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CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (ST) NO.18661 OF 2023
Mohammad Noor Hasan Abdul Gafar
Shaikh@Hasan Kanya ... Petitioner
Ms. Anjali Patil with Mr. Tohid Shaikh, for Applicant.
Mr. R.M.Pethe, APP for State.
API Sourabh Pingale, Dewree Police Station, Mumbai, present.
JUDGMENT
1. This Petition under Article 226 of the Constitution of India calls in question the legality, propriety and correctness of an order dated 14 September 2023 passed by the Divisional Commissioner, Konkan Division in Appeal No.97 of 2023, whereby the Appellate Authority modified the externment order passed by the Competent Authority under Section 57(1)(a) of the Maharashtra Police Act, 1951 only to the extent of curtailing the period of externment to 18 months from two years.
2. The background facts leading to this Petition can be stated, in brief, as under: 2.[1] The Assistant Commissioner of Police, Wadala Division, Mumbai – the Inquiry Officer, addressed a notice to the Petitioner calling upon him to show cause as to why the Petitioner be not externed for a term of two years from Mumbai City and 2024:BHC-AS:20344-DB Mumbai Suburban District for having been convicted in a number of cases for the offences punishable under Chapter XVII of the Indian Penal Code, and yet the Petitioner indulged in similar activities which gave rise to an apprehension that the Petitioner was likely to again engage in the commission of the similar offences for which he had been convicted. 2.[2] As the Petitioner did not give reply despite opportunity, a proposal was submitted to the Competent Authority. A further notice to show cause as to why the Petitioner be not externed for a term of two years from Mumbai city and Mumbai suburban District, was issued by the Competent Authority on 13 June 2023. The Petitioner gave reply on 26 June 2023. 2.[3] After considering the material on record and the reply submitted by the Petitioner, the Competent Authority recorded a satisfaction that the Petitioner had been convicted for the offences subsumed under Chapter XVII of the Penal Code and yet there was no change in the conduct of the Petitioner and he has been engaging in similar offences as two crimes i.e. C.R.No.517 of 2022 and 13 of 2023 were registered against the Petitioner, post conviction in Sessions Case arising out of C.R.No.50 of 2015 by a judgment and order dated 29 January 2022, inter alia, for the offences punishable under Sections 120B, 379, 427, 285, 486 red with Section 34 of the Indian Penal Code and Section 15(2) of the Petroleum and Minerals Pipelines Act, 1962 and Section 3 of the Prevention of Damage to Public Property Act, 1984 and the Petitioner was again likely to engage himself in the commission of similar offences, and, therefore, it was necessary to extern the Petitioner from Mumbai City and Mumbai Suburban Districts for a term of two years. 2.[4] The Petitioner carried the matter in appeal before the Divisional Commissioner, Konkan Division. By the impugned order dated 14 September 2023, the Appellate Authority did not find any reason to interfere with the satisfaction arrived at by the Externing Authority to extern the Petitioner. However, in the opinion of the Appellate Authority, the Competent Authority had not ascribed reasons for externing the Petitioner for a full term of two years, and, therefore, interfered with the externment order to the extent of curtailing the period of externment to 18 months from two years. 2.[5] Being further aggrieved, the Petitioner has invoked the writ jurisdiction.
3. I have heard Ms. Anjali Patil, learned Counsel for the Petitioner and Mr. R.M.Pethe, learned APP for State at some length. With the assistance of the learned Counsel for the parties, I have perused the material on record.
4. Ms. Patil mounted a multifold challenge to the externment order as well as the impugned order. First and foremost, the Competent Authority had taken into account old and stale cases of the year 2005 to 2008 in which the Petitioner was convicted in the month of October 2010. In fact, on the basis of those cases, the Competent Authority had passed an externment order, which was challenged in Writ Petition No.3139 of 2014. The effect of the externment order was stayed by an order dated 1 September 2014. Eventually, as the term expired, the said Petition was disposed by an order dated 5 October 2021. In this view of the matter, the conviction recorded in the year 2010 could not have been taken into account to pass the externment order in the year 2023.
5. Secondly, in the 5th case i.e. Sessions Case arising out of C.R.No.50 of 2015, the Petitioner has been acquitted of the offences under the Maharashtra Control of Organized Crimes Act and convicted for the offences punishable under Sections 120B, 379, 427, 285, 486 of the Indian Penal Code and Section 15(2) of the Petroleum and Minerals Pipelines Act, 1962 and Section 3 of the Prevention of Damage to Public Property Act, 1984 only. In the appeal preferred against the said judgment and order of conviction, this Court has granted bail by an order dated 23 March 2022.
6. Thirdly, rest of the two crimes which have been registered against the Petitioner i.e. C.R.No.517 of 2022 and 13 of 2023 registered with Sewree Police Station, the Petitioner has been roped in on the basis of suspicion alone. In these circumstances, the material on record does not justify an inference that the Petitioner would again indulge in similar offences for which he has been convicted in Sessions Case arising out of C.R.No.50 of 2015.
7. Fourthly, Ms. Patil made an endeavour to urge that the Competent Authority has not made any reference to in-camera statement, nor recorded a finding that the witnesses were not willing to give evidence in public against the Petitioner. Therefore, right to freedom and personal liberty of the Petitioner could not have been curtailed in a high-handed manner.
8. As against this, Mr. Pethe, learned APP, submitted that the considerations which are germane for testing the legality and correctness of an order passed under Section 56 of the Maharashtra Police Act cannot be imported to test the legality and correctness of an order passed under Section 57 of the Act. It was submitted that there is objective material in the form of a conviction recorded against the Petitioner for the offences which are subsumed under Chapter XVI of the Penal Code, and registration of two subsequent crimes to justify the satisfaction that the Petitioner would indulge in similar offences. Thus, according to Mr. Pethe, the subjective satisfaction arrived at by the Competent Authority cannot be faulted at.
9. In any event, the adequacy and sufficiency of the material to arrive at such subjective satisfaction cannot be delved into in exercise of writ jurisdiction. Therefore, no interference is warranted in the orders passed by the authorities under the Maharashtra Police Act, 1951, urged Mr. Pethe.
10. Relevant part of Section 57 of the Maharashtra Police Act, 1951 reads as under:
11. From a plain reading of the text of Section 57 of the Act, 1951, it becomes abundantly clear that the externing authority must record a finding that the Petitioner had been convicted of any of the offences enumerated in clauses (a) to (c) of sub-Section (1) and further satisfaction that it had reason to believe that the proposed externee was likely to again engage himself in the commission of an offence similar to that for which he was convicted. The previous conviction for any of the offences enumerated in various clauses of sub-section (1) of Section 57 is a condition precedent. That constitutes an objective fact. In addition to such objective fact, the externment authority must record a subjective satisfation that the proposed externee is likely to again engage himself in the commission of similar offences. Such subjective satisfaction, however, must be based on objective material. It cannot be a mere ipse dixit of the externing authority that, in its opinion, the proposed externee is likely to again commit similar offences. The legislature has designedly used the term “reason to believe” which implies that there ought to be material on the basis of which a person can justifiably draw an inference that the proposed externee has shown such tendency as to again indulge in identical offences.
10. A useful reference in this context can be made to a decision of the Division Bench of this Court in the case of Rameshchandra V/s. The State[1] wherein the Division Bench had enunciated as under: “4…..The idea underlying the provisions contained in Section 57 obviously is to protect the locality or area concerned from the probable commission of the offence by the externee. In that sense, the order is more preventive in intention and action than punitive. If that be the real object of the order, it would, I think be reasonable to hold that the order authorized to be passed under S.57 is the result of the present tendency of the externee far more than of his past convictions. The past history of the externee is no doubt relevant, and indeed is made a condition precedent by S.57, for the passing of an order of externment. But, even so, the order of externment is not a penalty imposed for the said history. The scheme of the section clearly indicates that the order of externment was passed against the appellant, not because he was convicted on eight previous occasions or because the offence for which he was convicted fell under Chap XVII, IPC., but because the Commissioner had reason to believe that he was likely again to engage himself in the commission of similar offences. 1 AIR 1955 Bombay 346 The direct and immediate cause for the externment of the appellant is the tendency on the part of the appellant, of which the Commissioner was satisfied, to commit offences similar to those of which he had been convicted in the past. It is not as if every person who has committed offences mentioned in S.57, cl. (a), (b) or (c) is liable to be externed. Previous convictions of the type and of the categories mentioned in the first part of S.57 are, no doubt, a condition precedent. But it would be unreasonable to hold that the order of externment is the necessary result of the said convictions alone. The order of externment is more directly and more immediately the result of the tendencies which are noticed in the person concerned and as to which the Commissioner had satisfactory evidence in his possession to justify his conclusion that the person concerned is likely again to engage himself in the commission of similar offences.” (emphasis supplied)
11. The aforesaid being the object of provisions contained in Section 57 of the Act, 1951, it deserves to be appraised whether the externing authority had posed unto himself the correct question and passed the externment order after recording the requisite subjective satisfaction.
12. The externing authority took into account the following cases: Sr.No. Police Station and C.R.No. Under Sections 1 Railway Security Force, CSMT C.R.No.03 of 2005 3(a) of The Railway Property (Unlawful Possession) Act, 2 Railway Security Force, Hajibunder, 3(a) of the Railway Property 1966.
1966.
5 Sewree Police Station, C.R.No.50 of 2015 379, 461, 427, 285, 411, 395, read with 34 of IPC and Section 15(2) of Petroleum and Minerals Pipelines Act, 1962 and Section 3 of Prevention of Damage to Public Property Act, 1984 6 Sewree Police Station, C.R.No.517 of 2022 Sections 379 read with Section 34 of IPC and Section 120 of Maharashtra Police Act.
13. In the first five cases, the applicant was convicted. Last two cases appear to be under investigation.
14. The aforesaid being the nature of the material taken into account by the externing authority, the submission on behalf of the Petitioner that the first four cases were taken into account when the externment proceedings were initiated against the Petitioner in the year 2014, merits consideration. In the externment order, the Competent Authority has referred to the order dated 12 May 2014, which was passed to extern the Petitioner for a term of two years. The order dated 1 September 2014 passed in WP No.3139 of 2014 indicates that when the said externment order was assailed, interim relief was granted.
15. The situation which thus emerges is that four of the cases which were taken into account were already considered by the externing authority in the year 2014. In any event, first four cases in which the Petitioner came to be convicted, were of the year 2005 to 2008 and the orders of conviction were passed in the month of October
2010. Those cases became stale by any standard. The externing authority, thus, committed a manifest error in taking into account the conviction recorded against the Petitioner in first four cases well prior to 12 years. That leaves the conviction in Sessions Case arising out of C.R.No.50 of 2015, as the sole thread to which the department’s case hangs in balance.
16. Undoubtedly, the Petitioner came to be convicted in Sessions Case arising out of C.R.No.50 of 2015 on 29 January 2022. It could be urged that the condition precedent for invoking the provisions contained in Section 57 of the Act, has been fulfilled. However, the legal position is neigh well settled that it is not a mere conviction in a case, but the propensity of the proposed externee to indulge in identical offences for which he has been already convicted, that furnishes a foundation for an action under Section 57(1) of the Act, 1951. It is the satisfaction as to the second condition of the likelihood of the proposed externee indulging in similar offences, that is at the heart of the matter.
17. A useful reference in this context can be made to a Division Bench judgment of this Court in the case of Vishwanath Kashinath Tribhuvan V/s. K.P.Raghuvanshi and Anr.[2] wherein it was enunciated that it is obvious that it is not the mere conviction, but further satisfaction of the authority that the person is likely to engage himself in the commission of identical offences that furnishes a justification for an order under Section 57 of the Police Act, 1951.
18. In the case of Karan Ramesh Ghuge V/s. Dy. Commissioner of Police and Ors.[3] another Division Bench of this Court observed, inter alia, as under: “9…….It must be noted here that the impugned order has been passed under Section 57(1)(a)(i) of the Bombay Police Act. In order to exercise jurisdiction under this Section, there are two necessary prerequisites, one, the person must be convicted for an offence under any of the Chapters XII, XVI or XVII of the Indian Penal Code and second, the empowered officer must have reason to believe that such person is likely again to engage himself in the commission of a similar offence. The second condition wp1305-13J can be said to be fulfilled only when there is some additional material apart from prior conviction in a similar offence, on the basis of which a subjective satisfaction can be reached that the person has a tendency or criminality in mind or over-powering urge to indulge in a similar offence. No doubt, the satisfaction of an empowered officer is subjective, but it has to be necessarily based upon some empirical material from which any prudent man can draw similar inference. In the instant case, there is no such additional material present on record and, therefore, the impugned order is vitiated also on this ground.”
19. Was there any objective material to record such satisfaction is the moot question ? As noted above, the historical fact of the Petitioner having been convicted for the offences punishable under Chapter XVII of the Penal Code in connection with the crimes registered during the period 2005-08 could not have been legitimately taken into account by the externing authority. If the said convictions are eschewed from consideration, apart from the conviction recorded in C.R.No.50 of 2015 which satisfies the element of a condition precedent, two crimes registered against the Petitioner appear to have been taken into consideration by the Competent Authority.
20. I have perused the allegations in the FIR in C.R.Nos.517 of 2022 and 13 of 2022 registered at Sewree Police Station. In none of the crimes, the Petitioner has been named as the suspect directly. C.R.No.13 of 2022 was registered against unknown person. In C.R.No.517 of 2022, 8 named accused allegedly committed theft on a stranded ship. Those persons allegedly stated that at the instance of the applicant and another person Mobin Shaikh, they attempted to commit theft on the said ship.
21. This being the nature of the accusation against the Petitioner, it would be difficult to accede to the submission on behalf of the Respondent that the Competent Authority considered the objective material to record its subjective satisfaction. Undoubtedly, the satisfaction to be arrived at by the Competent Authority cannot be questioned on merits. However, the existence and quality of the material on which the satisfaction appears to have been arrived at is required to be appreciated.
22. The conspectus of aforesaid consideration is that on the one hand, the externment authority took into account four old and stale cases of conviction, and, on the other hand, two subsequent crimes registered against the Petitioner, prima facie, do not appear sturdy enough to bear the weight of the satisfaction that the Petitioner would engage in identical activities for which he has been convicted in Sessions Case arising out of C.R.No.50 of 2015.
23. I am, therefore, inclined to hold that the order of externment cannot be sustained. The Appellate Authority also fell in error in not correcting the mistake which the externment authority had committed, and in modifying the externment order to the extent of duration only. Both the orders thus deserve to be quashed and set aside.
22. Hence, the following order: ORDER
(i) The Writ Petition stands allowed.
(ii) The impugned order dated 14 September 2023 as well as the externment order dated 28 June 2023 passed by the Externment Authority stand quashed and set aside.
(iii) Rule made absolute in the aforesaid extent.