Bombay High Court

Rambali@Bablu Chnmun Chouhan vs The Assistant Commissioner Of ... on 8 November, 2023

Bench: S. V. Kotwal

2023:BHC-AS:34321



                     Gokhale                            1 of 7                        13-wp-st-20559-23


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL WRIT PETITION (ST) NO. 20559 OF 2023

                    Rambali @ Bablu Chinmun Chouhan                               ..Petitioner
                         Versus
                    The Assistant Commissioner of Police & Ors.                   ..Respondents

                                               __________
                    Mr. Sanjay P. Shinde a/w. Prathmesh T. Bhanuwanshe for
                    Petitioner.
                    Mr. Yogesh Y. Dabke, APP for State/Respondent.
                                               __________

                                                CORAM : SARANG V. KOTWAL, J.

DATE : 8 NOVEMBER 2023 PC :

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

the parties.

2. Heard Shri. Sanjay Shinde, learned counsel for the

Petitioner and Shri. Yogesh Dabke, learned APP for the

State/Respondent.

3. The petitioner has challenged the order dated

09.12.2022 passed by the Deputy Commissioner of Police - Zone

3, Kalyan, externing the petitioner outside the limits of Districts

Thane, Mumbai Suburbans and Raigad for a period of 18 months.

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The order was challenged by the petitioner before the Divisional

Commissioner, Konkan vide Externment Appeal No.14 of 2023.

That Appeal was dismissed vide order dated 26.09.2023. Both

these orders are under challenge in this writ petition. Before

passing of the externment order, at the first instance, the petitioner

was served with the notice dated 09.11.2022 U/s.59(1) of the

Maharashtra Police Act (hereinafter referred to as the 'said Act').

After that, the petitioner participated in the enquiry proceedings.

He submitted his reply on 26.11.2022.

4. The externing authority i.e. the Deputy Commissioner of

Police, Zone-3, Kalyan, issued another notice U/s.59(1) of the said

Act dated 03.12.2022 asking the petitioner to show-cause as to

why he should not be externed for a period of two years from the

aforesaid area. That notice was served on the petitioner on

06.12.2022 and immediately within three days the externment

order was passed on 09.12.2022.

5. The externing order mentions that, there were 7 offences

registered against the petitioner. Out of which, six offences were

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registered at Manpada police station as C.R.No. I 554 of 2016,

C.R.No.I 391 of 2017, C.R.No. I 404 of 2017, C.R.No. I 454 of

2017, C.R.No. I 461 of 2017 and C.R.No. I 637 of 2021. There was

one offence registered at Shil Daighar police station vide C.R.No. I

148 of 2018. Out of these offences, C.R.No. 637 of 2021 was

compounded and it is not pending any more. Besides this, the

proceedings under section 110(a)(g) of the Cr.P.C. was conducted

against the petitioner vide Chapter Case No.98 of 2018 and then

another similar case was initiated under the same section vide

Chapter case No.2 of 2022. But those proceedings were dropped.

Apart from these allegations, there were statements of two secret

witnesses 'A' and 'B' who have described the incidents dated

04.08.2022 and 28.07.2022. Based on these allegations, the

externing authority recorded that, because of the activities of the

petitioner, there was an issue of law and order. His acts were

causing alarm, harm and danger to the local residents and that the

witnesses were not willing to come forward against the present

petitioner. On this subjective satisfaction, the petitioner was

externed for the period of 18 months from the aforesaid area.

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6. Learned counsel for the petitioner made following

submissions:

i) The show-cause notice U/s.59 of the said Act was

issued by the externing authority on 03.12.2022.

From the record, it is shown that it was served on

the petitioner on 06.12.2022. He was asked to

attend the office of the externing authority on

07.12.2022 and immediately on 09.12.2022 the

order was passed. Thus, the petitioner was not

given sufficient opportunity to defend himself.

This was in clear violation of principles of natural

justice. The externing authority did not take into

account the reply filed by the petitioner before

the enquiry officer i.e. A.C.P.

ii) The offences considered against him were stale.

The proceedings U/s.110(a)(g) of the Cr.P.C.

were dropped and, therefore, there was no

necessity to take recourse to the externment

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proceedings.

7. Learned APP opposed these submissions. He invited my

attention to the averments in the externment order that the

petitioner was personally heard and that he was given sufficient

opportunity to defend himself. Learned APP relied on the two 'in

camera' statements to show that the petitioner's activities were

causing alarm, harm and danger. Learned APP also relied on the

aforementioned registered offences against the petitioner. He

submitted that the externing authority has properly recorded the

requisite subjective satisfaction and, therefore, the externment

order cannot be interfered with.

8. I have considered these submissions. As far as, registered

offences are concerned, except C.R.No. I 637 of 2021, all other

offences are stale and therefore, not relevant for passing of

externment order on 09.12.2022. The C.R.No. I 637 of 2021 had

resulted in compounding of the offence and, therefore, even that

offence is not pending against the petitioner. The externing

authority has relied on these stale offences and the offence in

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which the matter was compounded. Thus, the subjective

satisfaction is not based on the relevant material.

9. It is very significant that the proceedings U/s.110(a)(g)

of the Cr.P.C. were initiated against the petitioner on 10.01.2022

and those proceedings were dropped and cancelled on 22.08.2022.

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

09.11.2022. There is no justifiable reason to change the

proceedings from those U/s.110(a)(g) of the Cr.P.C. to the

proceedings U/s.56(1)(a)(b) of the said Act. The police had all the

authority to take proceedings U/s.110(a)(g) of the Cr.P.C. to their

logical end and to ask the petitioner to execute bond. But that was

not done and instead, without any valid reason, the externment

proceedings were initiated. As rightly submitted by learned

counsel for the petitioner that the externing authority has not

made any reference to the reply given by the petitioner on

26.11.2022 in response to the first show-cause notice dated

09.11.2022. On the second occasion, the show-cause notice was

issued on 03.12.2022. It was served on 06.12.2022 calling upon

the petitioner to attend the externing authority's office on

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07.12.2022 and without affording sufficient and reasonable

opportunity, immediately, the externment order was passed on

09.12.2022. Thus, there is denial of proper opportunity which is in

violation of the principles of natural justice. Considering all these

aspects, the externment order is not sustainable. Consequently,

even the Appellate authority's order is required to be set aside.

10. Hence, the following order:

ORDER

i) Rule is made absolute in terms of prayer clause

(b); which reads thus:

"b) This Hon'ble High Court be kindly pleased to quash and set aside the impugned Judgment and Order dt. 26/09/2023 passed in Ceiling/Desk/Externment Appeal No.14 of 2023 passed by the Appellate Authority and Divisional Commissioner, Kokan Division Mumbai and the externment order dated 09/12/2022 passed by the Respondent No.2"