Bombay High Court
Rukhsar Khan Firoz Khan vs The State Of Maharashtra The Divisional ... on 17 December, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:14248
13.wp.802.2024.judg.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.802 OF 2024
Rukhsar Khan Firoz Khan,
Aged: 50 Yrs., Occ.: Housewife,
R/o. Near Burewar Bhavan,
Mohan Nagar, Near Orange
City School, Nagpur .... PETITIONER
// V E R S U S //
1 State of Maharashtra through
Divisional Commissioner,
Nagpur Division, Nagpur
2. Deputy Commissioner of Police,
Zone-2, Nagpur
3. Assistant Commissioner of Police,
Sitabuldi Division, Nagpur ... RESPONDENTS
-----------------------------------------------------------------------------------------------
Mr. S. S. Sohoni, Adv. h/f. Mr P. S. Jaiswal, Advocate for
the petitioner
Mr. Amit Chutke, APP for respondents/State
----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : 17/12/2024
ORAL JUDGMENT :
1 Rule. Rule made returnable forthwith. Heard
13.wp.802.2024.judg.odt 2 finally with the consent of learned Advocates for the parties. 2 In this writ petition, the petitioner has prayed for quashing the order of externment, passed by respondent No.2- Deputy Commissioner of Police, dated 06.06.2024 and the order in appeal, dated 19.08.2024, passed by respondent No.1- Divisional Commissioner, Nagpur Division, District Nagpur. The respondent No.2 initiated the proceedings for the externment of the petitioner from Nagpur District by invoking the provisions of Section 56(1)(a) & (b) of the Maharashtra Police Act, 1951 (hereinafter referred to as "the Act of 1951"). The respondent No.2 to record his subjective satisfaction relied upon the following crimes. The said crimes are set out hereinbelow in tabulated form:
Sr. No. Police Crime No. Sections Dated Case status Station
1. Sitabuldi 131/2013 353, 332, 294, 506(B) 24.04.2013 Pending in r/w. 34, 109 IPC Court
2. Sitabuldi 308/2014 324, 323, 504, 506 r/w 13.08.2014 -"-
34 IPC
3. Sitabuldi 472/2015 353, 506(B), 294, 34 09.12.2015 -"-
IPC r/w 135 MPAct
13.wp.802.2024.judg.odt 3
4. Sitabuldi 447/2017 326, 323, 504, 34 14.11.2017 -"-
5. Sitabuldi 426/2020 65(e), 83 Prohibition Act 19.09.2021 -"-
6. Sitabuldi 522/2022 324, 294, 506, 34 of IPC 16.12.2022 -"-
7. Sitabuldi 240/2023 4/25 Arms Act 24.05.2023 -"-
135 MPA, 65(d) Prohibi-
tion Act
8. Sitabuldi 256/2023 65(c) Prohibition Act 01.06.2023 -"-
9. Sitabuldi 302/2023 65(c) Prohibition Act 08.06.2023 -"-
10. Sitabuldi 732/2023 65(c) Prohibition Act 13.11.2023 -"-
11. Sitabuldi 230/2024 353, 352, 323, 183, 189 24.03.2024 Under IPC 110, 112, 117 MPA investigation PREVENTIVE ACTIONS Sr. Police Sta- Iste. No. Section Result No. tion
1. Sitabuldi 35/2022 110 of Cr.PC Final bond 1 one year Rs.25,000/- dt. 24.02.2023
2. Sitabuldi 01/2023 93 Prohibition Act 3 Besides the above crimes, respondent No.2 placed heavy reliance upon the confidential in-camera statements of two witnesses. On the basis of the crimes and the confidential in-camera statements of the witnesses, respondent No.2 recorded a satisfaction that the activities of the petitioner are fully covered under the provisions of Section 56(1)(a) & (b) of the Act of 1951 and as such warranting her externment.
13.wp.802.2024.judg.odt 4 4 The respondent No.2 had entrusted the respondent No.3 to conduct the necessary inquiry. Respondent No. 3 issued a notice to the petitioner on 06.04.2024 to show cause as to why she should not be externed from the Nagpur District. The respondent No.2, based on the material collected, passed the order of externment on 06.06.2024. The petitioner challenged the said order by filing an appeal before respondent No.1. The respondent No.1 vide order dated 19.08.2024, dismissed the appeal and confirmed the said order. The petitioner is, therefore, before this Court. 5 I have heard Mr. S. S. Sohoni learned Advocate for the petitioner and Mr Amit Chutke, learned Additional Public Prosecutor for the respondents/State. Perused the record and proceedings.
6 Learned Advocate for the petitioner submitted that the crimes were registered at Sitabuldi police station within
13.wp.802.2024.judg.odt 5 Nagpur District. It is pointed out that she has been externed from the entire Nagpur District. It is submitted that the order is excessive. It indicates non-application of mind. It is further submitted that respondent No.2 relied upon 11 crimes registered against the petitioner. It is pointed out that the crime No. 11 was under investigation. It is further pointed out that crimes at Sr. No. 1 to 7 are stale crimes. Learned Advocate submitted that the crime under the Prohibition Act cannot be considered. Learned Advocate further submitted that the crime No. 11, which was under investigation, was the only fresh crime available for consideration. The notice issued by respondent No.3 is dated 06.04.2024. Learned Advocate further submitted that the substance of the statements of the confidential witnesses was not mentioned in the show cause notice dated 06.04.2024. Learned Advocate submitted that the subjective satisfaction arrived at on the basis of the one crime is not justifiable to curtail the fundamental right of the citizen.
13.wp.802.2024.judg.odt 6 Learned Advocate further pointed out that there is no live link between the crimes. Learned Advocate submitted that there was no objective material to arrive at subjective satisfaction for passing the order of externment.
7 Learned Additional Public Prosecutor for the respondents submitted that the statements of the confidential witnesses were recorded by the police. The substance of the statements was set out in the notice issued by respondent No.3. Learned APP pointed out that the entire material collected during the inquiry was taken into consideration at the time of passing of the externment order. Learned APP submitted that considering the continuity of the crimes committed by the petitioner, the order of externment for a period of one year from Nagpur District therefore, was fully justifiable. 8 In my view, the order passed by the authority-
13.wp.802.2024.judg.odt 7 respondent No.2 and confirmed by respondent No.1 cannot be sustained primarily on two grounds first, that the substance of the statements of the confidential witnesses was not set out either in the show cause notice or in the order passed by the authority and second, that the order directing her externment out of the Nagpur District is without application of mind. It needs to be stated that the order of externment arises out of extraordinary circumstances and therefore, the reasons that necessitated or provide justification must be placed on record. There is a specific purpose behind issuing a show cause notice. The show cause notice must be clear and unambiguous. If any material is relied upon or proposed to be relied upon for passing an externment order, then a clear reference to the said material is required to be made in the said notice. I am conscious of the fact that the statements of the confidential witnesses with the names of the confidential witnesses cannot be provided to the person sought to be externed. However, the
13.wp.802.2024.judg.odt 8 authority at the time of issuance of a notice is required to mention the substance of the statements of the witnesses with other particulars such as date, time and the area where the alleged acts have been done by the person sought to be externed. Ins this case, the notice is conspicuously silent about those statements. The same is the case with the order. It is evident that a passing reference has been made about the recording of the statements. In my view, such a half-hearted exercise is not sufficient to meet the basic requirements of the law. Subjective satisfaction has to be arrived at on the basis of the available material. The order of externment has to be passed very carefully. A failure to mention the substance of the statements of the confidential witnesses has denied him an opportunity to meet those statements. This is a major flaw in this proceeding.
9 The statements were not recorded by respondent No. 2. The statements were recorded by respondent No. 3.
13.wp.802.2024.judg.odt 9 Respondent No. 2 was required to take proper care and verify those statements. Even respondent No. 2 has not verified those statements. Respondent No.2 was required to call the confidential witnesses separately and in their presence, verify those statements. I have perused the statements. This exercise was not undertaken. The endorsement suggesting verification of the statement by respondent No.3 appears to be mere paper work. Respondent No. 2 has relied upon those statements to arrive at his subjective satisfaction. In my view, failure to undertake the exercise of verification of the statements of the confidential witnesses by personally calling those witnesses has vitiated this exercise. In my view, on this ground, the order passed by respondent No.2 and confirmed in appeal by respondent No.1 cannot be sustained.
10 It is seen on perusal of the order of externment that eleven crimes were relied upon to form a subjective satisfaction.
13.wp.802.2024.judg.odt 10 It is evident on perusal of the record that the crime at Sr. No. 11, which was available for consideration, was under
investigation on the date of the notice. It is trite law that the crime which is under investigation cannot be taken into consideration to form the subjective satisfaction for the purpose of passing an externment order. It is further seen on perusal of the eleven crimes relied upon to record the subjective satisfaction that the crimes at Sr. Nos.1 to 7 are stale crimes. The crimes at Sr. No. 8 to 10 are under the Prohibition Act and cannot be considered. It is therefore apparent that on the basis of these crimes, the order of externment could not have been passed. These crimes, apart from being stale crimes for this purpose, would also not be sufficient to establish the live link for passing the impugned order. It is to be noted that in order to justify the live link, the serious nature of the crime has been made the bone of contention. In my view, the serious nature of the stale crime cannot be made the foundation to
13.wp.802.2024.judg.odt 11 establish the live link. The object of this proceeding is to prevent a person from indulging in such offences repetitively in the future, so that peace and tranquillity in the society is maintained. The order of externment was passed on 06.06.2024. Perusal of the order would show that no justifiable reason has been stated in the order on this count. It is, therefore, evident that there was no live link between the crimes relied upon to justify the proceeding and the actual order dated 06.06.2024. In my view, this is a very important aspect. This aspect would largely reflect upon the subjective satisfaction asserted in this proceeding by the respondents. In my view, this basic lacuna is sufficient to set aside the order of externment.
After excluding the stale crimes and crimes under the Prohibition Act, only one crime was available for being considered by respondent No.2 for passing the order of externment. Perusal of the crime chart would show that the crime at Sr. No.11 was registered in March 2024. In my
13.wp.802.2024.judg.odt 12 opinion, the said crime could not be considered to arrive at subjective satisfaction as it was under investigation. In short, said crime could not be considered as objective material to arrive at subjective satisfaction.
11 Perusal of the show cause notice as well as the order passed by the respondent No.2 would indicate that two chapter cases under Sections 110 of the Code of Criminal Procedure, 1973 and Section 93 of the Prohibition Act were initiated against her. At the conclusion of such proceedings, the party concerned is called upon by the Executive Magistrate to execute a bond for good behavior. The duration of such a bond is normally for a period of six months. The show cause notice as well as the order of externment is silent with regard to the execution of the bond for good behavior. The show cause notice, as well as the externment order, is silent on the point whether there was a breach of the undertaking and conditions
13.wp.802.2024.judg.odt 13 of the bond executed in those proceedings. The bond is executed in the proceeding, which is of preventive nature. This aspect has not been considered and appropriately dealt with by respondent Nos.1 and 2.
12 As per the provisions of Section 56 of the Act of 1951, the maximum period of externment provided is two years. In this case, respondent No.2 has ordered the externment of the petitioner from the entire Nagpur District for a period of one year. It is to be noted that this order passed by respondent No.2 and confirmed by respondent No.1 suffers from the virus of excessiveness. The order of externment has a tendency to make inroads on a fundamental right of free movement. A constitutional right cannot be curtailed or taken away without following due process of law. The order of externment, apart from making inroads on the personal liberty guaranteed under the Constitution of India, makes the said
13.wp.802.2024.judg.odt 14 person live separate from his or her family members. Similarly, the externment order can deprive the said person of his livelihood. In the given case, depending upon the financial position of the person, it can make the dependents of the said person to starve. Therefore, in order to justify the externment for a maximum period of one year, the Authority is required to consider the objective material to record subjective satisfaction on all points. In this case, I am constrained to observe that the order passed by respondent No.2 is woefully silent on all these points. The respondent No.2 has not recorded the reasons to order the externment of the petitioner for a period of one year and that too from the entire Nagpur District. It is seen on perusal of the notice and order that all the crimes committed by the petitioner were within the jurisdiction of Sitabuldi Police Station in Nagpur City. In view of this fact, respondent No.2 was expected to record the reasons to warrant the externment of the petitioner from the entire Nagpur District.
13.wp.802.2024.judg.odt 15 13 In my considered opinion, therefore, the order passed by respondent No.2 and confirmed by respondent No.1 suffers from the virus of excessiveness. The law laid down on the point in the cases of Shaikh Mukhtyar S/o Mustafa Shaikh Vs. State of Maharashtra and Others1 and Bhagwat Dadasaheb Landge and Another Vs. State of Maharashtra and Others 2, would, therefore, equally apply in this case. It is to be noted that the excessive nature of the order on both counts is one of the factors, which would weigh in favour of the petitioner. The order of externment, making direct inroads on the fundamental right of movement, must, therefore, sustain the legal scrutiny. In this case, the order passed by respondent No.2 and confirmed by respondent No.1 do not pass the said test. It is to be noted that respondent No.1 despite being confronted with the factual position confirmed the said order. Perusal of the order of respondent No.1 would show that respondent No.1 has recorded factual submissions but failed to sufficiently deal 1 2017 ALL.M.R. (cri.)268 2 2020 (5) Mh.L.J. (Cri.)546
13.wp.802.2024.judg.odt 16 with the same. Therefore, in my view, this order is not sustainable. Accordingly, the writ petition is allowed. 14 The order dated 06.06.2024 passed by respondent No.2- Deputy Commissioner of Police, externing the petitioner from Nagpur District for a period of one year and the order dated 19.08.2024, passed by respondent No.1- Divisional Commissioner, Nagpur Division, District Nagpur confirming the said order of externment are quashed and set aside. 15 Rule is made absolute in above terms. The writ petition stands disposed of.
( G. A. SANAP, J.) Namrata Signed by: Miss Namrata Suryawanshi Designation: PA To Honourable Judge Date: 09/01/2025 11:21:10