Bombay High Court
Shafi And Saddam Shoukat Qureshi vs The Assistant Police Commissioner And ... on 11 August, 2016
Author: Prakash D. Naik
Bench: Naresh H. Patil, Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2032 OF 2016
Shafi & Saddam Shoukat Qureshi .. Petitioner
V/s.
The Assistant Police Commissioner
& Ors. .. Respondents
......
Mr. U. N. Tripathi i/b. Mr. U. R. Agandsurve, Advocate for the
Petitioner.
Mr. D. P. Adsule, APP for Respondent - State.
......
ig CORAM : NARESH H. PATIL AND
PRAKASH D. NAIK, JJ.
RESERVED ON : JULY 26, 2016.
PRONOUNCED ON : AUGUST 11, 2016.
JUDGMENT (Per PRAKASH D. NAIK, J.) :
Rule. Rule is made returnable forthwith.
2 Learned APP waives service for Respondent - State.
3 The petitioner has challenged the order of externment dated 21st January, 2016 passed by the Deputy Commissioner of Police (Zonal), Solapur city under Section 56(1)
(a)(b) of the Maharashtra Police Act, 1951 (for short "the said Act"). Petitioner has also challenged order dated 1st April, 2016 ::: Uploaded on - 11/08/2016 ::: Downloaded on - 12/08/2016 00:40:35 ::: rpa 2/9 wp-2032-16.doc passed by respondent no.3 - Divisional Commissioner, Pune Division, Pune dismissing the Appeal preferred by petitioner under Section 60 of the said Act.
4 The factual aspects of the petition are as follows:
(a) The Assistant Commissioner of Police Police, Division - II, Solapur city had issued a notice under Section 59 of the said Act on 15th October, 2015. In the said notice, it is stated that two offences are registered against the petitioner in the year 2015 vide C.R.No. 113 of 2015 and 234 of 2015. It is also mentioned that the acts and movements of the petitioner are causing alarm, harm and danger to the people residing in the areas mentioned therein. It is also mentioned that statements of two persons referred to as witnesses (A) and (B) were recorded in-
camera in relation to the activities and offences referred to in paragraph 2(a) and (b) of the notices are not willing to come forward to openly depose against the petitioner on account of threats given by him and/or apprehending danger to the person and property.
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(b) The petitioner submitted his reply to the aforesaid show-
cause notice. He denied the allegations made in the notice.
He also stated that he has been falsely implicated in the cases registered against him. He also stated that the cases were registered against him on account of personal and political enmity.
(c) The report was submitted to respondent no.3. Vide order dated 21st January, 2016 the petitioner was directed to be externed for a period of two years from areas of police Commissionerate Solapur city and Solapur district. In the order, a reference was made to the activities causing harm, alarm and danger which were reflected in the show-cause notice. The reference is also made to two cases registered against him vie C.R.No.113 of 2015 with Sadarbazar Police Station for the offence punishable under Section 354(A)(D), 504, 5016 of the Indian Penal Code and C..No.143 of 2015 for the offences punishable under sections 143, 17, 148, 149, 323, 326, 504 and 506 of the Indian Penal Code. The order also refers to the statements of persons recorded in-
camera. After directing me, activities of the petitioner which has influenced the externing authority while issuing ::: Uploaded on - 11/08/2016 ::: Downloaded on - 12/08/2016 00:40:35 ::: rpa 4/9 wp-2032-16.doc the said order, the satisfaction was recoded that the witnesses who are the victims at the hands of the externee are not willing to come forward to depose against him. The said satisfaction was recorded in respect to the entire allegations on the basis of which the impugned order of externment has been issued.
(d) The order of externment was challenged by the petitioner
by preferring
ig an Appeal before the Divisional
Commissioner, Pune Division, Pune. The said Appeal was dismissed vide order dated 1st April, 2016.
(e) learned counsel Mr. Tripathi appearing for the petitioner submitted that the externment order is bad in law and the order of the Appellate Authority dismissing the Appeal reflects non-application of mind. Learned counsel submitted that the impugned order can be set aside on a sole ground that there is total non-application of mind on the part of the Externing Authority who had issued the impugned order on extraneous consideration.
(f) We have perused the documents on record. We have seen
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the contents of show-cause notice as well as order of externment. Show-cause notice was issued proposing an action under Section 56(1)(a) and (b) of the said Act and final order is also issued by invoking the said provisions.
Learned counsel for petitioner submitted that in show-
cause notice, it was mentioned that witnesses in connection with the activities referred to in paragraph no.2(a) and (b) of notice are not willing to come forward to depose against petitioner. He submitted that whereas in the order of externment, satisfaction was recorded that witnesses qua all the activities reflected in order of externment (which are causing harm, alarm and danger), the witnesses are not willing to come forward to depose against the externee. We have noticed that paragraph 2(a) and (b) of the show-cause notice refers to the purported statements of witnesses recorded in-camera who are referred to as witnesses A and B. Therefore, assertion as stated above, was only in respect to the said witnesses whose statements were recorded in-
camera as referred to in notice. It is pertinent to note that notice referred to various other allegations. However, in order of externment, which is based on two in-camera statements as well as other materials which are purportedly ::: Uploaded on - 11/08/2016 ::: Downloaded on - 12/08/2016 00:40:35 ::: rpa 6/9 wp-2032-16.doc causing harm, alarm and danger, the satisfaction is recorded that witnesses are not willing to come forward to depose against the externee. Thus, the satisfaction of the Externing Authority in respect to the other activities was absent in the show-cause notice and it is obvious that Externing Authority has arrived at the conclusion for passing the order of externment on extraneous material which was not reflected in show-cause notice. The whole purpose of issuing show-cause notice is to give opportunity to proposed externee to tender an explanation. In view of the circumstances, order is bad in law and deserves to be quashed and set aside on this ground alone.
5 Learned counsel appearing for petitioner placed reliance upon the decision of this Court delivered in Criminal Writ Petition No.1784 of 20151 in support of his submission wherein identical situation the order of externment was set aside. It has to be noted that allegations that witnesses are not willing to come forward to depose against petitioner reflected in notice with reference to the two witnesses would be covered by Section 56(1)
(b) of the said Act. However, notice and order also referred to 1 Imran Abdul Wahid Hasim Vs. The Dy. Commissioner of Police & Ors. dt.21.7.2016 ::: Uploaded on - 11/08/2016 ::: Downloaded on - 12/08/2016 00:40:35 ::: rpa 7/9 wp-2032-16.doc allegations which are covered by Section 56(1)(a) as well as 1(b) of the said Act. The notice therefore records satisfaction only in respect to allegations covered by Section 56(1)(b) and not 1(a) of the said Act. However, order records said satisfaction in respect to allegations covered by both the parts of Section 56 of the said Act. In the case of Yashwant Damodar Patil V/s. Hemant Karkare2 this court has held that :
"The Fact that the proposed externee is engaged or is about to be engaged in one or the other type of the activity or movement in Clauses (a) and (b) of Section 56 (i) of the Bombay Police Act, is not sufficent by itself to warrant an order of externment. That fact, coupled with the opinion formed by the designated officer that witneses are not willing to come forward to give evidence in public for the reasons mentioned in clauses (a) and (b) of Section 56(i) of the Bombay Police Act, will provide a proper basis for the exercise of the power of externment under the provisions of the Act...
... in any case of acts involved on the part of the proposed externee, where an order of externment proposed to be passed, it is necessary that the officer concerned must be satisfied that witnesses are not willing to come forward to give evidence against him.
2 1989 Mh.L.J. 1111 ::: Uploaded on - 11/08/2016 ::: Downloaded on - 12/08/2016 00:40:35 ::: rpa 8/9 wp-2032-16.doc Notice of such satisfaction must also necessarily be given to the proposed externee under section 59 of the Bombay Police Act."
6 In view of the above, we are satisfied that order of externment has been issued without application of mind and is contrary to well established principles of law. Appellate Authority has mechanically passed order confirming order of externment.
It may be noted that Appellate Authority has stated that order passed under Section 56(1)(b) of the said Act deserves to be confirmed. It shows total non-application of mind on the part of the said authority as order was issued under Section 56(1)(a)and
(b) of the said Act. Hence, impugned order is required to be quashed and set aside.
7 Hence, we pass the following order:
:: O R D E R ::
(i) Rule is made absolute;
(ii) Impugned order of externment dated 21 st
January, 2016 passed by respondent no.2 as well as order dated 1st April, 2016 confirming the ::: Uploaded on - 11/08/2016 ::: Downloaded on - 12/08/2016 00:40:35 ::: rpa 9/9 wp-2032-16.doc externment order in Externment Appeal No. SP-
Externment/Appeal/SR/EA-23-2016 passed by Appellate Authority are quashed and set aside;
(iii) Parties to act on an authenticated copy of this order.
(PRAKASH D. NAIK, J.) (NARESH H. PATIL, J.) ::: Uploaded on - 11/08/2016 ::: Downloaded on - 12/08/2016 00:40:35 :::