Bombay High Court
Mohammad Noor Hasan Abdul Gafar Shaikh @ ... vs State Of Maharashtra And Anr on 2 May, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-AS:20344-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (ST) NO.18661 OF 2023
Mohammad Noor Hasan Abdul Gafar
Shaikh @ Hasan Kanya ... Petitioner
versus
The State of Maharashtra and Anr. ... Respondents
Ms. Anjali Patil with Mr. Tohid Shaikh, for Applicant.
Mr. R.M.Pethe, APP for State.
API Sourabh Pingale, Dewree Police Station, Mumbai, present.
CORAM: N.J.JAMADAR, J.
DATE : 2 MAY 2024
JUDGMENT :
1. This Petition under Article 226 of the Constitution of India calls in
question the legality, propriety and correctness of an order dated 14 September 2023
passed by the Divisional Commissioner, Konkan Division in Appeal No.97 of 2023,
whereby the Appellate Authority modified the externment order passed by the
Competent Authority under Section 57(1)(a) of the Maharashtra Police Act, 1951 only
to the extent of curtailing the period of externment to 18 months from two years.
2. The background facts leading to this Petition can be stated, in brief, as
under :
2.1 The Assistant Commissioner of Police, Wadala Division, Mumbai - the
Inquiry Officer, addressed a notice to the Petitioner calling upon him to show cause as
to why the Petitioner be not externed for a term of two years from Mumbai City and
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Mumbai Suburban District for having been convicted in a number of cases for the
offences punishable under Chapter XVII of the Indian Penal Code, and yet the
Petitioner indulged in similar activities which gave rise to an apprehension that the
Petitioner was likely to again engage in the commission of the similar offences for
which he had been convicted.
2.2 As the Petitioner did not give reply despite opportunity, a proposal was
submitted to the Competent Authority. A further notice to show cause as to why the
Petitioner be not externed for a term of two years from Mumbai city and Mumbai
suburban District, was issued by the Competent Authority on 13 June 2023. The
Petitioner gave reply on 26 June 2023.
2.3 After considering the material on record and the reply submitted by the
Petitioner, the Competent Authority recorded a satisfaction that the Petitioner had
been convicted for the offences subsumed under Chapter XVII of the Penal Code and
yet there was no change in the conduct of the Petitioner and he has been engaging in
similar offences as two crimes i.e. C.R.No.517 of 2022 and 13 of 2023 were registered
against the Petitioner, post conviction in Sessions Case arising out of C.R.No.50 of
2015 by a judgment and order dated 29 January 2022, inter alia, for the offences
punishable under Sections 120B, 379, 427, 285, 486 red with Section 34 of the Indian
Penal Code and Section 15(2) of the Petroleum and Minerals Pipelines Act, 1962 and
Section 3 of the Prevention of Damage to Public Property Act, 1984 and the Petitioner
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was again likely to engage himself in the commission of similar offences, and,
therefore, it was necessary to extern the Petitioner from Mumbai City and Mumbai
Suburban Districts for a term of two years.
2.4 The Petitioner carried the matter in appeal before the Divisional
Commissioner, Konkan Division. By the impugned order dated 14 September 2023,
the Appellate Authority did not find any reason to interfere with the satisfaction
arrived at by the Externing Authority to extern the Petitioner. However, in the
opinion of the Appellate Authority, the Competent Authority had not ascribed reasons
for externing the Petitioner for a full term of two years, and, therefore, interfered with
the externment order to the extent of curtailing the period of externment to 18
months from two years.
2.5 Being further aggrieved, the Petitioner has invoked the writ jurisdiction.
3. I have heard Ms. Anjali Patil, learned Counsel for the Petitioner and Mr.
R.M.Pethe, learned APP for State at some length. With the assistance of the learned
Counsel for the parties, I have perused the material on record.
4. Ms. Patil mounted a multifold challenge to the externment order as well
as the impugned order. First and foremost, the Competent Authority had taken into
account old and stale cases of the year 2005 to 2008 in which the Petitioner was
convicted in the month of October 2010. In fact, on the basis of those cases, the
Competent Authority had passed an externment order, which was challenged in Writ
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Petition No.3139 of 2014. The effect of the externment order was stayed by an order
dated 1 September 2014. Eventually, as the term expired, the said Petition was
disposed by an order dated 5 October 2021. In this view of the matter, the conviction
recorded in the year 2010 could not have been taken into account to pass the
externment order in the year 2023.
5. Secondly, in the 5th case i.e. Sessions Case arising out of C.R.No.50 of
2015, the Petitioner has been acquitted of the offences under the Maharashtra Control
of Organized Crimes Act and convicted for the offences punishable under Sections
120B, 379, 427, 285, 486 of the Indian Penal Code and Section 15(2) of the Petroleum
and Minerals Pipelines Act, 1962 and Section 3 of the Prevention of Damage to
Public Property Act, 1984 only. In the appeal preferred against the said judgment and
order of conviction, this Court has granted bail by an order dated 23 March 2022.
6. Thirdly, rest of the two crimes which have been registered against the
Petitioner i.e. C.R.No.517 of 2022 and 13 of 2023 registered with Sewree Police
Station, the Petitioner has been roped in on the basis of suspicion alone. In these
circumstances, the material on record does not justify an inference that the Petitioner
would again indulge in similar offences for which he has been convicted in Sessions
Case arising out of C.R.No.50 of 2015.
7. Fourthly, Ms. Patil made an endeavour to urge that the Competent
Authority has not made any reference to in-camera statement, nor recorded a finding
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that the witnesses were not willing to give evidence in public against the Petitioner.
Therefore, right to freedom and personal liberty of the Petitioner could not have been
curtailed in a high-handed manner.
8. As against this, Mr. Pethe, learned APP, submitted that the
considerations which are germane for testing the legality and correctness of an order
passed under Section 56 of the Maharashtra Police Act cannot be imported to test the
legality and correctness of an order passed under Section 57 of the Act. It was
submitted that there is objective material in the form of a conviction recorded against
the Petitioner for the offences which are subsumed under Chapter XVI of the Penal
Code, and registration of two subsequent crimes to justify the satisfaction that the
Petitioner would indulge in similar offences. Thus, according to Mr. Pethe, the
subjective satisfaction arrived at by the Competent Authority cannot be faulted at.
9. In any event, the adequacy and sufficiency of the material to arrive at
such subjective satisfaction cannot be delved into in exercise of writ jurisdiction.
Therefore, no interference is warranted in the orders passed by the authorities under
the Maharashtra Police Act, 1951, urged Mr. Pethe.
10. Relevant part of Section 57 of the Maharashtra Police Act, 1951 reads as
under :
"57. Removal of persons convicted of certain offences :
(1) If a person has been convicted -
(a) (i) of an offence under Chapters XII, XVI or XVII of the
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Indian Penal Code; or
...........
(c) thrice or more of an offence under Section 122 of 124 of this
Act, the Commissioner, the District Magistrate, or the Sub-Divisional
Magistrate empowered by the State Government in this behalf if he has
reason to believe that such person is likely again to engage himself in the
commission of an offence similar to that for which he was convicted, may
direct such person notwithstanding anything contained in this Act or any
other law for the time being in force, to remove himself outside such area or
areas in the state of Maharashtra (whether within the local limits of the
jurisdiction of the officer or not and whether continguous or not), by such
route, and within such time, as the officer may specify and not to enter or
return to the area or areas so specified (hereinafter referred to as "the
specified area or areas") from which he was directed to remove himself."
11. From a plain reading of the text of Section 57 of the Act, 1951, it
becomes abundantly clear that the externing authority must record a finding that the
Petitioner had been convicted of any of the offences enumerated in clauses (a) to (c) of
sub-Section (1) and further satisfaction that it had reason to believe that the proposed
externee was likely to again engage himself in the commission of an offence similar to
that for which he was convicted. The previous conviction for any of the offences
enumerated in various clauses of sub-section (1) of Section 57 is a condition precedent.
That constitutes an objective fact. In addition to such objective fact, the externment
authority must record a subjective satisfation that the proposed externee is likely to
again engage himself in the commission of similar offences. Such subjective
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satisfaction, however, must be based on objective material. It cannot be a mere ipse
dixit of the externing authority that, in its opinion, the proposed externee is likely to
again commit similar offences. The legislature has designedly used the term "reason
to believe" which implies that there ought to be material on the basis of which a
person can justifiably draw an inference that the proposed externee has shown such
tendency as to again indulge in identical offences.
10. A useful reference in this context can be made to a decision of the
Division Bench of this Court in the case of Rameshchandra V/s. The State1 wherein
the Division Bench had enunciated as under :
"4.....The idea underlying the provisions contained in Section 57 obviously
is to protect the locality or area concerned from the probable commission of
the offence by the externee. In that sense, the order is more preventive in
intention and action than punitive. If that be the real object of the order, it
would, I think be reasonable to hold that the order authorized to be passed
under S.57 is the result of the present tendency of the externee far more
than of his past convictions.
The past history of the externee is no doubt relevant, and indeed is made
a condition precedent by S.57, for the passing of an order of externment.
But, even so, the order of externment is not a penalty imposed for the said
history. The scheme of the section clearly indicates that the order of
externment was passed against the appellant, not because he was convicted
on eight previous occasions or because the offence for which he was
convicted fell under Chap XVII, IPC., but because the Commissioner had
reason to believe that he was likely again to engage himself in the
commission of similar offences.
1 AIR 1955 Bombay 346
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The direct and immediate cause for the externment of the appellant is
the tendency on the part of the appellant, of which the Commissioner was
satisfied, to commit offences similar to those of which he had been convicted
in the past. It is not as if every person who has committed offences
mentioned in S.57, cl. (a), (b) or (c) is liable to be externed.
Previous convictions of the type and of the categories mentioned in the
first part of S.57 are, no doubt, a condition precedent. But it would be
unreasonable to hold that the order of externment is the necessary result of
the said convictions alone. The order of externment is more directly and
more immediately the result of the tendencies which are noticed in the
person concerned and as to which the Commissioner had satisfactory
evidence in his possession to justify his conclusion that the person
concerned is likely again to engage himself in the commission of similar
offences." (emphasis supplied)
11. The aforesaid being the object of provisions contained in Section 57 of
the Act, 1951, it deserves to be appraised whether the externing authority had posed
unto himself the correct question and passed the externment order after recording the
requisite subjective satisfaction.
12. The externing authority took into account the following cases :
Sr.No. Police Station and C.R.No. Under Sections
1 Railway Security Force, CSMT 3(a) of The Railway Property
C.R.No.03 of 2005 (Unlawful Possession) Act,
2 Railway Security Force, Hajibunder,3(a) of the Railway Property
Mumbai (Unlawful Possession) Act,
c.R.No.02/2007 1966.
3 Railway Security Force, Hajibunder, 3(a) of the Railway Property
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C.R.No.3 of 2007 (Unlawful Possession) Act,
1966.
4 Railway Security Force, Wadibunder, 3(a) of the Railway Property
C.R.No.11 of 2008 (Unlawful Possession) Act,
1966.
5 Sewree Police Station, C.R.No.50 of 2015 379, 461, 427, 285, 411, 395,
read with 34 of IPC and
Section 15(2) of Petroleum
and Minerals Pipelines Act,
1962 and Section 3 of
Prevention of Damage to
Public Property Act, 1984
6 Sewree Police Station, C.R.No.517 of 2022 Sections 379 read with
Section 34 of IPC and
Section 120 of Maharashtra
Police Act.
7 Sewree Police Sation, C.R.No.13 of 2022 Section 379 of IPC
13. In the first five cases, the applicant was convicted. Last two cases appear
to be under investigation.
14. The aforesaid being the nature of the material taken into account by the
externing authority, the submission on behalf of the Petitioner that the first four cases
were taken into account when the externment proceedings were initiated against the
Petitioner in the year 2014, merits consideration. In the externment order, the
Competent Authority has referred to the order dated 12 May 2014, which was passed
to extern the Petitioner for a term of two years. The order dated 1 September 2014
passed in WP No.3139 of 2014 indicates that when the said externment order was
assailed, interim relief was granted.
15. The situation which thus emerges is that four of the cases which were
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taken into account were already considered by the externing authority in the year 2014.
In any event, first four cases in which the Petitioner came to be convicted, were of the
year 2005 to 2008 and the orders of conviction were passed in the month of October
2010. Those cases became stale by any standard. The externing authority, thus,
committed a manifest error in taking into account the conviction recorded against the
Petitioner in first four cases well prior to 12 years. That leaves the conviction in
Sessions Case arising out of C.R.No.50 of 2015, as the sole thread to which the
department's case hangs in balance.
16. Undoubtedly, the Petitioner came to be convicted in Sessions Case
arising out of C.R.No.50 of 2015 on 29 January 2022. It could be urged that the
condition precedent for invoking the provisions contained in Section 57 of the Act, has
been fulfilled. However, the legal position is neigh well settled that it is not a mere
conviction in a case, but the propensity of the proposed externee to indulge in
identical offences for which he has been already convicted, that furnishes a foundation
for an action under Section 57(1) of the Act, 1951. It is the satisfaction as to the
second condition of the likelihood of the proposed externee indulging in similar
offences, that is at the heart of the matter.
17. A useful reference in this context can be made to a Division Bench
judgment of this Court in the case of Vishwanath Kashinath Tribhuvan V/s.
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K.P.Raghuvanshi and Anr. wherein it was enunciated that it is obvious that it is not
the mere conviction, but further satisfaction of the authority that the person is likely to
engage himself in the commission of identical offences that furnishes a justification for
an order under Section 57 of the Police Act, 1951.
18. In the case of Karan Ramesh Ghuge V/s. Dy. Commissioner of Police
and Ors.3 another Division Bench of this Court observed, inter alia, as under :
"9.......It must be noted here that the impugned order has been passed
under Section 57(1)(a)(i) of the Bombay Police Act. In order to exercise
jurisdiction under this Section, there are two necessary prerequisites, one,
the person must be convicted for an offence under any of the Chapters XII,
XVI or XVII of the Indian Penal Code and second, the empowered officer
must have reason to believe that such person is likely again to engage
himself in the commission of a similar offence. The second condition
wp1305-13J can be said to be fulfilled only when there is some additional
material apart from prior conviction in a similar offence, on the basis of
which a subjective satisfaction can be reached that the person has a
tendency or criminality in mind or over-powering urge to indulge in a
similar offence. No doubt, the satisfaction of an empowered officer is
subjective, but it has to be necessarily based upon some empirical material
from which any prudent man can draw similar inference. In the instant case,
there is no such additional material present on record and, therefore, the
impugned order is vitiated also on this ground."
19. Was there any objective material to record such satisfaction is the moot
question ? As noted above, the historical fact of the Petitioner having been convicted
2 1988 SCC Online Bom 411
3 2013 SCC Online Bom 747
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for the offences punishable under Chapter XVII of the Penal Code in connection with
the crimes registered during the period 2005-08 could not have been legitimately
taken into account by the externing authority. If the said convictions are eschewed
from consideration, apart from the conviction recorded in C.R.No.50 of 2015 which
satisfies the element of a condition precedent, two crimes registered against the
Petitioner appear to have been taken into consideration by the Competent Authority.
20. I have perused the allegations in the FIR in C.R.Nos.517 of 2022 and 13
of 2022 registered at Sewree Police Station. In none of the crimes, the Petitioner has
been named as the suspect directly. C.R.No.13 of 2022 was registered against
unknown person. In C.R.No.517 of 2022, 8 named accused allegedly committed theft
on a stranded ship. Those persons allegedly stated that at the instance of the applicant
and another person Mobin Shaikh, they attempted to commit theft on the said ship.
21. This being the nature of the accusation against the Petitioner, it would be
difficult to accede to the submission on behalf of the Respondent that the Competent
Authority considered the objective material to record its subjective satisfaction.
Undoubtedly, the satisfaction to be arrived at by the Competent Authority cannot be
questioned on merits. However, the existence and quality of the material on which the
satisfaction appears to have been arrived at is required to be appreciated.
22. The conspectus of aforesaid consideration is that on the one hand, the
externment authority took into account four old and stale cases of conviction, and, on
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the other hand, two subsequent crimes registered against the Petitioner, prima facie,
do not appear sturdy enough to bear the weight of the satisfaction that the Petitioner
would engage in identical activities for which he has been convicted in Sessions Case
arising out of C.R.No.50 of 2015.
23. I am, therefore, inclined to hold that the order of externment cannot be
sustained. The Appellate Authority also fell in error in not correcting the mistake
which the externment authority had committed, and in modifying the externment
order to the extent of duration only. Both the orders thus deserve to be quashed and
set aside.
22. Hence, the following order :
ORDER
(i) The Writ Petition stands allowed.
(ii) The impugned order dated 14 September 2023 as well as the externment
order dated 28 June 2023 passed by the Externment Authority stand quashed and set
aside.
(iii) Rule made absolute in the aforesaid extent.
( N.J.JAMADAR, J. )
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 03/05/2024 19:53:34
