by taking into consideration other factors than the 56(i)(a)(b) of which due notice is not given to the Appellant herein.

b) The Appellant submits that the Show Cause notice dated 09/09/2020 does not mentioned (sic) under what section the notice under 59 of Bombay police Act is issued and more over similar notice was issued in the year 2014 but no order was passed and the said notice got infructuous & then in the year 2018 again the notice was issued order

21_wp.1504.2021(R).doc

No.48/C/43/2019 was passed by the Deputy Commissioner of Police Zone I on 4/2/2019 externing the Petitioner on the same set of facts but the same was set aside in the Appeal bearing No.21 of 2019 vide order dated 20/02/2019 by the Konkan Commissioner, Konkan Division, Mumbai and therefore there was no reason for issuance of the present notice again in 2020 in the pandemic situation."

4. The learned Counsel submitted that out of four offences

shown in the show cause notice, in three offences the petitioner

has been acquitted after full-fledged trial. He relied upon grounds

(g) and (k) in the petition which reads are as under:

"g) The Petitioner submits that in fact if the original notice is perused then C.R. No.200 of 2001, 252 of 2004 at serial Nos.1 to 2 are shown under the caption of JJ Marg Police Station and the same C.R. are again shown on serial No.10 and 11 of Nagpada Police Station which clearly shows that the JJ Marg police station is having grudges against the Petitioner are trying to influence the externing authority by showing number of cases which are already been acquitted and which are not related to Nagpada Police Station. This is only with malafide intention to prejudice the externment authority against the Petitioner which also prima facie shows that the said notice is issued without proper application of mind on false, contrary facts and therefore the same is required to be quashed and set aside and therefore the entire proceedings of the externment is required to be quashed and set aside.

k) The Petitioner submits that if the impugned order of externment dated 12/01/2021 is seen the notice was issued on 09/09/2020 and the same fact was served upon the Petitioner on 21/10/2020, the same fact is mentioned at page 6 para 3 of the impugned Order to appear before the Deputy Commissioner of Police Zone I on 24/10/2020 which shows

21_wp.1504.2021(R).doc

that the petitioner was not given a proper hearing or it could be said that only formalities could be completed and orders were passed."

5. It is submitted that the alleged in-camera statements of the

witnesses are recorded in the month of June, 2020, and if the said

statements are carefully perused, those are stereo-type.

Therefore, relying upon the grounds in the petition, the learned

Counsel appearing for the petitioner submits that the petition may

be allowed.

6. On the other hand, the learned APP appearing for the

Respondents, relying upon the reasons given by the Externing

Authority and the Appellate Authority, submitted that the petitioner

is externed from Mumbai and the adjoining Mumbai Suburban

district for legally sustainable grounds. It is submitted that it is true

that the petitioner has been acquitted from three offences,

however, the Externing Authority did not place reliance upon the

said offences. Those offences are relied upon only for reference

to indicate the illegal activities of the petitioner in the past.

7. We have given due consideration to the rival submissions

with the able assistance of the learned Counsel appearing for the

21_wp.1504.2021(R).doc

petitioner and the learned APP appearing for the Respondents.

We have carefully perused the grounds in the petition, the

annexures and the impugned order passed by the externing

authority, which is confirmed by the appellate authority, and we are

of the opinion that the impugned order of externment cannot

legally sustain. Upon perusal of the order passed by the Externing

Authority i.e., the Deputy Commissioner of Police, Zone I, Mumbai,

it appears that in all, nine offences are mentioned in the impugned

order. It is mentioned that in C.R. No.200 of 2001 registered under

section 378 of the Indian Penal Code, C.R. No.252 of 2004

registered under sections 143, 144, 145, 147, 148, 149, 353, 188,

323, 324 of the Indian Penal Code and in C.R. No.71 of 2014

registered under sections 323, 324, 504, 506(2), 386 and 34 of the

Indian Penal Code, the petitioner is acquitted. The other crimes

i.e., C.R. Nos.17 of 2018, 114 of 2018, 87 of 2019, 910 of 2016,

637 of 2017, 375 of 2018 and 437 of 2018, are pending trial. The

alleged in-camera statements of the witnesses have been

recorded in the month of June, 2020. However, the order of

externment was passed on 12th January, 2021. Therefore, there is

a considerable delay from the date of recording of the statements

of the witnesses till passing of the impugned orderof externment.

21_wp.1504.2021(R).doc

There is no live link between recording of such statements of the

witnesses and incidents stated therein and the issuance of the

order of externment of the petitioner. The belated issuance of the

order after six months of recording of such statements, casts

serious doubt about the authenticity of the recording of such

statements. Admittedly, during June, 2020, there was lockdown

and, therefore, we find considerable substance in the arguments of

the learned Counsel appearing for the petitioner about the

genuineness of recording of such in-camera statements of the

alleged witnesses. The other offences under the Indian Penal

Code are of the years 2016, 2017 and 2018 and, therefore, it is

difficult to rely upon the said offences in support of the order of

externment. There is a considerable gap in registering the said

offences and the date of issuance of the externment order. It is not

necessary to elaborate upon the reasons. Suffice it to say that

there is no live link between the offences registered against the

petitioner from the years 2016 to 2018 and the recording of

statements of the witnesses in the month of June, 2020 and

issuance of the externment order in the month of January, 2021.

21_wp.1504.2021(R).doc

8. For the reasons aforesaid, the impugned order dated 12 th

January, 2021 passed by the Deputy Commissioner of Police,

Zone I, Mumbai, confirmed by the Appellate Authority i.e.,

Divisional Commissioner, Konkan Division, Mumbai in Appeal

No.11 of 2021 vide order dated 3rd February, 2021 is quashed and

set aside. Rule made absolute accordingly.

9. Writ Petition stands disposed off.

     (MANISH PITALE, J.)                                  (S.S. SHINDE, J.)