Bombay High Court
Balu Ramasubbu Swami vs The Divisional Commissioner And Ors on 6 July, 2021
Author: N.J.Jamadar
Bench: S.S. Shinde, N.J. Jamadar
wp-1937-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.1937 OF 2021
Balu Ramasubbu Swami ...Petitioner
vs.
The Divisional Commissioner
Konkan Division and Others ...Respondents
Mr. Taraq Sayed i/b. Mr. Swapnil Wagh, for the Petitioner.
Dr. F.R. Shaikh, APP for the Respondent-State.
CORAM : S.S. SHINDE &
N.J. JAMADAR, JJ.
JUDGMENT RESERVED ON : 22nd JUNE, 2021
JUDGMENT PRONOUNCED ON : 6th JULY, 2021
(THROUGH VIDEO CONFERENCING)
---------------
JUDGMENT :(Per N.J.Jamadar, J.)
1. Rule. Rule made returnable forthwith and, with the consent of the counsels for the parties, heard fnally.
2. The challenge in this petition is to an order dated 2 nd March, 2021 passed by the Divisional Commissioner, Konkan Division in Appeal No. 6 of 2021 whereby the appeal preferred by the petitioner against the externment order passed by the Dy. Commissioner of Police, Zone-II, Mumbai on 5 th January, 2021 Vishal Parekar, P.A. 1/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 ::: wp-1937-2021.doc thereby externing the petitioner from the Mumbai city, Mumbai suburban and Thane Districts for a period of two years under section 56(1)(a) of the Maharashtra Police Act, 1951, came to be dismissed.
3. Shorn of unnecessary details, the background facts can be stated as under:
a] An externment proceeding was initiated against the petitioner at the instance of Aarey police station, wherein crimes were registered against the petitioner. The immediate cause for initiation of the externment proceeding was registration of C.R.No. 59 of 2020 for the offences punishable under sections 326, 323, 504, 506 read with 34 of the Indian Penal Code, 1860. In the said F.I.R. it was alleged that on 10th March, 2020 while the informant Rajendra Ahire had came behind Unit No. 4, Aarey Colony, Goregaon (E), the petitioner and his associates threatened the informant and his associates who tried to reason with the petitioner. The petitioner and his associates abused and assaulted the frst informant and his associates. The petitioner gave a bamboo stick blow on the head of the frst informant. When the persons in the vicinity came to the rescue of the frst informant Vishal Parekar, P.A. 2/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 ::: wp-1937-2021.doc and his associates, the petitioner threatened them with dire consequences.
b] During inquiry, it transpired that the petitioner had created terror in the locality. The petitioner and his associates were committing offences against human body and property, armed with deadly weapons. The acts of the petitioner were causing alarm, danger and harm to persons and their property. Therefore witnesses were not willing to come forward to give evidence in public against the petitioner for the fear of retaliation. The inquiry offcer thus recorded in camera statements of two witnesses. c] In the show cause notice served on the petitioner under section 59 of the Act, 1951, two offences were arrayed against the petitioner. First, C.R.No.496 of 2017 registered for the offences punishable under section 302, 307, 452, 143, 145, 147, 149, 323, 504 and 506 read with 34 of Indian Penal Code, 1860 and section 135 read with 37(1) of the Maharashtra Police Act. Second, above referred C.R.No. 59 of 2020 for the offences punishable under sections 326, 323, 504, 506 read with 34 of the Indian Penal Code, 1860. The gist of the statements of two witnesses recorded in camera was also furnished. After due inquiry, the Respondent No. 2 was persuaded to record the subjective satisfaction that it Vishal Parekar, P.A. 3/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 ::: wp-1937-2021.doc was necessary to extern the petitioner as the acts of the petitioner were causing or calculated to cause alarm, danger to the persons and property and there were reasonable grounds for believing that the petitioner was engaged or about to be engaged in the commission of offences involving force and violence or offences punishable under Chapter - XII, XVI or XVII of the Indian Penal Code. Thus, by the impugned order dated 5 th January, 2021 the petitioner was externed from the limits of Mumbai city, Mumbai suburban and Thane Districts for a period of two years. An appeal preferred by the petitioner thereagainst, came to be dismissed by Respondent No. 2 by the impugned order dated 2 nd March, 2021. Hence, this petition.
4. The petitioner assails the impugned orders on the ground that the externment was actuated by an extraneous consideration. In fact, the registration of C.R.No. 59 of 2020, which triggered initiation of externment proceedings was driven by the object of protecting the real culprits. In the alleged incident, the petitioner had sustained injuries. The police did not record the report sought to be lodged by the petitioner and no heed was paid to the various complaints made to Senior Police Offcers for the reason that one Vishal Parekar, P.A. 4/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 ::: wp-1937-2021.doc of the persons, who assaulted the petitioner, was attached to the offce of Dy. Commissioner of Police. The satisfaction arrived at by the authority was thus vitiated.
5. We have heard Mr. Taraq Sayed, learned counsel for the Petitioner, and Dr. F.R.Shaikh, learned APP for the State at length.
6. Mr. Sayed advanced a two-pronged submission. One, the incident dated 10th March, 2020 occurred without any premeditation. There was no material to indicate that the petitioner acted in a manner pre-judicial to the maintenance of public order or with a view to create terror. On the contrary, from the own showing of the frst informant in the said case, the genesis of the occurrence was the attempt made by Rajendra Ahire, the frst informant, to relieve himself at an inappropriate place, near the house of the petitioner. The said incident, according to Mr. Sayed, was blown out of proportion to initiate the externment proceeding against the petitioner mala fde. The offence under section 326 of the Code is not prima facie made out. If the said frst information report is eschewed from consideration, there is no material which would justify the order of externment. Vishal Parekar, P.A. 5/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 :::
wp-1937-2021.doc Two, the order also suffers from the vice of excessive and arbitrary externment as the petitioner was ordered to remove himself from the area of Mumbai city, Mumbai suburban and Thane Districts. Such wholly disproportionate externment betrays the design to banish the petitioner to a far off place.
7. Per contra, Dr. F.R.Shaikh, learned APP supported the impugned order. It was urged that this Court in exercise of extra- ordinary jurisdiction ought not delve deep into adequacy of the material taken into account by the competent authority to arrive at the subjective satisfaction. What is to be seen is existence of the material. In the case at hand, according to Dr. Shaikh, there is adequate material to justify the impugned action. Emphasis was sought to be laid on the gist of in camera statements of witnesses, which according to Dr. Shaikh, speak in volumes about the rein of terror created by the petitioner.
8. It is trite law that the satisfaction as to the necessity of externment has to be that of the authority invested with the power to pass the order of externment. If the satisfaction recorded by the empowered authority is based on the material placed on record, Vishal Parekar, P.A. 6/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 ::: wp-1937-2021.doc then the Courts are loathe to interfere with the order passed by the said authority. Thus, it is postulated that the Courts in exercise of the power of the judicial review ought to consider the existence of the material and not its suffciency. Nor the Courts would be justifed in interfering with the order of the authority on the premise that on the given set of facts another possible view can be taken.
9. A useful reference can be made to the judgment of the Supreme Court in the case of Gazi Saduddin vs. State of Maharashtra1 wherein the permissible grounds of interference with an order of externment passed under section 56 of the Act were spelled out as under:
"Such satisfaction of the authority can be interfered with only if the satisfaction recorded is either demonstratively perverse based on no evidence, misreading of evidence or which a reasonable person could not form or that the person concerned was not given due opportunity resulting in prejudicing his rights under the Act."
10. In the case of State of NCT of Delhi and Anr. vs. Sanjeev @ Bittoo2 the Supreme Court considered the scope of interference in an order of externment passed under section 47 of 1(2003) 7 Supreme Court Cases 330.
2 (2005) 5 Supreme Court Cases 181 Vishal Parekar, P.A. 7/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 ::: wp-1937-2021.doc the Delhi Police Act, and observed as under:
"The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those classes of cases which relate to deployment of troupes, entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The frst ground is `illegality' the second `irrationality', and the third `procedural impropriety'. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All. ER. 935, (commonly known as CCSU Case). If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. ( See Commissioner of Income-tax v. Mahindra and Mahindra Ltd., AIR (1984) SC 1182.
(emphasis supplied)
11. On the aforesaid touchstone reverting to the facts of the case, it is pertinent to note that the following material weighed with the externment authority.
Crimes:
v-dz- ikssyhl Bk.ks XqUgk uksan dzekad o dye ln;fLFkrh 1 fnaMks'kh 496@17] dye 302] 307] 452] 143] 145] U;k;izfo"B 147] 149, 323] 504] 506] 34 Hkknfo lg 37(1)] 135 eiksdk 2 vkjs 59@20 dye 326] 323] 504] 506] 34 Hkknfo riklkf/ku Vishal Parekar, P.A. 8/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 ::: wp-1937-2021.doc Statements:
In camera statements of two witnesses recorded on 4 th July, 2019 and 4th August, 2020.
12. It becomes evident that apart from the two crimes referred to above, there was no other crime to the credit of the petitioner. The authority was, however, of the view that the acts of the petitioner were causing or calculated to cause alarm, danger or harm to the persons and property. Support was sought to be drawn primarily from the registration of C.R. No. 59 of 2020, referred to above.
13. We have perused the material on record, especially narration of allegations against the petitioner in the said frst information report in C.R. NO. 59 of 2020. We fnd that the submissions on behalf of the petitioner carry conviction. From the tenor of the frst information report in C.R.No. 59 of 2020, it becomes abundantly clear that the genesis of the said occurrence was the act on the part of the frst informant therein to relieve himself near the dwelling houses. An altercation allegedly ensued over the appropriateness of the said conduct on the part of the frst informant. Evidently, the petitioner was unarmed. At the Vishal Parekar, P.A. 9/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 ::: wp-1937-2021.doc highest, the petitioner picked up a bamboo stick which was lying at the spot and assaulted the frst informant. From the perusal of the allegations in the said frst information report, it would be rather diffcult to draw an inference that the occurrence refects upon the act or conduct of the petitioner to create a sense of terror or alarm in the society.
14. It was the consistent stand of the petitioner before the authorities that, in the said occurrence, the petitioner was, in fact, assaulted by the informant party. The injury certifcates were pressed into service to lend support to the said claim. The petitioner had also addressed communications to superior police offcers making a grievance that the report of the petitioner in respect of the said occurrence was not registered. The petitioner has ascribed bias to the authorities as one of the members of the informant party was a police personnel.
15. We are conscious of the limited nature of the jurisdiction we are called upon to exercise. However, the facts of the case at hand indicate that the externment order is essentially based on the registration of the C.R.No. 59 of 2020. We fnd Vishal Parekar, P.A. 10/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 ::: wp-1937-2021.doc substance in the submission of Mr. Sayed that if the said crime is eschewed from consideration, there is no material to which the externment order can hang to. The Chapter cases taken out against the petitioner in the year 2009 and 2012 (referred to in the show cause notice) were simply stale. Conversely, there is no material to show a continued course of unlawful and violent acts attributable to the petitioner, in the intervening period. It is imperative to note that the witnesses whose in camera statements were recorded, refer to the incidents which were allegedly committed in the month of June, 2020, post registration of C.R.No. 59 of 2020.
16. The situation which thus obtains is that the occurrence which triggered the initiation of the externment proceeding was absolutely without any premeditation and the quarrel broke out on the spur of moment on account of the conduct attributed to the frst informant therein of relieving himself at an inappropriate place. The necessary element of the acts and the conduct calculated to cause alarm and danger to the persons and prejudicial to the maintenance of public order is conspicuous by its absence. Thus, the satisfaction arrived at by Vishal Parekar, P.A. 11/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 ::: wp-1937-2021.doc the authorities is based on a complete misreading of the material arrayed against the petitioner. Restraint on the right to freedom of movement (brought about by the impugned order), guaranteed under the constitution, in the circumstances of the case, appears to be totally unsustainable.
17. We hasten to clarity that the aforesaid observations as regards the C.R.No. 59 of 2020 have been made only for the purpose of determining the justifability of the externment order.
This may not be construed as an expression of opinion on the merits of the prosecution, which may arise out of C.R.No. 59 of 2020. The Competent Court shall decide the said proceedings uninfuenced by the aforesaid observations, on its merits.
18. The submission on behalf of the petitioner that the impugned order suffers from the vice of excessive and arbitrary externment also merits acceptance. Undoubtedly, it is for the authority to decide the extent and duration of the externment, subject to maximum statutorily prescribed. The externing authority is better equipped to decide how best the externment order can be made effective so as to achieve the objective behind Vishal Parekar, P.A. 12/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 ::: wp-1937-2021.doc the externment. The area of externment need not necessarily be restricted to the area in which the externee indulges in the illegal activities. The element of proportionality is, however, not completely irrelevant. If, in a given fact situation, the Court comes to the conclusion that the externment order imposes an unreasonable, greater and excessive restraint on the personal liberty than warranted, then such an order can be legitimately interfered with.
19. A proftable reference, in this context, can be made to a Full Bench judgment in the case of Sumit Ramkrishna Maraskolhe vs. Deputy Commissioner of Police, Nagpur and Anr. 3 wherein the following proposition was enunciated:
26(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 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 [1972 ALL MR Online 758] and Sanjeev @ Brittoo (supra).
20. In the instant case, by the impugned order, the 3 2019 ALL MR (Cri) 1961.
Vishal Parekar, P.A. 13/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 :::
wp-1937-2021.doc petitioner has been externed from the Mumbai city, Mumbai suburban and Thane districts. We have adverted to the material arrayed against the petitioner and taken into account by the externing authority. The facts that the offence registered against the petitioner, which was the immediate cause for initiation of the externment proceeding, did not refect upon the tendency and propensity of the petitioner to create a rein of terror, nor the acts and conduct attributed to the petitioner posed a threat to the maintenance of public order, in our view, render the decision to extern the petitioner from such a vast area vulnerable, especially when there was no other material to record such a satisfaction about the necessity for externment from a larger area. Such exercise of authority, in turn, betrays non application of mind and vitiates the satisfaction arrived at by the externing authority.
21. For the foregoing reasons, we are persuaded to hold that the impugned order deserves to be interfered with. Resultantly, the petition deserves to be allowed. Hence, the following order.
Vishal Parekar, P.A. 14/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 ::: wp-1937-2021.doc ORDER a] The Petition stands allowed. b] The order of externment dated 5th January, 2021 passed by
the Dy. Commissioner of Police, Zone-II, Mumbai and confrmed by the Divisional Commissioner, Konkan Division, in Appeal No. 6 of 2021, stands quashed and set aside.
c] Rule made absolute in the aforesaid terms.
d] All concerned to act on an authenticated copy of this order.
(N.J. JAMADAR, J.) (S.S. SHINDE, J.) Vishal Parekar, P.A. 15/15 ::: Uploaded on - 06/07/2021 ::: Downloaded on - 07/07/2021 03:50:08 :::