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Judgment
S.S. Shinde, J
Rule. Rule made returnable forthwith and heard with the consent of learned counsel appearing for the parties.
The brief facts leading to the filing of the present writ petition, as mentioned in the petition, are as under:-
The petitioner herein was a witness in C.R. No. 43 of 2017 wherein his business partner was murdered by a group of one Dorai within the vicinity of
Aarey Milk Colony, Goregaon (E), Mumbai. On 30.06.2017, the Petitioner addressed letter to the Senior Police Inspector, Aarey Police Station and
D.C.P., Zone XII seeking police protection for himself and his family in view of murder of his business partner. In between 19.10.2017 and 8.7.2019,
the Petitioner was arraigned as accused in the case despite the Aarey Police Station and its officers being aware that the Petitioner was not present at
the spot of incident. However, deliberately at the instance of one A.P.I. Sunil Lokhande, the petitioner's name was added in the cases. On 16.10.2018,
the petitioner and his brothers were assaulted and were hospitalized for severe injuries and F.I.R. under section 307 of Indian Penal Code was
registered at the instance of the Petitioner against Dorai and few others whereas a cross complaint was registered against the petitioner by Aarey
Police Station. On 8.07.2019, cross First Information Reports were registered against the petitioner and his associates and also against Shiva Shetty
and his associates being C.R. Nos.129 of 2019 and 130 of 2019. On 4.10.2019, the petitioner VSS V.S. Sherla 3/8 WP.356.2021 - J..doc was granted
bail by this Court. On 14.07.2020, the Petitioner was externed from Mumbai city for two years. On 27.07.2020, the Petitioner filed a Writ Petition
before this Court seeking quashing of externment order. On 22.08.2020, this Court directed the petitioner to approach the appellate authority. In the
month of September, 2020, the petitioner filed an externment appeal bearing Externment Appeal No.48 of 2020. On 05.11.2020, the appellate authority
heard the appeal and closed the same for orders. The appellate authority by an order dated 12.01.2021, confirmed the externment order thereby
externing the petitioner for two years, which severely hampered the petitioner's right to carry on legitimate business and freedom of movement.
Hence, this petition.
Mr.Talekar, learned Counsel appearing for the petitioner, submitted that the impugned externment order is excessive inasmuch as petitioner's
alleged activities are stated to be in Aarey Colony, Goregaon, Mumbai. However, the petitioner has been externed from Mumbai City, Mumbai
suburban and Thane Districts. It is submitted that there is no live link between the prejudicial activities and the externment proceedings initiated against
the petitioner by the respondent-authority; the subjective satisfaction has not been arrived at before passing the externment order; the material which
was VSS V.S. Sherla 4/8 WP.356.2021 - J..doc considered while passing the first externment order could not have been considered while passing the
second externment order. In support of the aforesaid submissions, the learned Counsel relied upon the following judgments:
In support of his contentions, the learned counsel appearing for the Petitioner relied upon the following judgments :-
1] Pappu v/s The State of Maharashtra, (2017 Cri LJ 1586); 2] Ganesh Nilkanth Patil v/s Dy. Commissioner of Police, (Cri. WP No.2841 of 2012);
3] Akash Ramesh Dawande v/s State of Maharashtra, (2020 SCC Online Bom 1268);
4] Masiullha Abdul Mohid Idrisi v/s The Assistant Commissioner of Police, (Cri.WP No.2444 of 2013); 5] Ayub Abdul Sattar Shaikh v/s. Dy.
Commissioner of Police, Zone-VI, Mumbai and others, (2013 SCC Online Bom. 1179); 6] Ganesh Murgesh Bajantri v/s State of Maharashtra, (2020
SCC Online Bom 1460);
7] Praful Bhausaheb Yadav v/s Shri K. K. Pathak, (2013 SCC OnLine Bom. 188);
8] Vinay @ Mukka Chawaria v/s Divisional Commissioner, (2016 SCC OnLine Bom 9884);
9] Rajesh s/o Jiwan Jangle v/s State of Maharashtra, (2017 SCC OnLine Bom 9254);
10] Zahoor Ismail Fakie v/s State of Maharashtra, (2013 SCC OnLine Bom 1109);
VSS V.S. Sherla 5/8 WP.356.2021 - J..doc 11] Santoshkumar Shri Rampratap Singh v/s State of Maharashtra, (2019 SCC OnLine Bom 11617); 12]
Mohamad Yusuf Mohmad Ibrahim Momin v/s Deputy Commissioner, (2020 SCC OnLine Bom 4053); 13] Sanjay Pandurang Nagpure v/s Stae of
Maharashtra, (2007(5) Mh. L.J. 436);
14] Shakeela v/s The State, (2014 SCC OnLine Del 469) 15] Umar Mohamed Malbari v/s K. P. Gaikwad, Dy. Commissioner of Police and anr. (1988
Mh LJ 1034); 16] Ravi s/o Ramdas Aher v/s The State of Maharashtra and ors. (2018 SCC OnLine Bom 6586).
On the other hand, learned APP appearing for the Respondent - State relying upon the reasons assigned in the impugned order submitted that the
alleged activities of the petitioner are causing danger to the lives of the people residing in the vicinity of Aarey colony. The reasons given in the
impugned order are self explanatory and based upon documents and evidence. Therefore, the learned APP submitted that the petition may be
rejected.
Heard the learned Counsel appearing for the petitioner as also the learned APP appearing for the Respondent - State and with their able assistance,
we have carefully perused the pleadings and the grounds taken in the petition, the annexures thereto and the reasons WP.356.2021 - J..doc assigned
by the respondent - authorities while passing the impugned externment order. It appears that the following four offences were registered against the
petitioner:
Sr.No. Police Station C.R. Nos. Current Status
Aarey 33/13 - sections 324, Subjudice 323, 34 of IPC 149/PW/13
Chunabhatti 160/15 - sections 363, Subjudice 364A of IPC Sessions Case No.184/13
Aarey 137/2017 - sections Under Investigation 324, 323, 504, 506(2), 34 of IPC
Aarey 141/2017 - sections Under Investigation 353 of IPC read with sections 110, 112, 117 of MCOCA It appears that the above mentioned
offences are registered in the year 2013, 2015 and 2017 and the externment proceedings are initiated in the year 2020. We have carefully perused the
externment order passed on 14.7.2020 and find that there is no discussion showing a nexus between the said offences and externment proceedings.
Secondly, in the impugned order, there is no elaborate discussion that the witnesses are not coming forward to depose against the petitioner due to fear
to their person and property. Thirdly, VSS V.S. Sherla 7/8 WP.356.2021 - J..doc the petitioner has been externed from the revenue boundaries of
Mumbai city, Mumbai suburban and Thane districts. No doubt, the authority can extern the externee from the adjoining districts, however, the
authority has to assign reasons as to why the externment from the adjoining districts is warranted though the offences are registered only in the police
station in respect of alleged activities in Aarey colony. In the impugned order, there is no such discussion. It appears that the first in-camera statement
was recorded on 7.1.2020 and the second in-camera statement was recorded on 9.1.2020. However, the externment order was passed on 14.7.2020.
There is a gap of about 6 months in between and, therefore, the live link between the prejudicial activities and the ultimate order of externment has
been snapped.
There is no specific discussion in the impugned order that due to the alleged activities and fear of the petitioner, the witnesses are not willing to
come forward to give evidence in public against the petitioner by reason of apprehension on their part as regards the safety of their person and
property.
In the light of the discussion in the foregoing paragraphs, the impugned order of externment cannot legally sustain and therefore, the said order
dated 12.1.2020 confirming the externment order VSS V.S. Sherla 8/8 WP.356.2021 - J..doc dated 14.7.2020 passed by Respondent No.1 is quashed
and set aside.
Rule is made absolute and Writ Petition is disposed off accordingly.