Bombay High Court
Vicky Balasaheb Jhaveri vs The State Of Maharashtra on 19 October, 2013
Author: G.S. Patel
Bench: S.C. Dharmadhikari, G.S. Patel
CRWP2818-13
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2818 OF 2013
Vicky Balasaheb Jhaveri
Age 30 years, Residing at
Bhavani Peth, Barshi, Solapur,
District : Solapur
At present R/at : Ashok Munjal
Chawl, Moroligaon, Ambarnath,
District : Thane ...Petitioner
Versus
1) The State of Maharashtra,
Through the Secretary (Special),
Home Department,
Government of Maharashtra,
Mantralaya, Mumbai.
2) The Sub-Divisional Officer,
Solapur Division, Solapur.
3) The Police Inspector,
Barshi City Police Station,
Barshi, District : Solapur. ...Respondents
Mr. Ashish Gaikwad for the petitioner.
Mr. K.V. Saste, APP for the State.
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CRWP2818-13
CORAM : S.C. Dharmadhikari, &
G.S. Patel, JJ.
DATE : 19th October 2013
JUDGMENT:(Per G.S. Patel, J.)
1. Rule. Mr. K.V. Saste, learned APP, waives service on behalf of the Respondents. By consent, Rule made returnable forthwith and petition taken up for final hearing and final disposal.
2. The Petitioner challenges an Externment Order dated 17th April 2013 and an Appellate Order therefrom, dated 4th July 2013, by which the Petitioner has been externed from the District of Solapur, Pune and Osmanabad for a period of two years. The Externment Order is purportedly passed under Section 56(1)(a) of the Bombay Police Act, 1951.
3. We have heard Mr. Gaikwad, learned Advocate for the Petitioner and Mr. Saste, learned APP, and carefully considered the Petition and its annexures, including the two impugned orders. The Externment Order is based on four previous cases registered against the Petitioner between the years 2009 and 2012. There is also a reference in the externment order to two proceedings under Chapter VIII of the Code of Criminal Procedure, 1973. In addition, the externing authorities have relied on two in-camera witness statements.
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4. We find that both the Externing Authority and the Appellate Authority have completely failed to apply their minds to the factual position. In his reply to the show-cause notice that preceded the Externment Order, as also in proceedings before the Appellate Authority, the Petitioner pointed out that he has been acquitted in at least one of the criminal cases referred to in the show cause notice and the externment order. The manner in which the Appellate Authority has dealt with this is wholly unsatisfactory. He has, despite this acquittal, chosen to place reliance on that criminal complaint saying that the acquittal is because "the witnesses have turned hostile". In our view, the reason for the acquittal is irrelevant to these externment proceedings, and it is certainly not open to the externing authorities to attempt such an assessment of that judicial order. Once the Petitioner was acquitted, that criminal complaint could not have been relied upon in support of the externment. We also note that neither in the Externment Order nor in the Appellate Order is there any material to show how the Petitioner's alleged previous criminal activities of 2009 to 2012 have any bearing or live link with the proposed externment.1 Further, the reliance on proceedings under Chapter VIII of the Code of Criminal Procedure, 1973 is wholly misplaced. We have repeatedly held that these proceedings have nothing to do with the provisions of the Bombay Police Act, 1951.2 1 Dattatraya Ramchandra Jadhav v The State of Maharashtra, Cri WP No.1666 of 2013, decided on 21st August 2013; Karan Ramesh Ghuge v Dy Commissioner of Police, Cri WP No 1305 of 2013, decided on 4th July 2013.
2Namdeo Zipa Desale v M.V. Chitale, 1987 (3) Bom. C.R. 370; Zahoor Ismail Fakie v The State of Maharashtra, Cr WP No.2382 of 2013, decided on 23rd August 2013.
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5. The reliance on the in-camera witness statements is equally misplaced. Apart from the fact that these statements are vague and only in generalities, they have no bearing whatsoever in proceedings under Section 56(1)(a) of the Bombay Police Act, 1951. At best, they could have been relied upon if the externment was sought to be made under Section 56(1)(b). This is not the case. We also find that the Appellate Authority has, and not for the first time, used the same stereotyped phrases while dealing with these in-camera statements in sub-para 5(e) of the Appellate Order. The Appellant Authority has also, yet again, purported to approve the Externment Order on the ground that the externment proceedings were taken "to maintain the peace in the said area". This is yet another consideration that is wholly extraneous to the externment proceedings under the Bombay Police Act, 1951. 3
6. It cannot be disputed that the cases against the Petitioner were registered only in Solapur. Yet, the Externment Order purports to extern the Petitioner from the limits of Solapur, Pune and Osmanabad. While it is true that the territorial extent of externment is a matter best left to the Externment Authority, and, too, that his externment is not necessarily to be restricted to the local area in which he is said to operate,4 yet it is also well settled that Order cannot be irrational or unreasonable.5 The order of externment 3 Shri Kishore Baliram Balu v Deputy Commissioner of Police & Ors., Cr WP No. 2829 of 2013, decided on 1st October 2013; Imran Jaffer Shaikh v State of Maharashtra, Cri. WP No.3035 of 2013, decided on 24th September 2013.
4Pandharinath Shridhar Rangnekar v Dy Commissioner of Police, (1973) 1 SCC 372 5 Balu Shivling Dombe v. The Divisional Magistrate, Pandharpur, 71 Bom LR 79 4 of 5 ::: Downloaded on - 27/11/2013 20:27:59 ::: CRWP2818-13 cannot be excessive, i.e., it cannot be more than the situation demands. To merely say, as the Appellate Authority does in this and in a very large number of other cases, that "the availability of fast moving means of transport justify the action of externment" is, to our mind, entirely incorrect and displays a complete non-application of mind.
7. Neither order can be sustained. The Petition must, therefore, succeed. Rule is absolute in terms of prayer clause (a). There will be no order as to costs.
(G.S. Patel, J.) (S.C. Dharmadhikari, J.)
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