39. cr wp 1039-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1039 OF 2010 Rajesh Jairam Keni .. Petitioner Vs Dy. Commissioner of Police, Zone-II, Panvel & Ors .. Respondents Mr. U.N. Tripathi for the Petitioner Mr. S.A. Shaikh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J RESERVED ON : 5th OCTOBER, 2010 PRONOUNCED ON : 14th OCTOBER, 2010 P.C.: 1. Heard learned Advocate for the Petitioner and learned APP for the State. 2. Rule. By consent, Rule is made returnable forthwith and the matter is heard finally. 3. The petitioner has challenged the order of externment dated 18.11.2009 passed against him under section 56(1)(a) (b) of the Bombay Police Act. The externment order was passed against the petitioner by the respondent no.1-Dy. 1 39. cr wp 1039-10.doc Commissioner of Police, Zone-II, Panvel. The said order has been confirmed by the appellate authority by order dated 18.03.2010 which order has also been challenged. 4. The externment order was naturally preceded by a show cause notice. The show cause notice is dated 28.08.2009. By the said show cause notice, the petitioner was called upon to show cause as to why an order of externment should not be passed against him under section 56(1)(a)(b) of the Bombay Police Act. Thereafter, impugned order came to be passed on 18.11.2009. 5. It is submitted on behalf of the petitioner that there is a reference to in camera statements of witnesses ‘A’ and ‘B’ in the externment order. However, no details as to the date, time and place of those incidents narrated by these two witnesses, has been mentioned in the show cause notice. Therefore, the petitioner was deprived of an opportunity to effectively meet the allegations made in respect of the statements made by the two in camera witnesses. 6. As against this, it is submitted on behalf of the respondents that the details given in the show cause notice with regard to the in camera statements of the two witnesses ‘A’ and ‘B’, are sufficiently giving the details as well as 2 39. cr wp 1039-10.doc particulars as to where the incident occurred and when. 7. Perusal of the show cause notice shows that the statement of incamera witness ‘A’ was recorded which indicated that the witness has stated that the petitioner used to visit construction sites around Pethali village and used to threaten builders to give him work of supply material. It is further stated that in the month of July, the proposed externee threatened some persons that he would not keep them alive if they stepped on land disbursed by CIDCO. On account of fear and threats from the proposed externee that if the police is informed, they would face dire consequences, these people did not inform the police. Thus as far as witness ‘A’ is concerned, Mr. Tripathi submitted that no place or date is mentioned,hence, the petitioner was unable to effectively meet the allegations. 8. The learned APP stated that the place where the incident took place is mentioned i.e construction sites around Pethali village, however, it is noticed that with reference to the incident which has taken place in the month of July, the place where this incident took place is not mentioned in the show cause notice. The incidents at construction sites around Pethali village pertain to the petitioner threatening builders to give him work of 3 39. cr wp 1039-10.doc supplying material, however, the incident relating to month of July is of a different nature. This incident pertains to giving of threats to people that they should not step on CIDCO land. As to where this incident took place is not stated anywhere. Even the approximate area is not mentioned. 9. In reply to the contention that no date is mentioned as to when the incident stated by incamera witness 'A' took place, the learned APP pointed out that in the said statement, it is mentioned that the incident relating to the witness ‘A’ had occurred in the month of July. According to me, some more particulars could have been furnished as to when the incident took place. In order to protect the identity of the witness, it may not be possible to give the exact date and time but at least the approximate date or time of month could have been given i.e the time period should have been reasonably specified. 10. As regards statement of incamera witness ‘B’, there is no mention of any date or even approximate date, when the incident occurred. In fact, as far as witness ‘A’ is concerned, it was stated that the incident had occurred in the month of July but in case of witness ‘B’ this averment is also not found in relation to his statement. The averments made in relation to witness ‘B’ is very vague in nature and 4 39. cr wp 1039-10.doc as such not enough for the petitioner to give an effective reply to the same. 11. Thus it is clear that the averments relating to the incamera statements of the two witnesses, which are mentioned in the show cause notice are extremely vague allegations, without giving sufficient details and thereby the petitioner was deprived of meeting those allegations made against him. 12. A show cause notice is required to be issued to the proposed externee before any externment order is issued, with a view to enable him to meet the allegations made against him in the show cause notice. If the proposed externee is not even informed the particulars like approximate time of the incident, approximate area and general nature of the incident, this itself is a sufficient ground for quashing the order of externment because it deprives the proposed externee of an opportunity to explain the allegations made against him in the show cause notice. This is clearly illegal. Similar view is taken by this Court in the a case of Mr. Kishore Durge vs. Dy. Commissioner of Police, reported in 2003 ALL MR(Cri.) 2023. I may hasten to add that the exact date and time need not be stated in the show cause notice but the approximate time like last week of 5 39. cr wp 1039-10.doc January or 1st week of June could at least be stated. If it is stated two months prior to recording statement, then in such case, the date when the statement was recorded should be given so that the approximate date can be ascertained. So also if not exact spot of the incident, at least the area or locality should be mentioned. From the show cause notice, the approximate time when the incidents relating to incamera witness 'B' occurred, cannot be ascertained and as far as second incident stated by incamera witness 'A' is concerned, the approximate area where it took place cannot be ascertained. 13. Both the Supreme Court and this Court have consistently taken the view that the general nature of the material allegations should be set out in the show cause notice for the notice in question to pass the test of legal scrutiny. It is also essential that while setting out the charges against the person concerned, the time, the date, the place, the nature of the incident, etc., should be circumscribed within such reasonable limits that it would be possible for the person concerned to adequately meet those charges. The Supreme Court in the case of State of Gujarat Vs Mehbubkhan reported in AIR 1968 SC 1468 has set out one such illustration when it pointed out that unless the time period is reasonably specified, it may be difficult for the person 6 39. cr wp 1039-10.doc against whom the charges are made to sustain a defence of alibi by saying that he was not at that particular place around that period of time or by bringing forth documentary evidence in support of his contention that he was at some other place. 14. On going through the show cause notice, it is observed as far as incamera witness 'A' is concerned, the area or locality where the second incident took place cannot be ascertained and as far as the second incamera witness is concerned, the approximate time, when the incident referred by witness 'B' took place cannot be ascertained. In such case, it can be said that the show cause notice suffers from the vice of vagueness due to which it was not possible for the petitioner to effectively reply to the show cause notice, hence, the externment order is liable to be struck down. 15. In the result, the petition is allowed. The externment order passed against the petitioner is hereby quashed and set aside. Rule is made absolute in the above terms. [SMT. V.K. TAHILRAMANI, J.] 7 39. cr wp 1039-10.doc 8