Bombay High Court
Mohammad Saif Mohammad Anees ... vs Deputy Commissioner Of Police And ... on 16 October, 2023
Bench: S. V. Kotwal
2023:BHC-AS:31120
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO.18622 OF 2023
Mohammad Saif Mohammad Anees Faruqui ...Petitioner
Versus
The Deputy Commissioner of Police & Ors ...Respondents
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Mr. Zeeshan I. Khan, Advocate for Petitioner.
Mr. A.R. Patil, APP for State/Respondents.
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CORAM : SARANG V. KOTWAL, J.
DATE : 16th OCTOBER 2023
PC :
1. Heard Mr. Zeeshan Khan, learned Counsel for the
Petitioner and Mr. A.R. Patil, learned APP for the
State/Respondents.
2. Rule. Rule is made returnable forthwith, with the
consent of both the parties.
3. The Petitioner has challenged the order dated 14th
September 2023 passed by the Divisional Commissioner Kokan
Division in Externment Appeal No.9/2023. By the impugned order
Digitally
signed by
ASHWINI
ASHWINI JANARDAN
JANARDAN VALLAKATI
VALLAKATI Date:
the Appeal preferred by the Appellant against the externment
2023.10.18
16:16:48
+0530
Ashwini V
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order was dismissed. In effect, the Petitioner is challenging the
order dated 7th January 2023 passed by the Deputy Commissioner
of Police, Zone-5, Mumbai externing him outside the limits of the
Greater Mumbai Police Commissionerate for the period of eighteen
months.
4. Before passing an externment order, the Petitioner was
served with a show case notice dated 5 th May 2022 passed under
Section 59 of the Maharashtra Police Act, 1951 (herein after
referred to the "said Act"). The notice as well as the externment
order mention that there were five registered offences against the
Petitioner at Dharavi police station i.e., C.R. Nos.233/2022,
896/2021, 468/2021, 235/2019 and 29/2019. The show cause
notice mentions that out of these offences, C.R. No.233/2022 and
896/2021 were taken into consideration for initiating the
externment proceedings.
5. Learned Counsel for the Petitioner made two
submissions. His first submission was that the externing authority
had not shown urgency in passing the externment order because
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the show cause notice was issued on 5 th May 2022 and the
externment order was passed on 7th January 2023. He submitted
that the lack of urgency shows that there was no real necessity to
extern the Petitioner. His second submission is more important.
He submitted that the main requirement for externing a person
under Section 56(1) of the said Act is the recording of the requisite
satisfaction of the externing authority that, the witnesses are not
willing to come forward against the externee and in the present
case such satisfaction is not recorded. In support of his contention,
he relied on the order dated 29th September 2023 passed by this
Court in Criminal Writ Petition No.3180/2023 in the case of Faiz
Mohammad Anees Faruqui vs. The State of Maharashtra & Ors.
6. Learned APP opposed these submissions. He submitted
that there were five registered offences against the Petitioner and,
therefore, his activity would fall within the requirement of Section
56(1) of the said Act.
7. I have considered these submissions. Though there were
five registered offences against the Petitioner, the show cause
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notice mentions that only two offences were taken into
consideration. Learned Counsel for the Petitioner has rightly
submitted that the externing authority has not recorded his
subjective satisfaction that the witnesses were not willing to come
forward against the present Petitioner. Even, there is no such
averment in the show cause notice and, therefore, the Petitioner
could not have answered that issue. The order referred to by the
learned Counsel in Writ Petition No.3180/2023 is based on a
Division Bench judgment of this Court in the case of Yashwant
Damodar Patil vs. Hemant Karkar, as reported in 1989 Mh.L.J.
1111. In that judgment also, it was held that the externing
authority was required to record his subjective satisfaction that the
witnesses were not willing to come forward against the present
Petitioner. If such satisfaction is missing, then the externment
order can not be sustained.
8. Considering this position in law, the ratio of the said
judgment is squarely applicable in the present case and the
Petition deserves to be succeed.
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9. Hence, the following order:
ORDER
i) The Petition is allowed.
ii) The order dated 14th September 2023 passed by
the Divisional Commissioner Kokan Division in
Externment Appeal No.9/2023 as well as the
order dated 7th January 2023 passed by the
Deputy Commissioner of Police, Zone-5, Mumbai
externing the Petitioner outside the limits of the
Greater Mumbai Police Commissionerate for a
period of eighteen months, are set aside.
iii)Rule is made absolute in aforesaid terms.
iv) The Petition is disposed of.
(SARANG V. KOTWAL, J.)
