Ravikant Macchindra Virkar vs The State Of Maharashtra And Ors
2021 Latest Caselaw 13328 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL WRIT PETITION NO. 6429 OF 2019

Mr. Ravikant Machhindra Virkar
Age-33 Years, Occ : Business,
R/o. Room No. 3, RBI Colony,
New Dharavikar Nivas, Bhandup
Gaon, Bhandup (E), Mumbai-400042.             .... Petitioner

Versus

1. The State of Maharashtra
   Through Secretary of Home
   Department, Mantralaya,
   Maharashtra State, Mumbai.
   (Copy to be served A.P.P. offce,
   High Court, Bombay)

2. The Divisional Commissioner,
   Konkan Division, Mumbai.

3. The Deputy Commissioner of Police,
    Zone-VII, Mulund, Mumbai.

4. The Senior Police Inspector,
    Kanjurmarg Police Station,
    Mumbai-400701.                            ....Respondents
                                 ****
Mr. Rajaram V. Bansode for petitioner.
Mr. K.V. Saste, APP for State.
                                 ****
                 CORAM : S. S. SHINDE &
                            N.J. JAMADAR, JJ.

Reserved for Judgment on : 6th September 2021. Judgment pronounced on : 17th September 2021.

Shraddha Talekar PS





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JUDGMENT : (PER : N.J. JAMADAR)

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

the learned counsels for the parties, heard fnally.

2. The petitioner, who has been externed from the limits of

Mumbai City, Mumbai Sub-urban and Thane District for a period

of 18 months by order dated 22 nd March 2019, passed by the

Deputy Commissioner of Police, Zone VII, Mulund, Mumbai, has

preferred this petition under Article 226 of the Constitution of

India taking exception to the said externment order and the order

dated 19th August 2019 passed by the Divisional Commissioner,

Konkan Division, Mumbai in Appeal No.59/2019, whereby the

detention order was affrmed.

3. The background facts necessary for determination of this

petition can be stated as under :

(a) A proceeding to extern the petitioner from the

limits of Mumbai City, Mumbai Sub-urban and Thane

District was initiated against the petitioner at the

instance of Kanjurmarg Police Station. A show-cause

notice under section 59 of the Maharashtra Police Act,

1951 ('the Act, 1951') was served upon the petitioner. It

was alleged that the movements or acts of the petitioner

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were causing or calculated to cause alarm, danger or

harm to person or property in the vicinity of area within

the local limits of the jurisdiction of Kanjurmarg Police

Station. In all, nine cases were registered against the

petitioner since the year 2009. A proceeding under

Chapter VII of the Code of Criminal Procedure, 1973

was also initiated against the petitioner in the year 2009

but to no avail.

(b) In the recent past, the petitioner had

indulged in the offences punishable under Chapters XVI

and XVII of the Indian Penal Code, 1860 ('the Penal

Code') being C.R. No.148/2018 for the offences

punishable under section 354(D) and 506 of the Penal

Code and C.R. No.143/2018 for the offences punishable

under sections 324, 323 read with section 34. On

account of the reign of terror created by the petitioner,

victims and witnesses were not coming forward to give

evidence in public against the petitioner for the fear of

reprisal. Thus, statements of two witnesses were

recorded in-camera. The particulars of the offence and

gist of the confdential statements were furnished to the

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petitioner in the said show-cause notice. The petitioner

participated in the enquiry conducted by the Deputy

Commissioner of Police, Zone VII, Mumbai. Post

completion of enquiry, the Externing Authority recorded

a satisfaction that in order to prevent the petitioner

from indulging in activities causing or calculated to

cause harm, danger or alarm to person or property and

commission of the offences involving force or violence or

offences punishable under Chapters XVI and XVII of the

Penal Code, it was necessary to extern the petitioner

from the limits of Mumbai City, Mumbai Sub-urban and

Thane District for a period of 18 months. Thus, the

Deputy Commissioner passed the externment order

dated 22nd March 2019.

(c) Being aggrieved, the petitioner preferred appeal

under section 60 of the Act, 1951 before the Divisional

Commissioner, Konkan Division, Mumbai, being Appeal

No.59/2019. By the impugned order dated 19 th August

2019, the Divisional Commissioner was persuaded to

dismiss the appeal opining, inter-alia, that the order

passed by the Deputy Commissioner of Police, Zone VII,

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was justifable and did not warrant any interference.

(d) Being further aggrieved and dissatisfed, the

petitioner has invoked writ jurisdiction of this

Court.

4. We have heard Mr. Rararam Bansode, the learned counsel for

the petitioner and Mr.K.V. Saste, the learned APP for the State at

length. With the assistance of the learned counsels for the parties,

we have perused the material on record including the original

record of the externment proceedings tendered by the learned APP

for the perusal of the Court.

5. Mr. Bansode, the learned counsel for the petitioner urged

that the Externing Authority has committed a manifest error in

passing the externment order on the basis of old and stale cases.

There is no nexus much less a live link between the cases referred

to and relied upon in the externment order and the object sought

to be achieved by the externment. The Appellate Authority also fell

in error in not correcting this manifest error in the order of the

Externing Authority. Taking the Court through the narration of the

facts in C.R. Nos.148/2018 and 143/2018, two recent cases relied

upon by the Externing Authority, Mr. Bansode urged with a degree

of vehemence that those two cases were registered against the

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petitioner within a span of a week and the externment proceeding

was initiated arbitrarily. It was further submitted that the

confdential statements relied upon by the Externing Authority are

not worthy of consideration as the authorities did not record a

satisfaction about the genuineness and truthfulness of the

incidents narrated therein.

6. Per contra, Mr. Saste, the learned APP stoutly supported the

impugned order. Mr. Saste would submit that the acts and conduct

attributed to the petitioner squarely fall within the ambit of the

mischief sought to be addressed by clauses (a) and (b) of section

56(1) of the Act, 1951. There are clear and categorical assertions

that the petitioner indulged in bodily offences and extorted money

from the unsuspecting hapless victims by wielding dangerous

weapons. In the circumstances, according to Mr.Saste, the

authorities were justifed in resorting to the provisions contained in

section 56 of the Act, 1951. In any event, according to Mr. Saste, in

exercise of extraordinary writ jurisdiction, this Court may not be

justifed in inquiring into the suffciency of the material on the

basis of which substantive satisfaction has been arrived at by the

Externing Authority.

7. To begin with, it may be apposite to note the cases which

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were considered by the Externing Authority. It was noted that the

petitioner had been indulged in offences since the year 2009 and

three cognizable and three non-cognizable cases falling within

Chapters XVI and XVII of the Penal Code were registered against

the petitioner.

8. The cognizable offences registered against the petitioner are

as under :

Sr. Police Station Crimes registered Current Status No.

1 Kanjurmarg C.R.No.148/18 under Under investigation Section 354(D), 506 of Indian Penal Code 2 Kanjurmarg C.R.No.143/18 under Under investigation Section 324, 323, 34 of Indian Penal Code 3 Kanjurmarg C.R.No. 09/09 under Acquitted in view of Section 354, 323, 34 settlement arrived at of Indian Penal Code between the accused and complainant before the Metropolitan Magistrate, 53rd Court, Mulund, Mumbai in Crime Case No. 206/PS/09 dated 03/01/2014.

9. The non-cognizable offences registered against the petitioner

are as under :

Sr. Police Station Crimes registered Current Status No.

Shraddha Talekar PS





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       1     Kanjurmarg             N.C.R.No.376/17     Given understanding
                                    under Sections 323, to maintain peace as
                                    504 of Indian Penal per section 149 of
                                    Code                Criminal Procedure
                                                        Code
       2     Kanjurmarg             N.C.R.No.397/16      Given understanding
                                    under section 504 of to maintain peace.
                                    Indian Penal Code
       3     Kanjurmarg             N.C.R.No.   1067/15 Given understanding
                                    under Sections 323, to maintain peace.
                                    504, 506 of Indian
                                    Penal Code

10. In addition to the aforesaid cases, it was further recorded

that the proceedings under section 107 of the Code of Criminal

Procedure, 1973 were initiated against the petitioner and he was

made to execute the bond on 5 th March 2009. Despite the execution

of the said bond, two cognizable and 3 non-cognizable cases

(extracted above) were registered against the petitioner.

11. In the backdrop of the aforesaid material, as regards the

offences registered against the petitioner, the submission on behalf

of the petitioner that the Externing Authority has taken into

account old cases cannot be said to be unfounded. The frst of the

three cognizable cases, i.e. C.R.No. 9/2009 was registered against

the petitioner in the year 2009. Eventually, the petitioner came to

be acquitted of the offences punishable under sections 354 and

323 read with 34 of the Penal Code in view of the settlement

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arrived at between the petitioner and the frst informant therein, by

the order dated 3rd January 2014. The last of the three non-

cognizable cases registered against the petitioner was in the year

2017.

12. It is trite that there should a live link between the prejudicial

activities attributed to the externee and the externment order. The

reason is not far to seek. The externment order is in a sense a

conclusion arrived at by the Competent Authority on the basis of

the prognosis of the behavior of the externee, based on the conduct

in the immediate past, which bears upon the future course of

action. If a considerable time has elapsed between the acts

attributed to the externee and the externment order, the live link

gets snapped.

13. From the narration of the facts in C.R. No.148/2018, it

appears that the said crime was registered by the frst informant,

whose husband has lodged report leading to NC case No. 397/2016

on 12th April 2016. It was alleged that the petitioner was pestering

the frst informant by making calls on her mobile phone at odd

hours and from different numbers.

14. The narration of facts in C.R. No.143/2018, which was

registered on 1st October 2018, reveals that an altercation occurred

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among the members of two Ganesh Mandals. The petitioner

allegedly assaulted the frst informant therein under the infuence

of intoxicant and the associate of the petitioner gave a blow by

means of beer bottle on the head of the frst informant. The

narration of the facts in the aforesaid two recent alleged offences

registered against the petitioner, even if construed rather

generously, would indicate that the offences arose out of peculiar

facts and are individualistic in nature.

15. What erodes the validity of the impugned order is the fact

that the Externing Authority referred to and relied upon C.R.No.

9/2009 registered against the petitioner. In the said case, the

petitioner was acquitted albeit pursuant to the settlement arrived

at between the petitioner and frst informant therein. Yet, the

Externing Authority expressly based the externment order on the

aforesaid three cognizable cases and three non-cognizable cases.

Evidently, the case arising out of C.R.No. 9/2009 (in which the

petitioner was acquitted) and three non-cognizable cases (the last

of which registered in the year 2017) weighed with the Externing

Authority. C.R. No. 9/2009 could not have been taken into account

for two reasons. One, it was too stale to be taken note of. Two, the

petitioner was acquitted in the prosecution arising out of the said

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C.R. All three non-cognizable cases i.e. C.R. Nos.1087/2015,

397/2016 and 376/2017 were also too old and stale to bear upon

probable prognosis of the future conduct of the petitioner. In our

view, the impugned order thus suffers from infrmity of taking into

consideration the material which did not deserve to be considered.

16. Mr.Saste attempted to salvage the position by banking upon

the confdential statements of witnesses 'A' and 'B'. The witnesses

have deposed to the incidents which allegedly occurred on 9 th

October 2018 and 12th October 2018. The petitioner and his

associates allegedly threatened the witnesses on the point of

weapons and extorted money, by putting the witnesses under fear

of threat to life.

17. The endeavour on the part of Mr. Saste, the learned APP to

sustain the impugned externment order on the basis of the

confdential statements of witnesses does not merit countenance.

The Externing Authority has not at all adverted to the fact that

either the Externing Authority or any other Competent Offcer has

verifed the genuineness and truthfulness of the incidents deposed

to by the witnesses whose statements were recorded in-camera.

The externment order is conspicuously silent about the verifcation

of genuineness and truthfulness of the contents of the statements

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of confdential witnesses. There is a bald assertion that the

Externing Authority was satisfed that on account of the terror

created by the petitioner, the victims were not willing to come

forward to give evidence against the petitioner. However, in the

absence of proper verifcation of the veracity of the claims of the

confdential witnesses, it would be rather hazardous to sustain the

externment order which impinges on the fundamental right of the

petitioner to move freely and reside at the place of his abode on the

strength of such statements recorded in-camera.

18. The conspectus of aforesaid consideration is that the

subjective satisfaction recorded by the Externing Authority is

vitiated. The Appellate Authority also committed a mistake in not

correcting the error which the Externing Authority had fallen into.

Resultantly, the petition deserves to be allowed.

19. Hence, the following order :

ORDER

(a) The petition stands allowed.

(b) The impugned order dated 19th August 2019 passed by

The Divisional Commissioner, Konkan Division, Mumbai-

respondent No.2 in Appeal No.59/2019; and the Externment

Order dated 22nd March 2019 passed by the Deputy

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Commissioner of Police, Zone-VII, Mumbai-respondent No.3

stand quashed and set aside.

Rule made absolute in the aforesaid terms.

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




Shraddha Talekar PS