Shri Arshad Sahil Khan v. Deputy Commissioner of Police & State of Maharashtra

1. Rule. Rule made returnable forthwith and heard with the consent of learned counsel for the petitioner and learned APP for State.

2. On 17th June, 2019 a show cause notice was issued by the Respondent No. 1 to the petitioner. On 30th September, 2019 the Bhagyawant Punde petitioner fled reply to the said show cause notice. Respondent NO. 1 externed the petitioner by an order dated 6th January, 2021.. Thereafter, the petitioner fled an appeal before Commissioner Konkan Division under Section 60 of Maharashtra Police Act for quashing the order of Respondent No. 1. On 23.03.2021, the said appeal was rejected by the Divisional Commissioner, Konkan Division thereby confrming the order passed by Respondent No. 1. Hence, this writ petition.

3. Learned counsel appearing for the petitioner submits that the judgment and order dated 23.03.2021 passed by Divisional Commissioner Konkan Division, in Criminal Appeal No. 21/2021 is bad in law and contrary to the principles of natural justice. The lower appellate court has not considered the fact that the show cause notice does not disclose the alleged offences committed by the petitioner. She submits that the appellate authority has erred in externing the petitioner from two district i.e. Panvel and Thane without assigning any reasons. It is submitted that specifc material against the petitioner is not mentioned in the show cause notice and therefore, on that count the order passed by Respondent No. 1 is legally unsustainable. It is further submitted that the there is no live link between the alleged commission of offences by the petitioner and passing of externment order by the Respondentauthority. As such, there is no material against the petitioner and hence the externment order passed by the respondent-authority is unsustainable in law and deserves to be quashed and set aside.

4. Learned counsel for the petitioner placed reliance on judgments in the case of Pandharinath Shreedhar Rangekar Vs. The Deputy Commissioner of Police[1], Silva Gora Silve Ayaner Arjun Vs. Nawaz Bajaj Deputy Commissioner of Police[2], Panjaji Dagdu Gaikwad Vs. State of Maharashtra[3] and Dhananjay Manohar Sapkal Vs. State of Maharashtra & Ors[4].

5. Mr. Yagnik, the learned APP appearing for Respondent- State invites our attention to the externment order passed by the respondent-authority and also the reasons assigned while dismissing the appeal fled by the petitioner and submits that the detail reasons are assigned by both the authorities. Both the authorities have concurrently held that the petitioner deserves to be externed from two districts. It is submitted that number of offences are registered against the petitioner by different persons. The 1 1972 EQ (SC) 570 2 2006 EQ (Bom) 0-1580 3 2001 EQ (Bom) 2624 4 2005 2 MH.L.J. 384. petitioner is in the habit of assaulting common citizens by using sharp weapons residing in Kharghar area, so also he is involved in extortion of money from citizens residing within the jurisdiction of Kharghar Police Station. It is submitted that the in-camera statements of witness “A” and “B” were recorded by the concerned police offcer. The said statements would clearly demonstrate the activities of the petitioner. Therefore, learned APP submits that the petition may be dismissed.

6. We have given careful consideration tp the rival submissions. With the able assistance of learned counsel for the petitioner and learned APP for State, we have perused the pleadings and grounds taken in the petition, annexures thereto and the original record in relation to the externment proceeding initiated against the petitioner. We have carefully perused the contents of shows cause notice and we fnd that, though it is cursorily mentioned about recording statement of witnesses “A” and “B”, however, the gist of general nature of allegations and when such incidnets had taken place has not been mentioned. It is true that it is not necessary to mention particulars about the witnesses which would expose their identity, nevertheless, gist of general nature of allegations against the petitioner in said statements should have been mentioned, so that the petitioner would have been in a position to effectively reply to the said notice.

7. We have carefully perused the offences mentioned in the show cause notice, so also in the impugned orders passed by the respondent-authorities. It is true that those offences would fall under chapter XII, XVI and XVII, however, it appears that C.R. NO. 459/2018 registered with Kharghar Police Station for the offences punishable under Section 392, 504, 506 read with 34 of IPC, is originated from the dispute between informant and the petitioner. In other offences the investigating offcer can proceed with the investigation and may take appropriate decision in accordance with law either to fle chargesheet or summary.

8. Upon perusal of reasons assigned by the respondentauthorities it is diffcult to accept the contention of the respondents that there is live link between the initiation of externment proceedings and registration of offences against the petitioner. We have carefully perused the reasons assigned by the respondentauthorities and we fnd that there is no specifc discussion about what witness “A” and “B” have stated. The externing authority has not specifcally recorded the fndings that the witnesses are unwilling to come forward in public to give evidence against the petitioner by reason of apprehension to safety of their part, persona and property. Merely because number of offences are registered against the petitioner is no ground to extern the petitioner from two districts, without assigning any specifc reasons why the externment of the petitioner is necessary from the adjoining district. It appears that all the offences are registered within the jurisdiction of Kharghar Police Station. Merely, because number of offences are registered against the petitioner, and therefore, externment of the petitioner is warranted from two districts cannot be accepted in absence of compliance of mandate of relevant provisions of Maharashtra Police Act. As already observed, in the show cause notice issued to the petitioner, merely, it is mentioned that incamera statements of witness “A” and “B” are recorded, but there is no gist of general nature of allegations made against the petitioner or at least on which date said offences have been committed by the petitioner.

9. As a result valuable right of the petitioner to effectively reply to the said notice has been affected. Secondly, externinng authority did not elaborately refer to the contents of the statements of witnesses “A” and “B”, recorded in-camera. In order to legally sustain the order of externment under Section 56 of Maharashtra Police Act, 1951, it is necessary to record specifc fndings that the witnesses are unwilling to come forward in public to give evidence against the petitioner by reason of apprehension to safety of their part, persona and property.

10. This Court (Coram:-R.A. Jahagirdar and P.V. Nirgudkar, JJ.) in the case of Yashwant Damodar Patil Vs. Hemant Karkare, Deputy Commissioner of Police, Thane & Anr[5], relying upon the judgment of Hon’ble Supreme Court in the case of Pandharinath Shridhar Vs. Deputy Commissioner of Police[6], in paragraphs 9 and 11 held thus:-

11. In an externment proceedings initiated against any person it is necessary to scrupulously follow the procedure and mandate of said sections. Once the person is externed, his fundamental right to stay at the place of his choice or to move from one place to another gets curtailed.

12. Learned counsel for the petitioner during the course of hearing submitted that the wife of the petitioner is illiterate and children are dependent upon the petitioner. The said ground in the facts of the present case cannot be overlooked.