Bombay High Court
Noorlen @ Noor Umar Khan vs The Divisional Commissioner And ... on 7 September, 2021
Bench: S.S. Shinde, N. J. Jamadar
Digitally
signed by
UMESH
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UMESH RAMESH
RAMESH SHINDE
SHINDE Date:
2021.09.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
14:40:49
+0530
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2283 OF 2021
Mr. Noorlen @ Noor Umar Khan ]
Age - 25 years, Occ. : Nil ]
Residing at Masjid Chawl, Rajendra Nagar, ]
Borivali (East) ] ... Petitioner
Versus
1. The Divisional Commissioner, ]
Kokan Division, Old Sachivalay, 1st floor, ]
Next to Elphinstone College, Kalaghoda, ]
Fort, Mumbai - 400 032. ]
2. The Deputy Commissioner of Police, ]
Zone-XII, Dahisar (East), Mumbai. ]
3. The State of Maharashtra ] ... Respondents
Mrs. Veena J. Kamble for Petitioner.
Mr. K. V. Saste, APP for State.
CORAM :- S. S. SHINDE &
N. J. JAMADAR, JJ.
RESERVED ON :- 11 AUGUST, 2021
PRONOUNCED ON :- 07 SEPTEMBER, 2021
JUDGMENT (PER : N. J. JAMADAR, J.) :-
1. Rule. Rule made returnable forthwith. With the consent of
learned Counsel for the parties, heard finally.
2. The challenge in this petition is to an order dated
23/03/2021 in Appeal No.16/2021 passed by the Respondent No.1
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whereby the appeal preferred by the Petitioner against the externment
order bearing No. 50$lh$43$ifj-12$21 dated 21/01/2021, passed by the
Respondent No.2, came to be dismissed.
3. The petition arises in the backdrop of the following facts :
(a) An externment proceeding was initiated against the Petitioner
at the instance of Kasturba Marg Police Station, Mumbai, on the
premise that the movements and acts of the Petitioner were causing
or calculated to cause alarm, danger or harm to person or property
and that there were reasonable grounds for believing that the
Petitioner was engaged or was about to be engaged in the
commission of offences involving force or violence or offences
punishable under Chapters XVI and XVII of the Indian Penal Code,
1860 (for short, 'Penal Code') and the witnesses were not willing to
come forward to give evidence in public against the Petitioner for the
fear of reprisal.
(b) A show-cause notice was issued to the Petitioner on
01/10/2020. The sponsoring authority alleged therein that two
offences were registered against the Petitioner at Kasturba Marg
Police Station. First, C.R.No.126/2019 for the offences punishable
under Sections 326, 324, 323, 504 and 506 r/w Section 34 of the
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Penal Code. Second, C.R.No.780/2020 for the offences punishable
under Sections 326, 324, 323, 504 and 506 r/w Section 34 of the
Penal Code. Preventive action was also initiated under Section 107
of Cr.P.C., 1973. However, the Petitioner continued to indulge in
criminal activities with impunity. It was further alleged that on
account of reign of terror created by the Petitioner, witnesses were
not willing to come forward to give evidence against the Petitioner in
public as they feared for the safety of their life and property. Hence,
in-camera statements of two witnesses were recorded. It transpired
that the Petitioner, alongwith his associates, was committing offences
armed with deadly weapons and extorting money from innocent and
unsuspecting persons within the jurisdiction of Kasturba Marg Police
Station. Hence, it was proposed to extern the Petitioner from the
limits of Mumbai city and suburban and Thane districts for 2 years.
The Petitioner gave reply to the show-cause notice.
(c) After an enquiry, the Deputy Commissioner of Police, Zone-
XII, Mumbai, was persuaded to pass the impugned order of
externment whereby the Petitioner was externed from the limits of
Mumbai city, suburban and Thane districts for the period of 2 years.
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(d) Being aggrieved, the Petitioner preferred an appeal before the
Divisional Commissioner, Kokan Division, being Externment Appeal
No.16/2021. By the impugned order dated 23/03/2021, the
Respondent No.1 dismissed the appeal opining, inter alia, that no
fault can be found with the order passed by the Deputy
Commissioner of Police.
(e) Being further aggrieved, the Petitioner has invoked writ
jurisdiction of this court.
4. We have heard Mrs. Veena Kamble, learned Counsel for the
Petitioner and Mr. K. V. Saste, learned APP for State at length. With the
assistance of the learned Counsel for parties, we have also perused the
material on record including the original record of the externment
proceeding tendered by the learned APP.
5. Mrs. Veena Kamble, learned Counsel for the Petitioner, urged
that the impugned order suffers from the vice of arbitrary and
unreasonable exercise of the authority by the Respondent Nos.1 and 2.
There was no justification for initiation of the externment proceedings
against the Petitioner. On the basis of only one C.R., registered against
the Petitioner, drastic action of externing the Petitioner from such a vast
area, and that too for a period of 2 years, has been taken by the
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authorities without application of mind, urged Mrs. Kamble. It was
further submitted that C.R.No.780/2020, on the strength of which the
Petitioner came to be externed, was registered by the first informant
therein to give a counterblast to the C.R.No.779/2020 registered by the
Petitioner in respect of the very same occurrence. Mrs. Kamble urged
with a degree of vehemence that the confidential statements of witnesses
could not have been relied upon as from the material on record it
becomes abundantly clear that during the period the alleged incidents
occurred, the Petitioner was in custody in C.R.No.780/2020.
6. In opposition to this, Mr. Saste, learned APP for State,
supported the impugned orders. It was submitted that the authorities
have arrived at the subjective satisfaction on the basis of relevant
material. The sufficiency or adequacy of the material cannot be delved
into by this court in exercise of extraordinary jurisdiction.
7. We have carefully perused the show-cause notice dated
01/10/2020 and the externment order dated 21/01/2021. From a
conjoint reading of the show-cause notice and the externment order, it
becomes abundantly clear that the Respondent No.2 has essentially
banked upon one crime i.e. C.R.No.780/2020 and in-camera statements
of two witnesses, recorded on 02/09/2020 and 04/09/2020 respectively.
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The narration of facts in respect of C.R.No.780/2020 reveals that there
was an altercation between the first informant party and the Petitioner
and his alleged accomplices. The Petitioner and his associates allegedly
assaulted the brother of the first informant. The victim had sustained
grievous injuries.
8. It is imperative to note that the Petitioner has contended in
the reply to the show-cause notice itself that the Petitioner had initially
lodged FIR bearing no.779/2020 in respect of the very same occurrence
against the first informant in C.R.No.780/2020 viz. Chand Pasha Khan as
the aunt of the Petitioner was assaulted and her modesty was outraged.
From the perusal of the externment order, it does not appear that the
externing authority adverted to this aspect at all. It is trite law that a case
and a cross-case in respect of an occurrence are nothing but two versions
of one and the same occurrence. It is not the case that C.R.No.779/2020
has not been registered at the instance of the Petitioner. Failure to
consider this aspect impairs the action on the part of the externing
authority as the offences, for which the Petitioner has been arraigned, are
apparently individualistic in nature. If the genesis of the offences is in the
dispute between two groups of persons then resort to the provisions of
preventive action, without adverting to the reported counter version of
the petitioner, may not be justifiable.
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9. Though the externing authority has referred to C.R.No.
126/2019, yet the said crime has not been taken into account to base the
externment order. Moreover, the offences alleged therein do not appear
to have been committed in the immediate past so as to establish a
proximate link between C.R.No.126/2019 and C.R.No.780/2020.
10. The fate of externment order thus hangs in balance on the
statements of two confidential witnesses. The tenor of the statements of
the witnesses, recorded in-camera, is that the Petitioner extorted money
by causing harm armed with deadly weapons. While the Petitioner
assaulted and extorted the money, persons gathered. However, on
account of terror created by the Petitioner, nobody came forward to
rescue the witnesses. For witness 'A', the incident occurred in the last
week of July 2020. For witness 'B', the incident took place in the first
week of August 2020.
11. Mrs. Kamble, learned Counsel for the Petitioner, invited the
attention of the Court to the fact that in connection with
C.R.No.780/2020, the incident reported in which allegedly occurred on
26/07/2020, the Petitioner was arrested on 27/07/2020 and released on
bail on 03/08/2020. This factor singularly demonstrates the unreliability
of the confidential statements, submitted Mrs. Kamble.
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12. Mr. Saste, learned APP for State, joined the issue by
canvassing a submission that after the Petitioner took the said contention,
the authorities reverified the truthfulness and correctness of the incidents
reported by those witnesses and found that, as a matter of fact, those
incidents did occur in the last week of July 2020 and first week of August
2020.
13. We are afraid to accede to the submission of Mr. Saste,
learned APP for State. The fact that the Petitioner was in custody for
almost the entire last week of July 2020 dismantles the very substratum
of the confidential statement of witness 'A'. In the absence of any cogent
material, the satisfaction recorded by the externing authority that the
Petitioner indulged in those activities immediately before his arrest and
after release on bail, is unworthy of acceptance. The time gap is too close
for comfort. The fact that the Petitioner was in custody in connection
with C.R.No.780/2020 in the last week of 2020 and the first week of
August 2020 runs counter to the claim of the witnesses. It is imperative
to note that the witnesses, despite reverification, do not claim that the
incidents occurred on a particular date. We are conscious of the fact that
exact date and time of the offending activities are not required to be
disclosed. But, in a case like the present one, where the approximate time
of occurrence clashes with the period during which the externee was in
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custody, failure to indicate the precise date of occurrence, renders the
claim of witnesses in the corridor of uncertainty. Non-consideration of
this vital aspect impairs the subjective satisfaction.
14. The upshot of aforesaid consideration is that the subjective
satisfaction arrived at by the Respondent No.2 is vitiated. The
Respondent No.1 also fell in error in not correcting the mistake which the
Respondent No.2 had fallen into. In the totality of the circumstances, in
our view, the externment order impinges upon the fundamental right of
the Petitioner to move freely and reside at the place of his abode. Hence,
we are persuaded to allow the petition. Thus, the following order :
ORDER
(i) The petition is allowed.
(ii) The impugned order dated 23/03/2021 passed by the
Respondent No.1 in Appeal No.16/2021 and the externment
order dated 21/01/2021 passed by the Respondent No.2
stand quashed and set aside.
(iii) Rule made absolute in the aforesaid terms.
(N. J. JAMADAR, J.) (S. S. SHINDE, J.)
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