Bombay High Court
Mr. Inammuddin Umrao Khan vs The Dy. Commissioner Of Police on 18 March, 2013
Author: A.R. Joshi
Bench: P.V. Hardas, A. R. Joshi
PPD
1
wp.2235-12.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2235 OF 2012
Mr. Inammuddin Umrao Khan ..Petitioner
Versus
The Dy. Commissioner of Police,
Zone-IV, Chembur, Mumbai & Ors. ..Respondents
....
Mr. Mateen Shaikh, Advocate for the Petitioner.
Mr. J.P. Yagnik, APP, for the Respondent - State.
....
CORAM : P.V. HARDAS, &
ig A.R. JOSHI, JJ.
DATE OF RESERVING
THE ORDER : 13th MARCH, 2013
DATE OF PRONOUNCING
THE ORDER : 18th MARCH, 2013
ORAL ORDER : [PER A.R. JOSHI,J.]
1. Heard. Rule. By consent of the parties taken up for final hearing and disposed of at the stage of admission.
2. The order of externment dated 27.2.2012 passed by the competent authority i.e. Deputy Commissioner of Police, Zone-VI, Mumbai is challenged in the present Petition by the petitioner/externee.
Said impugned order was passed under Section 56(1)(a)(b) of the Bombay Police Act, 1951. Appeal was preferred against the said order before the Chief Secretary (Special), Home Department. However, the same was dismissed vide order dated 23.4.2012. This order is also challenged in the present Writ Petition.
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3. Initially show cause notice under Section 59 of the Bombay Police Act, 1951 was issued against the petitioner. It was issued by the ACP, Deonar Division, Mumbai proposing externment of the petitioner for two years and for showing the cause as to why he shall not be externed. On such show-cause notice, the petitioner was heard. However, not satisfied with the explanation, the impugned externment order dated 27.2.2012 was passed.
4. In the externment order reliance was placed on three criminal cases - two of the year 2009 and one of the year 2010. First one is arising out of C.R. No.198 OF 2009 for the offences punishable under Sections 307, 324, 504 read with Section 34 of Indian Penal Code. Admittedly in the said matter the petitioner was acquitted as the complainant turned hostile. Second one is arising out of C.R. No.304 of 2009 for the offence punishable under Sections 354 and 341 of the Indian Penal Code, which is pending. Third case is of the year 2010 arising out of C.R. No.73 of 2010 for the offences punishable under Section 354, 506(2), 323, 504 read with Section 34 of Indian Penal Code. Same is also pending.
5. Apart from the three cases against the petitioner, there was also reference to two in-camera statements recorded by the Enquiry Officer. In response to the show-cause notice, the petitioner appeared before the concerned Authority along with his Advocate on five dates in the month of January, 2012. He examined two defence witnesses. However, the externing authority was not satisfied with the explanation 2 / 5 ::: Downloaded on - 09/06/2013 19:45:18 ::: 3 wp.2235-12.doc produced by the petitioner and further held that the petitioner had accepted lodging of the complaints against him as mentioned in the show-cause notice thus arriving at the subjective satisfaction as to involvement of the present petitioner in the matter of offences against the body and property, externment order was passed under the provisions of Section 56(1)(a)(b) of the Bombay Police Act, 1951.
6. By the impugned externment order, the present petitioner was externed for two years from the territory of Greater Bombay, Thane, New Bombay and Raigad Districts.
7. As mentioned above, appeal was preferred before the Appellate Authority i.e. Chief Secretary (Special), Home Department, wherein three points were raised on behalf of the petitioner, firstly that he was not given reasonable opportunity to represent him in answer to the show-cause notice. Secondly, the offences alleged against the petitioner were of personal nature and were lodged on account of personal vengeance by his neighbour. And thirdly that the order of externment is suffering from the vice of excessive jurisdiction inasmuch as offences alleged against him were registered in the particular locality at Mumbai at Deonar Police Station whereas he has been externed from the territory of Greater Bombay, New Bombay, Thane and Raigad Districts. Said appeal was heard and finally dismissed vide order dated 23.4.2012, as mentioned above.
8. Two points were raised before us during the arguments by learned Counsel for the petitioner - firstly that the cases registered 3 / 5 ::: Downloaded on - 09/06/2013 19:45:18 ::: 4 wp.2235-12.doc against the petitioner and which are still pending are lodged out of personal vengeance inasmuch as an offence punishable under Section 354 of Indian Penal Code is involved in both the said matters in C.R. Nos.304/2009 and 73 of 2010 and as such even if accepting that the said cases are genuine, still it is a dispute between the petitioner and the complainant interse and has nothing to do with the public security or danger to the property and person of the public at large. It is also submitted that the first case under C.R. No.198 of 2009 has already ended in acquittal. Secondly, it is submitted that the order is an exercise of excessive jurisdiction inasmuch as he has been externed for two years from the territory of Greater Bombay, New Bombay, Thane and Raigad Districts. In order to substantiate this argument shelter of the ratio propounded by the following authority was taken on behalf of the petitioner :
[i] 2000 ALL MR (CRI)-0-578
[Umar Mohammed Malbari
Vs.
K.P. Gaikwad]
9. We have considered the material as available before the externing authority and also available before the Appellate Authority. It is a factual position that the first case has already ended in acquittal and the case is of the year 2009. Other two cases are rather of personal nature and mainly, so far as the third argument is concerned, in our considered view considering the sphere of operation alleged against the petitioner as nearby area of Deonar Police Station, Mumbai, it was not just and proper for the externing authority to extern him from the area 4 / 5 ::: Downloaded on - 09/06/2013 19:45:18 ::: 5 wp.2235-12.doc of wide range covering more than 100 kms.
10. In the result, we are of the view that there is a substance in the arguments advanced on behalf of the petitioner and consequently the present Writ Petition must succeed requiring setting aside impugned externment order and consequently setting aside the order of the appellate authority. Both these orders are set aside and present Writ Petition is allowed. Rule is made absolute.
(A. R. JOSHI, J.)
ig (P.V. HARDAS, J.)
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