Bombay High Court
Mohammad Kaif Nasir Malik vs State Of Maharashtra And Ors on 29 November, 2024
2024:BHC-AS:46119
Manoj 5.w1718.24.doc
HEMANT
CHANDERSEN IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHIV CRIMINAL APPELLATE JURISDICTION
[
Digitally signed by CRIMINAL WRIT PETITION NO. 1718 OF 2024.
HEMANT
CHANDERSEN SHIV
Date: 2024.12.02 Mohammad Kaif Nasir Malik
14:58:00 +0530
Age 40 years, Occupation Business,
residing at 1501, Gaurav Excellency
No.3, Hatkesh Mira Road East,
Taluka & District Thane ..... Petitioner
v/s.
1. The State of Maharashtra .....
2. The Divisional Commissioner,
Konkan Division, Old Secretariat Bldg.,
Fort, Mumbai 400 032 .....
3. Deputy Commissioner (Zone-I)
Mira Bhayander Vasai Virar
Commissionerate .....
4. Assistant Comissioner of Police
Navghar Division,
Mira Bhayander Vasai Virar
Commissionerate ..... Respondents
Mr. Sumedh Modak with Mr. Vivek Rane i/b. Mr. Kuldeep Jain
for Petitioner.
Mr. N. B. Patil, APP for the State
Mr. Ramkrishna Bodke, API, Mira Road Police Station present
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 23rd OCTOBER, 2024.
PRONOUNCED ON : 29th NOVEMBER, 2024.
JUDGMENT :-
. Heard learned Advocate for the Petitioner and learned A.P.P. for the Respondent-State.
2) Rule. Rule made returnable forthwith. By consent of the parties, heard finally.
1/10 ::: Uploaded on - 02/12/2024 ::: Downloaded on - 02/12/2024 23:55:55 :::
Manoj 5.w1718.24.doc 3) Present Petition seeks for quashing and setting aside of the
impugned Order dated 31st January, 2024 passed by Respondent No.3 under the provisions of Section 56 (1) (a) (b) of the Maharashtra Police Act, 1951 ('the Act' for short) thereby Petitioner has been externed for a period of 02 years from the limits of Districts Thane, Palghar, Brihan- Mumbai and Mumbai Suburbs and Order dated 8th April, 2024 passed by Respondent No.2 thereby an Externment Appeal No.26 of 2024 of the Petitioner assailing said 'Order of Externment' came to be dismissed.
4) In view of the criminal history of the Petitioner, a proposal dated 20th October, 2023 was forwarded by Mira Road police station to the office of Respondent No.3 with a request to extern the Petitioner. Said proposal was sent to the Respondent No.4, for enquiry. After the enquiry, Respondent No.4 returned the externment proposal along with his report dated 12th January, 2024. In the report, Respondent No.4 conveyed that despite three notices the Petitioner did not attend for the enquiry. The Petitioner is a habitual offender, having no fear of law. The Respondent No.4, therefore, advised to extern the Petitioner, to bring an improvement in his criminal conduct. In turn, the Respondent No.3 issued a notice dated 19th January 2024 and, informed the Petitioner to attend before him on 23rd January 2024 ,for the purpose of enquiry. The Petitioner received the notice but did not attend for the enquiry. 2/10 ::: Uploaded on - 02/12/2024 ::: Downloaded on - 02/12/2024 23:55:55 :::
Manoj 5.w1718.24.doc 4.1) Therefore, the Respondent No.3 considered the proposal for
the externment along with the material enclosed and noted that, in all 10 crimes were registered against the Petitioner in the past. 'C'-Summary was filed in one of the crimes. The proceedings seeking for preventive action under Sections 107 and 110 of Cr.P.C. were initiate against the Petitioner in the year 2018 and 2021. The Petitioner was required to execute a bond for his good behaviour for 01 year. Yet, the crimes have been registered against the Petitioner in the year 2023. Petitioner has not produced any judgment, to show that he has been acquitted in any of the crimes nor produced any witness or document in his defence. Hence, the Respondent No.3 concluded that the case is made out to extern the Petitioner and accordingly, passed the impugned Order of Externment.
5) Details of the crimes and preventive actions are as under :-
Sr. Police Station C.R. No. Sections Present No. Status 1 Dadar Railway 232/2013 379, 413, 34 of I.P.C. Subjudice 2 C.S.T. Railway 146/2013 379 of I.P.C. Subjudice 3 Borivali Railway 06/2014 379, 34 of I.P.C. Subjudice 4 Vasai Road Railway 146/2015 379 of I.P.C. Subjudice 5 Navghar 327/2016 324, 323, 504, 506 of I.PC. Subjudice 6 Kashimira 136/2018 326, 325, 323, 504, 506, 34 of Subjudice I.P.C. 7 Kashimira 644/2020 143, 147, 149, 324, 323, 504 Subjudice and 506 of I.P.C. 8 Mira Road 225/2020 324, 323, 504, 34 of I.P.C. Subjudice 9 Mira Road 132/2023 307, 326, 394, 427 of I.P.C. Subjudice 10 Mira Road 362/2023 324, 504, 34 of I.P.C. 'C'-Summary 3/10 ::: Uploaded on - 02/12/2024 ::: Downloaded on - 02/12/2024 23:55:55 ::: Manoj 5.w1718.24.doc Preventive actions :- Sr. Chapter Case No. Section Particulars No. 1 Kashimira PS 107 of After hearing before the Executive Magistrate, Chapter Case O.W. Cr.P.C. bond of good behaviour was executed by the No. 175/2018 Petitioner 2 Kashimira PS 110 of Hearing was held before the Assistant Police Chapter Case Cr.P.C. Commissioner, Mira Road and the Petitioner No.02/2021 was required to execute a bond of his good behaviour in the sum of Rs.50,000/- 6) Petitioner challenged the 'Order of Externment' by filing the
Externment Appeal. Said Appeal was turned down. Hence, the Petition.
7) Mr. Modak, the learned Advocate for the Petitioner submits that there is no live-link in between the crimes at Sr.Nos.1 to 7 and the Order of Externment. The Petitioner is not convicted so far in any of the crimes on which the Order of externment is based. The in-camera statement of the confidential witnesses are not referred in the Order of Externment. Lastly, Mr. Modak submits that, the impugned Order of Externment is excessive as the Petitioner has been externed from several areas than necessary and for a complete period of 02 years, but without giving a single justifiable reason for the same. Thus, according to Mr.Modak, the subjective and objective satisfaction is missing in the Order of Externment. All these aspects are not considered when Respondent No.2 dismissed the Externment Appeal. As such, both the impugned Orders are not sustainable in law and liable to be quashed. 4/10 ::: Uploaded on - 02/12/2024 ::: Downloaded on - 02/12/2024 23:55:55 :::
Manoj 5.w1718.24.doc 8) Mr. Patil, learned A.P.P. for the State, on the other hand,
submits that the record clearly shows that since last 10 years the Petitioner has been committing one or the other crime. The Petitioner is a habitual offender. He submits that, said crimes were committed against property and person of the victims. The crimes committed are serious in nature. The last three crimes were committed in the year 2023 in quick succession. He submits that, the confidential witnesses have clearly revealed that witnesses are not willing to come forward to give evidence in public against the Petitioner by reason of apprehension on their part as regards the safety of their person or property. All these aspects have been well-considered before passing the Order of Externment. Said exercise clearly indicates the application of the mind as well as the subjective and the objective satisfaction on the part of the Respondent 3. As a result, the Petitioner has been externed from the limits of several areas for the complete period of 02 years. He, therefore, urged that there is no infirmity in the Order of Externment, hence, it is rightly confirmed by the Respondent No.2. Thus, according to Mr. Patil, the learned A.P.P. both the impugned Orders are sustainable in law.
9) I have carefully considered the record and rival submissions. It is settled law that, the measure of externment by its very nature is extraordinary. It has the effect of forced displacement from the home and surroundings. Often it affects the livelihood of the person ordered to be 5/10 ::: Uploaded on - 02/12/2024 ::: Downloaded on - 02/12/2024 23:55:55 ::: Manoj 5.w1718.24.doc externed. Thus, there must exist justifiable grounds to sustain an order of externment. The Order of Externment, therefore, must be strictly within the bounds of the statutory provisions. Under clause (a) of sub-Section (1) of Section 56, the externing authority must be satisfied on the basis of the objective material that the movements or acts of the person to be externed are causing or calculated to cause alarm, danger or harm to person or property. Under clause (b), there must be an objective material on the strength of which the externing authority must record subjective satisfaction that there are reasonable grounds for believing that the externee is engaged or about to be engaged in the commission of offences involving force or violence. Mere registration of number of offences by itself does not sustain an externment under Section 56 (1) (b) of the Act. The offences must either involve elements of force or involve or fall under Chapters XII, XVI, and XVII of the Indian Penal Code. In addition, the externing authority must record satisfaction that the witnesses are not willing to come forward to give evidence in public against the externee by reason of apprehension on their part as regards the safety of their person or property.
10) In the case in hand, in all 10 crimes were considered against the Petitioner. The crimes at Sr.Nos. 1 to 8 were committed in the years 2013 to 2016, 2018 and 2020. It appears that, the preventive actions were initiated in view of the crimes committed in the year 2018 and 6/10 ::: Uploaded on - 02/12/2024 ::: Downloaded on - 02/12/2024 23:55:55 ::: Manoj 5.w1718.24.doc 2020. However, in the show cause notice dated 20 th November 2023, issued by the Respondent No.4, there is no reference of the crime at Sr.Nos.6 and 7 registered at Kashimira police station in the year 2018 and 2020, respectively. The said show cause notice is silent about the incriminating material revealed from the in-camera statement of the confidential witnesses. As such, it is apparent that, without giving an opportunity to the Petitioner to explain about the said crime at Sr. Nos.6 and 7 and the incriminating material in the statement of the confidential witnesses, the Respondent No.4 concluded that the case was made out to extern the Petitioner and accordingly, he advised for his externment. There is no discussion in the Order of Externment as to why the aforesaid material was considered against the Petitioner when the Enquiry Officer did not give the Petitioner a chance to explain the same nor relied it to advice for the externment. As such, it is safe to infer that an extraneous material has been considered to pass the Order of Externment. However, the Respondent No.2 upheld the Order of Externment and dismissed the Appeal.
11) Mr.Modak, the learned Advocate for the Petitioner submitted that the petitioner has been acquitted in the crimes at Sr. Nos.1 and 4. There is no live-link between the said crimes at Sr. Nos. 1 to 8. The object of externment is not to penalize the externee, but to distance him from the surroundings which prove adjuvant for commission of the offences 7/10 ::: Uploaded on - 02/12/2024 ::: Downloaded on - 02/12/2024 23:55:55 ::: Manoj 5.w1718.24.doc and thereby disarm his influence in the said area. Therefore, there ought to be a live-link between the acts of the externee and the action of externment. In short, externment order cannot be passed by taking help of stale cases. This has direct relevance to the subjective satisfaction based on which the an externment order is passed. The crime at Sr. No.10 was pending investigation, yet, the Respondent No.4 referred the same in the show cause notice dated 20 th November, 2023. Later on 'C'- Summary was filed in the said crime at Sr. No.10.
12) In the backdrop, only the crime at Sr. No. 9 was available to consider against Petitioner. Said crime was allegedly committed within the jurisdiction of Mira Road Police Station. However, the Petitioner has been externed from the limits of several Districts. The learned APP submitted that, the associates and sureties of the Petitioner are resident of Thane, Brihan Mumbai and Mumbai Suburbs. As such, it is likely that the Petitioner would commit offence by entering into those areas by taking shelter of his said associates and sureties. Therefore, looking at the criminal antecedents of the Petitioner and seriousness of the aforesaid crimes, the Petitioner has been externed for complete 02 years. This ground, however, is not justifiable as details of the said associates and sureties of the Petitioner are not stated in the impugned Order. Majority of the crimes were stale. Therefore, externment of the Petitioner from the limits of several Districts was not justifiable. As such, the 8/10 ::: Uploaded on - 02/12/2024 ::: Downloaded on - 02/12/2024 23:55:55 ::: Manoj 5.w1718.24.doc impugned Order of Externment has resulted in unreasonable hardships to the Petitioner. Thus, to that extent the 'Order of Externment' was excessive and unreasonable. This is unfair having regard to the facts and circumstances of the case. Yet, the respondent upheld the impugned Order of Externment and its duration.
13) As held in the cited case of Deepak Laxman Dongre Vs. The State of Maharashtra and Ors.1 , "there cannot be any manner of doubt that an order of externment is an extraordinary measure. The effect of the order of externment is depriving a citizen of his fundamental right of free movement throughout the territory of India. In practical terms, such an order prevents the person even from staying in his own house along with his family members during the period for which this order is in subsistence. ...". "As the Order of Externment' takes away fundamental right under Article 19 (1) (d) of the Constitution of India, it must stand the test of reasonableness contemplated by clause (5) of Article 19."
14) Conspectus of the above discussion is that, the objective and subjective satisfaction arrived at for passing the 'Order of Externment' is erroneous. That apart, the Order of externment is excessive and unreasonable. Nevertheless, the Respondent No.2 upheld the said Order. This is not only erroneous but also illegal. In the backdrop, the impugned 'Order of Externment' dated 31st January, 2024 passed by the
1. AIR 2022 SC 1241.
9/10 ::: Uploaded on - 02/12/2024 ::: Downloaded on - 02/12/2024 23:55:55 :::
Manoj 5.w1718.24.doc Respondent No.3 and the impugned Order dated 8th April, 2024 thereby dismissing the Externment Appeal No.26/2024 filed by the Petitioner, both are not sustainable and liable to be quashed and set aside. The Petition succeeds, thus. Hence, following Order :-
- ORDER -
i) Writ Petition No.1718 of 2024 is allowed.
ii) The impugned 'Order of Externment' dated 31st
January, 2024 passed by Respondent No.3 against
the Petitioner and the Order dated 8th April, 2024 passed by Respondent No.2 thereby dismissing the Externment Appeal No.26 of 2024, filed by the Petitioner, are quashed and set aside.
iii) Rule is made absolute in the aforesaid terms.
(SHYAM C. CHANDAK, J.) 10/10 ::: Uploaded on - 02/12/2024 ::: Downloaded on - 02/12/2024 23:55:55 :::