Bombay High Court
Mahendra Purachand Suvarna@Soni vs State Of Maharashtra And Anr on 27 February, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-AS:9548
wpst 20294 of 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (ST) NO.20294 OF 2023
Mahendra Puranchand Suvarna @ Soni ... Petitioner
versus
The State of Maharashtra and Ors. ... Respondents
Mr. Hafeezur Rahman, for Petitioner.
Mrs. Geeta P. Mulekar, APP for State.
CORAM: N.J.JAMADAR, J.
DATE : 27 FEBRUARY 2024
P.C.
1. Heard the learned Counsel for the parties.
2. Rule. Rule made returnable forthwith. With the consent of the parties,
heard finally.
3. The Petitioner assails the legality, propriety and correctness of an order
dated 14 September 2023 passed by the Divisional Commissioner, Konkan Division in
Appeal No.90 of 2023, whereby the appeal preferred by the Petitioner under Section
60 of the Maharashtra Police Act, 1951 (the Act, 1951) came to be partly allowed only
to the extent of reducing the period of externment of the Petitioner from 2 years to 18
months, and thereby confirming the externment order passed by the Deputy
Commissioner of Police, Zone - 5, Wagle Estate, Thane under Sections 56(1)(a)(b) of
the Act, 1951 to extern the Petitioner from Mumbai City, Mumbai Suburban, Raigad,
Palghar and Thane Districts.
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4. Shorn of superfluities, the background facts necessary for determination
of this Petition can be stated as under :
4.1 A notice was served on the Petitioner under Section 59 of the Act,
calling upon the Petitioner to show cause why action should not be taken against the
Petitioner under Section 56(1)(a) and (b) of the Act as the Petitioner had been engaged
in the commission of the offences punishable under Chapters XVI and XVII of the
Indian Penal Code, 1860 (the Penal Code) and the movements and acts of the
petitioner were causing or calculated to cause alarm, danger or harm to person or
property and the witnesses were not willing to come forward to give evidence in public
against the Petitioner fearing safety of their person or property.
4.2 In the show cause notice, the competent officer had arrayed seven crimes
registered against the Petitioner with Vartak Nagar, Wagle Estate and Kalwa Police
Stations during the period 2018 to 2023 for the offences punishable under Chapters
XVI and XVII of the Code. The Petitioner was allegedly indulging in extortion by
threatening persons to lodge complaints against them with the authorities and upon
refusal to pay extortion amount, the Petitioner resorted to force or violence.
4.3 In addition, the competent authority relied upon two statements of
confidential witnesses, who allegedly stated about the acts of extortion indulged in by
the Petitioner and the acts and conduct of the Petitioner which were calculated to
cause alarm, danger and harm to the persons, and dissuade them from giving evidence
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against the Petitioner in public.
4.4 The Petitioner filed a reply. The externment authority conducted an
inquiry. The externment authority after appraisal of the material on record, arrived at
a subjective satisfaction that the Petitioner had been indulged in the offences
punishable under Chapter XVI and XVII of the Code and the acts and conduct of the
Petitioner were causing harm, danger or alarm to the persons and property and,
therefore, it was necessary to extern the Petitioner from the limits of Mumbai City,
Mumbai Suburban, Raigad, Palghar and Thane Districts for a period of two years.
Thus, the externment order dated 15 June 2023 was passed directing the Petitioner to
remove himself within a period of three days.
4.5 The Petitioner assailed the said order by preferring an appeal before the
Divisional Commissioner. By the impugned order dated 14 September 2023, the
Divisional Commissioner was persuaded to partly allow the appeal only to the extent
of reducing the period of externment from two years to 18 months holding, inter alia,
that the externing authority had not ascribed adequate reasons for externing the
Petitioner for the maximum period of two years and, thus, in view of the judgment of
the Supreme Court in the case of Deepak V/s. State of Maharashtra1 an interference
was warranted to that extent.
4.6 Being further aggrieved, the Petitioner has invoked the writ jurisdiction.
1 2022 SCC Online SC 99
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5. Mr. Hafeezur Rahman, learned Counsel for the Petitioner urged that the
authorities have resorted to externment proceedings to wreak vengeance as the
Petitioner has been espousing public causes. The Petitioner, being an RTI activist,
was seeking information from the public authorities and insisting for performance of
public duties by the concerned officer /officials. The Petitioner has uncovered many
instances of corrupt practices. Being annoyed by such acts of the Petitioner, the
externment proceedings were initiated against the Petitioner on the basis of false and
fabricated cases and material.
6. Learned Counsel submitted that the impugned orders suffer from the
vice of non-application of mind. Firstly, the externing authority took into account
three crimes which were registered in the year 2018. Those crimes being stale and
old, could not have been taken into account to base the externment order in the year
2023. Secondly, the externment of the Petitioner from five districts covering a very
large area, without their being any nexus between such an expansive externment order
and the alleged acts of the Petitioner, cannot be countenanced as the exercise of
restraint on the Petitioner in public interest, under any circumstances. Thirdly, the
material which has been arrayed against the Petitioner, even otherwise, does not
justify the externment order as the persons who allegedly lodged reports were
themselves on the wrong side of the law and have been arraigned in various cases.
Thus, the externment order deserves to be quashed and set aside.
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7. In contrast, the learned APP endeavoured to support the impugned
orders. It was alleged that disguised as the social worker/RTI activitist, the Petitioner
had resorted to extortion. Number of crimes have been registered against the
Petitioner, which indicate the violent acts indulged in by the Petitioner when the
persons refused to pay extortion amount. Learned APP further submitted that in
exercise of writ jurisdiction, this Court would not be justified in delving into the
sufficiency of material taken into account by the externing authority to arrive at the
subjective satisfaction. Since there is no flaw in the decision making process the
Petition deserves to be dismissed, urged Mrs. Mulekar.
8. In the notice issued to the Petitioner under Section 59 of the Act,
reference was made to the following crimes registered against the Petitioner :
Sr.Nos. Police Station C.R.No. And Status
Sections
1 Vartak Nagar Police C.R.No.284 of 2018 Subjudice
Station under Sections 384,
385, 386, 387 of IPC
2 Vartak Nagar Police C.R.No.285 of 2018 subjudice
Station under Section 384,
385, 386, 387 of IPC
3 Wagle Estate Police C.R.No.227 of 2018 Subjudice
Station under Sections 384,
385, 386 and 387 of
IPC.
4 Kalwa Police Station C.R.No.53 of 2022 Subjudice
under Sections 353,
504, 504(6) of IPC and
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Section 7 of the
Criminal Law
Amendment, 1932.
5 Kalwa Police Station C.R.No.62 of 2022 Subjudice
under Sections 384,
385, 504 read with 34
of IPC.
6 Vartak Nagar Police C.R.No.384 of 2022 Under investigation
Station under Sections 386,
385, 384, 323, 504 read
with Section 34 of IPC
7 Vartak Nagar Police C.R.No.35 of 2023 Under investigation
Station under Sections 354,
504 506 of IPC.
9. The Petitioner was ordered to be externed by invoking the provisions
contained in Section 56(1)(a) and (b) of the Act, 1951. The measure of externment by
its very nature is extra-ordinary. It has the effect of forced displacement from one's
home and surroundings. Often it affects the livelihood of the person ordered to be
externed. 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), there must be some
objective material on the strength of which the externing authority must record
subjective satisfaction that there are reasonable grounds for believing that the externee
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is engaged or about to be engaged in the commission of offences involving force or
violence.
10. Mere registration of a 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 violence 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.
11. In effect, to sustain an action of externment under sub-clause (b), the
offences, the externee has engaged in, must be under one of the Chapters enumerated
therein and that the acts or conduct of the externee is such that the witnesses are
terrified and dissuaded from giving evidence against the externee in public fearing
safety of their person or property.
12. Two submissions deserve consideration. First, the consideration of the
stale and old cases registered against the Petitioner. Two, the nexus of the expanse of
the externment order to the object of the measure of the externment. In other words,
does the area of externment so disproportionate as to vitiate the exercise of power of
externment.
13. A useful reference in this context can be made to the decision of the
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Supreme Court in the case of Pandharinath Sridhar Ragnekar V/s. Dy
Commissioner of Police, the State of Maharashtra2 wherein the Supreme Court has
enunciated that it is for the externment authority to decide how best the externment
order can be made effective, for how long, should it last, within what time frame
subject to the statutory limit of two years should it operate and to what territories
within the statutory limitations of Section 56 should it extend so as to subserve its real
purpose.
14. In the case of State of NCT of Delhi and Anr. V/s. Sanjeev @ Bittoo 3
the Supreme Court enunciated the nature of the consideration by the externment
authority, as under :
"24. It is true that some material must exist but what is required is
not an elaborate decision akin to a judgment. On the contrary the order
directing externment should show existence of some material warranting an
order of externment. While dealing with the question mere repetition of the
provision would not be sufficient. Reference is to be made to some material
on record and if that is done, the requirements of law are met. As noted
above, it is not the sufficiency of material but the existence of material which
is sine qua non.
25. As observed in Gazi Saduddin case satisfaction of the authority can be
interferred with if the satisfaction recorded is demonstratively perverse
based on no evidence, misreading of evidence or which a reasonable man
could not form or that the person concerned was not given due opportunity
resulting in prejudice. To that extent, objectivity is inbuilt in the subjective
satisfaction of the authority." (emphasis supplied)
2 (1973) 1 SCC 372
3 2005 SCC (Cri) 1025
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15. In the case of Lt. Governor, NCT and Ors. V/s. Ved Prakash @ Vedu4
the principles were reiterated by the Supreme Court as under :
"21. An order of externment must always be restricted to the area of
illegal activities of the externee. The executive order must demonstrate due
application of mind on the part of statutory authority. When the validity of
an order is questioned, what would be seen is the material on which the
satisfaction of the authority is based. The satisfaction of the authority
although primarily subjective, should be based on objectivity. But sufficiency
of material as such may not be gone into by the writ court unless it is found
that in passing the impugned order the authority has failed to take into
consideration the relevant facts or had based its decision on irrelevant
factors not germane therefor. Mere possibility of another view may not be a
ground for interference. It is not a case where malice was alleged against the
third appellant." (emphasis supplied)
16. On the aforesaid touchstone, reverting to the facts of the case, it is
imperative to note that out of the seven crimes arrayed against the Petitioner, three
were registered in the year 2018. All those three crimes were arrayed against the
Petitioner in the show cause notice as well as in the final order passed under Section
56(1)(a)(b) on 15 June 2023. Evidently, there was a time lag of about five years in the
alleged acts attributed to the Petitioner manifested in those crimes and the externment
proceedings and the consequential externment order. A period of five years is such
that it snaps the live link between the alleged prejudicial acts and the necessity of
externment.
4 2006 ALL MR (Cri) 2645
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17. In the case at hand, it is not the time lag alone which impairs the
subjective satisfaction of the externment authority. There is a more substantive reason
for which the externment authority ought not to have taken into account those three
crimes. The impugned order indicates that on the basis of the very same three crimes
registered against the Petitioner (and possibly further material then available) in the
month of March 2019, externment proceedings were initiated against the Petitioner.
However, by an order dated 13 October 2020, the said externment proceedings was
dropped on the premise that those crimes registered against the Petitioner had became
stale. If the proceedings initiated in the month of March 2019 in respect of the crimes
registered in the year 2018 was required to be dropped on the ground that those crimes
had became old and stale, a fortorio those crimes could not have been taken into
consideration at all when fresh externment proceedings were initiated in the month of
April 2023.
18. Consideration of those cases registered in the year 2018 by the
externment authority, therefore, suffers from the vice of non-application of mind in
the sense that irrelevant and stale material influenced its decision. Even otherwise, by
any standard, the live link between the acts and conducts attributed to the Petitioner in
those crimes registered in the year 2018 and the measure of externment was snapped.
19. On the aspect of the expansive order of externment where the crimes
were primarily registered against the Petitioner at Kalwa and Vartak Nagar Police
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Station, again the impugned order does not disclose adequate application of mind.
Undoubtedly, the area for which the externee should be externed to serve the purpose
of externment, is within the province of the externment authority. The order of
externment need not be restricted to the area of illegal activities of the externee. As
observed by the Supreme Court in the case of Pandharinath Sridhar Ragnekar
(supra), a larger area may conceivably have to be comprised within the externment
order so as to isolate the externee from his moorings. However, the consideration
which weighed with externment authority in ordering the externment for a larger area
ought to be evident and the order externing the person from much larger area than the
one in which he has allegedly been engaged in the illegal activities must be based upon
the some material which furnished the objective criteria to arrive at a subjective
decision.
20. A Full Bench of this Court in the case of Sumit s/o Ramkrishna
Maraskolhe V/s. Deputy Commissioner of Police and Anr. 5 after an analysis of the
governing precedents and the developments in law has culled out the principles in the
matter of area of externment, as under :
"26. The discussion made so far would lead us to record our
conclusions as follows :
(i) The externment order directing externment of a person from a much
larger area than the one of his illegal activities, must be based upon some
material which provides an objective criteria to the authority for reaching a
5 Cri. WP No.1002 of 2017 dt. 8 Feb. 2019
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subjective satisfaction regarding the need for externing a person to an
expansive area though it may not always directly or elaborately refer to that
material in the order itself, as it all depends upon facts and circumstances of
the case which need be vetted through the judicial process of drawing of
legitimate inference following the law of Pandharinath and Sanjeev @ Brittoo
(supra).
(ii) The order of externment need not necessarily refer to the details of
the material considered by it so as to show independently that larger or
additional area chosen by it is intimately connected with the actual area of
the activities of the externee due to improved or common means of
transport and communication.
(iii) Application of mind to the material present on record by the
authority passing the externment order is necessary, but any reflection of
application of mind in the externment order in a specific manner, as if to
pass a reasoned order, would not be necessary. It would be enough if the
order discloses that the subjective satisfaction has been reached by
considering the material available on record and it would and should be a
matter of legitimate inference that the authority, while considering materials
to satisfy itself about the need for and extent of externment to be ordered,
also considered all the options available to it and selected in it's wisdom the
one which it thought to be most appropriate. This would also mean that
authority, in this way, can select a larger area for being covered under it's
externment order, as one of the options available to it, whether such larger
area has within it contiguous or interconnected or intimately
connected pockets of areas or not.
Question no. (1) having three aspects enumerated in clauses (a), (b) and
(c), is answered specifically through the three conclusions made as above."
(emphasis supplied)
21. In the case at hand, the only reason ascribed by the externing authority is
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that, multiple and swift means of transport and communication are available and,
therefore, it is necessary to extern the Petitioner. In the context of the nature of the
alleged activities indulged in by the Petitioner, the externment order from five districts
cannot be said to be reasonable only on the premise that there are adequate and
improved means of transport and communication. The nature of the alleged illegal
activities indulged in by the Petitioner ought to have been taken into account before
ordering the externment of the Petitioner from such an expensive area. It does not
appear that subjective satisfaction has been arrived at by bestowing consideration to
the material available on record. Thus, in the facts of the case, it appears that the
order of externment of the Petitioner from five districts covering large area suffers
from the vice of non-application of mind.
22. To add to this, it is necessary to note the externment authority had
ordered the externment of the Petitioner for the maximum period of two years. The
externment order does not indicate the application of mind on the part of the
externing authority for deciding the duration of the period of externment. Such an
externment order without recording subjective satisfaction on the basis of the
objective material that the externment should be for the maximum period of two years,
amounts to imposing unreasonable restrictions on the fundamental right guaranteed
under clause (d) of Article 19(1) of the Constitution of India, as held by the Supreme
Court in the case of Deepak V/s. State of Maharashtra (supra).
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23. Cumulatively, the externment order deserves to be quashed and set
aside.
24. Hence, the following order :
ORDER
(i) The Writ Petition stands allowed in terms of prayer clause (a).
(ii) Rule made absolute to the aforesaid extent.
(iii) No costs.
( N.J.JAMADAR, J. ) Was SSP 14/14 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 28/02/2024 21:04:41