Iqbal Munnaf Sayyed vs The Asst. Commissioner of Police and Others

S.S. Shinde, J.—This Writ Petition takes an exception to the order of externment dated 27th September, 2011 passed by the Deputy Commissioner of Police, Zone-IV, Pune in Externment Case No. 19 of 2011, which is confirmed by the Principal Secretary (Special), Home Department, Government of Maharashtra vide its order dated 10th April, 2012 passed in Appeal No. EXT-2012/14/Spl.-3(A). The Respondent No. 1 herein was pleased to issue notice under Bombay Police Act, 1951 to the Petitioner on 13th August, 2012. The Petitioner appeared before the Respondent No. 1 and gave his reply. On 27th September, 2011, the Respondent No. 2 herein was pleased to issue the impugned order of externment under the provisions of Bombay Police Act, 1951 against the Petitioner. Being aggrieved by the said order of externment, the Petitioner preferred an Appeal before the Appellate Authority, which came to be dismissed on 10th April, 2012. Hence, this Writ Petition.

Though the number of grounds are raised in the Writ Petition, the learned Counsel appearing for the Petitioner mainly emphasized on the ground that, though the order of externment has placed reliance on C.R. No. 90 of 2010 dated 22nd February, 2010 registered at Hadapsar Police Station, but in the show cause notice, there is no reference to the said offence. In addition to the aforesaid grounds, the learned Counsel for the Petitioner also invited our attention to the other grounds taken in the Writ Petition and submitted that, the order of externment deserves to be quashed and set aside.

On the other hand, the learned A.P.P. appearing for the Respondent-State invited our attention to the contents of the affidavit-in-reply and submitted that, the involvement of the Petitioner is in serious offences like kidnapping, assault, extracting money from the citizens and other serious offences, which are stated in detail in the show cause notice issued to the Petitioner. The learned A.P.P. also invited our attention to that part of the affidavit where delay in issuing the order of externment has been explained. Therefore, relying upon the contents of the affidavit-in-reply, the learned A.P.P. would submit that, since the involvement of the Petitioner is in serious offences, this Court may not interfere in the order of externment and reject the Petition.

We have given thoughtful consideration to the rival submissions and upon careful perusal of the contents of the show cause notice and order of externment, it is abundantly clear that, in the order of externment dated 27th September, 2011 passed by the Deputy Commissioner of Police, Zone-IV, Pune in Externment Case No. 19 of 2011, he has placed reliance upon the offence registered against the Petitioner with the Hadapsar Police Station, being C.R. No. 90 of 2010 dated 22nd February, 2010, under Sections 307, 324, 147, 148, 149, 323, 406(1) read with Sections 37(1) and 135 of the Bombay Police Act, 1951. The Petitioner had no opportunity to put forth his case in respect of C.R. No. 90 of 2010 registered with the Hadapsar Police Station. Therefore, in our considered opinion, there is a clear breach of principles of natural justice, in as much as, there is no mention of C.R. No. 90 of 2010 dated 22nd February, 2010 in the show cause notice issued to the Petitioner. On this ground alone, the order of externment stands vitiated.

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 u/s 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.

Yet, in another pronouncement, in the case of Isac Santan Fernandes Vs. K.P. Reghuvanshi, Deputy Commissioner of Police and Another, , in the facts of that case, this Court held that the Externing Authority relied upon extraneous and additional material for passing order of externment, which materially, even generally, not disclosed to the Externee in notice u/s 59 and, therefore, order of externment liable to be vitiated.

Yet, in another exposition, in the case of Kishor Rajaram Durge Vs. Deputy Commissioner of Police & Ors., 2004 (Supp.) Bom. C.R. 481: [2003 ALL MR (Cri.) 2023], in the facts of that case, while interpreting provisions of Section 56, this Court held that, merely mention of vague allegations, without giving any definite details as to the incident, deprived the Petitioner therein from making out allegations made against him. Therefore, the order of externment becomes illegal. This Court in the case of Kishor Rajaram Durge, [2003 ALL MR (Cri.) 2023]

(Supra) in paragraph 7, in the facts of the said case, held as under:-

A perusal of the show cause notice shows that the in-camera statement of witness ''A'' was recorded which indicated that the witness has stated that the petitioner had assaulted the witness on a trifle reason, about one year ago, that about three months ago, the petitioner had demanded money from him and had threatened to beat him if the money was not paid. However, bare perusal of these statements would indicate that there is no mention as to the place, date, time etc. when the incident alleged to have occurred. There is also no mention of exact date, month and year. The mention is only about one year ago. Apart from this, there is no mention of any specific place, where these incidents occurred.

As regards the in-camera statement of witness ''B'', the witness has stated that the incident occurred about six months ago, when he was threatened by the petitioner to give money. Here again, there is no mention as to the place, date, time and month of the incident.

Thus, it is clear that the in-camera statements of the two witnesses, which are mentioned in the show cause notice, are vague allegations, without giving any definite details as to the incident and thereby the petitioner was deprived of meeting out those allegations made against him.

Therefore, in the facts of the present case, since there is no mention of C.R. No. 90 of 2010 registered with the Hadapsar Police Station on 22nd February, 2010 against the Petitioner, which is relied upon by the Deputy Commissioner of Police, Zone-IV, Pune City, i.e. the Externing Authority, the Petitioner herein had no opportunity to reply to the allegations in the said C.R. and, therefore, the order of externment stands vitiated. Therefore, on this ground alone, the, impugned order of externment deserves to be quashed and set aside. Accordingly, the order of externment dated 27th September, 2011 passed by the Deputy Commissioner of Police, Zone-IV, Pune in Externment Case No. 19 of 2011, which is confirmed by the Principal Secretary (Special), Home Department, Government of Maharashtra vide its order dated 10th April, 2012 passed in Appeal No. EXT-2012/ 14/Spl.-3(A), is quashed and set aside. Rule is made absolute to the above extent. Petition is disposed of.