High Court
Legal Reasoning
(( 11 ))930WP808-24Jprima facie appears that, the Petitioner served with the notice dated08.08.2023 proposing his externment for the period of two years dueto registration of following crimes;Sr.No.PoliceStationC.R. No.Offences under Act/SectionStage1.BhingarCamp339/2023Section 505(2), 34 ofI.P.C.Investigation2.MIDC294/2023Section 324, 435,427, of IPC, with Sec.37(1)(3) of M.P.Act,1951. Investigation3.Kotwali71/2022Sec. 188 and 269 ofIPCAcquitted4.BhingarCamp564/2022Sec. 186 and 341 ofIPCTrial pending5.Kotwali841/2021Sec. 153, 153(A), and34 of IPCAcquitted6.BhingarCamp212/2017Sec. 395, 354, 323,504, 506 427 of IPC,with Sec. 37(1)(3) ofM. P. Act, 1951.Trial pendingChapter CasesSr.No.PoliceStationC.R. No.Offences underAct /SectionStage1.Kotwali473/2021Cr.P.C. u/s 107Bond periodover2.Kotwali280/2022Cr.P.C. u/s 144(2)----3.Camp68/2022Cr.P.C. u/s 110(e)(g)Revoked 11 of 15 (( 12 ))930WP808-24J16. In case of Harikesh @ Guddu Madan Kattilwar Vs. DeputyPolice Commissioner (Criminal Writ Petition No. 908 of 2022), decidedon 24.01.2023, the Co-ordinate Bench of this Court observed inparagraph Nos. 14 and 15 as under:“14. It is to be noted that this order passed by the respondentNo.1 and confirmed by the respondent No.3 suffers from the virusof excessiveness. The order of externment apart from makinginroads on the personal liberty guaranteed under the Constitutionof India, makes the said person live separate from his familymembers. Similarly, the externment order can deprive the saidperson of his livelihood. In the given case, depending upon thefinancial position of the person, it can make the dependents of thesaid person to starve. Therefore, in order to justify the externmentfor a maximum period of two years, the Authority is required toconsider the objective material to record subjective satisfaction onall points. In this case, I am constrained to observe that the orderpassed by the respondent No.1 is woefully silent on all thesepoints. The respondent No.1 has not recorded the reasons to orderthe externment of the petitioner for a period of two years and thattoo from the entire Amravati District. It is seen on perusal of thenotice and order that all the crimes committed by the petitionerwere within the jurisdiction of Frezarpura Police Station, AmravatiCity.15. In my considered opinion, therefore, the order passed bythe respondent No.1 and confirmed by the respondent No.3suffers from the virus of excessiveness. The law laid down on thepoint in the cases of Shaikh Mukhtyar S/o Mustafa Shaikh Vs.State of Maharashtra and Others [2017 ALL.M.R. (Cri.) 268 andBhagwat Dadasaheb Landge and Another Vs. State of Maharashtraand Others [2020(5) Mh.L.J. (Cri.) 546], would, therefore,equally apply in this case. It is to be noted that the excessivenature of the order on both the counts is one of the factors, whichwould weigh in favour of the petitioner. The order of externment, 12 of 15 (( 13 ))930WP808-24Jmaking a direct inroads on the fundamental right of movement,must, therefore, pass all the legal tests. In this case, the orderpassed by the respondent No.1 and confirmed by the respondentNo.3 do not pass the said test. It is to be noted that the respondentNo.3 despite being confronted with the factual position vis-a-visthe acquittal of the petitioner in four crimes and his involvementin four crimes under the Prohibition Act, confirmed the said order.Perusal of the order of the respondent No.3 would show that therespondent No.3 has recorded factual submissions, but failed tosufficiently deal with the same. Therefore, in my view, this order isnot sustainable.”17.In case of Mohammad Alam Ibrahim Shaikh @ AluVs. State of Maharashtra, 2005 ALL MR (Cri) 2593, it is heldthat, delay of 18 months from the date of show cause notice notexplaining and the order was not on the basis of offenceregistered. On the contrary, offences are of very serious nature,preventive action and live link not snapped. The delay in passingorder of externment by itself is not fatal, there has to be somesatisfactory explanation for delay and delay should not result insnapping live link. It was held that the delay resulted in snappinglive link between 1 preventive action and allegation.18.On perusal of order of externment dated 18.09.2023it shows that though the Police Authority referred aboutregistration of Crime against the Petitioner for damaging the 13 of 15 (( 14 ))930WP808-24Jpublic property, however, except crime No.294 of 2023 no othercrimes are related to damage of public property but said crime isshown under investigation and no charge sheet filed as onissuance of the externment notice. The Petitioner is released onbail on 02.12.2017 in Crime No.564 of 2022. It is not the case ofRespondents Authority that, the Prosecution has filed anApplication for cancellation of Bail in said crimes due to breachof any bail conditions.19.Needless to say that, externing a person from aspecific area for a maximum period of two years withoutspecifying exigencies certainly deprived his right to livelihoodand inconvenience caused to his relatives including parents, wifeand children who are dependent on income of the externee.Needless to say that, the petitioner has not yet been sentencedfor any serious offence which have been provided under ChapterXII, XVI, and XVII. However, trial for offenses punishable underSection 395, 394, 323, 504, 506, 427 of IPC and Section 37(1)(3)/137 of the Maharashtra Police Act are pending. Therefore,considering the facts and circumstances of the case as well as law 14 of 15
Arguments
930WP808-24J.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 808 OF 2024 Sayyad Mohmmed Sarfaraz S/o Ibrahim, Age- 36 years, Occ: Private Service,R/o. Plot No.60, C.I.V. Colony, NearMehraj Masjid, Mukund Nagar,Ahmednagar, Dist- Ahmednagar...PETITIONER VERSUS1.The State of Maharashtra(Notice to be served through the Office of the APP, Bombay High Court Bench at Aurangabad)2.The Divisional Commissioner, NasikDivision, Nasik.3.The Sub-Divisional Magistrate,Ahmednagar, Dist-Ahmednagar ...RESPONDENTS …Mr. Mazhar Jahagirdar h/f Mr. Sohail Yusuf Shaikh & Mr. Joyeb I. Shaikh, Advocate for the PetitionerMs. Ashlesha S. Deshmukh, APP for Respondents....CORAM: Y. G. KHOBRAGADE, J.RESERVED ONPRONOUNCED ON:: 23.01.2025 06.02.2025 JUDGMENT :- 1.Rule. Rule made returnable forthwith and withconsent of both parties it is heard finally at the stage of admission. 1 of 15 (( 2 ))930WP808-24J2.By the present Petition, under Article 226 of theConstitution of India, the Petitioner takes exception to the order dated15.01.2024 passed by the Respondent No.2 Divisional Commissioner,Nasik and thereby confirming the order of externment of thePetitioner as passed by the Respondent No.3 Sub-DivisionalMagistrate, Ahmednagar on 18.09.2023.3.Facts giving rise to the present Petition are that, on13.04.2023, the Police Inspector attached with Bhingar Camp PoliceStation submitted a proposal with Respondent No.3 / Sub DivisionalMagistrate for taking preventive action against the Petitioner underSection 56(1)(a)(b) of the Maharashtra Police Act. It is alleged that aseries of offences have been registered against the Petitioner. Thepetitioner’s conduct has been disrupting Public peace, therefore, aninquiry was directed. Accordingly, the Assistant Police Inspector ofBhingar Camp Police Station, Bhingar conducted confidential inquiryand submitted its report stating that, due to fear of the presentPetitioner, nobody dares to give statement openly against thePetitioner. After assuring that the names of the witnesses would bekept confidential, the statements of Witnesses A and B were recorded 2 of 15 (( 3 ))930WP808-24Jin Camera on 12.04.2023 and 13.04.2023. Thereafter, proposal forexternment of the Petitioner was submitted. As per the Report, thePetitioner has been creating an atmosphere of fear in the minds of thepeople by using force and intimidation, as well as conducting illegalgathering with his associates and using dangerous weapons like ironrods, wooden sticks and stones to cause serious injuries to the people.The Petitioner also vandalizing and committing arson vehicles anddamaging public property, disturbing public peace and creating riftsin the minds of people in the Hindu and Muslim communities,harassing women, abusing and harassing people by beating them,threatening to kill them, violating the prohibitory order of theHonorable District Magistrate etc., Therefore, the Petitioner wasserved with notice dated 08.08.2023 under Section 56(1)(a)(b) of theMaharashtra Police Act and called upon him to submit his cause as towhy he should not be externed. On 29.08.2023, the Petitionerpersonally appeared and prayed for time to submit his reply.Accordingly, on 11.09.2023, the Petitioner filed his reply. 4.On 18.09.2023, the Respondent No.3 / Sub-DivisionalMagistrate, Ahmednagar, passed an order and considered that, series 3 of 15 (( 4 ))930WP808-24Jof serious offences are registered against the present Petitioner.Furthermore, the petitioner has been causing disturbance in thesociety, therefore, externed the Petitioner for the period of two yearsfrom entire Ahmednagar District.5.Being aggrieved by said order of externment, thePetitioner filed externment appeal before the Respondent No.2 /Divisional Commissioner Nashik. On 15.01.2024, Respondent No.2 /Divisional Commissioner, Nasik passed the impugned order andconfirmed the order of externment passed by the Respondent No.3 on18.09.2023. 6.The learned counsel for the Petitioner canvassed invehemence that, as per the show cause notice served to the Petitioner,the Police Authority mentioned about recording in-camera statementsof the witnesses a & b, but the statement of both the witnesses is ofgeneral nature and there is no specific allegations on which date theoffences have been committed by the Petitioner. Therefore, valuableright of the Petitioner to reply said notice is seriously prejudiced.Further, the Externing Authority failed to elaborate contents ofstatements of the witnesses a & b recorded in-camera. Section 56 of 4 of 15 (( 5 ))930WP808-24Jthe Maharashtra Police Act, 1951 provides about recording specificfindings that, the witnesses are not willing to come forward to giveevidence in public against such person by reason of apprehension ontheir part as regards the safety of their person or property. Further, itis necessary for the Externing Authority to be satisfied that thewitnesses are unwilling to come forward to give evidence against thePetitioner. However, the Externing Authority failed to give anysatisfactory reason and passed the externment order. So also, nosufficient opportunity has been provided for the Petitioner to rebutthe statements of witnesses, hence, it is illegal, bad in law. 7.The learned counsel for the Petitioner canvassed that, theExterning Authority passed the order of externment in violation ofprovisions of Maharashtra Police Act and infringed the fundamentalrights of the Petitioner guaranteed under Article 19 of theConstitution of India, even though the Petitioner was acquitted inCrime No.71 of 2022 registered with Kotwali Police Station for theoffences u/s 188, 269 of IPC and in Crime No.841 of 2021 for theoffences under Section 153, 153(a) read with Section 34 of the IPC.However, other crimes viz., Crime Nos.339 of 2023 registered for the 5 of 15 (( 6 ))930WP808-24Joffence u/s 505(2), 298 read with Section 34 of IPC, Crime No. 294of 2023 registered u/s 324, 435, 427 of IPC and Section 7(1)(a) ofPrevention of damage to the Public Property Act and Section 135 ofMaharashtra Police Act are shown under investigation. The trials arepending in respect of Crime No.564 of 2022 registered with BhingarCamp Police Station for the offences u/s 186 and 341 of the IPC andCrime No.212 of 2017 registered for the offence under Section 395,394, 323, 504, 506, 427 of IPC, Section 37(1)(3)/137 of theMaharashtra Police Act.8.It is canvassed that, as per show cause notice dated08.08.2023, other three chapter cases are registered with Kotwali andBhingar Camp Police Station under Section 107, 144(2) and 110(e)(g) of Code of Criminal Procedure, but those are stale and no live linkhas been established with the crimes registered prior to issuance ofservice of externment notice. Therefore, entire process of externmentof the Petitioner is illegal, bad in law and violative of Article 19 of theConstitution of India. 9.To buttress these submissions, the learned counsel for thePetitioner relied on the case of Balu Shivling Dombe v. Divisional 6 of 15 (( 7 ))930WP808-24JMagistrate, Pandharpur, wherein externment order was set aside onthe ground that it was far wider than was justified by the exigenciesof the case.10.It further relied on the case of Deepak S/O LaxmanDongre V. The State Of Maharashtra & Ors. 2022 LiveLaw (SC) 93,wherein, the Apex Court held that;“ There cannot be any manner of doubt that an order ofexternment is an extraordinary measure. The effect of the order ofexternment is of depriving a citizen of his fundamental right offree movement throughout the territory of India. In practicalterms, such an order prevents the person even from staying in hisown house along 6 with his family members during the period forwhich this order is in subsistence. In a given case, such order maydeprive the person of his livelihood. It thus follows that recourseshould be taken to Section 56 very sparingly keeping in mind thatit is an extraordinary measure. For invoking clause (a) of sub-section (1) of Section 56, there must be objective material onrecord on the basis of which the competent authority must recordits subjective satisfaction that the movements or acts of anyperson are causing or calculated to cause alarm, danger or harmto persons or property. For passing an order under clause (b),there must be objective material on the basis of which thecompetent authority must record subjective satisfaction that thereare reasonable grounds for believing that such person is engagedor is about to be engaged in the commission of an offenceinvolving force or violence or offences punishable under ChapterXII, XVI or XVII of the IPC. Offences under Chapter XII arerelating to Coin and Government Stamps. Offences under ChapterXVI are offences affecting the human body and offences underChapter XVII are offences relating to the property. In a given case,even if multiple offences have been registered which are referredin clause (b) of sub-section (1) of Section 56 against anindividual, that by itself is not sufficient to pass an order of 7 of 15 (( 8 ))930WP808-24Jexternment under clause (b) of sub-section (1) of Section 56.Moreover, when clause (b) is sought to be invoked, on the basis ofmaterial on record, the competent authority must be satisfied thatwitnesses are not willing to come forward to give evidenceagainst the person proposed to be externed by reason ofapprehension on their part as regards their safety or theirproperty. The recording of such subjective satisfaction by thecompetent authority is sine qua non for passing a valid order ofexternment under clause (b).”11.In case of Rahmat Khan Rammu Bismillah Versus DeputyCommissioner of Police 2021 LiveLaw (SC) 404, it is held by the ApexCourt in Para. No.34 as under;“34. An externment order may sometimes be necessary formaintenance of law and order However the drastic action ofexternment should only be taken in exceptional cases, to maintainlaw and order in a locality and/or prevent breach of publictranquility and peace. In this case, it is patently clear that theimpugned externment order was an outcome of the complaintslodged by the Appellant against government officials, someMadrasas and persons connected with such Madarasas who laterlodged FIRs against the Appellant. The FIRs are clearly vindictive,retaliatory and aimed to teach a lesson to the Appellant and stiflehis voice.”12.In case-in-hand, the Externing Authority did not followthe procedure and mandate properly as per the Act, and for thatpurpose the petitioner is relying on case of Shri. Arshad Sahil KhanVs. Deputy Commissioner Of Police, Cri. Writ Petition No. 2603 of2021, this court held in para. No.11. 8 of 15 (( 9 ))930WP808-24J“11. In an externment proceedings initiated against anyperson it is necessary to scrupulously follow the procedure andmandate of said sections. Once the person is externed, hisfundamental right to stay at the place of his choice or to movefrom one place to another gets curtailed.”13.Per contra, the Assistant Police Inspector, Bhingar CampPolice Station, Bhingar Ahmednagar filed reply affidavit and stronglyopposed the Petition. It is canvassed on behalf of the RespondentAuthority that, the Petitioner has committed serious offences andresponsible for creating an atmosphere of fear in the minds of thepeople by using force and intimidation, as well as for conductinggathering of illegal groups with their associates. The Petitioner is inhabit to use dangerous weapons like iron rods, wooden sticks andstones to cause serious injuries, vandalizing and committing arsonvehicles. The Petitioner habitually damages public property, disturbspublic peace and creating rifts in the minds of people in the Hinduand Muslim communities. The Petitioner always harassing male andfemale and abusing them and issuing threats to kill them. ThePetitioner was also found while violating the prohibitory order passedby the District Magistrate etc. 9 of 15 (( 10 ))930WP808-24J14.It is further canvassed that, six offenses are registeredagainst the Petitioner for the serious offences and in past, preventiveaction was taken against the Petitioner under Section 107 and 144 ofthe IPC, therefore, the Petitioner executed bond but said period isover. However, again chapter case has been registered under Section110(e)(g) of Cr.P.C. with Bhingar Camp Police Station but it was laterdropped due to initiation of externment proceedings. Therefore,considering the confidential report as well as statement of thewitnesses in respect of causing breach of peace in the society anddangerous activities on part of the Petitioner, the Respondent No.3Authority passed an order dated 18.09.2023 and externed thePetitioner for the period of two years from the entire AhmednagarDistrict, which has been affirmed by Respondent No.2 AppellateAuthority. Therefore, the administrative action initiated by theRespondent Authority to maintain peace in the society after followingthe principle of natural justice, need no interference, hence, prayedfor dismissal of the Petition. 15.Having regard to the submissions canvassed on behalf ofboth sides, I have perused the petition paper book. In case-in-hand it 10 of 15
Decision
(( 15 ))930WP808-24Jlaid down by the Hon’ble Supreme Court of India and this Court,it certainly appears that, the order of externment passed byRespondent No.3 on 18.09.2023 and confirmed by theRespondent No.2 vide order dated 15.01.2024 is not justifiable.In view of the above discussion, this Petition needs to beallowed. Accordingly, I proceed to pass the following order.ORDER1.The impugned orders dated 15.01.2024 passed bythe Respondent No. 2 / Divisional Commissioner, Nasik andorder dated 18.09.2023 passed by the Respondent No. 3 / Sub-Divisional Magistrate, Ahmednagar in respect of externment ofthe petitioner are hereby quashed and set aside.2.Accordingly, Rule is made absolute. 3.No order as to costs. [ Y. G. KHOBRAGADE, J. ] HRJadhav 15 of 15