Bombay High Court
Uttam Sharad Desai vs State Of Maharashtra And Anr on 16 October, 2025
Author: N.J. Jamadar
Bench: N.J. Jamadar
2025:BHC-AS:46142
2-Cr.wp.2650-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2650 OF 2024
Uttam Sharad Desai ... Petitioner
V/s.
State Of Maharashtra and Anr. ... Respondents
-------------------
Mr. Abdul Wahab Shaikh with Aditya Parmar and Abdullah Siddiqui,
Zoeb Qureshi and Mustaq Shaikh I.by Monty Teckchandani, for the
petitioner.
Mr. P.P. Malshe, APP, for the State.
--------------------
CORAM : N.J. JAMADAR, J.
DATE : 16TH OCTOBER 2025.
JUDGMENT:
1. Rule. Rule made returnable forthwith and, with the consent of
the learned Counsel for the parties, heard finally.
2. The challenge in this petition is to an order dated 12 th April
2024, passed by the Divisional Commissioner, Konkan Division,
whereby the appeal preferred by the petitioner under Section 60 of the
ARUN
RAMCHANDRA
Maharashtra Police Act, 1951 (the Act, 1951), against an order dated
SANKPAL
5th January 2024, passed by the Deputy Commissioner of Police,
Ulhasnagar, thereby externing the petitioner from Thane, Mumbai City,
Mumbai Suburban and Karjat and Panvel Talukas of Raigad District,
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for a term of two years, under Section 56(1)(a)(b) of the Act, 1951,
came to be dismissed.
3. The background facts can be stated as under:
3.1 The following two crimes have been registered against the
petitioner, since November 2015:
Sr Police C.R. No. Section Court Case Current
No. Station No. Status
Badlapur 239/2023 385,324,323,504,506 --- Investigation
1.
(west) r/w 34 of IPC pending.
Badlapur 19/2015 506(2), 352 of IPC 856/2016 Pending.
2.
(west) and Section 37(1)
and 135 of the
Bombay Police Act.
3.2 On the basis of the registration of the aforesaid crimes, a notice
was issued to the petitioner under Section 59 of the Act, 1951, calling
upon him to show cause as to why action under Section 56(1)(a) (b)
of the Act, 1951, should not be initiated against the petitioner. After
providing an opportunity of hearing, the Competent Authority passed
the externment order, as indicated above.
3.3 It was, inter alia, recorded that, the movements or acts of the
petitioner were causing or calculated to cause alarm, danger or harm
to person or property, and the petitioner was engaged in the
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commission of offences against the human body and property, and the
witnesses were not willing to come forward to give evidence in public
against the petitioner on account of the apprehension as to safety of
their person or property.
3.4. Being aggrieved, the petitioner preferred an appeal before the
Divisional Commissioner, Konkan Division. By the impugned order, the
appeal came to be dismissed, concurring with the view of the
Competent Authority.
4. Being further aggrieved, the petitioner has preferred the instant
petition.
5. Mr. Shaikh, the learned counsel for the petitioner, would urge
that, the impugned order suffers from the vice of clear non-application
of mind and arbitrary exercise of power. Only two crimes were
registered against the petitioner. The first was in the year 2015, and
the second was in the year 2023, without any accusation of
commission of any offence, in the intervening period. It was submitted
that the offence which was registered in the year 2015 could not have
been taken into account while passing the externment order dated 5 th
January 2024. There was no live link between the registration of the
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said crime and the action of externment. Moreover, no reason has
been ascribed for externing the petitioner from four Districts and that
too for the full term of two years.
6. Mr. Malshe, the learned APP, made an endeavour to support the
impugned order.
7. Ex-facie, the impugned order suffers from the vice of non-
application of mind. It is trite an order of externment has serious
ramifications on the right to life and personal liberty of the citizen. An
externment order displaces a person from his home and surroundings
and even impacts the livelihood of the person externed as well as the
persons who happen to be dependent upon him. The power to extern a
person is of extraordinary nature and cannot be exercised in a casual
manner. The conditions stipulated in clause (a) and clause (b) of
Section 56(1) of the Act, 1951, are required to be strictly complied
with.
8. A gainful reference can be made to the judgment of the Supreme
Court, in the case of 'Deepak Laxman Dongre Vs State of Maharashtra
& Ors' 1. The Supreme Court expounded the law as under:
"7. A perusal of sub-section (1) of Section 56 shows that there
1 Special Leave Petition (Criminal) No. 9032 of 2021
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are distinct grounds specified under sub-section (1) of Section 56
for passing an order of externment. The said grounds are in
clauses (a), (b), (bb), and (c). In the present case, clauses (a)
and (b) of sub-section (1) of Section 56 of the 1951 Act have
been invoked. The ground in clause (a) is that the movements or
acts of any person are causing or calculated to cause alarm,
danger or harm to a person or property. The ground in clause (b)
is that there are reasonable grounds for believing that such
person is engaged or is about to be engaged in the commission of
an offence involving force or violence or an offence punishable
under Chapter XII, XVI or XVII in IPC, or the abetment of any
such offence. Clause (b) is qualified by a condition that the
competent authority empowered to pass such order should be of
the opinion that witnesses are not willing to come forward to
give evidence in public against such person by reason of
apprehension on their part as regards the safety of their person
or property. Obviously, the opinion must be formed on the basis
of material on record.
8. As observed earlier, Section 56 makes serious inroads on the
personal liberty of a citizen guaranteed under Article 19(1)(d) of
the Constitution of India. In the case of Pandharinath Shridhar
Rangnekar v. Dy. Commr. Of Police, State of Maharashtra (1973)
1 SCC 372 in paragraph 9, this Court has held that the reasons
which necessitate or justify the passing of an extraordinary order
of externment arise out of extraordinary circumstances. In the
same decision, this Court held that care must be taken to ensure
that the requirement of giving a hearing under Section 59 of the
1951 Act is strictly complied with. This Court also held that the
requirements of Section 56 must be strictly complied with.
9. There cannot be any manner of doubt that an order of
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externment is an extraordinary measure. The effect of the order
of externment is of 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. In a given case, such order
may deprive the person of his livelihood. It thus follows that
recourse should be taken to Section 56 very sparingly keeping in
mind that it is an extraordinary measure. For invoking clause (a)
of sub-section (1) of Section 56, there must be objective material
on record on the basis of which the competent authority must
record its subjective satisfaction that the movements or acts of
any person are causing or calculated to cause alarm, danger or
harm to persons or property. For passing an order under clause
(b), there must be objective material on the basis of which the
competent authority must record subjective satisfaction that
there are reasonable grounds for believing that such person is
engaged or is about to be engaged in the commission of an
offence involving force or violence or offences punishable under
Chapter XII, XVI or XVII of the IPC. Offences under Chapter XII
are relating to Coin and Government Stamps. Offences under
Chapter XVI are offences affecting the human body and offences
under Chapter XVII are offences relating to the property. 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 under 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 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
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apprehension on their part as regards their safety or their
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).
.........
16. 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. Careful perusal of the impugned order of
externment dated 15th 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
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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."
9. In the case at hand, the impugned order suffers from clear
infirmity, as there was no live link between the crime registered against
the petitioner in the year 2015 and the action of externment. The order
is also vulnerable, as the petitioner was externed for a full term of two
years, and no reason has been ascribed as to why the Competent
Authority considered it necessary to extern the petitioner for a full
term of two years and that too from four Districts, when the offences
were registered against him at Badlapur Police Station, only.
10. In the aforesaid view of the matter, the impugned order which
squarely impinges upon the fundamental rights guaranteed under
Article 19 of the Constitution Of India, deserves to be quashed and set
aside.
11. Hence, the following order:
i) The impugned order as well as the order passed by
the Competent Authority on 5th January 2024, externing
the petitioner from Thane, Mumbai City, Mumbai Suburban
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and Karjat and Panvel Talukas of Raigad Districts, stand
quashed and set aside.
ii) Rule made absolute in the aforesaid term.
No costs.
(N.J. JAMADAR, J)
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