Bombay High Court
Abdul Rahim Vanvamallai Khan vs The State Of Maharashtra And Ors on 18 October, 2023
Bench: S. V. Kotwal
2023:BHC-AS:31504
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO.19407 OF 2023
Abdul Rahim Vanvamallai Khan ...Petitioner
Versus
The State of Maharashtra & Ors ...Respondents
------------
Mr. Manoj R. Gowd a/w Kavita N. Durgapal, Advocate for
Petitioner.
Mr. Yogesh Y. Dabke, A.P.P. for State/Respondents.
------------
CORAM : SARANG V. KOTWAL, J.
DATE : 18th OCTOBER 2023
PC :
1. Heard Mr. Manoj Gowd, learned Counsel for the
Petitioner and Mr. Yogesh Dabke, A.P.P. for State/Respondents.
2. Rule. Rule is made returnable forthwith, with the
consent of both the parties.
3. The Petitioner has challenged the order dated 3rd
February 2023 passed by the Deputy Commissioner of Police,
Zone-5, Mumbai externing the Petitioner outside the limits of
Digitally
ASHWINI
signed by
ASHWINI
JANARDAN
Greater Mumbai Police Commissionerate for a period of sixteen
JANARDAN VALLAKATI
VALLAKATI Date:
2023.10.20
15:45:26
+0530
months. The Petitioner had challenged that order by way of an
Ashwini V
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Externment Appeal No.23/2023 before the Divisional
Commissioner, Kokan. That Appeal was dismissed vide order
dated 14th September 2023 and, therefore, the Petitioner has
challenged that order also.
4. Learned Counsel for the Petitioner made only one
submission that the requisite satisfaction that the witnesses are not
willing to come forward is not recorded by the externing authority.
Even, the notice does not make any reference that the witnesses
were not willing to come forward, therefore, this is in violation of
the requirement of Section 56 of the Maharashtra Police Act, 1951
(hereafter referred to the "said Act") as held by a Division Bench of
this Court in the case of Yashwant Damodar Patil vs. Hemant
Karkar, as reported in 1989 Mh.L.J. 1111.
5. Learned A.P.P. opposed this submission. He submitted
that the movements of the Petitioner was causing alarm, harm and
danger in the locality and, therefore, there was a necessity to pass
the order of externment.
6. I have considered these submissions. Before passing the
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externment order, the show cause notice under Section 59 of the
said Act was issued on 30th June 2022. It was mentioned in the
notice that C.R. No.235/2019, C.R. No.884/2021 and C.R.
No.896/2021 registered at Dharavi police station were taken into
consideration for initiating the exterment proceedings. Besides
these three offences, there were five more offences registered
against him at Dharavi and Shahunagar police station from the
year 2013 onwards. The details of the three offences which were
taken into consideration were mentioned in the show cause notice.
7. The externing authority passed the impugned exterment
order. He again made reference to the same offences. According
to him; there were serious offences involving bodily offences,
which were registered against the Petitioner at both these police
stations and there was terror created by him in the locality.
Therefore, to maintain law and order and in the interest of public,
it was necessary to extern him. On these reasons, the externment
order was passed. The same reasons were accepted by the
Appellate Authority and the Appeal was dismissed.
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8. As rightly submitted by the learned Counsel for the
Petitioner, the ratio of Yashwant Patil's case is applicable to the
facts of the present Petition. It was observed in the said judgment
that the Division Bench had reached to the conclusion after
examining the provision of Section 56(1) of the said Act that in
every case, where an order of externment is proposed to be passed,
it is necessary that the officer concerned must be satisfied that the
witnesses were not willing to come forward to give evidence
against him. Notice of such satisfaction must also be necessarily
given to the proposed externee under Section 59 of the
Maharashtra Police Act. Both these crucial aspects are missing
from the externment order as well the notice issued under Section
59 of the said Act. Therefore, on this ground alone, the Petition
must succeed.
9. Hence, the following order:
ORDER
i) Rule is made absolute in terms of prayer clauses
(b) and (c) which read thus:
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"b) That this Hon'ble Court be
pleased to quash and setting-aside
the notice and impugned order of
externment dated 3.2.2023 in Case
No.55/C/43/2023 pronounced by
Respondent No.2 Deputy
Commissioner of Police, Zone-V,
Mahim, Mumbai for externing the
present Appellant from the
jurisdiction of Mumbai, for a period
of 16 months, passed under the
provision of section 56 (1)(a)(b) of
Maharashtra Police Act.
c) Quashed the order of Divisional
Commissioner, Kokan Bhawan at
Mumbai Appellant authority
dismissing the Externment Appeal
no.23/2023 vide order dt.
14.9.2023."
ii) The Petition is disposed of.
(SARANG V. KOTWAL, J.)
