IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1634 OF 2008. Pawan Tilakraj Kohli & Ors. ..Petitioners. versus The State of Maharashtra & Ors. ..Respondents. .... Mr. H.R. Prem, for the Petitioners. Mr. D.P.Adsule, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S.OKA, J : A.S.OKA, J : A.S.OKA, J. DATE DATE DATE : 08th September 2008. : 08th September 2008. : 08th September 2008. JUDGMENT JUDGMENT JUDGMENT : : : 1. Heard the learned Counsel appearing for the Petitioners and the learned APP for the Respondents. Rule was issued on 12th August 2008. The learned APP has produced the case file for my perusal. 2. The challenge in this Petition under Article 227 of the Constitution of India is to an order of externment passed by the Deputy Commissioner of Police on 13th March 2008 which has been confirmed in statutory appeal. 3. Apart from the various challenges, the main challenge is on the ground that the Deputy Commissioner of Police who passed the order of externment has not afforded an opportunity of being heard to the Petitioners. The submission is that the Petitioners : 2 : were not heard before passing the order of the externment. The learned APP submitted that the Petitioners were given an opportunity of adducing evidence before Inquiry Officer and accordingly, the Petitioners have adduced evidence. He submitted that after considering the material on record of the inquiry, an order of externment has been passed by recording subjective satisfaction. He submitted that the subjective satisfaction of the Authority cannot be interfered with. 4. I have considered the submissions. I have perused the case file. It appears that by exercising power under sub-section (1) of section 59 of the Bombay Police Act, 1951 (hereinafter referred to as "the said Act of 1951"), the Deputy Commissioner of Police appointed the Assistant Commissioner of Police as an Inquiry Officer. An inquiry was accordingly held by the Assistant Commissioner of Police. Before the Assistant Commissioner of Police, witnesses were examined by some of the Petitioners. The Inquiry Officer submitted a report to the Deputy Commissioner of Police. It appears that the said report was submitted on 27th February 2008. The Roznama of the proceedings before the Deputy Commissioner of Police shows that on 29th August 2008, : 3 : the Deputy Commissioner of Police recorded the fact that the report was received. He directed the Senior Inspector of Police, Matunga to keep the Petitioners present before him. On 7th March 2008, statements of all the Petitioners except one Sachin Vinod Kumar were recorded by the Deputy Commissioner of Police in the same format which contains nine questions. The question no.7 was whether the proposed externees were desirous of examining any witness and whether they were desirous of engaging an Advocate. The Petitioners answered both the questions in the affirmative. On 12th March 2008, statement of Sachin Vinod Kumar was recorded in the same format and he also answered question nos.7 and 8 in the affirmative. On the next day i.e. on 13th March 2008, the Deputy Commissioner of Police passed the impugned order of externment under section 55 of the said Act of 1951. Thus, the Petitioners had expressed desire to examine witnesses and to engage an Advocate. Without giving an opportunity to the Petitioners to do so, on 13th March 2008, the Deputy Commissioner of Police proceeded to pass an order of externment. Though hearing might have been given to the Petitioners by the Inquiry Officer, in view of law laid down by the Division Bench of this Court in the case of Nanhekan Gulabkhan Pathan v/s State of Maharashtra and others : 4 : [1992 Mh.L.J. 225 ], the Deputy Commissioner of Police who has passed the order of externment was under an obligation to give opportunity of being heard to the Petitioners. The Petitioners had sought said opportunity by stating before the Deputy Commissioner of Police that they were desirous of engaging an Advocate. Going by the Roznama of the proceedings maintained by the Deputy Commissioner of Police himself, it is obvious that an opportunity of being heard was denied to the Petitioners before passing the impugned order. The impugned order affects the liberty of the Petitioners. As there is a gross breach of principles of natural justice, the order is vitiated and the same deserves to be quashed and set aside in so far as the Petitioners are concerned. 5. Hence, I pass the following order :- (1) Rule is made absolute in terms of prayer clause (a). There is no order as to costs. [A.S.Oka,J.] [A.S.Oka,J.] [A.S.Oka,J.]