Bombay High Court

Sunil S/O Kashinath Meshram vs Divisional Commissioner, Nagpur ... on 15 September, 2022

Bench: V. G. Joshi

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                            __
       IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                 NAGPUR BENCH : NAGPUR.



             CRIMINAL WRIT PETITION No. 476/2022.

Sunil s/o Kashinath Meshram,
Age 49 years, Occupation Private
resident of Teka Naka, Awale Nagar,
Nari Road, Nagpur City, Nagpur
Presently residing at c/o. Devanand
Choudhari, Kawra Peth, Near Buddha
Vihar, Umred, Tahsil Umred,
District Nagpur.                          ...      PETITIONER.


                               VERSUS


1.Divisional Commissioner,
Nagpur Division, Nagpur,
District Nagpur.

2.Deputy Commissioner of Police,
Zone-II, Nagpur City, Nagpur,
District Nagpur.

3.Police Station Officer,
Police Station, Sadar, District Nagpur.    ...    RESPONDENTS.


                        ----------------------------
             Mr. R. Vays, Advocate for the Petitioner.
            Ms.M.H. Deshmukh, A.P.P. for Respondents.
                     ----------------------------------



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                                CORAM : VINAY JOSHI, J.


CLOSED FOR JUDGMENT ON :                    20.08.2022.
JUDGMENT PRONOUNCED ON :                    15.09.2022.



JUDGMENT :

Heard. Considering the controversy involved in the matter

and by consent of the learned Counsel for the parties, Criminal Writ

Petition is taken up for final disposal at the stage of admission by

issuing Rule, making the same returnable forthwith.

2. The petitioner has been externed for a period of two years

from entire Nagpur District vide order dated 18.02.2022 passed by

respondent no.2 Deputy Commissioner of Police, Zone-II, Nagpur

City. The externment order has been based on 12 prior offences, as

has been set out in the externment order.

3. The impugned order is assailed on the ground of absence

of live link, non supply of particulars of in-camera statements and

no justification for imposing restriction for maximum period of two

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years. In support of said contention, the petitioner has relied on

some reported judgments.

4. The State has justified the action of externment by filing

reply-affidavit. It is contended that there are several offences

registered against the petitioner which are of serious in nature. The

last offence has been registered on 24.10.2020, whilst the first show

cause notice was issued on 26.11.2020 in terms of Section 59 of the

Maharashtra Police Act (hereinafter referred to as "the Police Act" for

short), however, as the notice was not served, again it was re-issued

on 25.05.2021 and 06.01.2022. In-camera statements have been

recorded on 19.10.2021 and 21.10.2022. The petitioner remained

present on 14.01.2022 and therefore, the impugned order passed on

18.02.2022 was well connected with the last offence, meaning

thereby there exists a live link.

5. Perusal of the impugned order reveals that several

offences under Indian Penal Code have been registered against the

petitioner from 19.01.2018 to 24.10.2020. It further reveals that

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time and again externment notice was tried to be served on the

petitioner, however, the petitioner avoided which consumed some

time. The learned A.P.P. has submitted a chart in tabular form to

show efforts made by the Authority to serve the notice, and

therefore, it cannot be said that the authorities were at fault meaning

thereby absence of live link.

6. It is argued that particulars of in-camera statements have

not been supplied to the petitioner, and therefore, the action vitiates.

Though the petitioner is not entitled to have copies of in-camera

statements, however, substance has to be informed to the petitioner

to obtain his explanation. The petitioner has not filed copy of the

show cause notice issued in terms of Section 59 of the Act to state

that no particulars have been supplied. In absence of said material,

it cannot be said that the particulars of in-camera statements have

not been supplied, and therefore, the said submission carries no

weight.

7. The last ground is about absence of reasons and

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non-application of mind while externing the petitioner for maximum

permissible period of two years. In support of said contention, the

petitioner has relied on the decision of Supreme Court in case of

Deepak .vrs. State of Maharashtra - 2022 SCC Online SC 99, of

which paragraph nos. 16 and 17 are relevant for our purpose, which

reads as under :

"16. Section 58 of the 1951 Act reads thus:

"58. Period of operation of orders under section 55, 56, 57 and 57A - A direction made under section 55, 56, 57 and 57A not to enter any particular area or such area and any District or Districts, or any part thereof, contiguous thereto, or any specified area or areas as the case maybe, shall be for such period as may be specified therein and shall in no case exceed a period of two years from the date on which the person removes himself or is removed from the area, District or Districts or part aforesaid or from the specified area or areas as the case may be".

17. On a plain reading of Section 58, it is apparent that while passing an order under Section Rgd.

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56, the competent authority must mention the area or District or Districts in respect of which the order has been made. Moreover, the competent authority is required to specify the period for which the restriction will remain in force. The maximum period provided for is of two years. Therefore, an application of mind on the part of the competent authority is required for deciding the duration of the restraint order under Section 56. On the basis of objective assessment of the material on record, the authority has to record its subjective satisfaction that the restriction should be imposed for 16 a specific period. When the competent authority passes an order for the maximum permissible period of two years, the order of externment must disclose an application of mind by the competent authority and the order must record its subjective satisfaction about the necessity of passing an order of externment for the maximum period of two years which is based on material on record. Careful perusal of the impugned order of externment dated 15th December 2020 shows that it does not disclose any application of mind on this aspect. It does not record the subjective satisfaction of the respondent no.2 on the basis of material on record that the order of externment should be for the maximum Rgd.

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period of two years. If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under clause