Bombay High Court
Raymond Antwi vs The State Of Maharashtra on 22 December, 2021
Author: Sarang V. Kotwal
Bench: Nitin Jamdar, Sarang V. Kotwal
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JPP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4484 OF 2021
Phelomena Omprakash Sharma ... Petitioner
V/s.
D.C.P. Zone-1, Nashik City, Nashik & Ors. ... Respondents
Ms. Jayashree Tripathi a/w. Mr. U.N. Tripathi for the Petitioner
Ms. M.H. Mhatre, APP for the Respondent - State
CORAM : NITIN JAMDAR &
SARANG V. KOTWAL, JJ.
DATE : 16 DECEMBER 2021 P.C. :-
The Petitioner has challenged the order dated 5 July 2021 passed by the Deputy Commissioner of Police, Nashik and the order passed by the Divisional Commissioner, Nashik dated 23 September 2021 dismissing the Appeal filed by the Petitioner.
2. By the order dated 5 July 2021, the Petitioner is externed from the Nashik City and Nashik Rural District for a period of two years under the provisions of Section 56(1)(a) and 1(b) of the 2 21. Cri.WP 4484,21.doc Maharashtra Police Act, 1951. The Appeal filed by the Petitioner under Section 60 of the Act was dismissed by the Appellate Authority - Respondent No.2, by order dated 23 September 2021.
3. The reason for externing the Petitioner was that there were five offences registered against the Petitioner which were pending. There were C.R. No. 1 of 2016 filed against the Petitioner under Section 143, 148, 427, 452, 447, 448, 504, 506 of the Indian Penal Code on 1 June 2016 when it was alleged that the Petitioner alongwith eight to ten anti-social elements entered the house of the witness and with a JCB machine damaged the property and created terror. C.R.No. 3 of 2016 filed against the Petitioner under Section 143, 148, 149, 307, 504, 506(B) of the Indian Penal Code on 3 January 2016 that the Petitioner alongwith 40 to 50 persons armed with weapons assaulted the people in the locality. At that time the Petitioner had pointed the pistol in her hand at the people. C.R.No. 3002 of 2016 filed on 3 January 2016 under Section 370 of the Indian Penal Code and under Section 3,4,5,67(1)(b) of Immoral Traffic (Prevention) Act, 1956 that the Petitioner is conducting a brothel and was trafficking women from different areas and forcing them to enter into prostitution. C.R. No. 300 of 2019 was filed on 30 July 2019 for the identical offence of forcing women into prostitution and carrying out the prostitution activities. Lastly, C.R. No. 54 of 2021 filed at Mumbai Naka Police Station under Section 3 21. Cri.WP 4484,21.doc 370 r/w. 34 of the Indian Penal Code and Section 345 of Immoral Traffic (Prevention) Act, 1956 on 28 February 2021. These offences were registered against the Petitioner who conducting a brothel and engaging illegal activities from a building in the locality in Nashik.
4. The Externing Authority - Respondent No.1, in view of these five offences registered which are pending and the in-camera statements of two witnesses, passed the order of externment. The Petitioner filed an appeal and contended that the Petitioner is involved in false cases and the Petitioner was released on bail. The offences are only in respect of Mumbai Naka Police Station at Nashik but externment order is in respect of a wide area. It was contended that the subjective satisfaction of the externing authority was not proper and is not reflected in the impugned order. The appellate authority, considering the last offence and the live link established held that the subjective satisfaction recorded by the externing authority was proper and dismissed the appeal.
5. We have heard Ms. Jayashree Tripathi, learned Counsel for the Petitioner and Ms. Mhatre, the learned APP for the Respondent - State.
6. The learned Counsel contended that there are various errors in this notice, such as the date given is wrong and even wrong 4 21. Cri.WP 4484,21.doc age of the Petitioner is mentioned. The learned Counsel submitted that the externment order impinges on the personal liberty of the externee and the procedural norms must be strictly followed as laid down by the Supreme Court in the case of Lt. Governor, NCT & Ors. v/s. Ved Prakash @ Vedu1. We have considered this contention. The mention of 2020 is clearly a typing error. The outward number is of 2021. Reference is made to the letter of 19 March 2021. The order is signed on 3 April 2021 and the Petitioner was called for hearing on 8 April 2021. Therefore, no capital can be made of this typing error. Even the contention based on the age is not much of relevance as this is also an error as going by the age of the Petitioner as stated instead of '3', '6' has been written. Nothing changes on this error, as there is no particular relevance of age to the order of externment in this case. Therefore, there is no merit in the contention that because of this typing errors there is a non- application of mind.
7. The learned Counsel for the Petitioner then submitted that a notice was issued on 3 April 2020 which was purportedly under Section 57(1)(a)(1), however, the order is passed under Section 56(1)(a)(b). It was submitted that in the notice of 3 April 2021 (as corrected) reference to Section 57(1)(a)(b) and this being the start of the externment proceedings, further orders of externment which are passed under Section 56(1)(a)(b) are vitiated by non- 1 2006 ALL MR(Cri.)2645 5 21. Cri.WP 4484,21.doc application of mind. The learned Counsel for the Petitioner sought to rely upon the decision of the Division Bench of this Court in the case of Atul Prabhakar Nade v/s. The Special Secretary (Home Department) and Ors.2 in furtherance of this proposition in this case. We have considered this submission. In the case of Atul Nade, the notice was issued under Section 56(1)(b) while passing the order the ingredients of Section 56(1)(a) of the Act of 1951 were considered. It is in this context that the Division Bench found that the order passed was vitiated by non-application of mind. In the case at hand the important aspect is that the notice was issued on 3 April 2021, thereafter on 24 June 2021 notice under Section 56(1)(a)(b) on the same grounds calling upon the Petitioner as to why the Petitioner should not be externed for a period of two years. It is pursuant to this notice that the externment order is passed under Sectopm 56(1)
(a)(b). There is no variance between the notice under the order. It is not disputed before us that this notice was served on the Petitioner. The Petitioner had an opportunity to meet the contents of the notice and thereafter the order was passed. The contention of the learned Counsel that moment the first notice is issued, the proceeding stood crystalized and thereafter it cannot be changed and any change will automatically result in non-application of mind is not borne out by any statutory provision nor any such decision laying down such an absolute proposition is placed before us. The impugned order dated 5 July 2021 is with reference to Section 56(1)(a)(b) and therefore, it 2 2014All MR(Cri.) 719 6 21. Cri.WP 4484,21.doc cannot be held that there is any error in the externment order on this count.
8. The learned Counsel for the Petitioner then submitted that the Externing Authority has taken into consideration the offences of the year 2016 that there is no live link between the incidents and the Externing Authority has taken into account stale incidents. The learned Counsel for the Petitioner has sought to rely upon the various decisions in support and the need to establish the live link. It is not necessary to burden the record as it is settled that the Exerning Authority should not take into consideration old and stale incidents which do not have live link to the order of externment. However, whether there exists a live link or not is a question to be decided in the facts of each case. In the present case the activity of forcing women into prostitution of the year 2016 has continued as seen in the C.R.No. 300 of 2019 registered in the year 2019 and C.R. No. 54 of 2021 registered on 27 February 2021. There is therefore clear link between, these activities which are continuing. It is stated so even by two witnesses whose statements have been recorded In-Camera. Thus, the submission that the Externing Authority has looked into the incidents of 2016 and that there is no live link between them cannot be considered and is rejected.
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9. The learned Counsel then submitted that as per Section 56(1)(b) of the Act, one of the requirements for passing the externment order is that the witnesses are not coming forth and are apprehending to give evidence in public. The learned Counsel submitted that the In-Camera statements relied upon by the authority do not give any indication that the witnesses are not willing to come forth to give evidence. The learned Counsel submitted that unless this aspect is established, ingredients of Section 56(1)(b) are not satisfied. This contention overlooks the fact that the notice was issued to the Petitioner both, under Section 56(1)(a) and (1)(b). Section 56(1)(a) empowers the Externing Authority to pass an order of externment, if the movements or acts of any person are causing or calculated to cause alarm, danger or harm. Therefore, this argument advanced is in ignorance of the notice issued and the provisions of the statute put against the Petitioner.
10. The learned Counsel for the Petitioner submitted that the In-Camera statements are totally vague and they do not refer to any particular incident and unless a particular incident is specified, such an In-Camera statement cannot be considered. The learned Counsel sought to rely upon a decision of the learned Single Judge in the case of Iqbal Hussain Abid Hussain Qureshi v/s. The State of Maharashtra and Ors.3. However, this decision do not lay down an absolute proposition of law that even in cases of a continuous activity 3 (1999) Vol. 101(1) Bom.L.R.631 8 21. Cri.WP 4484,21.doc such as the present offence of running a brothel and forcing women in prostitution, there has to be a specific incident. Arriving at a subjective satisfaction would depend on facts of each case. For instance, in cases of offences of bodily injuries causing apprehension and terror, the acts may be specific. In case of a continuous activity such as running a brothel and forcing women in prostitution, it is not necessary that the witnesses must report a specific act. We have not been shown any decision which holds that even in the case of the activity such as the present one such as running a brothel and forcing the women into prostitution, the In-Camera statement must give details of an actual incidents. The learned Counsel also submitted that there are no details given in the In-Camera statements and the statements are vague. The statements of the witnesses given In- Camera, complete copies of which are shown to us, specifically state where the Petitioner carries out the prostitution activities and how it causing danger in the society. Once the witnesses give a specific area and the reference is to be activities that is carried on, considering the nature of this activity, it cannot be expected that the witnesses would give specific details as regard the offence looking at the nature of the activity. Forcing women into prostitution and danger caused by the people coming to the brothel and which area this activity is being carried out are sufficient details. The extent of details expected for the In-Camera statements to be considered as material forming basis of subjective satisfaction, would depend on each case and the nature 9 21. Cri.WP 4484,21.doc of the activity. There is therefore no merit in the contention that the subjective satisfaction of the Externing Authority was based on an inadequate and vague material.
11. It was then contended that the In-Camera statements were not given to the Petitioner and therefore, there is a breach of principles of natural justice. There is no merit in this contention. The notice issued to the Petitioner reproduced the gist of the allegations made in the In-Camera statements and the Petitioner had an opportunity to deal with the same.
12. Considering the five offences against the Petitioner more particularly, under the Immoral Traffic (Prevention) Act, 1956 of running a brothel and and forcing women into prostitution and the two statements of the In-Camera witnesses who have stated that the Petitioner is trafficking women forcing them to conduct prostitution, it cannot be said that there was insufficient material to base the subjective satisfaction. Even as regard the apprehension in the mind of witnesses are concerned, the material witnesses would be the victims who have been forced into prostitution and considering the situation where such witnesses are placed and the control wielded by the Petitioner who is running the brothel and using violence wielding fire arm. The apprehension of these witnesses to come forth is apparent. Also it has to be noted that the offences were 10 21. Cri.WP 4484,21.doc registered against the Petitioner by the Police Authorities. If the Externing Authority has considered these aspects alongwith the two in-camera statements and five offences registered against the Petitioner, the subjective satisfaction of the Externing Authority cannot be faulted with.
13. As a result, the grounds urged by the Petitioner are without any merit. The Petition is dismissed.
SARANG V. KOTWAL, J. NITIN JAMDAR, J. Digitally signed JYOTI by JYOTI PRAKASH PRAKASH PAWAR PAWAR Date: 2021.12.24 14:30:22 +0530