Ajay Ram Thorat vs State Of Maharashtra And Ors
2023 Latest Caselaw 4899 Bom

2023:BHC-AS:14966



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                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL WRIT PETITION NO. 1490 OF 2023

                    Ajay Ram Thorat                                                   ..Petitioner
                          Versus
                    State of Maharashtra & Ors.                                       ..Respondents
                                               __________

                    Ms. Rashi Sheth a/w. Rahul S. Kadam for Petitioner.
                    Mr. A. R. Patil, APP for State/Respondent No.1.
                                                  __________

                                                CORAM : SARANG V. KOTWAL, J.

DATE : 5 JUNE 2023

PC :

1. Rule. Rule is made returnable forthwith by consent of

both the parties.

2. Heard Ms. Rashi Sheth, learned counsel for the

Petitioner and Shri. Patil, learned APP for the State/Respondent

No.1.

3. The Petitioner has challenged the order dated

17/02/2022 passed by the Deputy Commissioner of Police, Zone-1,

Pimpri Chinchwad; thereby externing the Petitioner from the limits

of the Pimpri Chinchwad police Commissionerate, Pune City Police

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Commissionerate and Pune Rural for a period of two years.

4. The Petitioner was served with a notice dated

28/10/2021 U/s.59 of the Maharashtra Police Act asking him to

show cause as to why he should not be externed out of the

aforesaid area. The show-cause notice mentioned six registered

offences from the year 2009 up to 2021 registered at Pimpri

Chinchwad police station. C.R.No.109 of 2015 registered with

Ranjangaon police station had resulted in his acquittal. There was

a reference to the statements of two witnesses 'A' and 'B' who were

not willing to lodge the F.I.R. against the Petitioner. After this

notice, another show-cause notice was served on him. That notice

was dated 22/01/2022. The Petitioner was heard by the Enquiry

officer. Considering the material produced before him, the

Externing authority i.e. the Deputy Commissioner of Police, Zone-

1, Pimpri Chinchwad i.e. the Respondent No.3 herein passed the

impugned externment order dated 17/02/2022. The Petitioner

preferred an Appeal U/s.60 of the Maharashtra Police Act which

was also dismissed.

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5. Learned counsel for the Petitioner submitted that the

Externing Authority had taken into consideration the offences

registered in the year 2009 and 2015 which were quite stale. The

Petitioner was acquitted from the offence registered in the year

2015 i.e. C.R.No.109 of Ranjangaon police station. She submitted

that the first notice U/s.59 of the said Act was issued on

28/10/2021 and thereafter the Externment order was passed on

17/02/2022. Thus, there was considerable delay in passing the

order which showed that passing of the order itself was not

necessary. She finally relied on the Judgment of the Hon'ble

Supreme Court in the case of Deepak Versus State of Maharashtra

and others1 to contend that the externing authority has not

recorded the subjective satisfaction regarding the necessity of

passing the externment order for a maximum period of two years.

She submitted that, because of these infirmities the externment

order is not sustainable.

6. Learned APP relied on the reasons mentioned in the

externment order. He submitted that the Respondent No.3 has

1 2022 SCC OnLine SC 99

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recorded that the acts of the Petitioner had caused alarm in the

mind of public and his acts amount to causing alarm, harm and

danger to the public in general. On these grounds the Respondent

No.3 was satisfied that the Petitioner needed to be externed. He

submitted that, these reasons themselves show that the externing

authority had applied it's mind for externing the Petitioner for a

maximum period of two years.

7. I have considered these submissions carefully. In my

opinion, this petition deserves to be allowed on the last submission

made by learned counsel for the Petitioner that, the externing

authority has not recorded the subjective satisfaction for externing

the Petitioner for a maximum period of two years. In this context,

paragraph-17 of the aforementioned Judgment of the Hon'ble

Supreme Court is important; which 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 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

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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 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."

8. It is clearly observed by the Hon'ble Supreme Court that,

when the competent authority passes an order of externment for a

maximum period of two years, the order must disclose application

of mind by the competent authority and the order must record its

subjective satisfaction about the necessity of passing the order of

externment for a maximum period of two years which is based on

the material on record.

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In the entire externment order in the present petition, I

do not see any reason or any indication regarding subjective

satisfaction of the externing authority mentioning as to why the

Petitioner was externed for a maximum period of two years. The

Hon'ble Supreme Court has further observed that, if the order of

externment for a maximum permissible period of two years is

passed without recording subjective satisfaction regarding such

necessity, it will amount to imposing unreasonable restrictions on

the fundamental right guaranteed under clause (d) of Article 19(1)

of the Constitution of India. Thus, these observations are squarely

applicable to the present case. The impugned externment order

suffers from the vice of imposing unreasonable restrictions without

recording any reasons or subjective satisfaction and, therefore, it is

liable to be set aside.

9. Hence, the following order:

ORDER

i) Rule is made absolute in terms of prayer clause (A).

ii) Consequently, the Externment order No.4/22

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dated 17/02/2022 passed by the Respondent No.3 is quashed and set aside.

iii) The Writ Petition is disposed of.

(SARANG V. KOTWAL, J.)