Bombay High Court
Imtiyaz Hussain Sayyad vs State Of Maharashtra And Ors on 19 January, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-AS:3094
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2805 OF 2023
Imtiyaz Hussain Sayyad ... Petitioner
versus
The State of Maharashtra and Ors. ... Respondents
Mr. Ganesh Gupta, for Applicant
Mrs. Geeta P. Mulekar, APP for State.
CORAM: N.J.JAMADAR, J.
DATE : 19 JANUARY 2024
P.C.
1. Heard the learned Counsel for the parties.
2. Rule. Rule made returnable forthwith. With the consent of the parties,
heard finally.
3. The Petitioner who has been externed by invoking the provisions
contained in Section 56(1) of the Maharashtra Police Act, 1951 has assailed the legality
and validity of the externment order dated 24 January 2023 passed by the Deputy
Commissioner of Police Zone XII, Mumbai (Respondent No.2) and the order dated 10
July 2023 passed by the Divisional Commissioner, Konkan Division (Respondent
No.3) partly allowing the appeal to the extent of reducing the period of externment
from two years to 18 months.
4. Few crimes have been registered against the Petitioner at Samta Nagar
Police Station, Mumbai. On 9 July 2022, a notice to show cause as to why the
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Petitioner should not be externed, came to be issued to the Petitioner under Section 59
of the Act. The pendency of the crimes registered against the Petitioner and
confidential in-camera statements of the witnesses were adverted to in the said notice
to allege that the movements and acts of the Petitioner are causing or calculated to
cause alarm, danger or harm to person or property and the Petitioner has been
engaged in the commission of offences involving force or violence or offences
punishable under Chapter XVI and XVII of the Indian Penal Code, and the witnesses
were not coming forward to give evidence in public against the Petitioner fearing
safety of their person or property.
5. The Petitioner, it seems, did participate in the proceedings before the
Respondent No.2. However, the Petitioner had neither submitted any material nor
examined any witness in the rebuttal. Evidently, by an order dated 24 January 2023,
the Respondent No.2 directed the Petitioner to remove himself from the Districts of
Mumbai City, Mumbai Suburban, Thane, Vasai, Palghar and Dahanu Taluka of
Palghar District and Panvel, Karjat Taluka of Raigad District within a period of two
days of the service of the said order, for a period of two years.
6. Being aggrieved, the Petitioner preferred an appeal, being Appeal No.32
of 2023, before the Respondent No.3 under Section 60 of the Act, 1951. After
appraisal of the material and the submissions on behalf of the parties, by the impugned
order dated 10 July 2023, the Respondent No.3 found no reason to interfere with the
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order of externment as the satisfaction arrived at by the Respondent No.2 to extern the
Petitioner was based on objective material. However, the appellate authority was of
the view that the externing authority had not ascribed reasons for externing the
Petitioner for the maximum period of two years and, therefore, the order of
externment was modified by reducing the period of externment to 18 months from two
years. Thus, the appeal came to be partly allowed to the extent of duration of the
externment only.
7. Being further aggrieved, the Petitioner has invoked the writ jurisdiction.
8. I have heard Mr. Ganesh Gupta, learned Counsel for the Petitioner, and
Mrs. Geeta P. Mulekar, learned APP for State, at some length. With the assistance of
the learned Counsel for the parties, I have also perused the orders impugned in the
Petition and the material placed on record.
9. Mr. Gupta, learned Counsel for the Petitioner, took a slew of exceptions
to the order of externment. First, the order of externment deserves to be quashed and
set aside on the sole ground that the externing authority had externed the Petitioner
for the maximum period of two years without recording any subjective satisfaction and
reasons for the same. Such a course, according to Mr. Gupta, has been frowned upon
by the Supreme Court as being wholly arbitrary and unsustainable in the case of
Deepak Laxman Dongre V/s. The State of Maharashtra and Ors. 1 Second, the
1 AIR 2022 SC 1241
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impugned order suffers from the vice of the non-application of mind as the externing
authority had taken into account the crimes registered against the Petitioner which did
not fall within the ambit of clause (b) of sub-Section (1) of Section 56 of the Act, and
also the crimes which were under investigation. Third, in respect of those crimes
which could have been lawfully taken into account, the aspect of non-existence of a
live link between the acts attributed to the Petitioner in those crimes and the measure
of externment was lost sight of.
10. Learned APP supported the impugned order. It was urged that the
cumulative effect of the conduct of the externee over a period of time on the residents
of the area where the Petitioner had created a reign of terror is required to be taken
into account. The consistent course of violence resorted to by the Petitioner could not
have been arrested but by externing him. Since the appellate authority has reduced the
period of externment, the Petitioner cannot now urge that the externment order is
vitiated on account of externment for the maximum period. It was further submitted
that when the externment order was passed in one of the two crimes then under
investigation, chargesheet had been lodged.
11. Learned APP refuted the submission on behalf of the Petitioner that
there was no live link between the crimes registered against the Petitioner and the
externment order.
12. In the notice issued to the Petitioner under Section 59 of the Act,
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reference was made to the following crimes registered against the Petitioner :
Sr.Nos. Police Station C.R.No. And Status
Sections
1 Samata Nagar Police C.R.No.246 of 2018 Subjudice
Station under Sections 37(1)
(a), 135 of Maharashtra
Police Act
2 Samata Nagar Police C.R.No.568 of 2019 subjudice
Station under Section 401 of
IPC read with Section
122(e) of Maharashtra
Police Act.
3 Samata Nagar Police C.R.No.103 of 2019 Subjudice
Station under Sections 160
IPC with Sections 4,
25 of the Arms Act,
and Sections 36(1)(a)
and 135 of the
Maharashtra Police
Act.
4 Samata Nagar Police C.R.No.2 of 2020 Subjudice
Station under Section 354,
326, 324, 509, 506(2)
read with Section 34 of
IPC and Section 8 and
12 of POCSO Act.
5 Samata Nagar Police C.R.No.187 of 2020 Subjudice
Station under Sections 399,
402, IPC and 37(1), 135
of Maharashtra Police
Act.
6 Samata Nagar Police C.R.No.284 of 2020 Under investigation
Station under Sections 354,
354B, 354BD, 509,
323, 504 of IPC
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7 Samata Nagar Police C.R.No.154 of 2022 Under investigation
Station under Sections 307,
324, 323, 504, 506 read
with 34 of IPC.
13. A reference was also made to two confidential in-camera statements of
the witnesses, who allegedly stated about the acts of violence and robbery allegedly
committed by the Petitioner. On the date of the passing of the externment order by
the Respondent No.2, C.R.No.284 of 2020 for the offence punishable under Sections
354, 354BD, 509, 323, 504 of IPC, was still under investigation.
14. The Petitioner was ordered to be externed by invoking the provisions
contained in Section 56(1)(a) and (b) of the Act, 1951. The measure of externment by
its very nature is extra-ordinary. It has the effect of forced displacement from the
home and surroundings. Often it affects the livelihood of the person ordered to be
externed. Thus, there must exist justifiable ground to sustain an order of externment.
The order of externment, therefore, must be strictly within the bounds of the statutory
provisions. Under clause (a) of sub-Section (1) of Section 56, the externing authority
must be satisfied on the basis of the objective material that the movements or acts of
the person to be externed are causing or calculated to cause alarm, danger or harm to
person or property. Under clause (b), there must be an objective material on the
strength of which the externing authority must record subjective satisfaction that there
are reasonable grounds for believing that the externee is engaged or about to be
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engaged in the commission of offences involving force or violence.
15. Mere registration of a number of offences by itself does not sustain an
externment under Section 56(1)(b) of the Act. The offences must either involve
elements of force or violence or fall under Chapters XII, XVI and XVII of the Indian
Penal Code. In addition, the externing authority must record satisfaction that the
witnesses are not willing to come forward to give evidence in public against the
externee by reason of apprehension on their part as regards the safety of their person
or property.
16. In effect, to sustain an action of externment under sub-clause (b), the
offences the externee has engaged in must be under one of the Chapters enumerated
therein and that the acts or conduct of the externee is such that the witnesses are
terrified and dissuaded from giving evidence against the externee in public fearing
safety of their person or property.
17. In the light of the aforesaid conspectus of the requirements of Section
56(1)(a) and (b), the aforementioned challenges deserve to be appreciated. First, the
consideration of the offences which do not fall within the ambit of clause (b) of sub-
Section (1). Perusal of the chart (extracted above) indicates that the crime at Sr. No.1
i.e. C.R.No.246 of 2018 for the offences punishable under Sections 37(1) read with
Section 135 of the Maharashtra Police Act, 1951 and at Sr. No.3 i.e. C.R.No.103 of
2019 for the offences punishable under Section 160 of the IPC and Section 4 read with
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Section 25 of the Arms Act and Sections 37(1)(a) read with Section 135 of the
Maharashtra Police Act, 1951, do not fall within the ambit of clause (b).
18. Likewise, when the notice was issued on 9 July 2022, two of the crimes
i.e. Sr. Nos.6 and 7 were under investigation and the chargesheet had not been lodged.
On the date of the externment order also, the crime at Sr. No.6 i.e. C.R.No.284 of
2020 for the offences punishable under Sections 354, 354BD, 509, 323, 504 of IPC was
under investigation.
19. The situation which thus obtains is that the externing authority had
noted pendency of two cases which did not satisfy the requirement of class of cases
stipulated by clause (b) and also considered the crimes which were under
investigation and chargesheet had not been filed. It is trite, the crimes which are still
under investigation cannot be taken into consideration as depending upon the
outcome of the investigation, the investigating agency may or may not send the
accused for trial. It is true, in one of the crimes, subsequently chargesheet came to be
filed. However, a submission could be advanced that the chargesheet was filed with a
view to justify and support the order of externment. Reliance placed by Mr. Gupta on
the judgment of the learned Single Judge of this Court in the case of Ganesh Laxman
Dhabale V/s. State of Maharashtra and Ors.2 appears to be well founded.
20. Secondly, the objection based on the absence of live link between the
2 AIR Online 2023 Bom 231
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cases filed against the Petitioner and the externment order also carries some
substance. The cases at Sr. Nos.2 i.e. C.R.No.568 of 2019, at Sr. No.4 i.e. C.R.No.2 of
2020, at Sr. No.5 i.e. C.R.No.187 of 2020 were registered in the years 2019 and 2020.
Action for externment was initiated in the month of July 2022 and the order of
externment came to be passed on 24 January 2023. Considerable period elapsed from
the registration of the aforesaid crimes till the initiation of the action for externment.
The purpose of externment is not punitive. Externment is with a view to disable a
person by moving him away from surroundings which prove favourable for the
commission of the offences and thereby disarm his influence in the said area. Thus,
there ought to be a live link between the acts of the externee and the action of
externment. Stale cases cannot be used to support the externment order. This also
bears upon the subjective satisfaction arrived at by the externing authority.
21. Lastly, the duration of the order of externment. Section 58 of the Act,
provides that the term of order made under Sections 55, 56, 57 or 57A shall in no case
exceed the period of two years from the date on which the person removes himself or
is removed from the specified area. The legislature has enacted maximum period for
which the externment order could be passed. The externing authority is, however,
required to apply its mind, based on the objective material, as to the period for which
the person should be externed so as to disable and disarm him. It must record reasons
from which the justifiability of the externment for the full term of two years can be
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discerned. In the case of Deepak Laxman Dongre (supra), the Supreme Court, inter
alia, observed as under :
"58...... On a plain reading of Section 58, it is apparent that while passing
an order under Section 56, the competent authority must mention the area
or District or Districts in respect of which the order has been made.
Moreover, the competent authority is required to specify the period for
which the restriction will remain in force. The maximum period provided
for is of two years. Therefore, an application of mind on the part of the
competent authority is required for deciding the duration of the restraint
order under Section 56. On the basis of objective assessment of the material
on record, the authority has to record its subjective satisfaction that the
restriction should be imposed for a specific period. When the competent
authority passes an order for the maximum permissible period of two years,
the order of extrnment must disclose an application of mind by the
competent authority and the order must record its subjective satisfaction
about the necessity of passing an order of externment for the maximum
period of two years which is based on material on record. Careful perusal of
the impugned order of externment dated 15 December 2020 shows that it
does not disclose any application of mind on this aspect. It does not record
the subjective satisfaction of the respondent No.2 on the basis of material on
record that the order of externment should be for the maximum period of
two years. If the order of externment for the maximum permissible period
of two years is passed without recording subjective satisfaction regarding the
necessity of extending the order of externment to the maximum permissible
period, it will amount to imposing unreasonable restrictions on the
fundamental right guaranteed under clause (d) of Article 19(1) of the
Constitution of India."
22. In the case at hand, the externing authority had not recorded any reasons
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as to why the Petitioner was externed for a full period of two years. Nor any
consideration was bestowed on the duration of the externment order.
23. It is true the appellate authority interfered with the externment order on
the said count and reduced the period of externment to 18 months. Had that been the
only ground of challenge, the Court would have appreciated the effect of modification
of the duration of the externment order in a different perspective. However, in the
case at hand, apart from the absence of reasons to justify the externment for the period
of two years, the order passed by the Respondent No.2 suffers from the vice of non-
application of mind on account of consideration of cases, which ought not to have
been taken into account, and absence of live link between the cases, which could have
been legitimately taken into account, and the externment order.
24. Resultantly, the impugned order deserves to be quashed and set aside.
25. Hence, the following order :
ORDER
(i) The Writ Petition stands allowed in terms of prayer clause (i).
(ii) Rule made absolute to the aforesaid extent.
( N.J.JAMADAR, J. )
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 22/01/2024 19:26:41
