Balu Ramasubbu Swami vs The Divisional Commissioner And ...
2021 Latest Caselaw 8796 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

                         WRIT PETITION NO.1937 OF 2021

Balu Ramasubbu Swami                                                  ...Petitioner
           vs.
The Divisional Commissioner
Konkan Division and Others                                            ...Respondents

Mr. Taraq Sayed i/b. Mr. Swapnil Wagh, for the Petitioner.
Dr. F.R. Shaikh, APP for the Respondent-State.

                                        CORAM : S.S. SHINDE &
                                                N.J. JAMADAR, JJ.

JUDGMENT RESERVED ON : 22nd JUNE, 2021 JUDGMENT PRONOUNCED ON : 6th JULY, 2021

(THROUGH VIDEO CONFERENCING)

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JUDGMENT : (Per N.J.Jamadar, J.)

1. Rule. Rule made returnable forthwith and, with the consent

of the counsels for the parties, heard fnally.

2. The challenge in this petition is to an order dated 2 nd March,

2021 passed by the Divisional Commissioner, Konkan Division in

Appeal No. 6 of 2021 whereby the appeal preferred by the

petitioner against the externment order passed by the Dy.

Commissioner of Police, Zone-II, Mumbai on 5 th January, 2021

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thereby externing the petitioner from the Mumbai city, Mumbai

suburban and Thane Districts for a period of two years under

section 56(1)(a) of the Maharashtra Police Act, 1951, came to be

dismissed.

3. Shorn of unnecessary details, the background facts can be

stated as under:

a] An externment proceeding was initiated against the

petitioner at the instance of Aarey police station, wherein crimes

were registered against the petitioner. The immediate cause for

initiation of the externment proceeding was registration of C.R.No.

59 of 2020 for the offences punishable under sections 326, 323,

504, 506 read with 34 of the Indian Penal Code, 1860. In the said

F.I.R. it was alleged that on 10th March, 2020 while the informant

Rajendra Ahire had came behind Unit No. 4, Aarey Colony,

Goregaon (E), the petitioner and his associates threatened the

informant and his associates who tried to reason with the

petitioner. The petitioner and his associates abused and assaulted

the frst informant and his associates. The petitioner gave a

bamboo stick blow on the head of the frst informant. When the

persons in the vicinity came to the rescue of the frst informant

Vishal Parekar, P.A. 2/15

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and his associates, the petitioner threatened them with dire

consequences.

b] During inquiry, it transpired that the petitioner had created

terror in the locality. The petitioner and his associates were

committing offences against human body and property, armed

with deadly weapons. The acts of the petitioner were causing

alarm, danger and harm to persons and their property. Therefore

witnesses were not willing to come forward to give evidence in

public against the petitioner for the fear of retaliation. The inquiry

offcer thus recorded in camera statements of two witnesses.

c] In the show cause notice served on the petitioner under

section 59 of the Act, 1951, two offences were arrayed against the

petitioner. First, C.R.No.496 of 2017 registered for the offences

punishable under section 302, 307, 452, 143, 145, 147, 149, 323,

504 and 506 read with 34 of Indian Penal Code, 1860 and section

135 read with 37(1) of the Maharashtra Police Act. Second, above

referred C.R.No. 59 of 2020 for the offences punishable under

sections 326, 323, 504, 506 read with 34 of the Indian Penal

Code, 1860. The gist of the statements of two witnesses recorded

in camera was also furnished. After due inquiry, the Respondent

No. 2 was persuaded to record the subjective satisfaction that it

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was necessary to extern the petitioner as the acts of the petitioner

were causing or calculated to cause alarm, danger to the persons

and property and there were reasonable grounds for believing that

the petitioner was engaged or about to be engaged in the

commission of offences involving force and violence or offences

punishable under Chapter - XII, XVI or XVII of the Indian Penal

Code. Thus, by the impugned order dated 5 th January, 2021 the

petitioner was externed from the limits of Mumbai city, Mumbai

suburban and Thane Districts for a period of two years. An appeal

preferred by the petitioner thereagainst, came to be dismissed by

Respondent No. 2 by the impugned order dated 2 nd March, 2021.

Hence, this petition.

4. The petitioner assails the impugned orders on the ground

that the externment was actuated by an extraneous consideration.

In fact, the registration of C.R.No. 59 of 2020, which triggered

initiation of externment proceedings was driven by the object of

protecting the real culprits. In the alleged incident, the petitioner

had sustained injuries. The police did not record the report sought

to be lodged by the petitioner and no heed was paid to the various

complaints made to Senior Police Offcers for the reason that one

Vishal Parekar, P.A. 4/15

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of the persons, who assaulted the petitioner, was attached to the

offce of Dy. Commissioner of Police. The satisfaction arrived at by

the authority was thus vitiated.

5. We have heard Mr. Taraq Sayed, learned counsel for the

Petitioner, and Dr. F.R.Shaikh, learned APP for the State at length.

6. Mr. Sayed advanced a two-pronged submission. One, the

incident dated 10th March, 2020 occurred without any

premeditation. There was no material to indicate that the

petitioner acted in a manner pre-judicial to the maintenance of

public order or with a view to create terror. On the contrary, from

the own showing of the frst informant in the said case, the

genesis of the occurrence was the attempt made by Rajendra

Ahire, the frst informant, to relieve himself at an inappropriate

place, near the house of the petitioner. The said incident,

according to Mr. Sayed, was blown out of proportion to initiate the

externment proceeding against the petitioner mala fde. The

offence under section 326 of the Code is not prima facie made out.

If the said frst information report is eschewed from consideration,

there is no material which would justify the order of externment.

Vishal Parekar, P.A.                                                                  5/15




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Two, the order also suffers from the vice of excessive and arbitrary

externment as the petitioner was ordered to remove himself from

the area of Mumbai city, Mumbai suburban and Thane Districts.

Such wholly disproportionate externment betrays the design to

banish the petitioner to a far off place.

7. Per contra, Dr. F.R.Shaikh, learned APP supported the

impugned order. It was urged that this Court in exercise of extra-

ordinary jurisdiction ought not delve deep into adequacy of the

material taken into account by the competent authority to arrive

at the subjective satisfaction. What is to be seen is existence of the

material. In the case at hand, according to Dr. Shaikh, there is

adequate material to justify the impugned action. Emphasis was

sought to be laid on the gist of in camera statements of witnesses,

which according to Dr. Shaikh, speak in volumes about the rein of

terror created by the petitioner.

8. It is trite law that the satisfaction as to the necessity of

externment has to be that of the authority invested with the power

to pass the order of externment. If the satisfaction recorded by the

empowered authority is based on the material placed on record,

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then the Courts are loathe to interfere with the order passed by

the said authority. Thus, it is postulated that the Courts in

exercise of the power of the judicial review ought to consider the

existence of the material and not its suffciency. Nor the Courts

would be justifed in interfering with the order of the authority on

the premise that on the given set of facts another possible view

can be taken.

9. A useful reference can be made to the judgment of the

Supreme Court in the case of Gazi Saduddin vs. State of

Maharashtra1 wherein the permissible grounds of interference

with an order of externment passed under section 56 of the Act

were spelled out as under:

"Such satisfaction of the authority can be interfered with only if the satisfaction recorded is either demonstratively perverse based on no evidence, misreading of evidence or which a reasonable person could not form or that the person concerned was not given due opportunity resulting in prejudicing his rights under the Act."

10. In the case of State of NCT of Delhi and Anr. vs.

Sanjeev @ Bittoo2 the Supreme Court considered the scope of

interference in an order of externment passed under section 47 of

1(2003) 7 Supreme Court Cases 330.

2    (2005) 5 Supreme Court Cases 181

Vishal Parekar, P.A.                                                                 7/15




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the Delhi Police Act, and observed as under:

"The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those classes of cases which relate to deployment of troupes, entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The frst ground is `illegality' the second `irrationality', and the third `procedural impropriety'. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All. ER. 935, (commonly known as CCSU Case). If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. ( See Commissioner of Income-tax v. Mahindra and Mahindra Ltd., AIR (1984) SC 1182.

(emphasis supplied)

11. On the aforesaid touchstone reverting to the facts of

the case, it is pertinent to note that the following material weighed

with the externment authority.

Crimes:

v-dz- ikssyhl Bk.ks XqUgk uksan dzekad o dye ln;fLFkrh 1 fnaMks'kh [email protected]] dye 302] 307] 452] 143] 145] U;k;izfo"B 147] 149, 323] 504] 506] 34 Hkknfo lg 37(1)] 135 eiksdk 2 vkjs [email protected] dye 326] 323] 504] 506] 34 Hkknfo riklkf/ku

Vishal Parekar, P.A. 8/15

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Statements:

In camera statements of two witnesses recorded on 4 th July,

2019 and 4th August, 2020.

12. It becomes evident that apart from the two crimes referred to

above, there was no other crime to the credit of the petitioner. The

authority was, however, of the view that the acts of the petitioner

were causing or calculated to cause alarm, danger or harm to the

persons and property. Support was sought to be drawn primarily

from the registration of C.R. No. 59 of 2020, referred to above.

13. We have perused the material on record, especially

narration of allegations against the petitioner in the said frst

information report in C.R. NO. 59 of 2020. We fnd that the

submissions on behalf of the petitioner carry conviction. From the

tenor of the frst information report in C.R.No. 59 of 2020, it

becomes abundantly clear that the genesis of the said occurrence

was the act on the part of the frst informant therein to relieve

himself near the dwelling houses. An altercation allegedly ensued

over the appropriateness of the said conduct on the part of the

frst informant. Evidently, the petitioner was unarmed. At the

Vishal Parekar, P.A. 9/15

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highest, the petitioner picked up a bamboo stick which was lying

at the spot and assaulted the frst informant. From the perusal of

the allegations in the said frst information report, it would be

rather diffcult to draw an inference that the occurrence refects

upon the act or conduct of the petitioner to create a sense of terror

or alarm in the society.

14. It was the consistent stand of the petitioner before the

authorities that, in the said occurrence, the petitioner was, in fact,

assaulted by the informant party. The injury certifcates were

pressed into service to lend support to the said claim. The

petitioner had also addressed communications to superior police

offcers making a grievance that the report of the petitioner in

respect of the said occurrence was not registered. The petitioner

has ascribed bias to the authorities as one of the members of the

informant party was a police personnel.

15. We are conscious of the limited nature of the

jurisdiction we are called upon to exercise. However, the facts of

the case at hand indicate that the externment order is essentially

based on the registration of the C.R.No. 59 of 2020. We fnd

Vishal Parekar, P.A. 10/15

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substance in the submission of Mr. Sayed that if the said crime is

eschewed from consideration, there is no material to which the

externment order can hang to. The Chapter cases taken out

against the petitioner in the year 2009 and 2012 (referred to in the

show cause notice) were simply stale. Conversely, there is no

material to show a continued course of unlawful and violent acts

attributable to the petitioner, in the intervening period. It is

imperative to note that the witnesses whose in camera statements

were recorded, refer to the incidents which were allegedly

committed in the month of June, 2020, post registration of

C.R.No. 59 of 2020.

16. The situation which thus obtains is that the

occurrence which triggered the initiation of the externment

proceeding was absolutely without any premeditation and the

quarrel broke out on the spur of moment on account of the

conduct attributed to the frst informant therein of relieving

himself at an inappropriate place. The necessary element of the

acts and the conduct calculated to cause alarm and danger to the

persons and prejudicial to the maintenance of public order is

conspicuous by its absence. Thus, the satisfaction arrived at by

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the authorities is based on a complete misreading of the material

arrayed against the petitioner. Restraint on the right to freedom of

movement (brought about by the impugned order), guaranteed

under the constitution, in the circumstances of the case, appears

to be totally unsustainable.

17. We hasten to clarity that the aforesaid observations as

regards the C.R.No. 59 of 2020 have been made only for the

purpose of determining the justifability of the externment order.

This may not be construed as an expression of opinion on the

merits of the prosecution, which may arise out of C.R.No. 59 of

2020. The Competent Court shall decide the said proceedings

uninfuenced by the aforesaid observations, on its merits.

18. The submission on behalf of the petitioner that the

impugned order suffers from the vice of excessive and arbitrary

externment also merits acceptance. Undoubtedly, it is for the

authority to decide the extent and duration of the externment,

subject to maximum statutorily prescribed. The externing

authority is better equipped to decide how best the externment

order can be made effective so as to achieve the objective behind

Vishal Parekar, P.A. 12/15

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the externment. The area of externment need not necessarily be

restricted to the area in which the externee indulges in the illegal

activities. The element of proportionality is, however, not

completely irrelevant. If, in a given fact situation, the Court comes

to the conclusion that the externment order imposes an

unreasonable, greater and excessive restraint on the personal

liberty than warranted, then such an order can be legitimately

interfered with.

19. A proftable reference, in this context, can be made to a

Full Bench judgment in the case of Sumit Ramkrishna

Maraskolhe vs. Deputy Commissioner of Police, Nagpur and Anr. 3

wherein the following proposition was enunciated:

26(i). The externment order directing externment of a person from a much larger area than the one of his illegal activities, must be based upon some material which provides an objective criteria to the authority for reaching a subjective satisfaction regarding the need for externing a person to an expansive area though it may not always directly or elaborately refer to that material in the order itself, as it all depends upon facts and circumstances of the case which need be vetted through the judicial process of drawing of legitimate inference following the law of Pandharinath [1972 ALL MR Online 758] and Sanjeev @ Brittoo (supra).

20. In the instant case, by the impugned order, the

3 2019 ALL MR (Cri) 1961.

Vishal Parekar, P.A.                                                                     13/15




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petitioner has been externed from the Mumbai city, Mumbai

suburban and Thane districts. We have adverted to the material

arrayed against the petitioner and taken into account by the

externing authority. The facts that the offence registered against

the petitioner, which was the immediate cause for initiation of the

externment proceeding, did not refect upon the tendency and

propensity of the petitioner to create a rein of terror, nor the acts

and conduct attributed to the petitioner posed a threat to the

maintenance of public order, in our view, render the decision to

extern the petitioner from such a vast area vulnerable, especially

when there was no other material to record such a satisfaction

about the necessity for externment from a larger area. Such

exercise of authority, in turn, betrays non application of mind and

vitiates the satisfaction arrived at by the externing authority.

21. For the foregoing reasons, we are persuaded to hold

that the impugned order deserves to be interfered with.

Resultantly, the petition deserves to be allowed. Hence, the

following order.

Vishal Parekar, P.A.                                                                   14/15




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                                    ORDER

a]       The Petition stands allowed.

b]       The order of externment dated 5th January, 2021 passed by

the Dy. Commissioner of Police, Zone-II, Mumbai and confrmed

by the Divisional Commissioner, Konkan Division, in Appeal No. 6

of 2021, stands quashed and set aside.

c] Rule made absolute in the aforesaid terms.

d] All concerned to act on an authenticated copy of this order.

         (N.J. JAMADAR, J.)                    (S.S. SHINDE, J.)




Vishal Parekar, P.A.                                                         15/15