Satish Kailashnath Singh vs Divisional Commissioner Of ...
2021 Latest Caselaw 682 Bom

                                                             Cri.wpst.6875-2020.doc

DDR
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

             CRIMINAL WRIT PETITION ST.NO. 6875 OF 2020

      Satish Kailashnath Singh
      Aged 35 years, Occ. Service,
      R/a. Vitthal Jina Chawl, M.G. Road
      No.9, Near Amba Mata Mandir,
      Sukarwadi, Borivali (E), Mumbai 400 066.               ..Petitioner
             vs.
      1. Divisional Commissioner, Konkan Bhavan,
      CBD Belapur, Navi Mumbai.

      2. Deputy Commissioner of Police
      Dahisar (East) Division, Mumbai,
      Shiv Shakti Complex, Shailendra Vidyalay
      Marg, Dahisar (East), Mumbai 400 068.


      3. Assistant Commissioner of Police
      Dahisar (East) Division, Mumbai.


      4. Senior Inspector of Police,
      Kasturba Marg Police Station.                          ..Respondents

                              ----------------------------
      Mr. Prashant Pandey for the Petitioner.
      Mr. K.V. Saste, APP for State.
                              ----------------------------

                           CORAM                :   S.S.SHINDE &
                                                    M.S.KARNIK, JJ.

RESERVED ON : JANUARY 5, 2021.

PRONOUNCED ON : JANUARY 13, 2021.

Cri.wpst.6875-2020.doc

JUDGMENT : (PER M.S. KARNIK, J.)

Rule. Rule is made returnable forthwith. Heard fnally with

the consent of learned counsel appearing for the parties.

2. The petitioner by this Petition fled under Article 226 of the

Constitution of India read with Section 482 of the Code of

Criminal Procedure challenges an order dated 7/1/2020 passed

by the Deputy Commissioner of Police, Zone XII, Mumbai -

externing authority, externing the petitioner from the areas of

Mumbai City, Mumbai Suburbs and Thane District, for a period of

2 years. The challenge is also raised to an order dated 6/3/2020

passed in Appeal by the Divisional Commissioner of Police,

Konkan Bhavan, dismissing the Appeal fled against the

externment order. The principal contention of learned counsel for

the petitioner is that all the ofences registered against the

petitioner as shown in the chart reproduced in the externment

order would show that the same are registered at the Kasturba

Marg Police Station. According to learned counsel, externing the

petitioner from the areas of Mumbai City, Mumbai Suburbs and

Thane District, is unwarranted. According to him, the order is an

excessive restraint on his liberty.

Cri.wpst.6875-2020.doc

3. It is further submitted that a cursory look at the ofences

registered against the petitioner would reveal that his activities

are not prejudicial to the maintainence of the public order in the

said area and that it cannot be said that normal law of land is

found to be inefective to deal with the petitioner. Inviting our

attention to the averments made in the Petition, learned counsel

submitted that false cases are registered against the petitioner

only to wreak vengeance and cause hardship. In the submission

of learned counsel all the First Information Reports registered are

outcome of the property disputes between private persons and

therefore, it cannot be said that the activites of the petitioner are

prejudicial to the maintenance of law and order. He further

submitted that it is nowhere mentioned in the show cause notice

that the witnesses are unwilling to come forward to give

evidence in public against the proposed externment by reason of

apprehension on their part as regards the safety of their person

or property. According to him, there is no whisper in the show

cause notice stating that due to the illegal acts of the petitioner,

alarm or danger has been created in the mind of the people in

respect of the safety of the persons or property in view of the

ofences committed by him under the provisions of the Chapter

XVI and XVII of the Indian Penal Code.

Cri.wpst.6875-2020.doc

4. Learned counsel for the petitioner relied upon the decision

of the Hon'ble Apex Court in the case of Pandharinath

Shridhar Rangnekar vs. Deputy Commissioner of Police,

State of Maharashtra1 (AIR 1973 SC 630) and the decision of

the Full Bench of this Court, Nagpur Bench, in the case of Sumit

s/o. Ramkrishna Maraskolhe vs. Deputy Commissioner of

Police and others2 in support of his submissions. Learned

counsel also relied upon the decision of this Court in the case of

Dnyaneshwar s/o. Sopan Gite vs. The State of

Maharashtra and others3, Aurangabad Bench, to contend that

when the dispute is of private nature, ordinarily maintenance of

public order is not involved.

5. Learned APP on the other hand supported the impugned

order. Inviting our attention to the contens of the show cause

notice and fndings recorded in the impugned order, learned APP

would submit that the externing authority was justifed in

concluding that the activites of the petitioner are prejudicial to

the maintenance of public order. He would further submit that

having regard to the nature of the activities the action of

externing the petitioner from the areas of Mumbai District,

Mumbai Suburbs and Thane District, cannot be said to be 1 AIR 1973 SC 630 2 Criminal Writ Petition No.1002 of 2007 - Nagpur Bench 3 Criminal Writ Petition No.699 of 2019 - Aurangabad Bench

Cri.wpst.6875-2020.doc

unwarranted. Learned APP would submit that the material on

record is more than sufcient and on that basis the subjective

satisfaction of the externing authority was based and hence the

order does not call for any interference.

6. So far as frst submission of learned counsel for the

petitioner that the externment order imposes excessive restraint

on the liberty of the petitioner and that the same is excessive, it

would be relevant to refer to the ofences registered against him.

Sr. Police Station Particulars Current State i Kasturba Marg Cr.No.07/15 Before the Court u/s.341, 332,34 of IPC ii Kasturba Marg Cr.No.55/18 Before the Court u/s.354(A)(D),506(2) of IPC iii Kasturba Marg Cr.No.495/18 Investigating u/s.435,447,451,141, 143,34, 452, 504, 506 IPC iv Kasturba Marg Cr.No.75/19 Investigating.

u/s. 447, 427, 452, 141,143, 146, 147,149 of IPC

7. It would thus be seen that all the ofences registered

against the petitioner are registered with the Kasturba Marg

Police Station. Even the impugned order records that the criminal

activities of the petitioner extend to the areas within the

Cri.wpst.6875-2020.doc

jurisdiction of the Kasturba Marg Police Station especially

Sukarwadi, Carter Road, Omkareshwar Temple area, Rohidas

Nagar, Borivali (East), Mumbai, which is causing breach of peace

to the residents of the said area. No reasons have been indicated

as to why the petitioner needs to be externed from the larger

areas stipulated in the order. Though the activities of the

petitioner are restricted to the jurisdiction of the Kasturba Marg

Police Station, the petitioner has been exerned from the areas of

Mumbai City, Mumbai Suburbas and Thane District. From the

impugned order we do not see any reason assigned by the

externing authority for restricting the movements of the

petitioner to such a large area.

8. This Court in the case of Dnyaneshwar s/o. Sopan Gite

(supra) in paragraph 30(vii) has observed thus :-

(vii) There should be material for forming opinion at the time of issuing show cause notice that externment order needs to be made in respect of a particular area, may be entire district or part of district and area contiguous to particular district or part of district and that needs to be refected in show cause notice. Only reason that the particular area is contiguous area will not be sufcient to cover that contiguous area in externment order. Possibility of activity in that area on the basis of material needs to be made out for subjective satisfaction".

On this ground itself the impugned order deserves to be set

aside.

Cri.wpst.6875-2020.doc

9. We also fnd from the impugned order that the subjective

satisfaction of the externing authority is based on the ofence

registered against the petitioner with the Karsturba Marg Police

Station being C.R.No.75 of 2019 under Section 447, 427,

452,141, 143, 146, 147,149 of Indian Penal Code. A reading of

the narration as refected in the show cause notice would reveal

that crime registered is an outcome of a property dispute

between Nagesh Sinh on one hand and Mulraj Khatav and Sons

on the other in respect of which the suit for title is pending in the

Civil Court. It is alleged that the petitioner along with 5-6 other

persons posed to be the security personnel appointed on behalf

of the Mulraj Khatav and Sons for protection of the plot in

question. The C.R.No.75/2019 is an outcome of this dispute. The

impugned order refers to C.R.No.75 of 2019.

10. From the impugned order it is seen that the subjective

satisfaction is based on the ofence registered vide C.R.No.75 of

2019 and two in-camera statements recorded of the witnesses.

This Court in the case of Dnyaneshwar s/o. Sopan Gite (supra)

in paragraph 29 has observed thus :-

"29) When there is some dispute due to which some crime is committed, motive always plays important part. When the dispute is of private nature, ordinarily maintenance of public order is not involved. In such cases, there are other provisions like chapter case proceedings given in Criminal Procedure Code for taking preventive action. In those cases, it is never desirable to use the provisions of externment as it involves restraint to

Cri.wpst.6875-2020.doc

much extent on the enjoyment of fundamental rights quoted already. It always needs to be kept in mind by ofcer, making order or even by the Court that externee is virtually cut from the roots by taking him away from the family and the people with whom he was living at a particular place. When the roots of the man are cut, he is more likely to commit ofences as there is less possibility of his identifcation in other area. On the other hand, a person, who is involved in private dispute, but who is living with his family is less likely to commit similar ofence as his Cri.W.P.No.699/2019 entire family sufers due to prosecution and such orders. Thus, the order of externment in one way acts against the policy of reformation. In the present matter, it is already mentioned that there was no material available for passing externment order. Even if it is presumed that the aforesaid circumstances like acquittal were not there, it was not possible to pass externment order in view of nature of object behind the externment."

11. In this view of the matter it appears that when C.R.75/2019

is an outcome of a property dispute between private persons,

then in our view, it cannot be said that the issue of public order is

involved to justify an externment.

12. In this view of the matter the impugned order deserves to

be quashed and set aside. Hence the following order :

ORDER

i. The Writ Petition is allowed in terms of prayer Clauses

(a) and (b) which read thus :

a) This Hon'ble Court be pleased to quash and set

aside the impugned order dated 6/3/2020 passed in

Externment Appeal No.03/2020 passed by the

Divisional Commissioner, Konkan Division ;

Cri.wpst.6875-2020.doc

b) That this Hon'ble Court be pleased to quash

and set aside the Externment Order No.07/C/43/PR-

12/2020 dated 7/1/2020 passed by Ld. Asstt.

Commissioner of Police, Dahisar (E) Division.

13. Rule is made absolute in the above terms.

14. The Writ Petition is disposed of accordingly.

Digitally signed by Diksha Diksha Rane Rane Date: 15. This judgment will be digitally signed by the Personal 2021.01.14 17:36:16 +0530 Assistant of this Court. All concerned will act on production by fax

or email of a digitally signed copy of this judgment.

                      (M.S.KARNIK, J.)                                (S.S.SHINDE, J.)