* 1 * W.P. 533.2010 22.12.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 533 OF 2010 Jitendra R. Sutar ..... Petitioner. V/S. State of Maharashtra & Ors. .... Respondents * * * * Mr. Nilesh Pawaskar, Advocate for the petitioner. Mr. V.B. Kondedeshmukh, APP for the respondents. CORAM :- Smt. R.P. SondurBaldota, J. 22 December, 2010. P.C. :- 1. The petitioner herein has challenged the order of externment passed against him by respondent no.3 on 5th June, 2009 and the confirmation of the externment order by respondent no.2 vide the order dated 25th August, 2009. Respondents no.2 and 3 have filed Affidavit-in- reply to opose the petition. The learned APP has also filed FIR vide C.R. No. 265 of 2010 dated 18th August, 2010 to submit that the petitioner herein has misused the interim protection granted by this Court to * 2 * W.P. 533.2010 22.12.2010 commit one more offence on 16th August, 2010. 2. The brief facts of the case are that, the petitioner was served with notice dated 21st February, 2009 calling upon him to show cause as to why the order of externment be not passed against him and he be not externed from Bombay District and Bombay Suburban District for a period of 2 years for committing prejudical acts being commission of offences punishable under Chapter-16 and 17 Indian Penal Code. The petitioner sent his reply alongwith the statements of 10 persons supporting his claim of innocence of the acts alleged in the show cause notice. He also produced 15 witnesses during the hearing after which the impugned order of externment came to be passed. 3. The show cause notice refers to four complaints registered against the petitioner vide C.R. No. 220 of 2003, C.R. No. 5 of 2006, C.R. No. 311 of 2006 and C.R. No.70 of 2008. As regards the first C.R. alleging theft of the motorcycle belonging to one Imran Mohammed Hanif Vora, the petitioner has been acquitted of the offence. In the second C.R., the police are yet to file chargesheet. In the last two complaints, the petitioner had been arrested and since been released on bail. The last two cases are for the offences punishable under Section 384 Indian Penal Code. The complainants in those complaints allege that the petitioner who is a photographer by profession had taken photographs of the * 3 * W.P. 533.2010 22.12.2010 construction carried out by the complainants and threatened them of getting the construction demolished by complaining to different authorities unless the complainants paid protection money to him. The notice further states that because of the acts of terrorism of the petitioner, no person is willing to come forward to depose against him. The show cause notice then refers to four more complaints made i.e. (i) complaint by one Dhananjay Tiwari, Special Executive Magistrate at the instance of Shishivranjan Utkarsha Mandal, (ii) complaint by one Sanjay M. Borade, Head Republican Party of India, (iii) complaint by Appapada Bepari Association and (iv) complaint by one Sunil Rajput, a resident of Kurar village, Malad (West). It has been the contention of the petitioner, that both Dhananjay Tiwari and Sanjay Borade have subsequently made statements to the police that the complaints made by them to the police against the petitioner were result of a misunderstanding and on a mistaken belief that the petitioner was indulging in such activities. The statements say that after the deponents looked differently at the matter, they realised that the complaints were false. Perusal of the statement of Dhananjay Tiwari, shows that it relates to the complaint made by a person by name Ratilal Shah and not by Shishivranjan Utkarsha Mandal. It does not state that the complaint of Shishivranjan Utkarsha Mandal was found to be false by him. As regards the statement of * 4 * W.P. 533.2010 22.12.2010 Sanjay Borade, it makes general comments and does not refer to the complaint mentioned in the show cause notice. Next, there are in-camera statements of three persons of demand of protection money either for carrying out work of construction or for carrying on business in the area. 4. In the impugned order of externment, the externing authority is seen to have taken all the above material into consideration to arrive at a subjective satisfaction that the petitioner has committed prejudicial acts under Section 5(b)(1), 5(b)(2) and 5(b)(3). He has also expressed his satisfaction that on account of the terrorising activities of the petitioner, the witnesses are not coming forward to depose against him and therefore it was necessary to extern the petitioner from the area in order to prevent any such further offences at his hands. 5. Mr. Pawaskar, the learned counsel for the petitioner, submits that the externing authority has merely referred to the defence of the petitioner and has not considered the same. He submits that it was necessary for the externing authority to give specific reasons for rejecting the defence of the petitioner. He submits that the petitioner infact is a social worker. He is also an RTI activist and a whistle blower for the unauthorised constructions being carried out in the area of kurar village. The petitioner claims to be a professional photographer. It is contended by the petitioner that as the active social work carried out by the * 5 * W.P. 533.2010 22.12.2010 petitioner is not approved by some persons, false complaints had been filed against him and on the complaints of such persons, the police have taken the externment action against him in order to help such persons. 6. The Apex Court in the case of State of NCT of Delhi and another V/s. Sanjeev alias Bittoo reported in 2005 Supreme Court Cases (Cri.) page 1025 has looked into the scope of judicial interference in matters of administrative decision while considering externment order passed under the Delhi Police Act. It’s observations on the question are as follows :- 14. ......There can be no doubt that the executive order has also to “ show when questioned that there was application of mind. It is the existence of material and not the sufficiency of material which can be question as the satisfaction is primarily subjective somewhat similar to one required to be arrived at by the detaining authority under the preventive detention laws. The scope of judicial review of administrative orders is rather limited. The consideration is limited to the legality of decision making process and not legality of the order per se. Mere possibility of another view cannot be ground for interference.” 17. The Court will be slow to interfere in such matters relating to “ administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.” 24. It is true that some material must exist but what is required is “ * 6 * W.P. 533.2010 22.12.2010 not an elaborate decision akin to a judgment. On the contrary, the order directing externment should show existence of some material warranting an order of externment. While dealing with the question, mere repetition of the provision would not be sufficient. Reference is to be made to some material on record and if that is done, the requirements of law are met. As noted above, it is not the sufficiency of material but the existence of material which is sine qua non.” 7. It is thus seen that the externing authority while considering the material before it for passing the order of externment, must be wholly subjective satisfied of the availability of the material against the proposed externee. It is not expected that the externing authority passes a detailed order in the nature of judgment. Therefore, the first contention of the petitioner that there ought to have been a detailed order by the externing authority assessing each and every allegation against the petitioner and considering the defence of the petitioner, is without any substance. Perusal of the order of the externing authority, shows that it had taken into consideration, the offence registered against the petitioner in the year 2008, the in-camera statements of the witnesses recorded by the police, as also, the evidence produced by the petitioner. It did not look into the complaints of the year 2003 and 2006. It shows that there is material available for the subjective satisfaction of the * 7 * W.P. 533.2010 22.12.2010 externing authority to support the order of externment. There is also no procedural impropriety in the action of externment. Though, the applicant claimed to an an RTI activist and whistle blower in respect of unauthorised constructions, the externing authority could not ignore the complaints made against him. Hence, the petition is dismissed. 8. On 12th April, 2010, an order staying the operation of the externment order had been passed. Mr. Pawaskar, the learned counsel for the petitioner, requests for continuation of the ad-interim order for a period of 4 weeks to enable him to approach the Apex Court. The learned APP opposes the application, submitting that the petitioner has misused the opportunity granted to him ad committed a similar offence vide C.R. No. 265 of 2010. Considering these facts, the application for extension of the interim orders is rejected. [Smt. R.P. SondurBaldota, J]