Criminal Writ Petition No.3453 of 2010

25th April, 2011

Petitioner Counsel: Mr. S. R. CHITNIS,Mrs. S. R. RAJE
Respondent Counsel: Mrs. P. P. BHOSALE

Cases Cited:
Yeshwant Damodar Patil Vs. Hemant K. Karkare, Cri. W.P. No.324/1989 Dt.29-8-1989 [Para 12]

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 District for the period of one year.

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 order.

5. Senior Inspector of Police, Panvel City Police Station submitted a proposal on 19th September, 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 three criminal cases registered with Panvel City Police Station. Reliance was also placed on the incamera statements recorded during the confidential inquiries. Said incamera 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 dated 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 21st November, 2009 when the petitioner remained absent and could not be contacted even on his mobile when police staff was sent to his residence. It was found out that he had gone to pilgrimage for 15 days. Thereafter, also matter was adjourned from time to time 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 30th July, 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 20th November, 2010.

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

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

(ii) 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 the 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.

(iv) The alleged conduct about unwillingness of witnesses to come forward and depose is mentioned only in relation to the circumstances covered under Section 56(1)(a) and not mentioned for 56 (1) (b) of the Bombay Police Act. Hence, 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 snapped the link between the petitioners prejudicial activities and externment order.

10. 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 deprival of the effective representation. While observing this, it is not lost sight of that all the details 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. So far as fourth ground is concerned, reliance on the following observation in the case of Yeshwant Damodar Patil Vs. Hemant K. Karkare (Criminal Writ Petition No.324 of 1989 decided on 29.8.1989 of this Court) is placed with advantage.

"Whenever, therefore, an action is proposed to be taken against an externee, hereinafter referred to as "the proposed externee" a notice naturally has to be given to him under section 59 of the Bombay Police Act. This notice must inform the proposed externee the grounds on which action is proposed to be taken against him. For example, if action is proposed to be taken against him under clause (a) of Section 56(1) of the Act, then the proposed externee must be told that his movements or acts are causing or calculated to cause alarm, danger or harm to person and property and witnesses are not willing to come forward to give evidence in public against him. If action is proposed to be taken against him on the ground that the proposed externee is engaged or is about to be engaged in the commission of an offence involving force or violence, then he must be told so and he must also be informed that in the opinion of the officer witnesses are not willing to come forward to give evidence in public against him. Similarly, if an action is proposed to be taken against the proposed externee on the ground that he is engaged or is likely to be engaged in the commission of offence punishable under Chapter XII or Chapter XVI or Chapter XVII of the Indian Penal Code, then he must be informed about the same and he must also be necessarily informed that witnesses are not coming forward to depose against him. The fact that the proposed externee is engaged or is about to be engaged in one or the other type of the activity or movements in clauses (a) and (b) of Section 56(1) of the Bombay Police Act, is not sufficient by itself to warrant an order of externment. That fact, coupled with the opinion formed by the designated officer that witnesses are not willing to come forward to give evidence in public for the reasons mentioned in clauses (a) and (b) of Section 56 (1) of the Bombay Police Act, will provide a proper basis for the exercise of the power of externment under the provisions of the Act."

13. Bearing in mind the above observation, it can be mentioned that there is nothing brought to the notice of the petitioner so far as unwillingness of the witnesses to come forward and depose in relation to the circumstances covered by Section 56(1)(b) of the Bombay Police Act. However, the externment order is passed taking shelter of both the provisions (a) and (b) of Section 56(1) of the Bombay Police Act.

14. Lastly, though it is not specifically averred in the writ petition as to externment order suffering from the vice of excessive jurisdiction, during the arguments 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.

15. No doubt, excessive order undoubtedly to be strucked down because no greater extend 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.

16. 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.3453 of 2010 is allowed. The impugned order of externment dated 20th September, 2010 is quashed and set aside. Rule made absolute accordingly.

Petition allowed.