Bombay High Court
Imran Abdul Wahid Hasmi vs The Dy.Commissioner Of Police on 21 June, 2016
Author: Prakash D. Naik
Bench: Naresh H. Patil, Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1784 OF 2015
Imran Abdul Wahid Hasmi .. Petitioner
V/s.
The Dy. Commissioner of Police
& Ors. .. Respondents
......
Mr. Udaynath Tripathi, Advocate for the Petitioner.
Mr. K. V. Saste, APP for the Respondents - State.
ig ......
CORAM : NARESH H. PATIL AND
PRAKASH D. NAIK, JJ.
RESERVED ON : JUNE 14, 2016.
DELIVERED ON : JUNE 21, 2016.
JUDGMENT (Per PRAKASH D. Naik, J.) :
Rule. Rule is made returnable forthwith by consent of parties. Learned APP waives service for Respondents - State.
The petitioner has challenged the order of externment dated 30th December, 2014 issued by respondent no.1 under Section 56(1)(a) and (b) of the Bombay Police Act, 1951 (for short "the said Act") as well as the order dated 9 th April, 2015, passed by respondent no.3 dismissing the Appeal preferred by the petitioner under Section 60 of the said Act.
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2 The factual matrix of the petition is as follows:-
(a) The Assistant Commissioner of Police Deonar Division,
Mumbai had issued a show-cause notice dated 28 th June, 2014 under Section 59 of the said Act. In the said show-
cause notice, it was mentioned that it is proposed to extern the petitioner for a period of two years from Greater Bombay Suburban and Thane Districts. The show-cause notice refers to the statement of two persons recorded in-camera. It is further stated that the acts and movements of the petitioner are causing alarm, harm and danger to the peace living citizens and the businessmen in the area referred to therein. It is further mentioned that the witnesses referred to as witnesses (a) and (b) whose statements are recorded in-camera are not willing to come forward to depose against the petitioner in public. It is also mentioned that the citizens in the respective areas are not willing to complain against the petitioner on account of fear.
(b) The petitioner appeared before the inquiry officer and submitted his oral as well as written reply. Inquiry officer ::: Uploaded on - 22/06/2016 ::: Downloaded on - 23/06/2016 00:01:24 ::: rpa 3/14 wp-1784-15.doc forwarded his report to the Externing Authority for further action.
(c) Pursuant to the aforesaid inquiry, an order of exernment was issued on 30th December, 2014 by the respondent no.1.
In the said order, reference was made to the cases registered and pending against the petitioner. It is further mentioned that witnesses are not willing to come forward to depose against him on account of fear that there will be danger to their persons and properties. The Externing Authority had externed the petitioner from the area of Mumbai suburban and Thane District for a period of two years.
(d) The Petitioner challenged the order of externment by preferring an Appeal under Section 60 of the said Act. The said Appeal was rejected by order dated 9th April, 2015.
3 In view of the aforesaid order of externment and disposal of the Appeal preferred by the petitioner, he has preferred the present petition by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India.
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4 Learned counsel appearing for the petitioner
submitted that the order of externment has been issued without application of mind. He submitted that the impugned order is contrary to the well established principles of law and violative of principles of natural justice. Learned counsel submitted that the order of externment has been issued under Section 56 (1)(a) and
(b) of the said Act. He pointed out that in the notice, it is mentioned that the witnesses referred to in paragraph 2(a) and 2(b) of the notice are not willing to come forward to depose against the petitioner openly on account of the terror created by him. He submitted that the said averments which is reflected in paragraph 4 of the show-cause notice pertains to the in-camera statements of two witnesses referred as witnesses (a) and (b). He submitted that the show-cause notice does not refer to the mandatory requirement for initiating the proceedings under Section 56 (1)(a) and (b) that the witnesses are not wiling to come forward to depose against the externee on account of fear.
He submitted that the said satisfaction is referred to in the notice qua the aforesaid two witnesses and not in respect to the other allegations. He further submitted that the order of externment, however, refers to the satisfaction qua the entire allegations which are covered by Section 56(1)(a) and (b) of the said Act.
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5 Learned counsel appearing for the petitioner relied
upon a decision of the Apex Court in the case of Pandharinath Shridhar Rangnekar Vs. Deputy Commissioner of Police 1.
In the said decision, it has been observed that an order of externment can be passed under Clause (a) or (b) of Section 56 if and only if the Authority concerned is satisfied that witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension, on their part as regards the safety of their persons or properties.
ig It is also observed that the proposed externee is entitled before an order of externment is passed under Section 56 of the said Act to know the material allegations against him and the general another of those allegations. The learned counsel further relied upon a decision of this Court in the case of Hemant Koli Vs. State of Maharashtra & Anr.2 In the said decision, the issue which was under consideration is that while issuing the notice either under Section 56 (1) (a) or (b) of the said Act, it is not just sufficient to mention or give the general particulars of the alleged activities which are causing disturbance in the localities but, it must also be further stated in the notice that in the opinion of such officer, witnesses are not willing to come forward to give evidence in 1 AIR 1973 SC 630 2 1991 (1) (Crimes) 293 ::: Uploaded on - 22/06/2016 ::: Downloaded on - 23/06/2016 00:01:24 ::: rpa 6/14 wp-1784-15.doc public against such person by reason of apprehension on their part as regards the safety of their persons or properties. Unless the Externing Authority was satisfied that the witnesses are not willing to come forward to give evidence in public against the proposed externee due to fear of their persons or properties, the notice would be in contravention of the said provisions. The Court was pleased to observe that the satisfaction that the witnesses are not willing to come forward as stated above, was not reflected in the notice and that unless the proposed externee is appraised of the said conditions, the Externing Authority cannot initiate the proceedings under the said Act. The learned counsel further relied upon a decisions of this Court delivered in Criminal Writ Petition Nos. 4393 of 2013 and 2405 of 2012.
In the first case, it was observed that the essential requirements envisaged under the provisions of Section 56 of the said Act are not borne out from the record justifying the order of externment.
The Authorities concerned did not address the issue as to whether the witnesses were not willing to come forward to depose against the petitioner. In the decision delivered in Criminal Writ Petition No.2045 of 2012, this Court has observed the fact that witnesses are not willing to come forward to depose against the externee in public are not reflected in the show-cause ::: Uploaded on - 22/06/2016 ::: Downloaded on - 23/06/2016 00:01:24 ::: rpa 7/14 wp-1784-15.doc notice, whereas, the same were referred to in the order of externment. In the show-cause notice, which was subject matter of the said petition, the reference to the aforesaid mandatory requirements was in relation to two witnesses whose in-camera statements were recorded, however, there was no assertion in the notice to the effect that no witness in the area are willing to come forward to depose against the externee out of fear in relation to the other alleged activities. It was observed that the apprehension of two witnesses cannot be equated with the statement of fact recorded in externment order which proceeds on the basis that no witnesses are willing to come forward to depose against the externee as there is marked difference between the two.
6 Learned APP Mr.Saste supported the order of externment. He submitted that there is sufficient compliance of the legal requirements to sustain the impugned order. He submitted that the show-cause notice clearly refers to the requisite satisfaction as stated hereinabove. He also submitted that as far as the other allegations, there are averments regarding the satisfaction. In other paragraphs of the notice, more particularly paragraph no.2 of the show-cause notice which ::: Uploaded on - 22/06/2016 ::: Downloaded on - 23/06/2016 00:01:24 ::: rpa 8/14 wp-1784-15.doc states that the people are not willing to come forward to complain against the petitioner on account of fear. It is pertinent to note that paragraph 4 of the notice refers to the satisfaction of the witnesses not willing to come forward vis-a-vis witnesses (a) and
(b) whose statements are recorded in-camera. However, the show-cause notice refers to various other allegations on the basis of which the impugned order of externment has been issued. As far as those allegations, there is no satisfaction recorded that the witnesses are not willing to come forward to report against the petitioner. It is required to be noted that the order of externment has been issued on the basis of the allegations which are covered under Section 56 (a) as well as (b) of the said Act. The Externing Authority has recorded the satisfaction in respect to entire allegations which are covered by the provisions of Section 56(1)
(a) and (b) of the said Act. Section 56 (1)(a) and (b) provides that :
"[(1)] Whenever it shall appear in Greater Bombay and other areas for which a commissioner has been appointed under Section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District ::: Uploaded on - 22/06/2016 ::: Downloaded on - 23/06/2016 00:01:24 ::: rpa 9/14 wp-1784-15.doc Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf.
(a) That the movements or acts of any person are causing or calculated cause alarm, danger or harm to person or property or.
(b) that there are reasonable grounds for believing that such person is engaged or is about to engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or."
7 From the aforesaid provision, it is clear that the Externing Authority can pass the order of externment on the basis of criteria laid down therein. Such order can be issued on the basis of the satisfaction of such officer that the witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or properties.
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8 It is mandatory that before issuing the order of
externment as stated above, a notice under Section 59 of the said Act is required to be issued and the proposed externee shall be informed of the allegations against him and should be given an opportunity of tendering an explanation or examining witnesses etc. 9 On perusal of the order of externment as well as the show-cause notice, it is apparent that the action was initiated in exercise of powers under Section 56 (1)(a) and (b) of the said Act.
In the notice, it has been mentioned that since 2011, the petitioners movements and activities had caused or calculated to cause danger, harm and alarm to the persons and properties of the residents, shop owners and businessmen from the area of Sanjay Nagar Hutments, Sant Nirankari Hutments at Shivaji Nagar, Vainganwadi, Govandi and adjoining areas. The petitioner was also informed that he was involved in commission of offences and the cases are pending against him as well as one case is under investigation. It is further mentioned that the petitioner has committed serious offences within the areas mentioned therein and have committed offences punishable under Chapters 16 and 17 of the Indian Penal Code. The notice further refers to ::: Uploaded on - 22/06/2016 ::: Downloaded on - 23/06/2016 00:01:24 ::: rpa 11/14 wp-1784-15.doc the statements of two witnesses who are not willing to come forward to depose against him on account of fear which was recorded in-camera. In paragraph 4 of the notice, it is mentioned that the witnesses referred to in paragraph 2(a) and (b) are victims at the hands of the petitioners and they are not willing to come forward to depose against the petitioner in public. It is pertinent to note that the aforesaid assertion is in respect to the activities referred by witnesses (a) and (b) whose statements were recorded in-camera. Hence, as far as the other allegations referred to in the notice, there is no satisfaction therein that the witnesses in connection with said activities are not willing to come forward to depose against the petitioner in public. The notice spells out the activities which forms the grounds under Clause (a) and clause (b) of Section 56 (1) of the said Act, however, the satisfaction that the witnesses are not willing to come forward to depose against the petitioner is recorded only in respect of the activities reflected in paragraph nos. 2(a) and 2(b) of the notice. No such satisfaction is spelt out in respect of the activities reflected in the introductory paragraph 1(a) of the notice.
10 It is to be noted that the satisfaction that witnesses are not willing to come forward to depose in public is reflected in ::: Uploaded on - 22/06/2016 ::: Downloaded on - 23/06/2016 00:01:24 ::: rpa 12/14 wp-1784-15.doc respect of two witnesses referred to above which allegations would be covered by Section 56 (1)(b) of the said Act. Further, there were other allegations also which are covered by Section 56(1)(a) as well as 56(1)(b) in respect to which there was no such assertion as stated above. In the case of Yashwant Damodar Patil V/s. Hemant Karkare3 this court has held that :
"The Fact that the proposed externee is engaged or is about to be engaged in one or the other type of the activity or movement in Clauses (a) and (b) of Section 56 (i) of the Bombay Police Act, is not sufficent by itself to warrant an order of externment. That fact, coupled with the opinion formed by the designated officer that witneses are not willing to come forward to give evidence in public for the reasons mentioned in clauses (a) and (b) of Section 56(i) of the Bombay Police Act, will provide a proper basis for the exercise of the power of externment under the provisions of the Act...
... in any case of acts involved on the part of the proposed externee, where an order of externment proposed to be passed, it is necessary that the officer concerned must be satisfied that witnesses are not willing to come forward to give evidence against him. Notice of such satisfaction must also necessarily be given to the proposed externee under section 59 of the Bombay Police Act."
3 1989 Mh.L.J. 1111 ::: Uploaded on - 22/06/2016 ::: Downloaded on - 23/06/2016 00:01:24 ::: rpa 13/14 wp-1784-15.doc 11 The Externing Authority has issued the order in exercise of powers under Section 56(1)(a) and (b) of the said Act.
This Court has adjudicated the similar issues in Writ Petition Nos.1813 of 2-013 and 529 of 2014 in which the order of externment was quashed and set aside on the ground that it is not in accordance with law. Paragraph 28 of the said decision reads as follows:
"28. The notice spells out the activities which constitute grounds under clause (a) of Section 56(1) as well as grounds under first and second part of clause (b) of Section 56(1) of the Act. However, satisfaction that the witnesses are not coming forward to depose against the petitioner is recorded only in respect of the activities stated in para 3(b) (1) and (2) of the notice, which constitutes grounds under first part of Clause (b) of Section 56(1) of the Act. No such satisfaction is spelt out in respect of activities stated in paras 2, 3 (a) & 5 of the notice, which constitute grounds under clause (a) of Section 56(1) and second part of clause (b) of Section 56(1) of the Act. Nonetheless the Externing Authority has externed the petitioner under clause (a) and second part of clause
(b) of Section 56(1) of the Act. The order is not in accordance with the principles laid down by the Division Bench of this Court in the case of Yeshwant Vs. Hemant Karkare (Supra) and is in breach of rules ::: Uploaded on - 22/06/2016 ::: Downloaded on - 23/06/2016 00:01:24 ::: rpa 14/14 wp-1784-15.doc of natural justice. The impugned order amounts to unreasonable restriction on the fundamental right guaranteed by Article 19 of the Constitution and hence cannot be sustained."
12 In view of the aforesaid observations, it is clear that the impugned order of externment is contrary to the provisions of law. The order does not comply the mandatory requirement stipulated in Section 56 (1)(a) and (b) of the said Act. Hence, the impugned order is required to be quashed and set aside.
13 Hence, we pass the following order:
:: O R D E R ::
(i) Rule is made absolute.
(ii) The order of externment dated 30 th December,
2014, issued by the respondent no.1 is quashed and set aside.
(P.D. NAIK, J.) (NARESH H. PATIL, J.)
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