Badiun Jamal S/o Akbar Badsha Kaimatjan Pasha v State of Maharashtra and others

Bombay High Court

4 September 2013

Writ Petition No. 490 of 2013

The Judgment was delivered by : G. S. Patel, J.

1. Rule; made returnable forthwith. Learned APP waives service on behalf of the Respondents. By consent, taken up for hearing and final disposal.

2. In this writ petition, the Petitioner challenges the Externment Order dated 7th February 2012 passed by the 2nd Respondent, the Additional Commissioner of Police, Zone-4, Matunga, Mumbai in Case No.43/C/43/2012; and the order dated 1st November 2012 passed by the 4th Respondent (Secretary (Special), Home Department, Government of Maharashtra, Mantralaya, Mumbai) in the statutory appeal therefrom.

3. On 20th October 2011, the Petitioner was served a show- cause notice under Section 59 of the Bombay Police Act, 1951. This show-cause notice pertained to the externment proceedings under Section 56(1)(a)(b) of the Bombay Police Act, 1951. The Petitioner appeared and showed cause. After hearing him, the 2nd Respondent passed the impugned Externment Order dated 7th February 2012, externing him from the limits of Greater Mumbai and Thane for two years. The Petitioner filed Writ Petition No.232 of 2012 challenging this Externment Order. That Writ Petition was disposed of by relegating the Petitioner to the remedy of a statutory appeal. The Petitioner did file such an appeal. This, too, was dismissed on 1st November 2012.

4. Mr.Ponda, learned counsel for the Petitioner, contended that in neither of the impugned orders have the authorities recorded their respective subjective satisfactions that witnesses are, in apprehension of danger by the Petitioner to their persona or property, unwilling to come forward to give evidence in public against the Petitioner. He submitted that such a subjective satisfaction is one of the essential requirements of externment orders under Section 56(1)(a)(b) of theBombay Police Act. Mr. Ponda contended that, indeed, the show-cause notice on which both orders are passed is, as he put it, “blissfully silent” about any such finding.

5. On a plain reading of Section 56(1)(a) and (b) of the Bombay Police Act, 1951, it is clear that there are several distinct requirements that must each be met before an individual’s fundamental liberties are curtailed by an externment order. Under Section 56(1)(a)(b), the externment order must reflect that in the opinion of the officer proposing externment – i.e., in his subjective satisfaction -witnesses are not willing to come forward to give evidence in public against the proposed externee because they fear for the safety of their persons or property. Paragraphs 4 and 5 of the impugned Externment Order do not speak of any such subjective satisfaction, or even of the unwillingness of any witnesses to come forward to depose in public against the Petitioner. They only say that nobody is prepared to make a complaint against or oppose the Petitioner. We do not believe this is sufficient.

6. In support of his submissions, Mr. Ponda relied on the decision of the Division Bench of this Court in Sudhir Raviraj Choudhary V/s. The State of Maharashtra.{2013 All MR (Cri) 175} That decision, in turn, relied on and followed an earlier decision in Subhash Jethu Patil V/s. State of Maharashtra.{2012 All MR (Cri) 29752012 Indlaw CAL 620} Both decisions follow the well-settled principle enunciated in Pandharinath Shridhar Rangnekar V/s. Dy. Commissioner of Police,{AIR 1973 SC 630 1972 Indlaw SC 680} which leaves no manner of doubt that no order of externment can be passed under Section 56(1)(a)(b) unless:

“the authority concerned is satisfied of the unwillingness of the witnesses to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety with their persona and property”.

7. This is also the view taken in a recent decision of a Division Bench of this Court, namely, Zahoor Ismail Fakie v/s. The State of Maharashtra 2013 Indlaw MUM 721.{Cr. Writ Petition No.2382 of 2013 decided on 23rd August 2013} That decision in terms states that the subjective satisfaction must be one referable to some material capable of being objectively tested. The material must be such that, on any fair assessment of it, any prudent person would infer that the proposed externee’s criminal activities create, or are calculated to create, a reasonable apprehension of alarm, harm or danger to life and property; and, further that witnesses are afraid and unwilling to give evidence in public against the proposed externee. We do not find any such material here. We see no reason to differ from the view we have earlier taken.

8. In the present case, both the authorities seem only to have assumed that because persons are allegedly unwilling to “oppose” the Petitioner or to file complaint/s against him, therefore, by necessary implication, it must follow that witnesses would also be unwilling to give evidence in public against him. This is, in fact, essentially the submission of the learned APP, one that we are quite unable to accept. The law on the subject is unambiguous. The required subjective satisfaction is altogether missing in both impugned orders. Neither impugned order can be sustained. There is, we find, a fatal non-application of mind on the part of the 2nd and 3rd Respondents sufficient to vitiate both impugned orders.

9. In the result, the externment order dated 7th February 2012 passed by the Additional Commissioner of Police, Zone-4, Matunga, Mumbai in Case No.43/C/43/2012 and the order dated 1st November 2012 passed by the 4th Respondent (Secretary (Special), Home Department, Government of Maharashtra, Mantralaya, Mumbai) are both quashed and set aside. Rule is made absolute in terms aforesaid. There will be no order as to costs. All concerned to act on an authenticated copy of this order.

Order accordingly