Bombay High Court
Abdul Rehman Akhlaq Peerzade vs Divisional Commissioner Konkan ... on 2 May, 2023
Bench: Amit Borkar
2023:BHC-AS:13177-DB
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VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.973 OF 2023
Abdul Rehman Akhlaq Peerzade ... Petitioner
V/s.
Divisional Commissioner Konkan Region
& Ors. ... Respondents
Mr. Rajas Naik for the petitioner
Mr. A.R. Patil, APP for the respondent No.3/State.
CORAM : AMIT BORKAR, J.
DATED : MAY 2, 2023
P.C.:
1. This petition takes exception to the order passed by the
Divisional Commissioner, Mumbai, Konkan Division on 15th
February 2023 in appeal an appeal filed by the petitioner
challenging order passed by the Deputy Commissioner of Police
Zone-2, Bhivandi, Thane dated 17th October 2022 externing the
petitioner from areas of Thane, Mumbai City, Mumbai Suburbs and
Palghar district for a period of one year from the date when he
removes himself from those areas, in exercise of power under
section 56(1)(a)(b) of the Maharashtra Police Act, 1951.
2. On 10th August 2022, the respondent No.2 issued show cause
notice to the petitioner seeking explanation as to why the
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petitioner shall not be externed from Thane, Mumbai City, Mumbai
Suburbs, Palghar and Raigad. The petitioner filed reply to the
show cause notice. On 17th October 2022, respondent No.2
externed the petitioner for a period of one year in exercise of
power under section 56(1)(a)(b). The appeal against said order
has been dismissed by the impugned order hence the petitioner
has filed present petition.
3. The first contention raised before this Court is that there is
no role attributed to the petitioner in C.R. No.212 of 2017 and in
F.I.R. No.407 of 2021, petitioner is not named. It is submitted that
in camera statements are stereotype and, therefore, the material
which has been taken into account by the competent authority
cannot be said to be sufficient to take recourse to draconian
provision such as section 56 of the Act which restricts the
locomotion of the petitioner to enter particular area which in turn
infringes upon his fundamental right. To support above
preposition, reliance was placed by the petitioner on decision in
the case of Balu Ramasubbu Swami vs. The Divisional
Commissioner Konkan Division and Others in Criminal Writ
Petition No.1937 of 2021 dated 6 th July 2021 and Rahmat Khan
Alias Rammu Bismillah vs. Deputy Commissioner of Police in
Criminal Appeal No.912 of 2021 delivered on 25th August 2021.
4. Per contra, Learned APP for the State submitted that the
in-camera statements indicate that the petitioner had threatened
the residents and shop keepers and collected extortion money and
residents of the area are apprehensive of petitioner and not willing
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to depose against him. The competent authority had recorded
subjective satisfaction that the movements of the petitioner was
causing or calculated to cause alarm, danger to the residents of the
area. He submitted that order directing externment does show
existence of material and sufficiency of material cannot be gone
into. He relied on judgment in the case of State of NCT of Delhi
and Anr. vs. Sanjeev @ Bittoo reported in (2005) 5 SCC 181.
5. Having considered rival submissions and going through the
record, in my opinion, the petition is devoid of merits. The show
cause notice specifically refers to four offences under Chapter 16
and 17 of the Indian Penal Code, 1860 which are covered under
section 56(1)(a)(b) of the Act. The show cause notice then refers
to the in-camera statements which indicate that the petitioner
moves in the locality threatening the residents and shop keepers,
collecting extortion money and the residents are apprehensive of
petitioner and not willing to depose against him. Specific instances
are referred by the two witnesses whose in-camera statements
have been recorded about movements of the petitioner. It is on
that basis the matter was considered by the appropriate authority
and subject to satisfaction has been reached that the movements
and acts of the petitioner were causing or calculated to cause
alarm, danger or harm to the person or property or that there are
reasonable grounds for believing that the petitioner was engaged
in commission of offence punishable under specified Chapter of
the Indian Penal Code, 1860 and witnesses were not willing to
come forward to depose against the petitioner. Therefore, it is not
possible to hold that there was no material to take action against
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the petitioner.
6. The scope of Judicial review in the matter of externment has
been delineated by the Apex Court in the judgment of Sanjeev @
Bittoo (supra), wherein the Apex Court in paragraph No.24 and
25 held as under:
"24. It is true that some material must exist but what is
required is not an elaborate decision akin to a judgment. On
the contrary the order directing externment should show
existence of some material warranting an order of
externment. While dealing with the question mere repetition
of the provision would not be sufficient. Reference is to be
made to some material on record and if that is done, the
requirements of law are met. As noted above, it is not the
sufficiency of material but the existence of material which is
sine qua non.
25. As observed in Gazi Saduddin case [(2003) 7 SCC
330 : 2003 SCC (Cri) 1637] satisfaction of the authority can
be interfered with if the satisfaction recorded is
demonstratively perverse based on no evidence, misreading
of evidence or which a reasonable man could not form or
that the person concerned was not given due opportunity
resulting in prejudice. To that extent, objectivity is inbuilt in
the subjective satisfaction of the authority."
7. The argument then proceeds that there is absolutely no role
attributed to the petitioner in C.R. No.212 of 2017 and in FIR
No.407 of 2021 anticipatory bail is granted to the petitioner. As
held in Sanjeev @ Bittoo (supra) some material must exist
warranting an order of externment. Reference needs to be made to
some material on record and if such exercise is done, requirements
are met. It is not the sufficiency of material but the existence of
material which is sine qua non.
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8. The judgment relied by the petitioner in the case of Rahmat
Khan is the case where the demand of ransom by threat was held
to be concocted to give the complaint colour of intense gravity. The
complaints lodged against the petitioner which arose out of
disputes between the parties, the Apex Court recorded a finding
that the FIRs in the facts of the said case were clearly vindictive,
retaliatory and aimed to teach a lesson to the appellant to stifle his
voice. In the facts of the case, apart from registration of offence,
two secret witnesses deposed against the petitioner hence the
judgment in the case of Rahmat Khan is not applicable in the facts
to the petitioner.
9. In Balu Ramasubbu Swami, two crimes were registered
against the petitioner. This Court found that the order of
externment was essentially based on registration of C.R. No.59 of
2020. It was held in the said case that genesis of occurrence of said
crime was the act on the part of first informant to relieve himself
near the dwelling houses. And considering the manner of assault it
was found that the act of the petitioner was not found to be
sufficient to draw an inference of the Act or conduct of petitioner
to create sense of terror or alarm in the society. The statements of
secret witnesses were discarded holding them to be committed
post registration of C.R. No.59 of 2020. However, in the facts of
the present case, the statements of secret witnesses indicate that
the petitioner was carrying deadly weapon of knife. At the time of
incident referred in the statement, the petitioner took out knife
with the result passers by ran away in fear of the petitioner.
Therefore, it is not open for this Court to ignore two in-camera
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statements which have been relied upon by the authority which
graphically described the position attracting provisions of section
56(1)(a)(b) of the Act. Viewed in this perspective, there is no
substance in this petition having regard to limited scope of judicial
review against the order of externment passed by the competent
authority, which has been confirmed by the appellate authority.
10. In this view of the matter, writ petition fails. The same is
dismissed. No costs.
(AMIT BORKAR, J.)
