Pranay Prakash Chandaiwade vs The State Of Maharashtra And Ors
2023 Latest Caselaw 4122 Bom

2023:BHC-AS:12261
                                                                                6-wp450-2023.doc


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

                                      WRIT PETITION NO.450 OF 2023


                    Pranay Prakash Chandaiwad                    ... Petitioner
                               V/s.
                    The State of Maharashtra & Ors.              ... Respondents


                    Mr. Siddharth Jagushte for the petitioner.
                    Mr. A.R. Patil, APP for respondent no.1/State.
                    Mr. Prasad Shekhar, API, Wadala Police Station,
                    Mumbai, is present.



                                               CORAM : AMIT BORKAR, J.

                                               DATED      : APRIL 24, 2023
                    P.C.:

1. The petitioner is challenging order dated 23 May 2022 passed by respondent no.3 externing the petitioner for period of two years under Section 56 of the Maharashtra Police Act, 1951. On 22 February 2022 respondent no.3 issued a show-cause notice to the petitioner under Section 59 of the Maharashtra Police Act, 1951. The petitioner filed reply to the said show-cause notice. The respondent no.3 after granting opportunity of hearing to the petitioner recorded a subjective satisfaction that the presence of petitioner has created an issue of public order in the area and, therefore, it is necessary to extern the petitioner for period of two years. The petitioner has been externed from Mumbai City and

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Suburban area. Appeal against said order has been dismissed and, therefore, the petitioner has filed present writ petition.

2. Learned advocate for the petitioner inter alia submitted that the show-cause notice did not contain material particulars taking away right of the petitioner to effectively reply to the notice. While in the show-cause notice an apprehension expressed of causing fear was amongst peaceful citizens, small and big businessman and other residents; however, in the order satisfaction is recorded additionally in relation to hawkers. In the absence of specific mention in the show-cause notice of hawkers, the subjective satisfaction is based on extraneous material. Independent satisfaction mentioning period of maximum two years is absent. Relying on the judgment of the Apex Court in Deepak S/o. Laxman Dongre v. State of Maharashtra reported in 2022 SCC OnLine 1241 submitted that recording subjective satisfaction regarding necessity of extending order of externment to the maximum period is mandatory.

3. Learned APP submitted that necessary subjective satisfaction for externing the petitioner for maximum period of two years is apparent from paragraph 3 of the order passed by respondent no.3. According to him, subjective satisfaction recorded by the Authorities below is based on objective material. Sufficiency of material to arrive at subjective satisfaction of possibility of breach of public order is apparent from the order passed by respondent no.3. He, therefore, prayed for dismissal of the writ petition.

4. The Apex Court in Deepak (supra) in paragraph 14 held as

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under:

"14. Perusal of the impugned Judgment and order of the High Court shows that unfortunately, the Division Bench did not notice that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances. It was the duty of the Constitutional Court to test the said order within the parameters which are well-settled by this Court."

5. In the light of law laid down by the Apex Court, I have scrutinized the order passed by respondent no.3. Paragraph 3 of the order records satisfaction for externing the petitioner. The language of paragraph 3 of the order passed by respondent no.3 by any stretch of imagination be interpreted to mean that such satisfaction was recorded for independent satisfaction for externing the petitioner for two years. It is not necessary that such independent satisfaction should be recorded in so many words; however, in absence of such independent satisfaction recorded by respondent no.3 regarding necessity of externing the petitioner to the maximum permissible period, the impugned order is not sustainable.

6. For the aforesaid reasons, Rule is made absolute in terms of prayer clauses (a) and (b). No costs.

(AMIT BORKAR, J.)