1 WP.320-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.320 OF 2011 Shri Kishore Chandrakant Mhatre ] Age 21 years, residing at Khutari Gaon, ] Taluka Panvel, District – Raigad. ] ..PETITIONER. Versus 1. Dy. Commissioner of Police, ] Zone-II, Panvel, District – Raigad. ] 2. Asst. Commissioner of Police, ] Panvel Division, Mumbai. ] 3. The State of Maharashtra, ] (through Principal Secretary, ] Home Department, Mantralaya, ] Mumbai). ] ..RESPONDENTS. .... Mr.U.N. Tripathi, Advocate for the Petitioner. Mrs.A.A. Mane, A.P.P. for the State. .... CORAM : A. R. JOSHI, J. DATE OF RESERVING THE JUDGMENT : 18th MARCH, 2011 DATE OF PRONOUNCING THE JUDGMENT: 8th APRIL, 2011 JUDGMENT : 1. Rule. Rule is made returnable forthwith by consent of the parties. Writ Petition is heard finally. 2 WP.320-11 2. Perused the accompanying documents to the present Writ Petition. Also perused the affidavit filed by the Externing Authority – Deputy Commissioner of Police, Zone-II, Panvel, District Raigad dated 7th March, 2011. 3. By the present Writ Petition, the Petitioner has challenged the externment order passed against him dated 29.08.2009 passed by the Externing Authority - DCP, Zone-II, Panvel, Navi Mumbai and the order dated 3.6.2010 passed by the Appellate Authority confirming the externment order. 4. By the externment order the petitioner was externed for the period of two years from Raigad, Thane and Mumbai Districts. 5. Certain factual position, as emerged out from the documents produced in the Writ Petition, can be narrated in order to have proper perspective of the matter and to decide the challenge to the impugned orders. 6. Senior PI of Taloja police station, Panvel submitted a proposal to DCP, Zone-II, Panvel, Navi Mumbai on 8th June, 2009 for initiating actions under Section 56(1)(a)(b) of the Bombay 3 WP.320-11 Police Act, 1951 against the present petitioner mainly alleging that his activities are injurious to the public at large and such petitioner is continuously involving in the activities involving force, violence and indulging in offences punishable under Chapters XVI & XVII of Indian Penal Code. It is alleged that the activities of the petitioner are causing harm and danger and alarm to the person and property of the people in the area where he has committed offences. 7. Initially show cause notice was issued under Section 59 of the Mumbai Police Act. It was issued by ACP, Panvel Division, Panvel on 19.6.2009. In the said notice, details of the offences were mentioned as under : Sr. No. Police Station C.R. & Sections Status 1. Taloja 25/2008, 387, 452, 34 of IPC Pending in Court. 2. Taloja 12/2009, 307, 387, 143, 323, 506(2), 452, 341 IPC r/w. 3, 25 of Indian Arms Act r/w. 37(1)135 of Mumbai Police Act. Pending in Court. 8. Apart from the above criminal antecedents there are two in- camera statements recorded by the reporting officer. Said in- 4 WP.320-11 camera statements were recorded on 7.6.2009 and said witnesses narrated the instances abut the acts of the petitioner subjecting them to threats and criminal intimidation. In the statements, the said witnesses have specifically mentioned that on account of fear to their person and property at the hands of the petitioner, they did not lodge any complaint with the police. 9. After issuance of show-cause notice an enquiry was held against the petitioner for taking action against him under the provisions of Section 56(1)(a)(b) of the Bombay Police Act. 10. Intimation was given to the petitioner to remain present before the enquiry officer on 24.6.2009 after receipt of the show- cause notice. However, the petitioner was not available at his house and report was submitted by Taloja police station to the enquiry officer. Ultimately notice was served on the petitioner on 29.6.2009 and his acknowledgment was obtained on the office-copy. The petitioner presented himself before the enquiry officer on 30.6.2009 and asked for the adjournment for producing defence witnesses and to submit written submission. On that day, his statement was recorded. Thereafter on 15.7.2009 the petitioner 5 WP.320-11 again presented himself before the enquiry officer and brought defence witnesses. Statements of defence witnesses and again statement of the petitioner was recorded. Thereafter on 21st July, 2009 the enquiry officer verified in-camera witnesses. Thereafter, the enquiry officer submitted his report to the externing authority on 25.7.2009. 11. The externing authority issued letter to the petitioner on 10.8.2009 asking him to remain present on 17.8.2009. However, the petitioner was not available. Again another letter was sent asking him to appear on 25.8.2009. Accordingly the petitioner presented himself before the externing authority on that day and his statement was recorded. After finding substance in the allegations set out against the petitioner, externment order was passed on 29.8.2009 as mentioned above externing him from the limits of Raigad, Thane, Mumbai and Mumbai Suburban Districts for the period of two years. 12. The petitioner approached the Appellate Authority. However, by order dated 3.6.2010 the Appellate Authority confirmed the externment order. As such, both the orders are 6 WP.320-11 challenged in the present Writ Petition by the petitioner. 13. The challenge to the impugned orders is on the following grounds:- i. The externment order suffers from exercise of excessive jurisdiction inasmuch as the alleged offences mentioned in the show-cause notice are registered with Taloja police station, Taluka – Panvel, whereas the externment order is directing the petitioner to be away from Raigad, Thane, Mumbai and Mumbai Suburban Districts for the period of two years. ii. The in-camera statements are vague and prototype and there are no details given much less the date, time and place at which the alleged threats were given to the witnesses by the petitioner. 14. So far as the first objection is concerned – as to externment order being excessive, shelter of following authorities is taken on behalf of the petitioner :- i. 1988 Mh.L.J. 1034 [Umar Mohamed Malbari. Vs. K.P. Gaikwad, Dy. Commissioner of Police, and another] 7 WP.320-11 ii. 2007 ALL MR (Cri) 84 [Shri Silva @ Gora Silva Ayanar Arjun Vs. Shri Nawal Bajaj, Deputy Commissioner of Police and Anr.] 15. This Court has gone through the ratios propounded by the above authorities. The authorities mentioned above canvass the proposition that mere geographical proximity is not a ground to extend the order of externment to another District or the part of a District. Considering these ratios and considering the specific allegations against the present petitioner as to creating terror in the area of Taloja police station, Taluka - Panvel or near about places and considering pendency of the cases only with Taloja police station and considering that no specific place is mentioned as to at which place the witnesses were threatened by the petitioner, the ground/objection can be accepted to hold that the externment order suffers from vice of being excessive. Further more, in view of the ratios of various other pronouncements including the above authorities, order of externment cannot be set-aside in part and the entire order of externment is required to be set-aside. 16. So far as the second objection is concerned, on bare 8 WP.320-11 perusal of the extract of the in-camera statements which are mentioned in the show-cause notice and appearing on page Nos.12 & 13 of Exhibit-A annexed to the present Petition, they are prototype and in fact repeating the same allegations. No more details are mentioned as to the date, time and place of such instances. 17. In view of the above, the impugned order is required to be quashed and set aside. Accordingly, present Writ Petition is allowed. The impugned order of externment dated 29.8.2009 and the order of the Appellate Authority dated 3.6.2010 are quashed and set- aside. Rule made absolute accordingly. (A. R. JOSHI, J.) PPD