[Cites 11, Cited by 0]

Bombay High Court

Omkar Shriram Bhagat vs Deputy Commissioner Of Police Zone Iii ... on 9 April, 2026

Author: N. J. Jamadar

Bench: N. J. Jamadar

2026:BHC-AS:16981



                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE JURISDICTION

                                       WRIT PETITION NO. 380 OF 2026


                     Omkar Shriram Bhagat
                     Age 27 years, Occupation: Business,
                     Residing at Sangeeta Dhara Bungalow,
                     Near Swami Vivekanand School,
                     Tukaram Road, Ahire Road, Dombivali (E),
                     Tq. Kalyan, Dist. Thane.                                    ...Petitioner

                            Versus

                     1. Deputy Commissioner of Police,
                        Zone - III, Kalyan (West)

                     2. The State of Maharashtra
                        (At the instance of Dombivali P. S.
                        Tq. Kalyan, Dist. Thane)
                        Raj Mandir Complex, Near Post Complex
                        Mira Road (East), Tal & Dist. Thane.                ...Respondents

                     _____________________ _____                             _________

                     Mr. Vinod Kashid a/w Mr. Sumit Bhoite, for the Petitioner.
                     Mr. D J Haldankar, APP for Respondent - State.
                     PSI - S K Bhujbal, Dombivali P. S.
                     _____________________________________
                                  CORAM               : N. J. JAMADAR, J.
  SWAROOP
                                        RESERVED ON     :      26th MARCH 2026
  SHARAD
  PHADKE                                PRONOUNCED ON :        09th APRIL 2026
  Digitally signed
  by SWAROOP
  SHARAD PHADKE
  Date: 2026.04.09
  22:27:53 +0530
                     JUDGMENT:

1. Rule. Rule made returnable forthwith, and, with the

consent of learned Counsel for the parties, heard finally.

2. This petition under Article 226 and 227 of the

Constitution of India, assails the legality, propriety and

correctness of an order dated 10th December, 2025 passed

by the Divisional Commissioner, Konkan Division in Appeal

No. 214/2024 whereby the said appeal preferred by the

petitioner under Section 60 of the Maharashtra Police Act,

1951 ('the Act, 1951), came to be dismissed by affirming an

order of externment dated 19th November, 2024, passed by

the Deputy Commissioner of Police, Kalyan, thereby

externing the petitioner for a term of two years from the

limits of Thane, Mumbai, Mumbai Suburban, Raigad

Districts under Section 56(1)(a) and (b) of the Act, 1951.

3. On 16th November, 2024, a notice was served on the

petitioner under Section 59 of the Act, 1951 calling upon

the petitioner to show cause as to why the action of

externment under Section 56 of the Act, 1951, should not

be taken against the petitioner. A reference was made to

three crimes registered against the petitioner at Dombivali

and Manpada Police Stations and the prohibitory action

initiated against the petitioner in the past. It was inter alia

alleged that, the petitioner's movements and acts were

causing or calculated to cause alarm, danger or harm to

person or property and there were reasonable grounds for

believing that, the petitioner was engaged or was about to

be engaged in the commission of offences involving force or

violence or punishable under Chapters XVI and XVII of the

Indian Penal Code, 1860 ('the Penal Code'), and on account

of the reign of terror created by the petitioner, the

witnesses were not willing to come forward to give evidence

in public against the petitioner as they feared for the safety

of their person or property. A reference was made to the

confidential statements of the witnesses

4. Eventually, by the impugned order, the Competent

Authority ordered the externment of the petitioner from the

limits of Thane, Mumbai, Mumbai Suburban and Raigad

Districts for a term of two years invoking the powers under

Section 56(1)(a) and (b) of the Act, 1951.

5. Being aggrieved, the petitioner preferred an appeal

before the Divisional Commissioner. The Appellate

Authority found no reason to interfere with the order of

externment. It was observed that, the Competent Authority

had justifiably invoked the power under Section 56(1)(a)

and (b) of the Act, 1951.

6. Being further aggrieved the petitioner has invoked

the writ jurisdiction.

7. Mr. Vinod Kashid, the learned Counsel for the

petitioner, submitted that, the crimes taken into account

by the Competent Authority are stale. There was no nexus

between the said crimes and the order of externment.

Secondly, the alleged statements of the confidential

witnesses as referenced in the order of externment were

vague and general. Thirdly, the order of externment suffers

from the vice of non-application of mind as the Competent

Authority has not spelled out any reason for externing the

petitioner for the full term of two years.

8. In contrast, Mr. Haldankar, the learned APP,

supported the impugned order. Banking upon the

statements of the confidential witnesses which were

tendered for the perusal of the Court, Mr. Haldankar would

submit that, the petitioner had created such a reign of

terror that the witnesses were dissuaded from giving

evidence in public against the petitioner as they feared for

the safety of their person or property. In such

circumstances, to disable the petitioner from committing

the offences punishable under Chapters XVI and XVII of

the Penal Code, the measure of externment was

indispensable.

9. The Competent Authority has taken into account the

following crimes registered the petitioner : -

S.No. Police C.R. No. Sections Current Status Station 1 Dombivali 138/2017 302, 342, 323, 143, Subjudice 147, 148, 149, 504, 506 of Indian Penal Code r/w 3, 25, 27, 30 of Indian Arms Act.

2 Manpada 626/2021 394, 392, 323, 504, Subjudice 506, 34 of Indian Penal Code.

3 Dombivali 408/2023 324, 504, 506, 143, Subjudice 147, 148, 149 of Indian Penal Code r/w 37(1),(3), 135 of Maharashtra Police Act.

10. Evidently, the CR No. 138/2017 (Serial No. 1) was

registered in the year, 2017 and CR No. 626/2021 (Serial

No. 2) was registered in the year 2021. The show cause

notice was issued to the petitioner on 16 th November, 2024.

The initiation of action of externment on the basis of a

crime which was registered against the petitioner in the

year, 2017 raises the issue of live link between the conduct

of the petitioner, as reflected in registration the said crime,

and the measure of externment. Even in respect of the

crime registered at Manpada Police Station i.e. CR No.

626/2021 (Serial No. 2), there was a timelag of about three

years in initiating the action of externment. The third

crime i.e. CR No. 408/2023 appears to be a fall out of the

offence registered against the petitioner and others vide CR

No. 138/2017. Thus, the aspect of the nexus between the

aforesaid crimes and the measure of externment assumes

significance.

11. The consideration of the crimes which appeared to

have been registered in the distant past and, thus, stale,

from the perspective of the initiation of action of

externment bears upon the application of mind by the

Competent Authority. The consideration of such crimes

justifies an inference that the Competent Authority took

into account the material which ought not to have been

considered. If those crimes registered at Serial Nos. 1 and

2 are eschewed from consideration, the measure of

externment cannot be sustained on the basis of CR No.

408/2023 alone. As noted above, the said crime appears to

be an outcome of the enmity between the petitioner and his

associates, on the one part, and the informant party in CR

No. 138/2017, on the other part.

12. The challenge to the externment order on the ground

of non-application of mind as to the term of externment

appears to carry substance. A useful reference in this

context can be made to the judgment of the Supreme

Court in the case of Deepak s/o Laxman Dongre V/s. State

of Maharashtra and Ors., wherein the Supreme Court,

after adverting to the provisions of Section 58 of the Act,

1951, underscored the necessity of arriving at the

subjective satisfaction regarding the term of externment

also on the basis of objective material. It was ruled that,

where the externee is externed for a maximum permissible

period of two years, without recording the subjective

satisfaction regarding the necessity of the externment for a

full term, it would amount to imposing unreasonable

restrictions on the fundamental rights guaranteed under

clause (d) of Article 19(1) of the Constitution of India. The

observations in paragraph No.16 of the said judgment are

instructive, and, hence, extracted below:

"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 extrnment 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 15 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 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."

(emphasis supplied)

13. In the case at hand, no reasons have been ascribed

by the Competent Authority to extern the Petitioner for the

full term of two years. It appears that the Competent

Authority was not alive to the requirement of recording a

subjective satisfaction based on objective material in

regard to the term of externment. Thus, the order of

externment impinges upon the fundamental freedom of the

Petitioner.

14. For the foregoing reasons, the externment order as

well as the impugned order deserve to be quashed and set

aside.