Akbar Jamil Khan vs The State Of Maharashtra And Anr
2021 Latest Caselaw 11780 Bom

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LAXMIKANT   LAXMIKANT
            GOPAL
GOPAL       CHANDAN
CHANDAN     Date: 2021.08.25
            15:11:04 +0530              cri.wp-2346.21-aw-ia-1679.21.odt




                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL WRIT PETITION NO.2346 OF 2021
                                            ALONG WITH
                            CRIMINAL INTERIM APPLICATION NO.1679 OF 2021
                                                IN
                               CRIMINAL WRIT PETITION NO.2346 OF 2021

            Mr. Akbar Jamil Khan                             ]
            32 years, occupation : informer,                 ]
            Res. M-Block, Room No.301,                       ]..... Petitioner/
            Dr. A B Road, Worli, Mumbai 18                   ]Applicant - Externee

                   versus

            1]     The State of Maharashtra                  ]
                   (At the instance of Dr. D. B. Marg        ]
                   Police Station)                           ]
                                                             ]
            2]     The Hon'ble Divisional                    ]
                   Commissioner, Kokan                       ]
                   Division, Old Secretariat                 ]
                   1st Floor, Exty Bldg. Mumbai              ]
                                                             ]
            3]     Dy. Commissioner of Police                ]
                   Zone-2, Mumbai                            ]
                   (Rajeev N Jain)                           ]..... Respondents.


            Mr. Harshal Mirashi a/w Mr. Mitesh Parmar for the Petitioner/Applicant.
            Mr. J P Yagnik, APP for the Respondent/State.
            Mr. Palande, PSI of Dr. D B Marg Police Station present.


                                      CORAM :     S. S. SHINDE,
                                                  N. J. JAMADAR, JJ
                                      Reserved on : 11th August 2021
                                      Pronounced on : 25th August 2021




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JUDGMENT (PER S. S. SHINDE, J)

1 Rule. Rule is made returnable forthwith and heard with the

consent of the learned counsel appearing for the parties.

2 By way of this Writ Petition, the Petitioner takes exception to the

externment order bearing No.186/C/43/Zone-2/20 dated 26/11/2020 passed

by the 3rd Respondent i.e. Deputy Commissioner of Police, Zone-2 Mumbai

which has been confirmed by the 2 nd Respondent i.e. the Divisional

Commissioner, Konkan Division, by order dated 23 rd March 2021 in Appeal

No.23/2021 filed by the Petitioner.

3 The Criminal Interim Application No.1679 of 2021 is filed by the

Petitioner/Applicant for staying the said externment order dated 26/11/2020

passed by the 3rd Respondent as also the order passed by the 2nd Respondent in

Appeal No.23 of 2021.

4 By the order of externment passed by the 3 rd Respondent, the

Petitioner has been externed out of the limits of Mumbai City, Mumbai

Suburbs' Districts for a period of 1 years on the ground that the Petitioner

habitually commits criminal acts like forcible extortion, thefts with intention to

cause wrongful loss and to cause harm to the assets of the public.

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5            Being aggrieved and dissatisfied with the said order of

externment, the Petitioner filed an Appeal before the Divisional Commissioner,

Konkan Division. The said Appeal has been dismissed by the 2nd Respondent by

order dated 23rd March 2021. Hence this Writ Petition.

6 The learned counsel appearing for the Petitioner submits that the

concerned Assistant Police Commissioner, Zone-2, Mumbai, has failed to serve

a copy of notice dated 12/08/2020. It is stated that, the Petitioner was not

made aware about the general nature of material allegations made against the

petitioner in the show cause notice, and therefore, Petitioner is deprived of his

valuable right to make effective representation and, on this ground alone the

impugned orders deserve to be set aside. It is submitted that there is not a

single conviction to the credit of the Petitioner and, the

Respondents/Authorities have failed to take into consideration the said fact

while passing the order of externment. It is also submitted that the externment

order is passed without sending initial show cause notice dated 12/08/2020 to

make effective representation referred to herein above, and as a result, the

Petitioner could not make effective representation because of not sending

aforesaid notice mentioning therein the general nature of allegations, and

therefore, the externment order is against the principles of natural justice, and

is in violation of fundamental rights of the Petitioner.

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The learned counsel for the Petitioner further submitted that the

in-camera statements of two witnesses cannot be relied upon, as the facts need

to be tested on the anvil of the evidence and cross examination. It is submitted

that there was no communication of the alleged show cause notice purported

to have been issued under Section 59 of the Bombay Police Act by the

concerned Assistant Police Commissioner on 12/08/2020. It is further

submitted that as a matter of fact the externing authority did not arrive at

subjective satisfaction that the witnesses are unwilling to come forward to give

evidence in public against the proposed externee i.e. the petitioner herein by

reason of apprehension to safety of their part, persona and property. He

therefore submitted that the order of externment needs interference. He

submits that the writ petition may be allowed.

7 The learned APP, appearing for the Respondents/State, submitted

that the order of externment passed by the Respondent/Authority is fully

justified and, the Respondents/Authority after due satisfaction has passed the

said order. It is submitted that the Petitioner is a habitual offender. He

therefore submits that the writ petition may be dismissed.

8 We have given careful consideration to the rival submissions. With

the able assistance of learned counsel for the petitioner and learned APP for

State, perused the pleadings and grounds taken in the petition, annexures

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thereto, original record pertaining to the externment proceedings of the

petitioner and reasons assigned in the impugned order by the

Respondent/Authority.

We have carefully perused the record and material pertaining to

the externment proceedings initiated against the Petitioner, and it appears that

the said notice dated 12th August 2020 signed by the concerned Assistant

Commissioner of Police has not been sent to the Petitioner. Therefore, we find

considerable force in the arguments of the learned counsel for the Petitioner

that the right of the Petitioner to reply/make effective representation to answer

such notice to the competent authority has been totally hampered and

jeopardized.

9 We have carefully perused the contents of the in-camera

statements of the witnesses and we are of the opinion that if the allegations

made in the said statements are read in their entirety, at the most those

allegations may disclose the breach of law and order, and not the public order.

10 The Petitioner has been externed from Mubai City and adjoining

Suburbs' Districts. No doubt the externing authority can extern the proposed

externee from the adjoining districts to the district in which the alleged

activities of the externee are confined. However, the said authority has to give

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cogent reasons for externing the proposed externee from adjoining districts.

11 As rightly contended by the learned counsel for the petitioner that,

if the externment order rests upon in-camera statements and other material, in

that case, the general nature of allegations by the said witnesses in their

statements need to be mentioned in the initial notice issued to the proposed

externee, so as to enable the proposed externee to file effective reply to the

said allegations.

12 All the alleged offences, which are mentioned in the impugned

order of the externing authority, are shown to have been pending against the

Petitioner. It is not demonstrated by giving cogent reasons in the impugned

order, the live-link between the said pending offences and the initiation of the

externment proceedings against the Petitioner. So far as those pending

offences are concerned, the law will take its own course and, if there is

sufficient material, there will be full-fledged trial.

13 The Division Bench (Coram:- A.S. Oka & S.S. Shinde, JJ.) of this

Court, in the unreported judgment in the case of Iqbal Munnaf Sayyed (supra),

in Para 6 held as under-

6. This Court in the case of Mrs. Marry Kutty Thomas Vs. The State of Maharashtra & Ors, 1987(2) Bom.C.R. 196, in the facts of that case, held that the issuance of notice under

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Section 59, the provisions of the said Section are mandatory, notice must not only state the general nature of material allegation against the person concerned, but also the precise nature of action proposed to be taken against him.

14 Another Division Bench (Coram:- S.S. Shinde & V.L. Achliya, JJ.) in

the case of Krishna Vijay Lalbegi Vs. The State of Maharashtra & Ors, in para

10 held as under:-

10] According to the petitioner, the impugned externment order passed by the Competent Authority and does not record subjective satisfaction of the fact that witnesses were not willing to come forward to depose against the petitioner out of fear, which is one of the cardinal requirement to invoke section 56 of the Act. This position is no more res integra. The Apex Court in the case of [Pandharinath Shridhar Rangnekar Vs. Dy.Commissioner of Police, State of Maharashtra] 2, reported in AIR 1973 S.C. 630 has 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 of their part as regards the safety of their persona and property. This subjective satisfaction is conspicuously absent in the order passed by the Externing Authority. In paragraphs 4, the Division Bench held that what is stated in show cause notice cannot be the basis to assume that the concerned authority was subjectively satisfied about the existence of the aforesaid fact and in absence of such subjective satisfaction of the fact, the Externinig Authority would not acquire jurisdiction to invoke section 56 (1) (a)(b) of the said Act.

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15          In the light of discussion in foregoing paragraphs, we are of the

opinion that, because of externing the petitioner from Mumbai City and

Mumbai Suburbs' Districts, by the impugned orders, the fundamental right of

the petitioner to reside at the place of his choice or move from one place to

another has been curtailed and taken away for the period mentioned in the

impugned orders. Therefore, this is a fit case wherein interference in the

impugned orders under writ jurisdiction is warranted. Hence, we are of the

considered view that the impugned order passed by the externing authority,

thereby externing the petitioner from the revenue boundaries of Mumbai City

and the Mumbai Suburbs Districts, and the order passed by the Appellate

Authority confirming the order passed by the externing authority cannot be

legally sustained, and the same deserve to be quashed and set aside. Hence,

the following order.

ORDER

1. The writ petition is allowed

2. The Order bearing No.186/C/43/Zone-2/20 dated 26/11/2020 passed by the Respondent No. 3 and order dated 23/03/2021 passed by Respondent No. 2 in Externment Appeal No. 23 of 2021, are quashed and set aside.

3. Rule is made absolute to above extent.

4. The writ petition stands disposed of.

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5. In view of the disposal of the Writ Petition, the Criminal Interim Application No.1679 of 2021 does not survive and the same to stand disposed of accordingly.

6. All concerned parties to act upon an authenticated copy of this order.

[N. J. JAMADAR, J]                                   [S. S. SHINDE , J]




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