Bombay High Court
Ravikant Macchindra Virkar vs The State Of Maharashtra And Ors on 17 September, 2021
Equivalent citations: AIRONLINE 2021 BOM 3700
Author: N.J. Jamadar
Bench: S. S. Shinde, N.J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 6429 OF 2019
Mr. Ravikant Machhindra Virkar
Age-33 Years, Occ : Business,
R/o. Room No. 3, RBI Colony,
New Dharavikar Nivas, Bhandup
Gaon, Bhandup (E), Mumbai-400042. .... Petitioner
Versus
1. The State of Maharashtra
Through Secretary of Home
Department, Mantralaya,
Maharashtra State, Mumbai.
(Copy to be served A.P.P. offce,
High Court, Bombay)
2. The Divisional Commissioner,
Konkan Division, Mumbai.
3. The Deputy Commissioner of Police,
Zone-VII, Mulund, Mumbai.
4. The Senior Police Inspector,
Kanjurmarg Police Station,
Mumbai-400701. ....Respondents
****
Mr. Rajaram V. Bansode for petitioner.
Mr. K.V. Saste, APP for State.
****
CORAM : S. S. SHINDE &
N.J. JAMADAR, JJ.
Reserved for Judgment on : 6th September 2021.
Judgment pronounced on : 17th September 2021.
Shraddha Talekar PS
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JUDGMENT :(PER : N.J. JAMADAR)
1. Rule. Rule made returnable forthwith and with the consent of the learned counsels for the parties, heard fnally.
2. The petitioner, who has been externed from the limits of Mumbai City, Mumbai Sub-urban and Thane District for a period of 18 months by order dated 22 nd March 2019, passed by the Deputy Commissioner of Police, Zone VII, Mulund, Mumbai, has preferred this petition under Article 226 of the Constitution of India taking exception to the said externment order and the order dated 19th August 2019 passed by the Divisional Commissioner, Konkan Division, Mumbai in Appeal No.59/2019, whereby the detention order was affrmed.
3. The background facts necessary for determination of this petition can be stated as under :
(a) A proceeding to extern the petitioner from the limits of Mumbai City, Mumbai Sub-urban and Thane District was initiated against the petitioner at the instance of Kanjurmarg Police Station. A show-cause notice under section 59 of the Maharashtra Police Act, 1951 ('the Act, 1951') was served upon the petitioner. It was alleged that the movements or acts of the petitioner Shraddha Talekar PS ::: Uploaded on - 17/09/2021 ::: Downloaded on - 18/09/2021 04:53:28 ::: 3/13 CRI-WP-6429-2021-J.doc were causing or calculated to cause alarm, danger or harm to person or property in the vicinity of area within the local limits of the jurisdiction of Kanjurmarg Police Station. In all, nine cases were registered against the petitioner since the year 2009. A proceeding under Chapter VII of the Code of Criminal Procedure, 1973 was also initiated against the petitioner in the year 2009 but to no avail.
(b) In the recent past, the petitioner had indulged in the offences punishable under Chapters XVI and XVII of the Indian Penal Code, 1860 ('the Penal Code') being C.R. No.148/2018 for the offences punishable under section 354(D) and 506 of the Penal Code and C.R. No.143/2018 for the offences punishable under sections 324, 323 read with section 34. On account of the reign of terror created by the petitioner, victims and witnesses were not coming forward to give evidence in public against the petitioner for the fear of reprisal. Thus, statements of two witnesses were recorded in-camera. The particulars of the offence and gist of the confdential statements were furnished to the Shraddha Talekar PS ::: Uploaded on - 17/09/2021 ::: Downloaded on - 18/09/2021 04:53:28 ::: 4/13 CRI-WP-6429-2021-J.doc petitioner in the said show-cause notice. The petitioner participated in the enquiry conducted by the Deputy Commissioner of Police, Zone VII, Mumbai. Post completion of enquiry, the Externing Authority recorded a satisfaction that in order to prevent the petitioner from indulging in activities causing or calculated to cause harm, danger or alarm to person or property and commission of the offences involving force or violence or offences punishable under Chapters XVI and XVII of the Penal Code, it was necessary to extern the petitioner from the limits of Mumbai City, Mumbai Sub-urban and Thane District for a period of 18 months. Thus, the Deputy Commissioner passed the externment order dated 22nd March 2019.
(c) Being aggrieved, the petitioner preferred appeal under section 60 of the Act, 1951 before the Divisional Commissioner, Konkan Division, Mumbai, being Appeal No.59/2019. By the impugned order dated 19 th August 2019, the Divisional Commissioner was persuaded to dismiss the appeal opining, inter-alia, that the order passed by the Deputy Commissioner of Police, Zone VII, Shraddha Talekar PS ::: Uploaded on - 17/09/2021 ::: Downloaded on - 18/09/2021 04:53:28 ::: 5/13 CRI-WP-6429-2021-J.doc was justifable and did not warrant any interference.
(d) Being further aggrieved and dissatisfed, the petitioner has invoked writ jurisdiction of this Court.
4. We have heard Mr. Rararam Bansode, the learned counsel for the petitioner and Mr.K.V. Saste, the learned APP for the State at length. With the assistance of the learned counsels for the parties, we have perused the material on record including the original record of the externment proceedings tendered by the learned APP for the perusal of the Court.
5. Mr. Bansode, the learned counsel for the petitioner urged that the Externing Authority has committed a manifest error in passing the externment order on the basis of old and stale cases. There is no nexus much less a live link between the cases referred to and relied upon in the externment order and the object sought to be achieved by the externment. The Appellate Authority also fell in error in not correcting this manifest error in the order of the Externing Authority. Taking the Court through the narration of the facts in C.R. Nos.148/2018 and 143/2018, two recent cases relied upon by the Externing Authority, Mr. Bansode urged with a degree of vehemence that those two cases were registered against the Shraddha Talekar PS ::: Uploaded on - 17/09/2021 ::: Downloaded on - 18/09/2021 04:53:28 ::: 6/13 CRI-WP-6429-2021-J.doc petitioner within a span of a week and the externment proceeding was initiated arbitrarily. It was further submitted that the confdential statements relied upon by the Externing Authority are not worthy of consideration as the authorities did not record a satisfaction about the genuineness and truthfulness of the incidents narrated therein.
6. Per contra, Mr. Saste, the learned APP stoutly supported the impugned order. Mr. Saste would submit that the acts and conduct attributed to the petitioner squarely fall within the ambit of the mischief sought to be addressed by clauses (a) and (b) of section 56(1) of the Act, 1951. There are clear and categorical assertions that the petitioner indulged in bodily offences and extorted money from the unsuspecting hapless victims by wielding dangerous weapons. In the circumstances, according to Mr.Saste, the authorities were justifed in resorting to the provisions contained in section 56 of the Act, 1951. In any event, according to Mr. Saste, in exercise of extraordinary writ jurisdiction, this Court may not be justifed in inquiring into the suffciency of the material on the basis of which substantive satisfaction has been arrived at by the Externing Authority.
7. To begin with, it may be apposite to note the cases which Shraddha Talekar PS ::: Uploaded on - 17/09/2021 ::: Downloaded on - 18/09/2021 04:53:28 ::: 7/13 CRI-WP-6429-2021-J.doc were considered by the Externing Authority. It was noted that the petitioner had been indulged in offences since the year 2009 and three cognizable and three non-cognizable cases falling within Chapters XVI and XVII of the Penal Code were registered against the petitioner.
8. The cognizable offences registered against the petitioner are as under :
Sr. Police Station Crimes registered Current Status No. 1 Kanjurmarg C.R.No.148/18 under Under investigation Section 354(D), 506 of Indian Penal Code 2 Kanjurmarg C.R.No.143/18 under Under investigation Section 324, 323, 34 of Indian Penal Code 3 Kanjurmarg C.R.No. 09/09 under Acquitted in view of Section 354, 323, 34 settlement arrived at of Indian Penal Code between the accused and complainant before the Metropolitan Magistrate, 53rd Court, Mulund, Mumbai in Crime Case No. 206/PS/09 dated 03/01/2014.
9. The non-cognizable offences registered against the petitioner are as under :
Sr. Police Station Crimes registered Current Status No. Shraddha Talekar PS ::: Uploaded on - 17/09/2021 ::: Downloaded on - 18/09/2021 04:53:28 ::: 8/13 CRI-WP-6429-2021-J.doc 1 Kanjurmarg N.C.R.No.376/17 Given understanding under Sections 323, to maintain peace as 504 of Indian Penal per section 149 of Code Criminal Procedure Code 2 Kanjurmarg N.C.R.No.397/16 Given understanding under section 504 of to maintain peace. Indian Penal Code 3 Kanjurmarg N.C.R.No. 1067/15 Given understanding under Sections 323, to maintain peace.
504, 506 of Indian Penal Code
10. In addition to the aforesaid cases, it was further recorded that the proceedings under section 107 of the Code of Criminal Procedure, 1973 were initiated against the petitioner and he was made to execute the bond on 5 th March 2009. Despite the execution of the said bond, two cognizable and 3 non-cognizable cases (extracted above) were registered against the petitioner.
11. In the backdrop of the aforesaid material, as regards the offences registered against the petitioner, the submission on behalf of the petitioner that the Externing Authority has taken into account old cases cannot be said to be unfounded. The frst of the three cognizable cases, i.e. C.R.No. 9/2009 was registered against the petitioner in the year 2009. Eventually, the petitioner came to be acquitted of the offences punishable under sections 354 and 323 read with 34 of the Penal Code in view of the settlement Shraddha Talekar PS ::: Uploaded on - 17/09/2021 ::: Downloaded on - 18/09/2021 04:53:28 ::: 9/13 CRI-WP-6429-2021-J.doc arrived at between the petitioner and the frst informant therein, by the order dated 3rd January 2014. The last of the three non- cognizable cases registered against the petitioner was in the year 2017.
12. It is trite that there should a live link between the prejudicial activities attributed to the externee and the externment order. The reason is not far to seek. The externment order is in a sense a conclusion arrived at by the Competent Authority on the basis of the prognosis of the behavior of the externee, based on the conduct in the immediate past, which bears upon the future course of action. If a considerable time has elapsed between the acts attributed to the externee and the externment order, the live link gets snapped.
13. From the narration of the facts in C.R. No.148/2018, it appears that the said crime was registered by the frst informant, whose husband has lodged report leading to NC case No. 397/2016 on 12th April 2016. It was alleged that the petitioner was pestering the frst informant by making calls on her mobile phone at odd hours and from different numbers.
14. The narration of facts in C.R. No.143/2018, which was registered on 1st October 2018, reveals that an altercation occurred Shraddha Talekar PS ::: Uploaded on - 17/09/2021 ::: Downloaded on - 18/09/2021 04:53:28 ::: 10/13 CRI-WP-6429-2021-J.doc among the members of two Ganesh Mandals. The petitioner allegedly assaulted the frst informant therein under the infuence of intoxicant and the associate of the petitioner gave a blow by means of beer bottle on the head of the frst informant. The narration of the facts in the aforesaid two recent alleged offences registered against the petitioner, even if construed rather generously, would indicate that the offences arose out of peculiar facts and are individualistic in nature.
15. What erodes the validity of the impugned order is the fact that the Externing Authority referred to and relied upon C.R.No. 9/2009 registered against the petitioner. In the said case, the petitioner was acquitted albeit pursuant to the settlement arrived at between the petitioner and frst informant therein. Yet, the Externing Authority expressly based the externment order on the aforesaid three cognizable cases and three non-cognizable cases. Evidently, the case arising out of C.R.No. 9/2009 (in which the petitioner was acquitted) and three non-cognizable cases (the last of which registered in the year 2017) weighed with the Externing Authority. C.R. No. 9/2009 could not have been taken into account for two reasons. One, it was too stale to be taken note of. Two, the petitioner was acquitted in the prosecution arising out of the said Shraddha Talekar PS ::: Uploaded on - 17/09/2021 ::: Downloaded on - 18/09/2021 04:53:28 ::: 11/13 CRI-WP-6429-2021-J.doc C.R. All three non-cognizable cases i.e. C.R. Nos.1087/2015, 397/2016 and 376/2017 were also too old and stale to bear upon probable prognosis of the future conduct of the petitioner. In our view, the impugned order thus suffers from infrmity of taking into consideration the material which did not deserve to be considered.
16. Mr.Saste attempted to salvage the position by banking upon the confdential statements of witnesses 'A' and 'B'. The witnesses have deposed to the incidents which allegedly occurred on 9 th October 2018 and 12th October 2018. The petitioner and his associates allegedly threatened the witnesses on the point of weapons and extorted money, by putting the witnesses under fear of threat to life.
17. The endeavour on the part of Mr. Saste, the learned APP to sustain the impugned externment order on the basis of the confdential statements of witnesses does not merit countenance. The Externing Authority has not at all adverted to the fact that either the Externing Authority or any other Competent Offcer has verifed the genuineness and truthfulness of the incidents deposed to by the witnesses whose statements were recorded in-camera. The externment order is conspicuously silent about the verifcation of genuineness and truthfulness of the contents of the statements Shraddha Talekar PS ::: Uploaded on - 17/09/2021 ::: Downloaded on - 18/09/2021 04:53:28 ::: 12/13 CRI-WP-6429-2021-J.doc of confdential witnesses. There is a bald assertion that the Externing Authority was satisfed that on account of the terror created by the petitioner, the victims were not willing to come forward to give evidence against the petitioner. However, in the absence of proper verifcation of the veracity of the claims of the confdential witnesses, it would be rather hazardous to sustain the externment order which impinges on the fundamental right of the petitioner to move freely and reside at the place of his abode on the strength of such statements recorded in-camera.
18. The conspectus of aforesaid consideration is that the subjective satisfaction recorded by the Externing Authority is vitiated. The Appellate Authority also committed a mistake in not correcting the error which the Externing Authority had fallen into. Resultantly, the petition deserves to be allowed.
19. Hence, the following order :
ORDER
(a) The petition stands allowed.
(b) The impugned order dated 19th August 2019 passed by The Divisional Commissioner, Konkan Division, Mumbai-
respondent No.2 in Appeal No.59/2019; and the Externment Order dated 22nd March 2019 passed by the Deputy Shraddha Talekar PS ::: Uploaded on - 17/09/2021 ::: Downloaded on - 18/09/2021 04:53:28 ::: 13/13 CRI-WP-6429-2021-J.doc Commissioner of Police, Zone-VII, Mumbai-respondent No.3 stand quashed and set aside.
Rule made absolute in the aforesaid terms.
[ N.J. JAMADAR, J. ] [ S.S. SHINDE, J.]
Shraddha Talekar PS
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