2013 ALL MR (Cri) 4143
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.C. DHARMADHIKARI AND G.S. PATEL, JJ.

Mrs. Meenakshi Naresh Thakur Vs. The State Of Maharashtra & Ors.

Criminal Writ Petition No.3207 of 2013

24th September, 2013

Petitioner Counsel: Mr. MOIN KHAN
Respondent Counsel: Mrs. P.H. KANTHARIA

Bombay Police Act (1951), S.56(1)(a)(b) - Externment order - Legality - Five criminal cases against the externee relied on by authorities - However, three of them are not proximate in time to the externment order - In the fourth case externee is given ad-interim relief by HC restraining the filing of charge sheet - In the fifth case externee has already been acquitted - No material to justify externment - Yet, externment from a vast geographical area was ordered - That apart, statements of in-camera witnesses also not furnished to externee - Held, minimum requirements of S.56(1)(a)(b) are not met - Externment order quashed.

It is not the law that the area of externment must be restricted to that in which the externee is said to be operating. At the same time, it cannot be unreasonable. For how long a person should be externed within the two-year outer limit specified by Section 58, and from what area, are matters that are fact-dependent and for the externing authorities to decide. A generalised formula is impossible, and, in a given case, a larger area than the immediate vicinity of the externee's activities may be necessary if the need is to isolate the externee. But the order must be no more than the exigencies of a case reasonably demand. Externment orders are restraints on personal liberties, and no greater restraint is permissible than one which is reasonable in the circumstances of each case. Whether or not an order is reasonable must be tested on the basis of the material on which the externment order has been passed. [Para 5,8]

Cases Cited:
Pandharinath Shridhar Rangnekar Vs. Dy Commissioner of Police, (1973) 1 SCC 372 [Para 5]
Balu Shivling Dombe Vs. Divisional Magistrate, Pandharpur, 71 Bom LR 79 [Para 5]


JUDGMENT

G. S. PATEL, J. :- Rule. Mrs. Kantharia, learned APP waives service on behalf of the Respondents. By consent, Rule made returnable forthwith and Petition called out for hearing and final disposal.

2. This is a Writ Petition under Article 226 of the Constitution of India. The Petitioner is the wife of one Naresh Singh Sumer Singh Thakur ("Naresh Singh"). The challenge in this Petition is to an Externment Order dated 18th June 2013 passed by the Respondent No. 2, and an Appellate Order passed by Mr. Vineet Agarwal, the 1st Respondent, confirming the Externment Order dated 28th August 2013, by which Naresh Singh has been externed from the limits of Greater Mumbai, Mumbai Suburban, Thane and Raigad districts for the period of two years. We have, with the able assistance of Mr. Khan, learned Advocate for the Petitioner, and Ms. Kantharia, Learned APP, considered the contents of the Petition and the annexures thereto.

3. The externment proceedings are under Section 56(1)(a)(b) of the Bombay Police Act, 1951. They are based on a number of criminal cases said to have been registered against Naresh Singh. Five cases are mentioned in the Show Cause Notice issued to Naresh Singh. Of these, three (C. R. No. 187 of 1996, C. R. No. 65 of 2000, C. R. No. 41 of 2009) are of some vintage and are not proximate in time to the Externment Order. The fourth, C. R. No. 279 of 2012, was registered at the Antop Hill Police Station under Sections 387, 506(II) and 323 of the Indian Penal Code. The Respondent authorities seem to have overlooked that in respect of this FIR, Naresh Singh filed Criminal Writ Petition No. 253 of 2013 in this Court. This Court issued notice and granted ad-interim relief directing that investigation may continue but the chargesheet should not be filed. A copy of this order of the Division Bench of this Court passed on 30th January, 2013 was placed before the Respondents Authorities but seems not to have been considered by them at all.

4. There is also a fifth case added by the Respondent No. 2 in the Externment Order although it forms no part of the Show Cause Notice. This is C. R. No. 360 of 2006 filed under Sections 396, 307, 353 and 323 of the Indian Penal Code, several sections of the Arms Act and of the Maharashtra Control of Organized Crime Act. This criminal complaint was registered at the Dabhale Police Station. In appeal, Mr. Agarwal, the 1st Respondent, has entirely overlooked that on 18th July, 2013, the Petitioner was acquitted from all charges by the Special MCOC Court at Thane. A copy of this order was also available to Mr. Agarwal, but was not considered.

5. We also find, in the circumstances above, the only proximate Criminal Complaint was the one of 2012, in which this Court had granted ad-interim relief. That criminal complaint was registered by the Antop Hill Police Station. In short, there is no material justifying the Externment of the Petitioner from so vast geographical area as Greater Mumbai, Mumbai Suburban, Thane and Raigad. The impugned Externment Orders are clearly excessive. It is not the law that the area of externment must be restricted to that in which the externee is said to be operating. Pandharinath Shridhar Rangnekar v Dy Commissioner of Police, (1973) 1 SCC 372 At the same time, it cannot be unreasonable. Balu Shivling Dombe v. The Divisional Magistrate, Pandharpur, 71 Bom LR 79 For how long a person should be externed within the two-year outer limit specified by Section 58, and from what area, are matters that are fact-dependent and for the externing authorities to decide. A generalised formula is impossible, and, in a given case, a larger area than the immediate vicinity of the externee's activities may be necessary if the need is to isolate the externee. But the order must be no more than the exigencies of a case reasonably demand. Externment orders are restraints on personal liberties, and no greater restraint is permissible than one which is reasonable in the circumstances of each case. Pandharinath, supra Whether or not an order is reasonable must be tested on the basis of the material on which the externment order has been passed. As the Appellate Authority, Mr. Agarwal was expected to apply his mind to these factors. His failure to do so vitiates his order.

6. We note with regret, that in paragraph 6 of the Appellate Order, Mr. Agarwal has shown the MCOC case as pending. The impugned Appellate order is dated 28th August 2013. By that time, Naresh Singh had already been acquitted by the MCOC Special Court at Thane on 18th July 2013. We also note, that in his Appellate Order, Mr. Agarwal has not even referred to the order of the Division Bench of this Court in Criminal Writ Petition No. 253 of 2013. In that very Criminal Writ Petition, ad-interim relief was continued by further orders of this Court passed on 5th April 2013 and 12th June 2013. All these orders were available to Mr. Agarwal. He has considered none of them.

7. There are other serious infirmities in Mr. Agarwal's Appellate order. The Petitioner specifically urged that the two in-camera witness statements have no date and that, in any case, copies of the statements were not furnished. Mr. Agarwal ignored this altogether. He could not have done so. This is a fatal failure of elementary principles of natural justice.

8. In our view, there is complete non-application of mind on the part of the Respondent Authorities. No such Externment Order could ever have been passed under Section 56(1)(a) (b) of the Bombay Police Act, 1951. The minimum requirements of that section are not met.

9. The Petition therefore succeeds and is made absolute in terms of prayer clause (a). The order dated 18th June 2013 passed by the Respondent No. 2 and the order dated 28th August 2013 passed by the Respondent No. 1 are both quashed and set aside. There will be no order as to costs. All concerned to act on an authenticated copy of this order.

Petition allowed.