Bombay High Court
Ayub Raheman Khan vs Divisional Commissioner And Anr on 3 May, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:20669
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 19358 OF 2023
SANTOSH
SUBHASH
KULKARNI Ayub Raheman Khan
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2024.05.06
Age 45 years, Occu. Business
14:48:35 +0530
residing at B-205, Jay Shiv Palace, behind
Shree Ram Jewellers, Navghar Village,
Bhayander East, Tal & Dist. Thane ...Petitioner
Versus
1. Divisional Commissioner Office, Konkan
Bhavan. Opp. Jehangir Gallery, Old
Secretariat Building, Fort, Mumbai - 32
2. Deputy Commissioner, Mira Bhayander
Vasai Virar Commissionerate
3. Assistant Commissioner of Police
Navghar Division, Mira Bhayander, Vasai
Virar Commissionerate.
4. The State of Maharashtra ...Respondents
Mr. Sanjeev Kadam, a/w Mayur Govind Sanap and Vivek
Rane, for the Petitioner.
Mr. Tanveer Khan, APP for the State/Respondents.
PSI Tushar Malade, Navghar Police Station, present.
CORAM: N. J. JAMADAR, J.
DATED: 3rd MAY, 2024
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and with the
consent of the learned Counsel for parties heard finally.
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2. By this petition under Article 227 of the Constitution of
India the petitioner takes exception to an order passed by the
Divisional Commissioner, Konkan Division, in Externment
Appeal No.103 of 2023 dated 12 th October, 2023, whereby the
appeal preferred by the petitioner under Section 60 of the
Maharashtra Police Act, 1951 (the Police Act, 1951") against
the externment order dated 4th July, 2023 passed by the
competent authority ordering the petitioner to remove himself
from the limits of Thane, Palghar, Mumbai city and Mumbai
Suburban Districts for two years, came to be modified
only to the extent of the term of externment, thereby
reducing the duration of externment to 18 months from two
years.
3. Shorn of unnecessary details, the background facts can
be stated as under:
(a) On 5th June, 2023, the petitioner was served with
a notice calling upon him to show cause as to why the
petitioner be not externed for the period of two years from
Mumbai, Mumbai Sub-urban, Navi Mumbai, Thane, Palghar
and Raigad Districts by invoking the powers conferred under
Section 56(1)(a) and (b) of the Police Act, 1951. In the show
cause notice it was inter alia alleged that the acts and
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movements of the petitioner were causing or calculated to
cause alarm, danger or harm to the person and property in
the area falling within the limits of Mira Road and Navghar
Police Station. The petitioner had been indulging in offence
of extortion by impersonating himself as a public servant.
The petitioner, alongwith his associates, was also indulging in
other offences punishable under Chapters XVI and XVII of
the Penal Code and on account of the reign of terror created
by the petitioner, witnesses were not willing to come forward
to give evidence in public against the petitioner fearing for
safety of their person or property.
(b) In the show cause notice, reference was made to
the following crimes registered against the petitioner.
Sr. No. CR No. Sections Status
1. Mira Road Police Station 170, 384, 385 Pending
CR No.513/2014 r/w 34 IPC
2. Navghar Police Station 170, 347, Pending
No.234/2022 364(A), 384,
389, 419, 420,
506, 120B r/w
34 IPC
3. Navghar Police Station 419, 420, 170, Under
No.59/2023 384, 385, 120A Investigation
r/w 34
(c) The petitioner gave reply to the show cause notice
on 16th June, 2023 pointing out the circumstances in which,
according to the petitioner, those crimes were registered. It
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was contended that the petitioner was espousing the cause of
public and was an active social worker.
(d) The competent authority, after appriasal of the
material on record including the crimes registered against the
petitioner (extracted above), recorded a satisfaction that the
acts or movements of the petitioner were causing or
calculating to cause alarm, danger or harm to person or
property and, if the acts and movements of the petitioner
were not arrested by ordering his externment, there was a
grave danger of serious breach of law and order and public
tranquility. It was further observed that the statements of
confidential witnesses indicated that on account of the reign
of terror created by the petitioner, the witnesses were not
willing to come forward to give evidence in public. There was
no other alternative but to extern the petitioner. Thus, the
competent authority ordered the externment of the petitioner
from Mumbai City, Mumbai Sub-urban, Thane and
Palghar Districts for the period of two years as the
petitioner could continue to operate with impunity with the
assistance of his associates, if he was externed from a
smaller area.
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4. Aggrieved the petitioner preferred appeal, being
Externment Appeal No.103 of 2023, before the Divisional
Commissioner, Konkan Division. By the impugned order, the
Appellate Authority found no reason to interfere with
subjective satisfaction arrived at by the externment authority
to extern the petitioner. However, since no specific reason
was ascribed for externing the petitioner for the full term of
two years, the appellate authority considered it appropriate to
curtail the period of externment to 18 months from two year.
5. Being further aggrieved, the petitioner has invoked the
writ jurisdiction of this Court.
6. Mr. Kadam, the learned Senior Advocate for the
petitioner, mounted a three-fold challenge to the impugned
orders. Firstly, out of the three crimes registered against the
petitioner, which were taken into account by the externing
authority, the first was registered in the year 2014, being CR
No.513 of 2014 at Mira Road Police Station. Since the show
cause notice was issued on 5th June, 2023, the said crime
had become stale, by any standard. Thus, the said crime
could not have been taken into account at all. Secondly, the
show cause notice as well as the externment order do not
spell out the nature of the statements of the confidential
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witnesses. In fact, there is no reference at all to the
statements of confidential witnesses in the show cause notice
and failure to state the general nature of material allegations
against the petitioner in the show cause notice vitiated the
entire externment process. Thirdly, the externment order is
grossly excessive as the two crimes, which could be
legitimately taken into account, were registered at Navghar
Police Station, the externment of the petitioner from Mumbai
City, Mumbai Sub-urban, Thane and Palghar Districts is
thus grossly disproportionate to the alleged area of influence
of the petitioner and the object which the order of externment
professed to achieve.
7. To lend support to these submissions, Mr. Kadam
placed reliance on the judgments of this Court in the cases of
Nitin S/o Balu Kale vs. Divisional Commissioner and others 1
and Ganesh Murgesh Bajantri vs. State of Maharashtra2.
8. Mr. Khan, the learned APP, supported the impugned
order. It was submitted that the competent authority had
passed order of externment based on objective material and
such subjective satisfaction is not open for interference in
exercise of writ jurisdiction. Taking the Court through the
2 2020 SCC Online Bom 1460.
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statements of the confidential witnesses, Mr. Khan would
urge that the authorities were justified in arriving at the
satisfaction that the petitioner had been indulging in the
specified offences and the witnesses were not willing to come
forward and give evidence in public fearing reprisal at the
hands of the petitioner. Therefore, the petition deserves to be
dismissed.
9. Evidently the petitioner was ordered to be externed by
invoking provisions contained in Section 56(1)(a) and (b) of
the Police 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. In
a given case, it may have repercussions on the family
members and the dependents of the externee. The order of
externment, therefore, must be strictly within the bounds of
the statutory provisions and no greater restraint on the
fundamental right of the externee, guaranteed under Articles
19 and 21 of the Constitution of India, than is necessary to
achieve the object of the measure of externment, can be
countenanced.
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10. In the case of Deepak s/o Laxman Dongre vs. State of
Maharashtra3 the Supreme Court enunciated that Section 56
makes serious inroads on the personal liberty of the citizens
guaranteed under Article 19(1)(b)(d) of the Constitution of
India. For invoking 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. For passing order
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 engaged
in the commission of offences involving force or violence. The
offences must either involve elements of force or violence or
fall under Chapters XII, XVI and XVII of the Indian Penal
Code. In a given case, even if multiple offences have been
registered which are referred in clause (b) of sub-section (1) of
Section 56 against an individual, that by itself is not
sufficient to pass an order of externment in clause (b) of sub-
section (1) of Section 56. Moreover, when clause (b) is
sought to be invoked, on the basis of material on record, the
3 AIR 2022 SCC 1241
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competent authority must be satisfied that witnesses are not
willing to come forward to give evidence against the person
proposed to be externed by reason of apprehension on their
part as regards the safety of their person or property. The
recording of such subjective satisfaction by the competent
authority is sine qua non for passing a valid order of
externment under clause (b).
11. On the aforesaid touchstone, reverting to the facts of
the case, the first count of challenge based on the
consideration of an old case arising out of CR No.513 of 2014
registered with Mira Road Police Station, appears to be well
founded. A period of almost 10 years elapsed since the
registration of the said crime. There was absolutely no nexus
between the acts and conducts of the petitioner manifested in
the accusation in the said crime and the measure of
externment. The competent authority, therefore, could not
have taken into account the said crime as the live link
between the said crime and the measure of externment was
completely snapped by the sheer passage of time.
12. The submission on behalf of the petitioner that the
competent authority did not record satisfaction that the
witnesses were not willing to come forward to give evidence in
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public, based on objective material also appears to be
well merited. In the externment order, there is a passing
reference that the statements of confidential witnesses
indicated that on account of reign of terror created by the
petitioner, witnesses were not coming forward to give evidence
in public. However, the externment order does not divulge
anything more regarding the factum of recording of
confidential statements and verification thereof. In fact, the
show cause notice dated 5th June, 2023 is conspicuously
silent about the recording of such confidential statements.
13. A profitable reference, in this context, can be made to
a decision of this Court in the case of Iqbal Munnaf Sayyed
vs. Assistant Commissioner of Police and ors. 4 wherein the
following observations were made:
"6. This Court in the case of ( Mrs. Marry Kutty Thomas
vs. The State of Maharashtra and ors) 1987(2) Bom.C.R. 196,
in the facts of that case, held that the issuance of notice
under Section 59, the provisions of the said section are
mandatory, notice must not only state the general nature of
material allegation against the person concerned, but also
the precise nature of action proposed to be taken against
him."
14. In the case of Krishna Vijay Lalbegi vs. The State of
Maharashtra and ors.5 another Division Bench of this Court
observed, inter alia, as under:
4 2013(3) Bom.C.R. (Cri.)714.
5 2014 SCC Online Bom 1014.
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"11. According to the petitioner, the impugned externment
order passed by the competent Authority and doe not record
subjective satisfaction of the fact that witnesses were not
willing to come forward to depose against the petitioner out
of fear, which is one of the cardinal requirement to invoke
section 56 of the Act. This position is no more res intergra.
The Apex Court in the case of [Pandharinath Shridhar
Rangnekar vs. Dy. Commissioner of Police, State of
Maharashtra] 2, reported in AIR 1973 S. C. 630 has observed
that an order of externment can be passed under Clause (a)
or (b) of Section 56 if, and only if, the authority concerned is
satisfied that witnesses are unwilling to come forward to give
evidence in public against the proposed externee by reason of
apprehension of their part as regards the safety of their
persona and property. This subjective satisfaction is
conspicuously absent in order passed by the Externing
Authority. In paragraphs 4, the Division Bench held that
what is stated in show cause notice cannot be the basis to
assume that the concerned authority was subjectively
satisfied about the existence of the aforesaid fact and in
absence of such subjective satisfaction of the fact, the
Externing Authority would not acquire jurisdiciton to invoke
section 56(1)(a)(b) of the said Act."
15. The failure of the competent authority to apprise the
petitioner of the general nature of material allegations in the
form of the statement of the confidential witnesses deprived
the petitioner of the opportunity to meet the case of proposed
externment. The externing authority thus could not have
taken into account those statements of confidential witnesses
of which the petitioner was not put to notice. Even in the
externment order there is no reference to the general nature
of the statements of the confidential witnesses. A bald
assertion that the confidential statements indicated that the
the witnesses were not willing to come forward to give
evidence in public does not satisfy the test of such
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satisfaction being based on objective material. I am,
therefore, impelled to hold that the externment order is
vitiated on account of the consideration of the material of
which the petitioner was not apprised.
16. Nonetheless, to satisfy the conscious of the Court, I
have perused the statements of the confidential witnesses
tendered by the learned APP. Suffice to note that the
statements are in the nature of the general opinion of the
confidential witnesses about the character and conduct of the
petitioner and none of the witnesses referred to any specific
incident on the strength of which the witnesses apprehended
reprisal in the event evidence was given in public.
17. On the aspect of the externment order suffering from
the vice of the excessiveness, it prima facie appears that the
area of influence of the petitioner was falling within the limits
of Navghar Police Station or for that matter Mira Road. It is
true, in a given case, the competent authority may be
justified in extending the area of externment to a larger area
to disarm the influence of the petitioner in a particular area.
However, in that scenario also, there ought to be objective
material on the basis of which an externee can be externed
from a larger area.
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18. In the case of Ganesh Bajantri (supra), on which
reliance was placed by Mr. Kadam, it was enunciated that it
is not the law that the externing authority is not empowered
to extern the petitioner from adjoining area of Mulund
Suburb (where crimes were registered against the petitioner
therein) or its adjoining districts. The externment order
must, however, reflect the application of mind on the part of
the externing authority necessitating the externment out of
the areas covering the adjoining districts.
19. In the case at hand, the externment authority has
ascribed reasons that the associates of the petitioner
were residents of the adjoining areas and it was likely that
the petitioner may continue to indulge in the offences if he is
externed from a smaller area.
20. In the facts of the case, as the externment order suffers
from non-application of mind on account of consideration of
a stale crime and also from a grave procedural infirmity is not
apprising the petitioner of the general nature of the
allegations in the statements of the confidential witnesses
and also the absence thereof in the externment order, I do
not deem it necessary to delve deep into the aspect of
excessiveness of the externment order.
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21. The conspectus of aforesaid consideration is that
externment order deserves to be quashed and set aside. As
the appellate authority did not correct the mistake which the
externing authority had committed, and merely curtailed the
duration of externment, the impugned order also deserves to
be quashed and set aside.
22. Hence, the following order:
:ORDER:
(i) The petition stands allowed in terms of prayer clause
(a).
(ii) Rule made absolute.
No costs.
[N. J. JAMADAR, J.]
