Bombay High Court
Ganesh Laxman Lagas And Anr vs The State Of Maharashtra And Ors on 6 July, 2023
Bench: S. V. Kotwal
2023:BHC-AS:18597-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3911 OF 2018
Ganesh Laxman Lagas & Anr. .... Petitioners
versus
The State of Maharashtra & Ors. .... Respondents
.......
• Ms. Shubhangi Parulekar a/w Ravindra S. Pachundkar,
Advocate for Petitioners.
• Mr. Arfan Sait, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL, J.
DATE : 06th JULY, 2023
P.C. :
1. Heard Ms. Shubhangi Parulekar, learned counsel for
the Petitioners and Mr. Arfan Sait, learned APP for the State.
2. Rule. Rule made returnable forthwith with consent of
the parties.
3. The Petitioners have challenged the order dated
18/08/2018 passed by the Divisional Commissioner, Pune, in
Appeal No.72/2018 as well as the order dated 21/05/2018
Nesarikar
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passed by the Deputy Commissioner of Police, Division-2, Pune
City. The Petitioners are externed by the Externing Authority i.e.
the Deputy Commissioner of Police, Division-2, from the area of
Pune Commissionerate and Pune District for a period of two
years by exercising his power u/s 55 of the Maharashtra Police
Act.
4. The externment order was challenged u/s 60 of the
Maharashtra Police Act before the Zonal Commissioner, Pune.
That Appeal was partly allowed vide order dated 18/08/2018.
The area of externment was restricted to Pune Commissionerate.
After this, the present Petition is filed challenging both these
orders. Before passing of the externment order, the Petitioners
were served with a notice dated 19/02/2018 u/s 59 of the said
Act.
5. Learned counsel for the Petitioners submitted that both
these orders are unsustainable in law. The principles of natural
justice are violated. 'In camera' statements of the witnesses did
not show presence of the present Petitioners. Stale offences are
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considered. On these grounds, the externment order is liable to
be set aside.
6. Learned APP supported the order passed by the
Appellate Authority. In this case, an affidavit is filed by Deputy
Commissioner of Police opposing grant of relief in this Petition.
7. I have perused that affidavit. It was mentioned in the
affidavit that the preventive action was initiated against the
Petitioner No.1 who allegedly used to operate a gang under his
leadership. The affidavit reiterates the criminal antecedents of
the members of his alleged gang. It also mentions how the
Petitioners were afforded sufficient opportunity to participate in
the externment proceedings.
8. I have considered these submissions. The notice u/s 59
of the Maharashtra Police Act mentions that the Petitioners were
called upon to explain why they should not be externed out of
those areas for a period of one year. Thus, they are expected to
offer explanation only for one year, during which period they
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were required to stay out of those areas. However, at the end of
the externing proceeding the Externment Authority has externed
them for a period of two years. This is clear violation of the
principles of natural justice because the Petitioners were not
afforded an opportunity to explain why period of two years was
not reasonable. The period was enhanced by one year without
any reason. On this ground alone, the Petition deserves to
succeed. In any case, the Hon'ble Supreme Court has taken a
view in the case of Deepak Laxman Dongre Vs. State of
Maharashtra, reported in 2022 SCC Online SC 99 that the
Externing Authority has to record subjective satisfaction for
passing the externment order for a maximum permissible
period. The relevant paragraph No.17 of the said judgment
reads thus :
"17. On a plain reading of Section 58, it is apparent
that while passing an order under Section 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
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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 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
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maximum 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 (d)
of Article 19(1) of the Constitution of India."
9. In the present proceedings there is no subjective
satisfaction recorded as to why they were externed for a
maximum period of two years. This is another ground on which
externment order is required to be set aside.
10. Moreover, there is only one offence registered against
the Petitioner No.2 Vijay Lagas and that is C.R.No.43/2000
registered at Swargate Police Station. Obviously, the said offence
is quite stale. There is no other common offence clubbing
Petitioner No.2 and other members of the gang together. This is
another instance of non-application of mind. 'In camera'
statements refer to other members of the gang and in none of
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the 'In camera' statements, presence of either of the Petitioners
is mentioned during those incidents.
11. Considering all these aspects the externment order is
not sustainable.
12. Hence, the following order :
ORDER
(i) Rule is made absolute in terms of prayer clause (b),
which reads thus :
"The impugned Order dated 18.8.2018 passed by
the Hon'ble Divisional Commissioner, Pune in
Appeal No.72/2018 and also the Order dated
21.05.2018 passed by the Deputy Commissioner of
Police, Division - 2, Pune City in a Externment
Proceedings No.05/2018 be quashed and set aside."
(ii) The Writ Petition is disposed of.
(SARANG V. KOTWAL, J.)
