Bombay High Court
Ajay Vijay Bhoir vs State Of Maharashtra And Anr on 10 September, 2024
2024:BHC-AS:36862
P.H. Jayani WPST11275 with 11276.2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST.) NO. 11275 OF 2024
Mr. Manohar Kashinath Bhoir
Age : 48 years, Occ. Business,
R/at : House No.401, B Wing,
Aura Tower Society, Sector 17,
New Panvel, Tal. Panvel,
Dist. Raigad. ..... Petitioner
Vs.
1. The State of Maharashtra
Through Principal Secretary
(Appeal & Security), Home Department,
Second Floor, Madam Cama Marg,
Hutatma Rajguru Chowk, Mantralaya,
Mumbai - 32.
2. Deputy Commissioner of Police,
Zone 2 Panvel, Navi Mumbai. ..... Respondents
WITH
CRIMINAL WRIT PETITION (ST.) NO. 11276 OF 2024
Mr. Ajay Vijay Bhoir
Age : 38 years, Occ. Service,
R/at : House No.25,
Nandgaon, Post Palaspe,
Tal. Panvel, Dist. Raigad ..... Petitioner
Vs.
1. The State of Maharashtra
Through Principal Secretary
(Appeal & Security), Home Department,
Second Floor, Madam Cama Marg,
Hutatma Rajguru Chowk, Mantralaya,
Mumbai - 32.
1/11
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P.H. Jayani WPST11275 with 11276.2024.doc
2. Deputy Commissioner of Police,
Zone 2 Panvel, Navi Mumbai. ..... Respondents
Mr. Harshad Sathe a/w. Mr. Siddhesh Bane for the Petitioners.
Ms. P.N. Dabholkar, APP for the State.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 12th AUGUST, 2024.
PRONOUNCED ON : 10th SEPTEMBER, 2024.
JUDGMENT :
-
. Aforesaid Petitions impugn two separate 'Orders of
Externment' dated 16th February, 2023 passed by Respondent No.2 -
Deputy Commissioner of Police, Zone 2, Panvel, Navi Mumbai and two
separate Orders dated 22nd April, 2024 passed by the Divisional
Commissioner, Konkan Division in Appeal No.41/2023 and Appeal
No.40/2023 respectively. The facts and circumstances of the Petitions
as well as the issues involved therein are identical. Hence, both Petitions
are being disposed of by this common judgment.
2) Heard Mr. Sathe, learned Advocate for the Petitioners and
Ms. Dabholkar, 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) Facts giving rise to the Petitions are that, taking cognizance
of the externment proposals filed against the Petitioners by Panvel City
P.H. Jayani WPST11275 with 11276.2024.doc
Police Station, separate notices dated 02nd January, 2023 were issued
under Section 59 of the Maharashtra Police Act, 1951 (' the Act', for
short) and the Petitioners were called upon to show cause within 07
days as to why they should not be directed to remove themselves outside
the limits of Navi Mumbai along with Raigad and Thane districts for a
period of 02 years.
4.1) Two crimes registered against the Petitioners, preventive
actions taken against them and an in-camera statements of two
confidential witnesses were adverted to in the said notices to allege that,
the Petitioners have been involved in the offences of assault by forming
an unlawful assembly, etc. which are punishable under Chapter XVI of
the Indian Penal Code; that, there is terror of the Petitioners in Panvel
area which has posed danger to the lives of people; and that, witnesses
were not coming forward to give evidence in public against the
Petitioners fearing safety of their person. The Petitioners filed their
reply to the show cause notices and participated in the externment
proceedings. However, the Petitioners neither submitted any materials
nor examined any witnesses in the rebuttal.
4.2) After considering the matters separately, the Externment
Authority-Respondent No.2 passed the impugned 'Orders of
Externment' dated 16th February, 2023 and directed the Petitioners to
P.H. Jayani WPST11275 with 11276.2024.doc
remove them from the areas stated in the said show cause notices. In
Order to arrive at the subjective satisfaction to warrant the 'Orders of
Externment', the Respondent No.2 relied upon the 02 crimes/cases
registered against the Petitioners at Panvel City Police, preventive
actions taken against them and statement of 02 confidential witnesses
'A' and 'B' dated 21st and 30th October, 2022 respectively. Details of said
crimes and chapter cases are as under :
Table-A :- The crime/cases.
Sr. Name of Sections and Court Status
No. Police Case No.
Station
1. Panvel 260/2022, Sections 141, 143, Pending
City 147, 149, 324, 336, 504, 506 ---- investigation
of the Indian Penal Code
2. Panvel 42/2019, Sections 323, 336, S.C.C.No. Pending
City 504, 506, 34 of the Indian 1608 of adjudication
Penal Code 2019
Table-B :- The respective chapter cases.
Sr. Police Chapter Case dated Present status
No. Station No. and
1. Panvel Chapter Case 31/01/2019 One year good behaviour
City No.08/2019 bond was taken on
04/02/2019.
Sr. Police Chapter Case dated Present status
No. Station No. and
1. Panvel Chapter Case 31/01/2019 One year good behaviour
City No.06/2019 bond was taken on
04/02/2019.
P.H. Jayani WPST11275 with 11276.2024.doc
4.3) The Petitioners challenged the 'Orders of Externment' by
filing Appeal No.41/2023 and Appeal No.40/2023 respectively.
However, their Appeals have been turned down.
5) Mr. Sathe, the learned Advocate for the Petitioners
submitted that, even though the Petitioners have raised several grounds
to challenge the legality of the impugned Orders, the Petitioners relied
upon only few grounds. In that regard the learned Advocate submits
that, there is no live link between the alleged crimes and the 'Orders of
Externment'; that, no justifiable ground is recorded to direct the
Petitioners' removal from the limits of the three districts; that not a
single reason is recorded by the Externment Authority to extern the
Petitioners for a complete period of two years; and that, the Appellate
Authority agreed with the said conclusion of the Externment Authority
sans any reason and erroneously upheld the "Orders of Externment". As
such, the impugned Orders are suffering from non-application of mind
and thus, illegal. Therefore, said Orders are liable to be quashed and
set-aside.
6) The learned A.P.P., on the other hand, submits that the
impugned Orders are well-reasoned. Every material relating to the
criminal activities of the Petitioners has been considered. Said exercise
clearly indicates the application of the mind as well as the subjective
P.H. Jayani WPST11275 with 11276.2024.doc
satisfaction of the said authorities. She submits that, there are means of
transportation from Panvel to travel beyond the limits of Navi Mumbai
and Raigad and therefore possibility of the Petitioners committing crime
by residing in Thane District cannot be ruled out. Therefore, it was
necessary to extern the Petitioners from the limits of said districts. She,
therefore, urged to dismiss the Petitions.
7) I have carefully considered the show cause notices,
impugned Orders and rival submissions. The Petitioners were ordered
to be externed by invoking the provisions contained in Section 56 (1)(a)
and (b) of the 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
P.H. Jayani WPST11275 with 11276.2024.doc
reasonable grounds for believing that the externee is engaged or about
to be engaged in the commission of offences involving force or violence.
Mere registration of number of offences by itself does not sustain an
externment under Section 56 (1) (b) of the Act.
8) However, there was no live-link between the said crime
No.42/2019 registered against the Petitioners and the 'Orders of
Externment' because, after registration of said crime, the proceedings
for externment of Petitioners were initiated only by virtue of the show
cause notices dated 2nd January, 2023. In so far as the preventive actions
are concerned, the 'Orders of Externment' indicate that, the bonds to
maintain good behaviour for a period of 1 year were executed by the
Petitioners on 4th February 2019. Said bonds were already expired.
Thus, there was considerable time gap between the said crime of 2019,
the date of execution of the 'good behaviour bond', its expiry and
'Orders of Externment'. It is not the case that, during the bond period,
the Petitioners committed any act or an offence as contemplated under
Section 56 sub-section 1, clauses (a) and (b) of the Act.
9) The object of externment is not to penalize the externee, but
to distance him from the surroundings which prove adjuvant 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
P.H. Jayani WPST11275 with 11276.2024.doc
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.
10) The another crime was of the year 2022. It was pending
investigation as noted in the impugned 'Orders of Externment' as well as
the impugned Orders of dismissing the Appeals of the Petitioners. It is
trite law that, the crime under investigation cannot be taken into
consideration as depending upon the material and result of the probe,
the investigation agency may or may not send the accused for trial.
11) Now, let us deal with the question of length of the 'Orders 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
justness of the externment for the full term of two years can be accepted.
12) The learned Advocate for the Petitioners cited the decision of
P.H. Jayani WPST11275 with 11276.2024.doc
the Hon'ble Apex Court in the case of Deepak s/o. Laxman Dongre Vs.
The State of Maharashtra and ors.1, wherein it has been observed thus :-
"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 externment 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. ... 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."
13) Learned Advocate for the Petitioner has also relied upon the
decision of this Court in Shubham, through his mother Jyoti Vs. State of
1. AIR 2022 SC 1241
P.H. Jayani WPST11275 with 11276.2024.doc
Maharashtra, Through Divisional Commissioner and Others 2, wherein
the decision in Deepak Dongre (Supra), has been followed.
14) In the case in hand, neither the 'Orders of Externment' nor
the impugned Orders passed in the Appeals noted a single reason as to
why the Petitioners should remove themselves for a period of two years
out of the limits of the three districts, as directed in the 'Orders of
Externment'. This fact coupled with the fact that stale instances were
considered to reach the objective and subjective satisfaction for passing
the 'Orders of Externment', made it evident that the said Orders lack
application of the mind, withal, the Appellate Authority upheld the said
Orders. This is not only erroneous but also illegal.
15) In the backdrop, the impugned 'Orders of Externment' dated
16th February, 2023 passed by Respondent No.2-Deputy Commissioner
of Police, Zone 2, Panvel, Navi Mumbai and the impugned Orders dated
22nd April, 2024 passed by the Divisional Commissioner, Konkan
Division, thereby dismissing the Petitioners' Appeal No.41/2023 and
Appeal No.40/2023 respectively, are liable to be quashed and set aside.
Both Petitions succeed, thus. Hence, following Order is passed :-
- ORDER -
(i) Writ Petition (St.) No. 11275 of 2024 and Writ Petition
(St.) No. 11276 of 2024, are allowed.
2. AIR 2022 SC 1241
P.H. Jayani WPST11275 with 11276.2024.doc
(ii) The impugned 'Orders of Externment' dated 16th
February, 2023 passed against the Petitioners by
Respondent No.2-Deputy Commissioner of Police, Zone 2,
Panvel, Navi Mumbai and the impugned Orders dated 22 nd
April, 2024 passed by the Divisional Commissioner, Konkan
Division thereby dismissing the Petitioners' Appeal
No.41/2023 and Appeal No.40/2023 respectively, are
quashed and set aside.
16) Petitions are disposed of in aforesaid terms. Rule is made
absolute.
PREETI
HEERO
JAYANI (SHYAM C. CHANDAK, J.)
