Bombay High Court
Sagar Ashok Chaudhary vs The Asst. Commissioner Of Police ... on 1 November, 2023
Bench: S. V. Kotwal
2023:BHC-AS:33359
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO.18598 OF 2023
Sagar Ashok Chaudhary ...Petitioner
Versus
The Dy. Commissioner of Police Zone-VIII,
Mumbai & Ors ...Respondents
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Mr. Ratnish S. Dubey a/w Bhagyashri P. Roundal, Advocate for
Petitioner/Applicant.
Mr. Arfan Sait, A.P.P. for State/Respondent.
Mr. Swapnil B. Dalvi, I.O.-P.S.I., Airport police station, Mumbai.
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CORAM : SARANG V. KOTWAL, J.
DATE : 1st NOVEMBER 2023
PC :
1. Heard Mr. Ratnish Dubey learned counsel for the
Petitioner and Mr. Arfan Sait learned A.P.P. for the
State/Respondents.
2. Learned Counsel for the Petitioner submitted that there
is medical emergency as the Petitioner's wife is at an advance stage
of pregnancy. Learned A.P.P. on instructions of the Police Officer,
who is present in the Court, confirmed this situation. Therefore,
Digitally
signed by
ASHWINI
ASHWINI JANARDAN
JANARDAN VALLAKATI
VALLAKATI Date:
2023.11.03
03:18:09
considering the medical emergency, I have taken this matter for
+0530
Ashwini V
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hearing.
3. Rule. Rule is made returnable forthwith, with the
consent of both the parties.
4. The Petitioner has challenged the order dated 29th June
2023 passed by the Deputy Commissioner of Police, Zone-8,
Mumbai, externing the Petitioner outside the limits of Mumbai city,
Mumbai suburban, Navi Mumbai and Thane District for a period of
one year. The Petitioner challenged the said order before the
Appellate Authority under Section 60 of the Maharashtra Police
Act, 1951 (hereinafter referred to the "said Act"). The said Appeal
i.e., Externment Appeal No.94/2023 was dismissed by the
Divisional Commissioner, Kokan vide his order dated 27th
September 2023. Both these orders are under challenge in the
present Petition.
5. Before passing of the externment order, the show cause
notice dated 21st March 2023 was issued under Section 59 of the
said Act. The Petitioner has not annexed a complete copy of the
notice but learned A.P.P. has produced the complete copy of the
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said notice. The said copy is taken on record and marked 'X' for
identification.
6. Learned Counsel for the Petitioner submitted that the
externment order is based on the offences from the year 2018 upto
2023. The offences from the year 2018 to 2022 are stale and,
therefore, could not have been the basis for passing of the order.
He submitted that most of the offences are non-cognizable. These
offences are registered at Vile Parle police station, Dehuroad police
station as well as Airport police station. He further submitted that
the externment order mentions that the witnesses are not willing
to come forward to give evidence against the Petitioner. However,
there is no such averment in the notice, therefore, the Petitioner is
deprived of the opportunity to meet these allegations.
7. Learned A.P.P. opposed these submissions. According to
him, the list of offences show the live link between the offences
from the year 2018 upto the year 2023. He submitted that because
of his activities, the witnesses were not willing to come forward
which the externment authority has rightly recorded in his order.
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8. I have considered these submissions. This Petition
deserves to be allowed on the solitary ground that the notice does
not mention that the witnesses are not willing to come forward.
This is an important aspect of Section 56 of the said Act.
Therefore, it was necessary to give notice to the Petitioner about
these allegations that the witnesses were not willing to come
forward to depose against him or to make complaints against him.
The externment authority has recorded the satisfaction; that
because of fear created by him, the people from the locality were
not willing to come forward to give complaint against him or to
depose against him. However, there is no such supporting material
in the show cause notice. The show cause notice does not even
refer to such allegation that people in the locality were not coming
forward against the present Petitioner. Therefore, the satisfaction
of the externing authority is without any basis and the Petitioner is
not given proper opportunity to meet these allegations. On this
ground, the Petition deserves to be allowed. In support of these
submissions, reference can be made to a Division Bench judgment
of this Court, in the case of Yashwant Damodar Patil vs. Hemant
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Karkare as reported in 1989 Mh.LJ 1111. The ratio laid down in
this judgment is that the notice is required to mention that the
witnesses were not willing to come forward against the externee
and there has to be proper subjective satisfaction in that behalf. In
the present case, this important aspect is missing and, therefore,
the externment order deserves to be set aside.
9. Hence, the following order:
ORDER
i) The externment order dated 29th June 2023
passed by the Deputy Commissioner of Police,
Zone-8, Mumbai, externing the Petitioner outside
the limits of Mumbai city, Mumbai suburbans,
Navi Mumbai and Thane District for a period of
one year, is set aside. Consequently, the order
passed by the Divisional Commissioner, Kokan on
27th September 2023 in Externment Appeal
No.94/2023, is also set aside.
ii) The Rule is made absolute in the aforesaid terms.
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iii)The Petition is disposed of accordingly.
(SARANG V. KOTWAL, J.)
