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Judgment
M.S. Karnik, J
Rule. Rule is made returnable forthwith. Heard fnally with the consent of the parties.
By this Petition under Article 226 of the Constitution of India the petitioner is challenging the order dated October 18, 2019 passed by the respondent No.2 - Deputy Commissioner of Police, Zone - VII, Mulund (West), Mumbai, externing the petitioner under Section 56 (1) (a) and (b) of the Mumbai Police Act, 1951 (hereinafter referred to as 'the said Act' for short). The petitioner also challenges the order dated December 2, 2019 passed by the appellate authority i.e. respondent No.3 - Division Commissioner, Konkan Division, Mumbai, confrming the order of externment.
The Senior Inspector of Police, Mulund Police Station, initiated action for externing the petitioner. On a proposal submitted to the respondent No.2 - Externing Authority, a show cause notice came to be issued to the petitioner on August 7, 2019 under Section 59 of the said Act. The petitioner replied to the said notice vide his reply dated October 17, 2019. By an order dated October 18, 2019, impugned in this Petition, the respondent No. 2 passed an order externing the petitioner from the areas of Mumbai, Mumbai Suburban Districts and Thane District.
The learned counsel for the petitioner assailing the order of externment submits that the impugned order sufers from non application of mind in as much as though he was acquitted in respect of Crime No.100/2019 registered under Sections 326, 324, 323, 337, 384, 504, 506 read with 34 of the Indian Penal Code (hereinafter referred to as 'the IPC' for short), the Externing Authority has placed reliance on the said C.R.
The next point urged by the learned counsel for the petitioner is that the impugned order is excessive. According to him, the petitioner though has cases registered against him only at Mulund Police Station, however, no reasons have been mentioned as to why he has been externed from Mumbai, Mumbai Suburban Districts and Thane. The learned counsel further submitted that the impugned order does not record the subjective satisfaction of the Externing Authority. According to learned counsel for the petitioner, the Externing Authority has proceeded on the footing that the ofences are registered against the petitioner under Chapter XVI and XVII of the IPC, when as a matter of fact, there is no ofence registered against the petitioner under Chapter XVII of the IPC which shows total non application of mind in passing the impugned order. The learned counsel for the petitioner argued that the externment order is also vitiated on the ground that live nexus between his activities and the necessity of externing him has snapped.
In support of his submission the learned counsel relied upon the decision of the Apex Court in the case of Pandharinath Shridhar Rangnekar vs. Deputy Commissioner of Police, The State of Maharashtra1. The learned counsel for the petitioner also relied upon the decisions of this Court in the case of (1) Sandip Devidas Thorat vs. The Principal Secretary (Appeals & Hearing) & anr.2, (2) Santosh Raghunath Patil vs. The Deputy Commissioner of Police & anr.3, (3) Nisar vs. Deputy Commissioner of Police and others4 and (4) Hanuman Rajaram Mhatre vs. The State of Maharashtra5 and Rajendra Karbhari Kale vs. State of Maharashtra and others6
The learned APP on the other hand supported the impugned order. She would submit that the impugned order complies with the requirements of law. She invited our attention to the reasons recorded by the Externing Authority and submitted that the order is a well considered one which does not warrant any interference.
We have heard the learned counsel and the learned APP. We have perused the Petition, annexures, documents and gone through the impugned order.
The respondent No.2 took into consideration the following cases registered against the petitioner with Mulund Police Station:
Sr. No.
Police Station
Date of offence
C.R.No.
Offence alleged
Status
1
Mulund
1/1/2018
01/2018
Sections 326, 34 IPC
Pending
2
Mulund
7/9/2018
367/2018
Sections 324, 504, 34 IPC r/. 37 (1), 127 Maharashtra Police Act
Pending
3
Mulund
22/2/2019
100/2019
Sections 326, 324, 323, 337,384, 504, 506, 34 IPC
Acquitted
4
Mulund
21/3/2019
138/2019
Sections 307, 326, 323, 504, 34 IPC
Under investigation
The Externing Authority also took into consideration 'in-camera' statements recorded of two witnesses viz. witness A and B. It is material to note that last ofence is Crime No. 138/2019 registered with Mulund Police Station under Sections 307, 326, 323, 504 read with 34 of the IPC on 21/3/2019. In-camera statements of the witnesses were recorded on 27/5/2019 and 31/5/2019. The show cause notice of externment under Section 59 of the said Act was issued on 7/8/2019.
It needs to be noticed that at the time of issuance of the show case notice of externment, Crime No. 100/2019 was pending trial. During the interregnum, as on the date of passing of the order of externment, the said criminal case resulted in acquittal of the petitioner. Though the Externing Authority was aware of the order of acquittal at the time of passing the order of externment as can be seen from the chart in the impugned order, the Externing Authority still took into consideration the said criminal case as one of the materials while forming an opinion that the petitioner needs to be externed. Thus, the subjective satisfaction of the Externing Authority is based on materials which should not have been taken into consideration while forming his opinion that the petitioner has to be externed. The subjective satisfaction of the Externing Authority is, therefore, vitiated as it is based on extraneous consideration. The impugned order therefore, would stand vitiated on this count.
The other ground on which the impugned order calls for interference and as rightly contended by the petitioner is that the same is excessive as the petitioner is externed from adjoining Districts of Mumbai without recording any reasons why such a curb on his liberty is necessitated when all ofences registered against him relate to Mulund Police Station. The list of criminal cases shown pending against the petitioner relate to Mulund Suburb in Mumbai. The impugned order mechanically extending the petitioner's externment to vast areas of Mumbai, Mumbai Suburban Districts and Thane District is harsh, unreasonable and may be branded as excessive restraint on the liberty of the petitioner in the facts and circumstances of the case particularly in the absence of any criminal case reported against the petitioner in such extended and additional areas from which he is sought to be externed. It is not that the Externing Authority is not empowered to extern the petitioner from adjoining areas of Mulund Suburb or its adjoining districts. The impugned order must refect the application of mind on the part of the Externing Authority necessitating externment out of the areas covering these adjoining districts. We fnd that there is no whisper by the Externing Authority why the petitioner's externment is necessitated from these adjoining Districts when all cases pending against the petitioner are restricted to Mulund Police Station. To come to this conclusion we draw support from the decisions of this Court in the cases of Hanuman Rajaram Mhatre (supra) and Rajendra Karbhari Kale (supra). The impugned order therefore, is excessive and hence liable to be struck down. Hence the following order.
ORDER
(i) The Petition is allowed in terms of prayer clause 15(i). The impugned orders dated 18th October, 2019 passed by the Deputy Commissioner of Police, Zone-7, Mulund (West), Mumbai and the order dated 2nd December, 2019 passed by the Appellate Authority i.e. Divisional Commissioner, Konkan Division, Mumbai, in Appeal No. 202 of 2019 are quashed and set aside.
(ii) Rule is made absolute in the above terms.
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