Criminal Writ Petition No.286 of 2011

25th April, 2011

Petitioner Counsel: Mr. S. R. CHITNIS,Mrs. S. R. RAJE
Respondent Counsel: Mr. Y. M. NAKHWA

JUDGMENT

JUDGMENT:- Rule. Rule is made returnable forthwith by consent of the parties.

2. Heard rival arguments of the parties at length. Perused the accompanying documents to the present Writ Petition. Also perused the affidavit filed by Deputy Commissioner of Police, Zone-II, Panvel, District Raigad who has passed the externment order.

3. By the present Writ Petition, the Petitioner has challenged the externment order passed against him dated 20th September, 2010 externing him from the territories of Districts Raigad, Thane, Greater Mumbai and Mumbai Subarban for the period of one year. By the present writ petition the order of the Appellate Authority is also challenged. The order of the Appellate Authority was passed on 31st December, 2010.

4. Certain factual position, as emerged out from the documents produced in the Writ Petition and the affidavit filed by the Externing Authority - Ankush R. Shinde, can be narrated in order to have proper perspective of the matter and to decide the challenge to the impugned orders.

5. Senior Inspector of Police, Panvel City Police Station submitted a proposal on 26th October, 2009 to the Externing Authority for initiating action under Section 51(1)(a) (b) of the Bombay Police Act, 1951, being a bully operating in the localities of Panvel city and areas adjoining thereto within the jurisdiction of Panvel City Police Station. It is alleged that the petitioner was indulging in unlawful assembly and rioting, damaging the property and causing grievous hurt and had subjected the victims to torture and atrocities and due to this reason the witnesses are not willing to come forward to complain against him apprehending danger to their person and property. While submitting the proposal for externment reliance was placed by Senior Inspector of Police on the criminal antecedents of the petitioner as to his involvement in four criminal cases registered with Panvel City Police Station. Reliance was also placed on the in camera statements recorded during the confidential inquiries. Said in camera statements were recorded on 27th August,2009 and 31st August, 2009.

6. On scrutiny of the proposal and the relevant material, directions were given to the Assistant Commissioner of Police, Panvel Division to hold inquiries and to issue show cause notice under Section 59 of the Bombay Police Act, 1951.

7. Show cause notice was issued against the petitioner on 26th October, 2009 requiring the presence of the petitioner on 30th October, 2009. However, the petitioner remained present before the Inquiry Officer on 6th November, 2009 and submitted his written say. Thereafter, matter was adjourned from time to time on the request of the petitioner and ultimately adjourned to 16th November, 2009 when the petitioner remained absent and could not be contacted even on his mobile, then police staff was sent to his residence. It was found out that he had gone to pilgrimage. Thereafter, also matter was adjourned to 23rd November, 2009 and letter dated 24th May, 2010 was addressed to the petitioner issued by the Inquiry Officer asking the petitioner to remain present on 5th June, 2010. However, thereafter also the petitioner remained absent and the Inquiry Officer submitted his report dated 3rd August, 2010 to the Externing Authority.

8. Externing Authority issued a notice dated 6th August, 2010 asking for attendance of the petitioner on 13th August, 2010. Accordingly, the petitioner remained present and his statement was recorded by the Externing Authority. Thereafter, on appreciating the material available against the petitioner, externment order dated 20th September, 2010 was passed against the petitioner. It appears that said externment order was served on the petitioner on 23rd October, 2010.

9. Challenge to the externment order is on the following grounds.

(i) In camera statements did not give any material particulars. Hence, there is deprival of effective representation.

(ii) Show cause notice was issued on 26th October, 2009 but externment order was passed on 20th September, 2010, after about 11 months. Externment order was served on the petitioner belatedly after two months. It shows that there was no extreme urgency for initiating action of externment under section 56 of the Bombay Police Act and it shows that casual approach on the part of the Externing Authority.

(iii) The enquiry was pending for almost ten months and thus shows casual approach of the Enquiry Authority also.

(iv) There is no whisper about Section 56(1)(a) qua the petitioner in the notice. As such notice is bad in law and deserves to be quashed as authority relied on extraneous material for which there was no notice to the petitioner.

(v) Reliance is placed on the cases pertaining to the year 2008 and as such reliance on stale cases snap the link of the petitioner prejudicial activities and externment order.

(vi) Externment order is suffering from vice of excessive jurisdiction.

10. On careful inspection of the show cause notice dated 26th October, 2009 does reveal that there are no particulars given as to the in-camera statements mentioning any particular incident. There is bare mention in the show cause notice that the witnesses are not coming forward to give any complaint and on the condition of keeping anonymity they have given their secret statements. Definitely, not giving more particulars than above bare words, can be taken as deprivation of the effective representation. While observing this, it is not lost sight of that all the detail as to exact time, place and minute description of the alleged events of coercion and extortion and threats alleged against the petitioner is not contemplated by the act but still at least some details must be given so that the proposed externee can have effective representation.

11. So far as alleged casual approach attributed to the enquiry officer and externing authority, in the opinion of this Court, the details given in the affidavit in reply filed by the Externing Authority are sufficient to counter the said allegation and as such when the petitioner was not available for service of the externment order and when he himself avoided to attend before the Enquiry Officer, such ground cannot be taken into consideration.

12. Lastly, it is specifically averred as to externment order suffering from the vice of excessive jurisdiction. It is submitted that the externment order is required to be strucked down when the petitioner is externed from the Districts of Raigad, Thane, Greater Mumbai and Mumbai Subarban, as it is alleged in the show cause notice that the activities of the present petitioner are confined to Panvel City and nearby areas of District Raigad.

13. No doubt, excessive order undoubtedly to be struck down because no greater extend (restraint) on personal liberty can be permitted than is reasonable in the circumstances of the case. Still it is not lost sight of the fact that the larger area may conceivably have to be comprised within the externment order so as to isolate the externee from his moorings. However, for that purpose data is required. Moreover, mere geographical proximity is not a ground to extend the order of externment to another District in which there are no objectionable activities of the externee. In that view of the matter, this ground is required to be accepted.

14. Considering the above the present writ petition is required to be allowed and same is disposed of with the following order:

ORDER

(i) Writ Petition No. 286 of 2011 is allowed.

(ii) The impugned order of externment dated 20th September, 2010 and the order dated 31st December, 2010 passed by the Appellate Authority are quashed and setaside. Rule made absolute accordingly.

Petition allowed.