Bombay High Court
Sher Abbas Haidar Abbas Siya@Sheru ... vs Divisional Commissioner Konkan Region ... on 25 October, 2024
2024:BHC-AS:42917
P.H. Jayani 903 WPST3448.2024 final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST.) NO. 3448 OF 2024
Sher Abbas Haidar Abbas Siya
@ Sheru Haidar Vagh
Age : 24, Occu: Labour,
Indian Inhabitant, Residing at :
Boricha Pada, Arnala,
Opp. Martin Report, Virar (W) ..... Petitioner
v/s.
1. Divisional Commissioner,
Konkan Region
Old office, First Floor, Vistar Bhavan,
Behind Elphinstone College,
Kala Ghoda, Fort Mumbai - 400 032.
2. The Deputy Commissioner of Police,
Circle - 3, Mira Bhaindar, Vasai,
Virar MIDC Central District : Palghar
3. The State of Maharashtra
Through The Circle - 3,
Mira Bhaindar, Vasai,
Virar MIDC Central District : Palghar ..... Respondents
Mr. Rajas Naik for the Petitioner.
Mr. C.D. Mali, APP for the State.
Mr. Rupesh Dalvi, API, Arnala Police Station, present.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 19th SEPTEMBER, 2024.
PRONOUNCED ON : 25th OCTOBER, 2024
JUDGMENT :
-
. The aforestated Petition mounted a challenge to an Order
dated 19th January 2024, passed by Respondent No.1 thereby the
P.H. Jayani 903 WPST3448.2024 final.doc
Petitioner's Externment Appeal No.186/2023 has been dismissed. The
Petition also challenged an 'Order of Externment' dated 28th October,
2023 thereby Respondent No.2 externed the Petitioner from the limits of
Palghar, Thane, Mira-Bhayander and Vasai-Virar Commissionerate,
Nashik, Raigad, Mumbai and Mumbai Suburbs, for a period of o2 years.
2) Heard Mr. Rajas Naik, learned Advocate for the Petitioner and
Mr. C.D. Mali, learned A.P.P. for the Respondents. Perused the record.
3) Rule. Rule is made returnable forthwith. Heard finally with
consent of the parties.
4) The facts giving rise to this Petition are that, considering the
proposal received from Arnala Police Station seeking for an 'Order of
Externment', a notice dated 3rd August 2023 was issued by Enquiry
Officer & Assistant Police Commissioner, Nalasopara, under Section 59 of
the Maharashtra Police Act ('the Act' for short) and the Petitioner was
called upon to show cause as to why he should not be externed from the
limits of certain areas stated in the notice, for a period of 02 years. The
Petitioner submitted his reply. After considering the matter, the Enquiry
Officer recommended for Petitioner's externment along with his report.
5) Based on the said report, Respondent No.2 issued the 2nd
notice dated 13th October, 2023 to the Petitioner and called upon him to
show cause as to why he should not be externed from the limits of said
areas. Certain cognizable and non-cognizable offences registered against
P.H. Jayani 903 WPST3448.2024 final.doc
the Petitioner, preventive actions taken against him in the past and
details of in-camera statement of two confidential witnesses 'A' and 'B'
were the base of the show cause notice. Said material is as under :-
Schedule A- Cognizable Offences :-
Sr. Police Station, Crime Regn. Nos. Date of Current
No. and Sections Registration of status
the crime
1 Arnala Police Station, Crime Reg.No. 23/06/2017 Subjudice
76/2017, punishable under sections at 22.45 hrs.
325,323,452,504,506 of the IPC.
2 Arnala Police Station, Crime Reg.No. 28/11/2021 Subjudice
376/2021, punishable under sections at 00.15 hrs.
354, 324, 452, 427, 141, 143, 147, 149,
504, 506 of the IPC.
3 Arnala Police Station, Crime Reg.No. on 03/01/2022 Subjudice
3/2021, punishable under sections at 21.53 hrs.
354, 324, 323, 504, 34 of IPC and u/s
3 (r) (s) (w) (i) (ii) of Scheduled
Castes and Scheduled Tribes Act
1989 as Amended by 2015.
4 Arnala Police Station, Crime Reg.No. On 25/12/2018 Subjudice
17/2022, punishable under sections at 11.30 hrs.
354, 323, 504, 506 of IPC, Sections
11,12 of POCSO Act and alongwith
Section 3 (1) (w) (i) (ii), 3(2), (5a) of
Atrocities Act, 1989.
5 Arnala Police Station, Crime Reg.No. On 20/06/2023 Subjudice
236/2023, punishable under at 23.54 hrs.
Sections 354, 327, 323, 143, 147, 149,
109, 504, 506 of IPC.
6 Virar Police Station, Crime Reg.No. On 19/11/2020 Subjudice
992/2020, punishable under at 16.56 hrs.
Sections 341 of IPC along with
section 135 of Maharashtra Police
Act.
7 Virar Police Station, Crime Reg.No. On 04/01/2021 Subjudice
12/2021, punishable under Section
37 (1), (3), 135 of Maharashtra Police
Act
P.H. Jayani 903 WPST3448.2024 final.doc
Schedule B- Non-Cognizable Offences :-
Sr. Police Station N.C.Regn. Sections Date of filing
No. No.
1 Arnala Police Station 651/2015 IPC Sections 09/07/2015
504, 506
2 Arnala Police Station 100/2016 IPC Sections 26/01/2016
323,504,506
3 Arnala Police Station 467/2017 IPC Sections 10/05/2017
323,504,506
4 Arnala Police Station 507/2017 IPC Sections 04/06/2017
323,504,506
5 Arnala Police Station 203/2018 IPC Sections 20/02/2018
6 Arnala Police Station 40/2022 IPC Sections 07/01/2022
504,506
7 Arnala Police Station 12/2023 HM IPC Sections 25/03/2023
504,506
Schedule C- Details of Preventive Measures are as follows :-
Sr. No. Proposal No Section Information
1 27/2017 Section 107 of The proposal has been sent to
Dated- Cr.P.C. the Tehsildar, Vasai.
23/05/2017
2 65/2017 Section 107 of The proposal has been sent to
Dated- Cr.P.C. the Tehsildar, Vasai vide
22/12/2017 Outward No.9729/2017
3 01/2023 Section 110 (e) (g) As the externment proposal is
of Cr.P.C. to be submitted, the chapter
case proposal is cancelled.
5.1) The in-camera statements of the confidential witnesses 'A' and
'B' revealed that, the Petitioner has been residing at Boripada Alection,
Arnala, Virar (W), Taluka-Vasai. Taking support of 'lal bavta' party, the
Petitioner has been involved in creating terror in village Arnala,
spreading hatred in the society, causing communal and religious disputes,
P.H. Jayani 903 WPST3448.2024 final.doc
filing false complaints, causing disputes over land and threatening
members of Christian, Agri-koli community to book them in false Atrocity
cases even though the Petitioner is non-SC&ST member, misbehaving
with women in the area, committing rape, etc. The Petitioner has also
involved in non-cognizable offences. Thus, Petitioner has become danger
to the society and people who are victim of the illegal acts of the
Petitioner and witnesses thereof, do not come forward to lodge complaint
against the Petitioner. There is every possibility of breach of peace in the
said area, due to the Petitioner.
6) The Petitioner replied the said notice and examined his
witnesses. After considering the entire material, the Respondent No.2
passed the impugned Order of Externment dated 28 th October, 2023 and
directed the Petitioner to leave the limits of Palghar, Thane, Mira-
Bhayander and Vasai-Virar Commissionerate, Nashik, Raigad, Mumbai
and Mumbai Suburbs, for a period of o2 years.
7) Petitioner impugned the Order of his Externment in
Externment Appeal No.186/2023, however, was unsuccessful. Hence,
Petition.
8) Mr. Naik, learned Advocate for the Petitioner submitted that,
the Petitioner is not convicted so far in any of the crimes considered for
passing the Order of Externment. Said crimes were allegedly committed
against an individual and not against the public at large. The in-camera
P.H. Jayani 903 WPST3448.2024 final.doc
statement of the witnesses are not in accordance with Section 59 of the
Act. There is no live-link between the said crime and the Order of
Externment. In fact, according to the learned Advocate for the Petitioner,
the subjective and objective satisfaction is missing in the impugned
Orders. Lastly, he submits that, the impugned Order of Externment is
excessive as the Petitioner has been externed from several areas than
necessary and for a complete period of two years but without stating a
single justifiable reason for the same.
9) Mr. Mali, learned APP for the State, on the other hand,
submits that the impugned Orders are well-reasoned. Every material
relating to the criminal activities of the Petitioner has been considered.
Said exercise clearly indicates the application of the mind as well as the
subjective satisfaction of the said authorities. He submits that, there are
sufficient means of transportation to easily access the externment areas.
Therefore, and considering the mindset of the Petitioner, it was necessary
to extern the Petitioner from the limits of several areas. Lastly, learned
APP submits that, the criminal antecedents of the Petitioner and its
nature, justify his externment for a period of 02 years. He, therefore,
urged to dismiss the Petition.
10) I have carefully considered the show cause notices, impugned
Orders and rival submissions. The Petitioner was ordered to be externed
by invoking the provisions contained in Section 56 (1) (a) and (b) of the
P.H. Jayani 903 WPST3448.2024 final.doc
Act. It is settled law that, the measure of externment by its very nature is
extraordinary. 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 grounds 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 engaged in the commission of offences
involving force or violence.
11) Mere registration of 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 involve 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.
P.H. Jayani 903 WPST3448.2024 final.doc
12) As stated above, in all 07 crimes have been considered against
the Petitioner. Out of them, the crimes at Serial Nos.1, 2, 3, 6 and 7 are of
the years 2017, 2021, 2022, 2020 and 2021 respectively. The first five
non-cognizable offences were registered between 2015-2018. However,
immediately thereafter, no action for externment was initiated by issuing
necessary show cause notice. Thus, there is no live-link between the said
crimes and the proposal of the externment, submitted against the
Petitioner.
13) The object of externment is not to penalize the externee, but
to distance him from the surroundings which prove helpful for
commission of the offences and thereby disarm his influence in the said
area. Therefore, there ought to be a live-link between the acts of the
externee and the action of externment. In short, stale cases cannot be
taken aid of to pass an Externment Order. This has direct relevance to the
subjective satisfaction based on which the an Externment Order is
passed.
14) Insofar as crimes at serial no.5 is concerned, the said crime
was committed against an individual.
15) Another aspect of the matter which requires an attention is,
out of the seven crimes, first five crimes were registered at Arnala Police
Station and last two crimes at Virar Police Station. The impugned Orders,
however, do not indicate any satisfactory or compelling reason to extern
P.H. Jayani 903 WPST3448.2024 final.doc
the Petitioner out of the limits of Palghar, Thane, Mira-Bhayander and
Vasai-Virar Commissionerate, Nashik, Raigad, Mumbai and Mumbai
Suburbs, for a period of o2 years, in the backdrop of the show cause
notice referring only to said seven crimes. To that extent, the 'Order of
Externment' is excessive.
16) As held in the case of Deepak Dongre (supra), "there cannot
be any manner of doubt that an Order of Externment is an extraordinary
measure. The effect of the Order of Externment is depriving a citizen of
his fundamental right of free movement throughout the territory of India.
In practical terms, such an order prevents the person even from staying in
his own house along with his family members during the period for which
this order is in subsistence. ...". "As the Order of Externment' takes away
fundamental right under Article 19 (1) (d) of the Constitution of India, it
must stand the test of reasonableness contemplated by clause (5) of
Article 19."
17) In the case in hand, the 'Order of Externment' did not
mention a single reason as to why the Petitioner should remove himself
for a period of 02 years out of the limits of the various districts, as
directed in the 'Order of Externment'. This fact coupled with the fact that,
stale instances were considered to reach the objective and subjective
satisfaction for passing the 'Order of Externment', made it apparent that
the said Orders lack application of the mind, nevertheless, the Appellate
P.H. Jayani 903 WPST3448.2024 final.doc
Authority upheld the said Order. This is not only erroneous but also
illegal.
18) In the backdrop, the impugned 'Order of Externment' dated
28th October, 2023 passed by the Respondent No.2 and the impugned
Order dated 19th January, 2024 thereby dismissing the Externment
Appeal No.186/2023 filed by the Petitioner, are liable to be quashed and
set aside. The Petition succeeds, thus. Hence, following Order :-
(a) Writ Petition (St.) No.3448 of 2024 is allowed.
(b) The impugned Order dated 28 th October, 2023
passed by the Respondent No.2 - The Deputy Commissioner
of Police, Circle-3, Mira Bhaindar, Palghar and the impugned
Order dated 19th January, 2024 passed by the Respondent
No.1 - The Divisional Commissioner, Konkan Region, Fort,
Mumbai thereby dismissing the Petitioner's Externment
Appeal No.186/2023, are quashed and set-aside.
19) Petition stands disposed of in above terms. Rule is made
absolute.
PREETI
HEERO (SHYAM C. CHANDAK, J.)
JAYANI
