Akbar Jamil Khan v. The State of Maharashtra

1 Rule. Rule is made returnable forthwith and heard with the consent of the learned counsel appearing for the parties.

2 By way of this Writ Petition, the Petitioner takes exception to the externment order bearing No.186/C/43/Zone-2/20 dated 26/11/2020 passed by the 3rd Respondent i.e. Deputy Commissioner of Police, Zone-2 Mumbai which has been confirmed by the 2nd Respondent i.e. the Divisional Commissioner, Konkan Division, by order dated 23rd March 2021 in Appeal No.23/2021 filed by the Petitioner.

3 The Criminal Interim Application No.1679 of 2021 is filed by the Petitioner/Applicant for staying the said externment order dated 26/11/2020 passed by the 3rd Respondent as also the order passed by the 2nd Respondent in Appeal No.23 of 2021.

4 By the order of externment passed by the 3rd Respondent, the Petitioner has been externed out of the limits of Mumbai City, Mumbai Suburbs’ Districts for a period of 1 years on the ground that the Petitioner habitually commits criminal acts like forcible extortion, thefts with intention to cause wrongful loss and to cause harm to the assets of the public. lgc 2 of 9

5 Being aggrieved and dissatisfied with the said order of externment, the Petitioner filed an Appeal before the Divisional Commissioner, Konkan Division. The said Appeal has been dismissed by the 2nd Respondent by order dated 23rd March 2021. Hence this Writ Petition.

6 The learned counsel appearing for the Petitioner submits that the concerned Assistant Police Commissioner, Zone-2, Mumbai, has failed to serve a copy of notice dated 12/08/2020. It is stated that, the Petitioner was not made aware about the general nature of material allegations made against the petitioner in the show cause notice, and therefore, Petitioner is deprived of his valuable right to make effective representation and, on this ground alone the impugned orders deserve to be set aside. It is submitted that there is not a single conviction to the credit of the Petitioner and, the Respondents/Authorities have failed to take into consideration the said fact while passing the order of externment. It is also submitted that the externment order is passed without sending initial show cause notice dated 12/08/2020 to make effective representation referred to herein above, and as a result, the Petitioner could not make effective representation because of not sending aforesaid notice mentioning therein the general nature of allegations, and therefore, the externment order is against the principles of natural justice, and is in violation of fundamental rights of the Petitioner. lgc 3 of 9 The learned counsel for the Petitioner further submitted that the in-camera statements of two witnesses cannot be relied upon, as the facts need to be tested on the anvil of the evidence and cross examination. It is submitted that there was no communication of the alleged show cause notice purported to have been issued under Section 59 of the Bombay Police Act by the concerned Assistant Police Commissioner on 12/08/2020. It is further submitted that as a matter of fact the externing authority did not arrive at subjective satisfaction that the witnesses are unwilling to come forward to give evidence in public against the proposed externee i.e. the petitioner herein by reason of apprehension to safety of their part, persona and property. He therefore submitted that the order of externment needs interference. He submits that the writ petition may be allowed.

7 The learned APP, appearing for the Respondents/State, submitted that the order of externment passed by the Respondent/Authority is fully justified and, the Respondents/Authority after due satisfaction has passed the said order. It is submitted that the Petitioner is a habitual offender. He therefore submits that the writ petition may be dismissed.

8 We have given careful consideration to the rival submissions. With the able assistance of learned counsel for the petitioner and learned APP for State, perused the pleadings and grounds taken in the petition, annexures lgc 4 of 9 thereto, original record pertaining to the externment proceedings of the petitioner and reasons assigned in the impugned order by the Respondent/Authority. We have carefully perused the record and material pertaining to the externment proceedings initiated against the Petitioner, and it appears that the said notice dated 12th August 2020 signed by the concerned Assistant Commissioner of Police has not been sent to the Petitioner. Therefore, we find considerable force in the arguments of the learned counsel for the Petitioner that the right of the Petitioner to reply/make effective representation to answer such notice to the competent authority has been totally hampered and jeopardized.

9 We have carefully perused the contents of the in-camera statements of the witnesses and we are of the opinion that if the allegations made in the said statements are read in their entirety, at the most those allegations may disclose the breach of law and order, and not the public order.

10 The Petitioner has been externed from Mubai City and adjoining Suburbs’ Districts. No doubt the externing authority can extern the proposed externee from the adjoining districts to the district in which the alleged activities of the externee are confined. However, the said authority has to give lgc 5 of 9 cogent reasons for externing the proposed externee from adjoining districts.

11 As rightly contended by the learned counsel for the petitioner that, if the externment order rests upon in-camera statements and other material, in that case, the general nature of allegations by the said witnesses in their statements need to be mentioned in the initial notice issued to the proposed externee, so as to enable the proposed externee to file effective reply to the said allegations.

12 All the alleged offences, which are mentioned in the impugned order of the externing authority, are shown to have been pending against the Petitioner. It is not demonstrated by giving cogent reasons in the impugned order, the live-link between the said pending offences and the initiation of the externment proceedings against the Petitioner. So far as those pending offences are concerned, the law will take its own course and, if there is sufficient material, there will be full-fledged trial.

13 The Division Bench (Coram:- A.S. Oka & S.S. Shinde, JJ.) of this Court, in the unreported judgment in the case of Iqbal Munnaf Sayyed (supra), in Para 6 held as under-

6. This Court in the case of Mrs. Marry Kutty Thomas Vs. The State of Maharashtra & Ors, 1987(2) Bom.C.R. 196, in the facts of that case, held that the issuance of notice under lgc 6 of 9 Section 59, the provisions of the said Section are mandatory, notice must not only state the general nature of material allegation against the person concerned, but also the precise nature of action proposed to be taken against him.

14 Another Division Bench (Coram:- S.S. Shinde & V.L. Achliya, JJ.) in the case of Krishna Vijay Lalbegi Vs. The State of Maharashtra & Ors, in para 10 held as under:- 10] According to the petitioner, the impugned externment order passed by the Competent Authority and does not record subjective satisfaction of the fact that witnesses were not willing to come forward to depose against the petitioner out of fear, which is one of the cardinal requirement to invoke section 56 of the Act. This position is no more res integra. The Apex Court in the case of [Pandharinath Shridhar Rangnekar Vs. Dy.Commissioner of Police, State of Maharashtra] 2, reported in AIR 1973 S.C. 630 has observed that an order of externment can be passed under Clause (a) or (b) of section 56 if, and only if, the authority concerned is satisfied that witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension of their part as regards the safety of their persona and property. This subjective satisfaction is conspicuously absent in the order passed by the Externing Authority. In paragraphs 4, the Division Bench held that what is stated in show cause notice cannot be the basis to assume that the concerned authority was subjectively satisfied about the existence of the aforesaid fact and in absence of such subjective satisfaction of the fact, the Externinig Authority would not acquire jurisdiction to invoke section 56 (1) (a)(b) of the said Act. lgc 7 of 9