Bombay High Court
Hanuman Rajaram Mhatre vs The State Of Maharashtra on 15 January, 2013
Author: A.P.Bhangale
Bench: A.S.Oka, A.P.Bhangale
Spb
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRI. WRIT PETITION NO. 3858 OF 2012
Hanuman Rajaram Mhatre, ... Petitioner.
Aged 45 years, Occ. Business, (Orig. Accused)
R/o. Shivaji Prabhuna Building,
Kopargaon, Dombivli (W)
Dist. Thane.
V/s.
The State of Maharashtra ... Respondent.
Through Deputy Commissioner of Police,
Zone-III, Kalyan, Dist. Thane.
---
Ms. Pratibha Borade i/by Mr. A.S. Rao for the Petitioner.
Mr. V.B. Konde-Deshmukh, APP for the Respondent -State.
---
CORAM : A.S.OKA & A.P.BHANGALE,JJ.
DATE : 15th JANUARY, 2013
ORAL JUDGMENT : (Per A.P.Bhangale,J.)
1 Rule. Rule made returnable forthwith. Taken up for hearing by consent and Heard.
1 ::: Downloaded on - 09/06/2013 19:34:03 :::2 The petitioner has sought to invoke writ jurisdiction of this court praying for quashing and to set aside the show cause notice dated 04-01-2012 , the order of externment dated 10-04-2012 and the order externing the Petitioner issued on behalf of the Respondent state to the petitioner whereby the Petitioner was directed to be externed from the Mumbai Suburbs, New Mumbai and Thane, Raigarh Districts for the period of two years. The Deputy Commissioner of Police passed the order of externment on the ground that due to the illegal acts of the petitioner, alarm or danger has been created in the mind of the people in respect of safety of person or property in view of the offences committed by him under the provisions of Chapters 16 and 17 of the Indian Penal Code.
3 The show cause notice was issued to the Petitioner on 04-01-2012 under section 59 of the Bombay police Act, calling upon the Petitioner to attend on 12-01-2012 at 11 a.m. the Petitioner had examined himself and one witness in support of 2 ::: Downloaded on - 09/06/2013 19:34:03 ::: his defence. Externment order was passed on 10-04-2012.
Which was challenged in appeal before Secretary, Home Department Government of Maharashtra .The Appeal was rejected on 15th October 2012 .It is case of the Petitioner that he is law abiding Citizen, resident of Dombivali (west) District Thane. Assistant commissioner of police of Thane had submitted report under Section 56 (1) (a) (b) of the Bombay Police Act, 1951 and alleged that the acts of the Petitioner in the area and surrounding area were likely to cause danger, harm and terror, detrimental to the lives of people there creating law and order situation, as the Petitioner is likely to indulge in commission of criminal offences. It is further alleged that the shop keepers and hawkers in the surrounding areas are terrorized due to threats from the Petitioner making their lives miserable. To prevent violence and to maintain law and order it was proposed to extern the Petitioner from the Districts of Mumbai suburb, Thane, Navi Mumbai and Raigarh for the period of two years. Upon these allegations show cause notice dated 15-12-2011 was issued to the Petitioner by Assistant Commissioner of Police, Dombivali Division pursuant 3 ::: Downloaded on - 09/06/2013 19:34:03 ::: to the delegated authority from Deputy Commissioner of police, Zone III , Kalyan. The Petitioner was called upon to submit explanation and attend his office for inquiry on 12-11- 2011 at 11 a.m.and furnish P.R. Bond in the sum of Rs 5000/-
or a surety bond in the like amount or else the inquiry would proceed ex-parte if the Petitioner remain absent at the inquiry.
Criminal cases were listed in tabular form as under:-
Sr. No. Police Station.
ig C.R.No. Offences alleged. Status as per Show-cause-
notice Actual Status 1 Dombivli I-433/88 147, 148, 149, 336, 426 of Pending Acquitted IPC.
2 Dombivli I-313/88 344, 347, 340, 323, 506, 502 Pending Acquitted of IPC.
3 Dombivli I-192/88 147, 148, 149, 307 of IPC & Pending Acquitted 25(1)(a) of Arms Act.
4 Hill Line Ulhasnagar I-30/89 147, 148, 149, 302 of IPC & Pending Record not
25(1)(a) of Arms Act. available
5 Manpada I-103/92 147, 152, 323, 504, 506 of Pending Acquitted
IPC.
6 Vishunu Nagar 21/91 323, 504, 506(2) Pending Record not
available
7 Vishunu Nagar 25/92 384 R/w. 34 IPC Pending Record not
available
8 Vishunu Nagar 22/94 37(1), 135 of Bombay Police Pending Record not
Act. available
9 Vishunu Nagar 18/95 385 R/w. 34 IPC Pending Acquitted
10 Vishunu Nagar 3/2009 379, 34 IPC & 15 of Pending Pending
4
::: Downloaded on - 09/06/2013 19:34:03 :::
Environment Act.
11 Vishunu Nagar 80/2010 379, 34 IPC & 15 of Pending Pending
Environment Act.
12 Vishunu Nagar 111/2011 379, 34 IPC & 15 of Pending Pending
Environment Act.
13 Vishunu Nagar 776/2010 NC U/sec.232, 504 & 506 Pending Pending
-Preventive action
1 Vishunu Nagar 1/2009 110 (d) & (g) Personal Bond of Rs. 5000/- with 2
sureties for a period of 36 months.
4
According to learned counsel for the Petitioner the list shown is of the past cases from 1988 until 2012 and it include five cases in which the Petitioner was acquitted while four cases were pending and it is mentioned that the record is not available in four cases and that there is no any instance of past conviction against the Petitioner. It is not in dispute that Petitioner was granted benefit of bail in respect of pending criminal cases listed against him.5 ::: Downloaded on - 09/06/2013 19:34:03 :::
5 On behalf of the Petitioner learned Counsel Ms. Pratibha Borade submitted that he is earning his living by running the business of supplying the building material and allegations were made against him by certain persons in the past due to business and professional rivalry with ulterior motive and he was not indulging in any criminal activities. It is contended that the impugned show-cause notice did not attract the provisions of Section 59 of the Bombay Police Act so as to form the basis for initiating the preventive proceedings against the Petitioner. Allegations against the Petitioner were false and contrary to facts. The Petitioner was acquitted in majority of the cases listed above. There was no any instance of past conviction against the petitioner. Learned counsel for the Petitioner submitted that there was no any instance of misuse of any bail order granted in favor of the petitioner in respect of pending criminal cases against him and thus there was no any compelling necessity to extern the petitioner out of four Districts of Mumbai Suburb, Thane, Raigarh and Navi Mumbai as on the date of the impugned order. The cases listed were limited to Vishnu Nagar, Dombivali and nearby Police 6 ::: Downloaded on - 09/06/2013 19:34:03 ::: stations in thane District. The authority concerned failed to apply its mind to the want of proximity and remoteness of the cases alleged and listed in the show-cause notice against the petitioner as on the date of externment According to learned counsel there was non- application of mind as to necessity of the excessive externment order extending to four areas of Mumbai suburb, Thane, New Mumbai and Raigarh in the present case as the externee was acquitted in most of the cases listed against him and was enlarged on bail in cases pending against him the investigation was completed and the charge sheets were already laid. It was nowhere alleged that the Petitioner misused or abused bail granted in any pending case.
Learned counsel for the Petitioner prayed for to quash and set aside the externment proceedings and the impugned orders.
6 On the other hand learned APP Shri konde-
Deshmukh supported the impugned order of externment on the ground that the order was necessary to maintain law and order , to prevent commission of offences in future in the four Districts of Mumbai suburb, Thane, New Mumbai and Raigarh . He prayed for dismissal of the petition.
7 ::: Downloaded on - 09/06/2013 19:34:03 :::7 We have carefully considered the submissions advanced at the Bar.
8 Preventive action was initiated with reference to Section 56(1)(a)(b) of the Bombay Police Act. Section 56(1) (a)
(b) provides that:-
"56. Removal of persons about to commit offence -
(1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-
Divisional Magistrate empowered by the State Government in that behalf
(a), that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or
(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code 8 ::: Downloaded on - 09/06/2013 19:34:03 ::: (XLV of 1860), or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or (bb) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Anti-social and other Dangerous Activities Act, 1980 (Mah. VII of 1981), or (2) in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of essential Commodities Act, 1980 (7 of 1980), or
(c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by and order in writing duly served on him or by beat of drum or otherwise as he thinks fit direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm 9 ::: Downloaded on - 09/06/2013 19:34:03 ::: [or such prejudicial act,] or the outbreak or spread of such disease or [notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the officer or not and whether contiguous or not), by such route, and within such time, as the officer may specify and not to enter or return to the area or areas specified (hereinafter referred t as "the specified area or areas") from which he was directed to remove himself."
9 On a careful perusal of Section 56, it is clear that to pass externment order under Section 56(1)(a)(b), the Police Commissioner or the District Magistrate, as the case may be, must be satisfied that :-
(i) Firstly, that the acts of the person are causing or calculated to cause wilful danger or harm to the person or property or that there are reasonable grounds that he is engaged or about to be engaged in the commission of an offence under Chapters XVI and XVII IPC.10 ::: Downloaded on - 09/06/2013 19:34:03 :::
(ii) Secondly, in the opinion of the officer, witnesses are not willing to come forward to give evidence and unless such an opinion is formed by the officer, he cannot pass the order for externment of the person.
In our view Provisions of Section 56 are enacted by way of social defence providing for a drastic step of externment to be used very sparingly only when larger public interest so demands. e.g. when someone has indulged in reign of terror in the area/areas creating fear in the mind of citizen residing in the areas by his continuing criminal activity which need to be prevented. However it must be borne in mind that drastic step is to be rarely taken as the provisions makes serious inroads in to personal liberty and therefore are to be strictly complied with. The order of externment must indicate that it is exceptional measure required to be adopted by the competent authority concerned only when the movements or acts of noticee person are causing or calculated to cause alarm, danger or harm to person or property and it is really essential 11 ::: Downloaded on - 09/06/2013 19:34:03 ::: to extern the noticee from certain areas after he has failed to show cause as to why he should not be externed as preventive measure. In our view the right to personal liberty guaranteed under the article 21 of the constitution of India is sacrosanct and there must be compelling necessity to extern the subject-
noticee in such case from the areas concerned.( Four Districts named as Mumbai suburb, Thane, New Mumbai and Raigarh in the present case) The externment may have adverse effect to cause loss of livelihood or economic death of the noticee who is externed. The externment is meant to prevent criminal activities i.e. commission of serious offences from being repeated by the known offender or one who is prone to commit offences or a known convict who may repeat offences posing danger to maintenance of law and order in the area concerned.
The rule of fairplay and justice require that prior to the order of externment the noticee must get real opportunity to know and answer the grounds on the basis of which show -cause notice is issued and served upon proposed externee.The competent authority concerned is expected to apply its mind and record its subjective satisfaction by considering the 12 ::: Downloaded on - 09/06/2013 19:34:03 ::: material before it objectively and must record reasons to believe that the subject is likely to engage himself in criminal activities similar to one for which he was convicted in the past.
The competent authority must indicate in the order that it has borne in mind the propensity of the prospective offender, gravity and magnitude of the crimes in which noticee may engage himself in the area or areas from which he is required to be externed, looking in to instances of his past criminal activities. Furthermore the subject-noticee in the externment proceeding have no opportunity to cross-examine witnesses like a full-fledged criminal trial because of need to maintain secrecy of identity of witnesses who otherwise due to fear, may not come forward to give statement against the proposed externee but the subject-noticee in the externment proceedings is entitled to the observance of the principles of natural justice on the part of decision making authority and ought to be given reasonable opportunity to answer or defend himself qua the allegations made against him. The noticee cannot be awarded a surprise in the form of externment order based upon the undisclosed, extraneous and additional material other than 13 ::: Downloaded on - 09/06/2013 19:34:03 ::: that which was indicated in the show cause notice. If in given case witnesses are not coming forward due to fear to give their deposition against the proposed externee and statements of such witnesses have to be recorded in camera,then statements of such witnesses without disclosure of identity of such witnesses by deleting the portion in the statement tending to disclose their identity, may be furnished to proposed externee for the purpose to enable him answer or meet the nature of allegations/accusations leveled against him. In defence the proposed externee may give his written statement and/or examine witness or witnesses and produce documentary evidence if any to oppose externment order as proposed. The externment order if passed thereafter must also indicate the application of mind to the material made available to the authority concerned that is empowered to pass the externment order. Keeping these settled principles in mind in the present case we are persuaded to accept the contentions advanced on behalf of the Petitioner as we do not find any tangible material to believe that the Petitioner had allegedly misused any bail order although he is on bail in respect of all the pending 14 ::: Downloaded on - 09/06/2013 19:34:03 ::: criminal trials. No any past instance of conviction is brought to our notice against the Petitioner so as to have reason to believe that the Petitioner is likely to indulge in commission of similar offences as listed posing danger to law and order in the areas concerned. In the impugned order we find that the authorities below conveniently ignored the statements recorded and adduced in defence by the Petitioner and his witness Shri Vikas Kantilal Londhe during the proceedings.
10 The learned counsel for the Petitioner also criticized the impugned order on the ground that the Petitioner is entitled to move freely in any area and being a citizen of India entitled to exercise his fundamental right. Our attention is brought to the ruling in the case of Umar Mohamed Malbari vs. K.P. Gaikwad, Dy. Commissioner of Police & Another (1988 Mh.L.J. 1034). In paragraphs 9 and 10 of the judgment, the Division Bench of this High Court observed as under :
"(9) ........ ....... The rule that the High Court will not issue a prerogative writ when an alternative remedy is available does not apply when a petitioner comes 15 ::: Downloaded on - 09/06/2013 19:34:03 ::: to the Court with an allegation that his fundamental rights have been infringed. When an order of externment is passed against the petitioner, he can undoubtedly come to this Court with a writ petition on the ground that his fundamental right of freedom of movement is affected and this he can do without exhausting the other remedy provided for in the act viz. an appeal to the State Government against the order. In view of the fact that the petitioner has been externed out of the areas covering three Districts as also Greater Bombay, it will have to be held that his fundamental right to move freely throughout the territory of India which is guaranteed under Article 19(1)(d) of the Constitution has been infringed. ........ ........
(10) In this view of the matter, it must be held that the impugned order of externment suffers from the vice of exercise of excessive jurisdiction and the same will have to be set aside. ...."
11 In the present case, the list of cases shown pending against the Petitioner were limited to Vishnu Nagar, Dombivali area of District Thane therefore the impugned order of externment mechanically extending to vast areas of Mumbai suburb, Raigad and New Mumbai areas as well is harsh, unreasonable and may be branded as excessive restraint in the facts and circumstances of the case particularly in the absence of any criminal case reported against the Petitioner in 16 ::: Downloaded on - 09/06/2013 19:34:03 ::: such extended and additional areas from which he is sought to be externed. In the absence of any instance of past conviction against the Petitioner or any misuse of bail order by him in respect of any pending criminal case against him we accept the contentions advanced on behalf of the Petitioner and find that the impugned orders of externment of the Petitioner is indefensible and unsustainable in law in the facts and circumstances brought to our notice.
12We, therefore, allow the Petition and pass the following order :
ORDER
(a) The impugned of externment dated 10 th April, 2012 is quashed and set aside;
(b) The Rule is made absolute on above terms.
(A.P. BHANGALE,J.) (A.S. OKA,J.)
.....
17
::: Downloaded on - 09/06/2013 19:34:03 :::