Bombay High Court
Kishor Gavrya Gaikwad vs The Divisional Commissioner And ... on 12 June, 2023
Bench: S. V. Kotwal
2023:BHC-AS:15530-DB
Gokhale 1 of 5 3-wp-3706-17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3706 OF 2017
Kishor Gavrya Gaikwad ..Petitioner
Versus
The Divisional Commissioner,
Konkan Division & Ors. ..Respondents
__________
Mr. Irfan A. Shaikh for Petitioner.
Mr. N. B. Patil, APP for State/Respondent No.4.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 12 JUNE 2023
PC :
1. Heard Mr. Irfan Shaikh, learned counsel for the
Petitioner and Mr. N. B. Patil, learned APP for the State.
2. In this petition, Rule was issued on 11/10/2017 and the
externment order under challenge in the petition was stayed.
3. The Petitioner was served with a notice dated
20/03/2017 U/s.59 of the Maharashtra Police Act. The notice
mentions particulars of 13 registered offences at Kopar Khairane
police station, mainly U/s.420 of the I.P.C. Besides that, Chapter
::: Uploaded on - 13/06/2023 ::: Downloaded on - 13/06/2023 16:19:41 :::
2 of 5 3-wp-3706-17
case No.7 of 2015 was initiated by the same police station. The
Notice mentions recording of statements of two witnesses 'A' and
'B' and refers to the incidents mentioned by them. The Petitioner
gave a reply to the notice. However, the externment authority i.e.
Deputy Commissioner of Police, Zone - I, Vashi, Navi Mumbai i.e.
the Respondent No.2 passed the impugned externment order on
26/06/2017 externing the Petitioner from the limits of Thane,
Raigad and Mumbai suburban districts for a period of two years.
4. The Petitioner preferred an Appeal U/s.60 of the
Maharashtra Police Act, which was dismissed vide order dated
06/09/2017.
5. Learned counsel for the Petitioner submitted that, most
of these offences were registered at the same police station within
a short span of 4 to 5 days which shows that the Petitioner is
deliberately and falsely implicated to harass him. He submitted
that, the offences were registered in the year 2015 and the show-
cause notice was issued in March 2017. Thus, there was no
urgency or necessity to extern the Petitioner from that area. He
::: Uploaded on - 13/06/2023 ::: Downloaded on - 13/06/2023 16:19:41 :::
3 of 5 3-wp-3706-17
submitted that the externment order was passed on 26/06/2017
which was much later than the last registered offence. Even, 'in
camera' statements mention the instances from March 2016 and
July 2016. Therefore, it was not necessary to extern the petitioner
after a period of one year. Learned counsel for the Petitioner also
submitted that, there is no reason mentioned as to why the
Petitioner was externed for the entire maximum permissible period
U/s.56 of the Maharashtra Police Act.
6. Learned APP opposed these submissions. According to
him, the fact that 13 offences were registered against the Petitioner
shows the tendency and inclination of the petitioner. He supported
the impugned order.
7. I have considered these submissions. Without going into
any other submissions, this petition deserves to be allowed because
the externing authority has not recorded its subjective satisfaction
and has not given any reason as to why the petitioner was
externed for a maximum period of two years. In this context,
paragraph-17 of the Hon'ble Supreme Court in the case of Deepak
::: Uploaded on - 13/06/2023 ::: Downloaded on - 13/06/2023 16:19:41 :::
4 of 5 3-wp-3706-17
Versus State of Maharashtra and others1, 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
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."
1 2022 SCC OnLine SC 99
::: Uploaded on - 13/06/2023 ::: Downloaded on - 13/06/2023 16:19:41 :::
5 of 5 3-wp-3706-17
8. The ratio of this Judgment is squarely applicable to the
present case. There is absolutely no subjective satisfaction
recorded by the externing authority as to why the petitioner was
externed for a maximum period of two years. Therefore, on this
ground alone the petition deserves to be allowed.
9. Hence, the following order:
ORDER
i) Rule is made absolute in terms of prayer clause
(a).
ii) The externment order dated 26/06/2017 passed
by the Respondent No.2 is set aside.
iii) The Petition is disposed of.
(SARANG V. KOTWAL, J.)
