IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.432 OF 2008 Robert Diego Menezes .. Petitioner Vs. The State of Maharashtra & Anr. .. Respondents WITH CRIMINAL WRIT PETITION NO.433 OF 2008 Girish C. Shetty .. Petitioner Vs. The State of Maharashtra & Anr. .. Respondents Mr.K.H.Giri for the petitioner in both the petitions. Mr.D.P.Adsule, A.P.P for State in Writ Petition No.432 of 2008. Mrs.P.P.Shinde, A.P.P for State in Writ Petition No.433 of 2008. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 29th August 2008. JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard yesterday. The judgment was not dictated yesterday as the learned A.P.P had sought time to take instructions. 2. In these petitions, the challenge is to orders of externment passed by the Deputy Commissioner of Police under the provisions of section 56(1) read with section 59 of the Bombay Police Act, 1951. My attention has been invited to order dated 07th March 2008 passed by this Court. In terms of the said order, an affidavit has been filed by Shri K.L.Prasad, Joint Commissioner of Police, Bombay. 3. The challenge to the orders of externment is on various grounds. The first challenge is essentially on : 2 : the ground of breach of principles of natural justice. My attention was invited to paragraph Nos.13 to 18 of both the petitions wherein the petitioners have made allegations regarding the manner in which the inquiry was held by the Deputy Commissioner of Police who has passed the orders. Apart from the said allegations, there are various ground urged in support of the petitions. It is contended that extraneous grounds are considered by the Deputy Commissioner while passing the impugned orders. It is contended that the order of externment is itself malafide. The learned A.P.P has invited my attention to affidavit of Shri K.L.Prasad and has submitted that there is no substance in the allegations made against the Deputy Commissioner. His submission is that in this petition under Article 227 of the Constitution of India there is no scope to interfere with the subjective satisfaction recorded by the Deputy Commissioner. 4. I have considered the submissions. I have also perused the files of both the proceedings maintained by the authority. The files contain written statements/ written arguments filed by the petitioners in these petitions raising various objections to the proposed order of externment. The written submissions/written statements run into four pages. : 3 : 5. Sub section 1 of section 59 of the said Act of 1951 reads thus: "59. 59. 59. Hearing Hearing Hearing to be given before order under to be given before order under to be given before order under sections sections sections 55, [56.57 or 57A] is passed 55, [56.57 or 57A] is passed 55, [56.57 or 57A] is passed (1) Before an order under section 55 [56, 57 or 57A] is passed against any person the officer acting under any of the said sections or any officer above the rank of and Inspector authorised by that officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application of the examination of any witness produced by him, the authority or officer concerned shall grant such application; and examine such witness, unless for reasons to be recorded in writing, the authority or officer is of opinion that such application is made for the purpose of vexation or delay. Any written-statement put in by such person shall be filed with the record of the case. Such person shall be entitled to appear before the officer : 4 : proceeding under this section by an advocate or attorney for the purpose of tendering his explanation and examining the witness produced by him." The sub section 1 of section 59 itself contemplates that the proposed externee may examine witnesses and may put in a written statement. Though the written statement or written submissions filed by the petitioners are very much on record, in the orders of externment passed by the Deputy Commissioner, there is not even a reference to the said written submissions. In both the petitions there is a specific averment that written submission was filed by the petitioner on 20th February 2008 and infact a copy of the written submission has been annexed to the petitions. The specific averment to that effect is found in paragraph 17 of the petitions. 6. The perusal of the order of externment passed by the Deputy Commissioner shows that there is not even a reference to the said written submissions. As pointed out earlier, sub-section 1 of section 59 permits a written statement is filed by a proposed externee. The written statement is to show cause why the order of externment cannot be passed against the proposed : 5 : externee. 7. Apart from the fact that the written statement is on record, I have perused the roznama maintained by the Deputy Commissioner. Surprisingly, the roznama does not refer to the fact that written submission was filed by the petitioner. This fact also indicates that the written submissions are not at all considered by the Deputy Commissioner. Thus, this is a clear case of breach of principles of natural justice. By passing an order of externment, a liberty of an individual is affected. As the authority which has passed the order has not complied with the principles of natural justice by considering the written statement/written submissions filed by the petitioners, the order of externment is rendered illegal and will have to be set aside. In the circumstances, it is not necessary to consider other grounds raised by the petitioner. Accordingly, I pass the following order: Rule is made absolute in terms of prayer clause (a). (A.S.Oka,J)