Bombay High Court
Ganesh Sudam Jadhav vs The State Of Maharashtra And Ors on 17 December, 2024
HEMANT
2024:BHC-AS:50016
CHANDERSEN
SHIV Jyoti 13-WP-2641-24.doc
Digitally signed by
HEMANT IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CHANDERSEN SHIV
Date: 2024.12.19
CRIMINAL APPELLATE JURISDICTION
19:48:11 +0300
CRIMINAL WRIT PETITION NO. 2641 OF 2024
Mr. Ganesh Sudam Jadhav
Aged : 35 years, Occ. Service
Residing at :-Anandnagar Zopadpatti,
Infront of Bhuddha Vihar,
N.G.Acharya Marg, Chembur
Mumbai-400 071. .... Petitioner
v/s.
1. The State of Maharashtra
2. Kokan Bhavan Commissioner, Mumbai
3. DCP Zone VI, Chembur, Mumbai ..... Respondents
Mr. Keshav S. Chavan i/b. Mr.Ankush Dhokale, Advocate
for the Petitioner.
Ms. R.V. Newton, APP for the Respondents.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 11th DECEMBER, 2024.
PRONOUNCED ON : 17th DECEMBER, 2024.
JUDGMENT :-
. Instant Petition impugned the Order dated 11 th January 2024, passed by the Respondent No.3 thereby the Petitioner has been externed from the limits of Mumbai City, Mumbai Suburbans and Thane for a period of 18 months and the Order dated 12 th April, 2024 thereby Externment Appeal No.24 of 2024 filed by the Petitioner 1/15 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 19/12/2024 23:37:29 ::: Jyoti 13-WP-2641-24.doc assailing the Order of Externment has been dismissed by Respondent No.2.
1.1) Petition is opposed by the Respondents with an Affidavit of Navnath Dhavale, Deputy Commissioner of Police, Zone-VI, Mumbai.
2) Heard.
3) Rule. Rule is made returnable forthwith. Heard finally with the consent of the learned Advocate and the learned APP.
4) Facts in brief are that, in view of certain cognizable and non-cognizable crimes registered against Petitioner and in-camera statement of two confidential witnesses 'A' and 'B', the Senior Police Inspector of Gowandi Police Station, found that in certain areas the Petitioner has committed serious offences of causing grievous hurt, causing hurt by means of dangerous weapon in furtherance of the common intention with his associates, threatening, intentional insult to provoke breach of peace, damage to property, which offences have been covered by Section 56 (1) (a) (b) of the Maharashtra Police Act of 1951 ('the Act', for short). Therefore, the Sr. Inspector sent a proposal on 9th November 2023 and thereby requested for externment of the Petitioner. In turn, the Respondent No.3 sent that proposal for inquiry by the Assistant Commissioner of Police, Chembur Division 2/15 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 19/12/2024 23:37:29 ::: Jyoti 13-WP-2641-24.doc ('the ACP", for short) along with a notice dated 23 rd November 2023 thereby calling upon the Petitioner to show cause as to why he should not be externed as proposed. The Petitioner attended before the ACP on 28th November, when his preliminary statement came to be recorded. On 11th December, 2023 the Petitioner submitted his written reply to the notice, enclosing supporting documents and denied the allegation, but he did not produce any witness of his defence. On appraisal of material, the ACP found that a case is made out to extern the Petitioner. Hence, on 12 th December 2023, the ACP returned the said proposal to the Respondent No.3 along with his advice to extern the Petitioner for a period of two years. As a result, the Respondent No.3 issued a letter for hearing. In response, Petitioner attended before the Respondent No.3 and he was heard. Thereafter, Respondent No.3 evaluated the material before him and considered the submissions of the Petitioner. Finally, Respondent No.3 concurred with the advice of the ACP and passed the impugned Order of Externment dated 11th January, 2024. In this regard the Respondent No.3 has considered the following cognizable and non- cognizable offences registered against the Petitioner, preventive actions taken against him and the in-camera statement of two confidential witnesses.
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Cognizable Offences :-
Sr. Police Crime Regn. Nos. Date of Court Case
Status
N0. Station and Sections Regn. No.
1 Chembur 560/2007, Sec. 324, 34 23/12/2007 679/pw/2008, Acquitted
IPC r/w. 37 (1) (a), 135 dt.17/05/2008
Maharashtra Police Act
2 Chembur 55/2008, Sec.326, 34 9/2/2008 1816/PW/2008 Subjudice
IPC,
3 253/2012, Sec.324,323, 28/11/2012 767/PW/2013 Subjudice
Gowandi 504, 427, 34, IPC dt.02/05/2013
4 152/2020, Sec.326, 19/7/2020 871/PW/2021 Subjudice
Gowandi 323, 504, 34 IPC dt.09/04/2021
5 351/2023, Sec.324, 11/9/2023 Under
Gowandi 323, 504, 506,34 IPC Investigation
Non-Cognizable Offences :-
Sr.No. Police Station N.C.Regn. No. Sections
1 Gowandi 563/2016 IPC Section 506
2 Gowandi 175/2017 IPC Sections 504, 506
3 Gowandi 901/2017 IPC Section 506
4 Gowandi 931/2018 IPC Sections 504, 506
5 Gowandi 941/2018 IPC Section 504
Details of Preventive actions :-
Sr. Police Chapter Case Section Information
No. Station No.
1 Gowandi 13/2012 Section 110 Not available on record
of Cr.P.C.
2 Gowandi 04/2019 Section 107 Bond of Rs.5000/- was
of Cr.P.C. taken for one year from
14/1/19 to 13/01/20
3 Gowandi 33/2021 Section 110 Bond of Rs.50,000/- was
of Cr.P.C. taken for one year from
11/6/21 to 10/06/24
4 Gowandi 16/2023 Section 122 of Deposited the forfeited bond
Cr.P.C. amount of Rs.20,000/-
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5) Witness-A revealed that in the last week of August, at about
10:15 p.m., when he was returning home driving his auto rickshaw, one person stopped his auto rickshaw. When the witness objected to that, said person called the Petitioner there and then the Petitioner and his friends assaulted the witness and robbed his money. Then Petitioner showed a knife and threatened the people gathered there to go away. Further, the Petitioner threatened the witness not to complain to police otherwise he would kill him. Therefore, the witness got frightened and did not lodged a report with the police.
5.1) The witness-B revealed that one day in the first week of July 2023, at about 10.45 p.m., at Anandnagar, the Petitioner asked the witness-B to give him a party. When the witness told him that he has no wallet, the Petitioner assaulted him with a stick and hurled a stone towards the public gathered there. Then the Petitioner gave a kick on the waist of the witness and said him to go away. However, the witness did not complain to the Police due to fear of the Petitioner.
6) The Petitioner filed the Externment Appeal and assailed the Order of Externement. After hearing, the Respondent No.2 recorded that the subjective satisfaction for the externment arrived at on the basis of the objective material is justifiable, thus, he upheld the Order of Externment and dismissed the Appeal. Hence, this Petition. 5/15 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 19/12/2024 23:37:29 :::
Jyoti 13-WP-2641-24.doc 7) I have heard Mr. Chavan, learned Advocate for the
Petitioner and Ms. Newton, learned A.P.P. for the Respondents. Perused the record.
8) Mr. Chavan, the learned Advocate for the Petitioner submits that the Petitioner was acquitted in the crime at Sr. No.1. There was no live-link between the crimes at Sr. Nos.2 to 4 inter se and the impugned order of Externment. He submits that, grant of bail to an accused in certain crime depends upon various factors e.g., seriousness of crime, criminal antecedents etc. In this case the Petitioner was on bail in all the crimes, which liberty he never misused. He submits that, the in-camera statements of the confidential witnesses were disputed by the Petitioner. However, neither the said statement were verified by the ACP nor the same have been discussed in the Order of Externment. He submits that, on the basis of the last crime which could have at the most been taken into consideration, was under investigation. Therefore, said last crime can not be taken aid of to pass the Order of Externmet. In the backdrop Mr. Chavan, the learned Advocate submits that the subjective satisfaction arrived at to pass the Order of Externment was based on wholly irrelevant and extraneous material, thus, the same is suffering from non-application of mind. Mr. Chavan submits that, the last crime was registered in Gowandi Police Station, however, the petitioner has been directed to remove himself out of the Districts of Mumbai, Mumbai 6/15 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 19/12/2024 23:37:29 ::: Jyoti 13-WP-2641-24.doc Suburbans and Thane for a period of 18 months. According to him, the record did not indicate adequate and tangible material to direct so nor the Order of Externment recorded any justifiable reason for the same. Therefore, the Order of Externment has adversely affected the Petitioner's fundamental right and his family, thus, said Order is excessive as well as unreasonable. However, Respondent No.2 upheld the externment. Therefore, Mr. Chavan, the learned Advocate submits that both the impugned Orders are illegal.
9) Ms. Newton, learned APP for the State, on the other hand, submits that the impugned Orders are well-reasoned. Every material relating to the criminal activities of the Petitioner has been considered by the authorities concerned. Said exercise clearly indicates the subjective satisfaction of the said authorities as well as the application of the mind. She submits that, considering the facts and circumstances of the case, it was necessary to extern the Petitioner from the limits of several Districts for the period of 18 months. She, therefore, urged to dismiss the Petition.
10) I have carefully considered the show cause notice and the material relied upon in support of the show cause notice, which ultimately led the Respondent No.3 to record his subjective satisfaction and to pass the Order of Externment. I have also scrutinized the impugned Orders in the light of rival submissions.
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Jyoti 13-WP-2641-24.doc 11) The Petitioner was ordered to be externed by invoking the
provisions contained in Section 56 (1) (a) and (b) of the Act. The Order of Externment, therefore, must be strictly within the bounds of the statutory provisions. Under clause (a) of sub-Section (1) of Section 56, the externing authority must be satisfied on the basis of the objective material that the movements or acts of the person to be externed are causing or calculated to cause alarm, danger or harm to person or property. Under clause (b) of sub-Section (1) of Section 56, there must be an objective material on the strength of which the externing authority must record subjective satisfaction that there are reasonable grounds for believing that the externee is engaged or about to be engaged in the commission of offences involving force or violence. Mere registration of number of offences by itself does not sustain an externment under Section 56 (1) (b) of the Act. The offences must either involve elements of force or involve or fall under Chapters XII, XVI, and XVII of the Indian Penal Code. In addition, the externing authority must record satisfaction that the witnesses are not willing to come forward to give evidence in public against the externee by reason of apprehension on their part as regards the safety of their person or property.
12) Before adverting to the merits of the arguments, it would be necessary to consider the law enunciated in the case of Deepak s/o Laxman Dongre v/s. State of Maharashtra and Ors.1. In this case the
1. 2022 ALL.M.R.(Cri.) 761 (S.C.).
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Jyoti 13-WP-2641-24.doc Hon'ble Supreme Court has considered the decision in the case of Pandharinath Shridhar Rangnekar v/s. Dy. Commissioner of Police, State of Maharashtra2. On consideration of that decision, it is held that the reasons which necessitate or justify passing of an extraordinary order of externment arise out of extraordinary circumstances. Therefore, strict compliance of Section 59 of the Act of 1951 is required to be made. It is further held that the order of externment deprives the citizen of his fundamental right of free movement throughout the territory of India. The order of externment in fact prevents the person even from staying in his own house along with his family members during subsistence of the externment order. It is, therefore, held that the subjective satisfaction must be arrived at on the basis of the objective material.
13) Now turning to the facts of the case in hand. As noted above, in all 5 cognizable offences have been considered against the Petitioner. The crimes at Sr.No.1 was not at all available for consideration as the Petitioner was acquitted in that crime. Secondly, the crimes at Serial Nos.1 to 4 were registered in the year 2007, 2008, 2012 and 2020 respectively. The non-cognizable offences were registered between 2016-2018. However, immediately thereafter, no action for the externment was initiated. Thus, there was no live-link between the crimes at Sr. Nos.1 to 4, the non-cognizable offences, the proposal of the externment as well as the Order of Externment which was finally passed
2. (1973) 1 SCC 372.
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Jyoti 13-WP-2641-24.doc on 11th January, 2024. 14) It is undisputed that, an object of externment is not to
punish the externee, but to keep him away from the environment which is helpful for commission of the offences and thereby disarm his influence in the said area. In other words, said object is to prevent the externee from committing further crime, by restraining his movements reasonably of course regard having had to the criminal acts committed by him in the recent past. Therefore, there ought to be a live-link between the acts of the externee and the action of externment. In short, stale cases cannot be taken assistance of to pass an externment order. This has direct relevance to the subjective satisfaction recorded on the basis of the objective material made for basing the Order of Externment.
15) Undisputedly, the crime at Sr.No.5 was still under investigation when the impugned Order of Externment was passed. As held by the learned single Judge of this Court in the decision between Imtiyaz Hussain Sayyad Vs. The State of Maharashtra and Ors. 3, "It is trite, the crimes which are still under investigation cannot be taken into consideration as depending upon the outcome of the investigation, the investigating agency may or may not send the accused for trial".
16) Reference is also needed to the decision by the learned Single Judge of this Court in Sachin s/o. Sanjay Raut v/s. The Divisional
3. AIR Online 2024 BOM 84.
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Jyoti 13-WP-2641-24.doc Commissioner, Amravati Division & Ors.4. In this case in all 8 crimes were considered to direct the externment. The last four crimes were under investigation, therefore, the same were excluded from consideration. The remaining crimes were registered in the year 2018, 2019 and 2020 respectively, two years prior to the issuance of notice. Therefore, the said crimes were held as stale and not sufficient to establish the live link for passing the externment order. To arrive at this conclusion, this Court noted that in order to justify the live link, the serious nature of the crime has been made the bone of contention. The serious nature of the stale crime cannot be made the foundation to establish the live link. The object of externment proceeding is to prevent a person from indulging in such offences repetitively in future, so that, peace and tranquility in the society is maintained. On this Count, no justifiable reason was stated in the externment order. Hence, it is held that, the aforesaid aspect would largely reflect upon the subjective satisfaction asserted in this proceeding by the Respondents and this basic lacuna is sufficient to set aside the externment.
17) According to Mr. Chavan, the learned Advocate for Petitioner, the another ground on which the Order of Externment calls for an interference is that, the said Order is excessive and unreasonable. In this regard I noted that, the crime at Sr. No.2 was registered in Chembur Police Station. The rest crimes at Sr.Nos.1, 3 to 4 and the
4. Cril.WP No.253 OF 2023, (Nag. DD. 10/07/2023).
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Jyoti 13-WP-2641-24.doc non-cognizable offences were registered in Govandi Police Station only. It is not that the Externment Authority was not empowered to extern the Petitioner from adjoining areas of the said two Police Stations. However, as noted above, live-link was missing between the crimes at Sr.Nos. 1 to 4 and the Order of Externment. The crime at serial No.5 was committed against an individual. Yet, the Order of Externment did not record sufficient reasons for which the Petitioner should remove himself for a period of 18 months out of the limits of the three Districts, the total areas of which undoubtedly much larger that the combined jurisdictional area of Chembur and Gowandi Police Stations. In the inquiry before the ACP, the Petitioner had categorically stated that he has a wife, three children and parents in the family and he has been doing labour to earn. But, how the externment would adversely impact on the family members of the Petitioner, was not given even a flimsy concern before Ordering the Petitioner's externment for 18 months. So, undoubtedly the Order of Externment was not only excessive but also unreasonable.
17.1) As held in the case of Deepak Dongre (Supra), an application of mind on the part of the competent authority is required for deciding the duration of the restraint order under Section 56 of the Act. On the basis of objective assessment of the material on record, the authority has to record its subjective satisfaction that the restriction should be 12/15 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 19/12/2024 23:37:29 ::: Jyoti 13-WP-2641-24.doc imposed for a specific period. This principle of law has been ignored in the case in hand. As observed by the learned Single Judge of this Court in Pratik s/o. Prakashrao Kamble v/s. Divisional Commissioner, Amravati and Ors.5., it is not out of place to mention that the Externment Order apart from making inroads on the fundamental right of the movement, makes the said person leave separate from his family members. Similarly, the Externment Order can deprive the said person of his livelihood. Depending upon the financial position, it can make the dependent family members to starve. I am constrained to observe that, on this aspect the Order of Externment is woefully silent.
18) One more important aspect that needs an attention is, the in-camera statements given by the confidential witnesses have been heavily relied upon against the Petitioner. However, as noted by the ACP in the roznama of his inquiry, the Petitioner had contended that the in- camera statements are false and thus, he had challenged the said statements. Nevertheless, neither the ACP nor the Respondent No.3 verified the veracity of said statements during the course of their inquiry. Needless to state that, the said statements were unilateral because the same were recorded by the Assistant Police Inspector and allegedly verified by the Sr. Police Inspector, both from Gowandi Police Station and surprisingly, the latter officer only proposed for the externment of the Petitioner. Secondly, the incriminating material
5. 2023 (3) Mh.L.J. (Cri.) 284.
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Jyoti 13-WP-2641-24.doc revealed from the in-camera statements was not discussed in the Order of Externment, even though the same were disputed from the end of the Petitioner, since beginning of the inquiry by the ACP. However, the Respondent No.3 relied upon the in-camera statements to pass the Order of Externment. This is not permissible in law or say contrary to the law. In this context is it necessary to refer the decision between Harikesh @ Guddu Madan Kattilwar v/s. Deputy Police Commissioner, Amravati6, wherein the verification of the in-camera statements by the ACP concerned, was cryptic, and hence, the verification created doubt in the mind of the Court. The externment authority did not personally verified the said statements. However, the statements of the confidential witnesses were made a part of record to pass the externment order. Therefore, it is held as a ground to cause serious dent to the subjective satisfaction recorded in the externment order. This decision is clearly applicable to the case in hand.
19) Conspectus of the aforesaid discussion is that, four stale crimes were considered to arrive at the subjective satisfaction for passing the 'Order of Externment' notwithstanding there was no live- link between the said crimes and the Order of Externmet. In one of the crimes the Petitioner was acquitted. The in-camera statements were considered without verification of its veracity either by the ACP
6. 2023(1)ABR (CRI) 914 14/15 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 19/12/2024 23:37:29 ::: Jyoti 13-WP-2641-24.doc or the Respondent No.3. This all indicates that, the subjective satisfaction recorded to pass the Order of Externment, was not of the standard required in law. The Order of Externment was excessive and unreasonable. The incriminating material in the in-camera statement was not discussed in the Order of Externment. This deprived the Petitioner an opportunity of explaining the said incriminating material and raising an appropriate ground in the Appeal before the Respondent No.2. Thus, the impugned Order of Externment was lacking an application of mind. However, the Respondent No.2 upheld the said Order. This is not only erroneous but also illegal. As a result, both the impugned Orders are not sustainable in law and liable to be quashed and set aside. The Petition succeeds, thus. Hence, following Order:-
ORDER
(a) Writ Petition 2641 of 2024 is allowed.
(b) The impugned Order of Externment dated 11 th
January, 2024 passed by Respondent No.3 and the
impugned Order dated 12th April, 2024 passed by
Respondent No.2 in Externment Appeal No.24 of
2024, are quashed and set aside.
20) Petition stands disposed of in above terms. Rule is made
absolute.
(SHYAM C. CHANDAK, J.)
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