Bombay High Court

Abdul Hakim Jamirulla Khan @ ... vs Divisional Commissioner, Kokan ... on 30 August, 2023

Bench: S. V. Kotwal

2023:BHC-AS:25021



                     Gokhale                                1 of 10                          6-wp-st-12494-23


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL WRIT PETITION (ST) NO. 12494 OF 2023

                    Abdul Hakim Jamirulla Khan @ Bakkal                                ..Petitioner
                          Versus
                    Divisional Commissioner, Kokan Divisional
                    and others.                                                        ..Respondents

                                                 __________
                    Mr. Murtaza Najmi a/w. K.K.Tiwari i/b. Akhlak A. Khan for
                    Petitioner.
                    Mr. Arfan Sait, APP for State/Respondent.
                                                 __________

                                                CORAM : SARANG V. KOTWAL, J.

DATE : 30 AUGUST 2023 PC :

1. Heard Mr. Murtaza Najmi, learned counsel for the

Petitioner and Mr. Arfan Sait, learned APP for the State.

2. Rule.

3. With consent of the parties, Rule is made returnable

forthwith.

4. The petitioner has challenged the order dated

01.05.2023 passed by the Deputy Commissioner of Police, Zone-

12, Mumbai, externing him outside the limits of the Mumbai city,

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Mumbai Suburban and the Thane District for a period of one year.

The petitioner had challenged the said order before the Divisional

Commissioner, Konkan Division, vide Appeal No.61 of 2023. That

Appeal was dismissed on 26/06/2023. Both these orders are under

challenge in this petition. Before passing of the impugned order of

externment, the petitioner was served with a show-cause notice

dated 05.08.2022 issued U/s.59 of the Maharashtra Police Act (for

short 'said Act'). After the petitioner participated in the externment

proceedings, the impugned externment order was passed.

5. Learned counsel for the petitioner made following

submissions:

i) That the Deputy Commissioner of Police did not have powers to pass the order as Section 10 of the said Act cannot be read in isolation without referring to Sections 7 and 8 of the said Act.

ii) The show-cause notice mentioned four offences and the externment order mentioned only three offences, this shows non application of mind on the part of externing authority.

iii) The subjective satisfaction that the witnesses

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were not willing to come forward against the petitioner has to be recorded as per Section 56(1)

(a) and (b) of the said Act in respect of the offences registered against the petitioner.

iv) The externment order should be the last resort and the externing authority had an option to issue an order directing the petitioner to conduct himself in a particular manner. Instead of exercising that option, it was not proper to pass the externment order.

6. Learned counsel relied on the observations of the

Hon'ble Supreme Court in the case of Deepak S/o Laxman Dongre

Vs. The State of Maharashtra & Ors.1 to contend that, there had to

be material showing that the witnesses were not willing to come

forward in respect of the registered offences. He also relied on the

same Judgment to contend that, for a specific particular period,

which in the present case was of one year; the externing authority

had to give reasons as to why the order was passed for that

particular period.

7. Learned APP opposed these submissions. According to

1 JT 2022 (2) SC 512

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him, the observations of the Hon'ble Supreme Court in Deeapk's

case (supra), were applicable when the period mentioned in the

externment order was a maximum period of two years. In the

present case, the petitioner is externed for one year and, therefore,

reliance placed on Deepak's case (supra) was not correct. He

submitted that, the directions to a person to conduct himself in a

particular manner pertains to Section 56(1)(c) of the said Act

which is in respect of an outbreak of epidemic disease and this

consideration is not applicable for the purposes of Section 56(1)

(a) and 56(1)(b) of the said Act; for which externment

proceedings are initiated and conducted. He submitted that, the

externment proceedings are in the nature of preventive action.

They are not punitive in nature. The occasion to examine the

witnesses will arise only during trial which may take a long time.

However, in the present situation, the externing authority has to

consider whether the requirements of Section 56(1)(a) and 56(1)

(b) of the said Act are satisfied.

8. I have considered these submissions. The show-cause

notice mentions following registered offences against the

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petitioner.

i) C.R.No.157 of 2018 registered at Wada police station, District Palghar.

ii) C.R.No.580 of 2020 registered at Bhandup police station.

iii) C.R.No.279 of 2021 registered at Kharghar police station, Navi Mumbai.

iv) C.R.No.1237 of 2022 registered at Dahisar police station.

Apart from these registered offences, there were

statements of two secret witnesses 'A' and 'B'. These statements

were recorded 'in camera' on 22.07.2022 in respect of the

incidents which had taken place in the 2nd and the 4th week of June

2022 respectively. The show-cause notice proposed externment for

a period of two years from the district of Mumbai city, Mumbai

Suburban, Thane, Palghar and Raigad.

9. The externment order, on the other hand, was passed

externing the petitioner outside the limits of Mumbai city, Mumbai

suburban and Thane district for a period of one year. Thus, it can

be seen that there was proper application of mind while reducing

the area of externment and for reducing the proposed period of

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externment in favour of the petitioner.

10. The externment order takes into account three registered

offences i.e. C.R.No.580 of 2020, C.R.No.279 of 2021 and

C.R.No.1237 of 2022 out of the aforementioned offences. Thus,

the externing authority has relied on one offence less than the

offences mentioned in the show-cause notice. This shows proper

application of mind on his part and it cannot be said that it has

caused any prejudice to the petitioner. The older offence in the

year 2018 is not taken into consideration. It was registered in

Wada police station in Palghar district. The externing authority has

not externed the petitioner outside the district Palghar. This shows

that the externing authority has carefully considered the material

and wherever it was possible, the benefit was given to the

petitioner.

11. As rightly submitted by learned APP, in respect of the

registered offences, the occasion to examine the witnesses is yet to

arise. However, the activities of the petitioner as mentioned in the

order show that they were causing alarm, harm and danger to the

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public in the locality. He has also committed the registered

offences as per record. He was committing the offences under

Chapters XVI and XVII of the I.P.C. which could not be registered

because of the fear created by him. The statements of secret

witnesses show that the witnesses were not willing to come forward

against the petitioner. The externing authority has recorded proper

subjective satisfaction in that behalf. I see no reason to interfere

with the subjective satisfaction of the externing authority.

12. In Deepak's case (supra) the Hon'ble Supreme Court had

made a reference to two offences which were in respect of the

individuals and in that context, it was observed that, there was no

material on record to show that the witnesses were not coming

forward to depose in those two cases. It was further observed that,

those two offences were with respect to the daughter of MLA. It

was observed that, the said person was acting as per the

instructions of the brother of the MLA. Therefore, these

observations of the Hon'ble Supreme Court will have to be read in

context of the facts of those two cases. In the present case, there is

sufficient material against the petitioner which the externing

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authority has relied on. The subjective satisfaction is also properly

recorded.

13. Apart from this, the externing authority has also

recorded its satisfaction that, it was necessary to prevent the

petitioner from committing similar cognizable offences. A specific

satisfaction was also recorded that, his activities had caused alarm,

harm and danger to the public; and that the witnesses were not

willing to come forward. The externing authority has given

sufficient reasons for arriving at his subjective satisfaction.

14. I also do not find any substance in the submission that

the externing authority being the Deputy Commissioner of Police

could not have passed the externment order; as Section 56 of the

said Act contemplates that such order can be passed by the

Commissioner of police. Section 10 of the said Act is very specific

giving powers to the Commissioner to delegate his own powers.

Section 10 reads thus:

"10. Deputies to Commissioner

(1) The State Government may appoint one or more Deputy Commissioners of Police in Greater

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Bombay or in any area in which a Commissioner has been appointed under clause (a) of section 7.

(2) Every such Deputy Commissioner shall, under the orders of the Commissioner, exercise and perform any of the powers, functions and duties of the Commissioner to be exercises or performed by him under the provisions of this Act or any other law for the time being in force.

Provided that the powers to be exercises by the Commissioner of making, altering or rescinding rules under section 33 shall not be exercisable by a Deputy Commissioner."

15. There is absolutely no necessity to refer to Sections 7

and 8 of the said Act for such delegation of powers. Section 10 is

not dependent on any other interpretation by taking recourse to

the text of Section 7 and 8 of the said Act. The Deputy

Commissioner of Police had powers U/s.56 of the said Act as those

were delegated by the Commissioner U/s.10 of the said Act.

Therefore, even on that count, the order of externment cannot be

set aside.

16. Considering the above discussion, I do not see any

reason to interfere with the impugned order of externment.

17. Rule is discharged. The petition is dismissed.

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