1 WP 964-2010 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.964 OF 2010 Sachin Shivaji Dhiwar .Petitioner V/s. The State of Maharashtra & anr. .Respondents Mrs.V.R.Raje, Advocate, for the Petitioner Mr.J.P.Kharge, APP, for Respondent No.1 - State CORAM : R.C.CHAVAN, J. DATE : 22ND FEBRUARY, 2011 P.C. . Rule. By consent, made returnable forthwith. 2. This Petition questions the Order passed by the Principal Secretary, Home Department, rejecting the Petitioner's Appeal against his externment for a period of one and half years ordered by the Deputy Commissioner of Police, Pune on 16th October, 2009. 2 WP 964-2010 3. I have heard the learned Counsel for the petitioner and the learned APP. 4. The learned Counsel for the petitioner submitted that the impugned order had to be quashed first because the notice does not mention that the petitioner had been indulging in any activity which would fall under Clause (b) of Section 56(1) of the Bombay Police Act. The learned APP rightly pointed out that the second para of the notice itself mentions that it was proposed to extern the petitioner for the reasons mentioned in the recitals to follow and in the recitals there are gists of statements of two witnesses A and B, who substantially stated that the petitioner carries a fire arm and his accomplices carry sharp weapons and they threaten builders, businessmen, shop keepers and ordinary citizens and indulge in delivery of possession of property and extortion. The witnesses also state that the petitioner and his accomplices 3 WP 964-2010 prevent the people from reaching the police. The two witnesses further stated that respectively on 12th June, 2009 and 28th June, 2009, they themselves were subjected to this type of extortion having lost Rs.34,000/- & Rs.27,000/- respectively. 5. The learned Counsel for the petitioner submitted that the statements of these two witnesses do not particularize the place at which the incidents had allegedly taken place, thereby depriving the petitioner of an opportunity to rebut the cases sought to be built up against him. Particulars as to the time and place are given with sufficient clarity and it is not necessary to state the exact location when the incident took place as in a charge in Criminal case. The first witness stated that the incident took place in Pratiknagar Chowk whereas the second witness stated that the incident took place when he was proceeding to Vishrantwadi from 4 WP 964-2010 Pratiknagar on a two wheeler. Therefore, it is not that time and place of the incident have been left vague. 6. The learned Counsel for the petitioner next submitted that the authority has relied on charge sheets in cases which have absolutely no bearing to the conduct of the petitioner which should have been relevant for the purpose of his externment. She submitted that C.R.No.21 of 2006 of Vishrantwadi Police Station resulted in filing charge sheet and in that case the petitioner has been acquitted. In any case, she stated that this incident is stale and irrelevant for the purpose of deciding externment of the petitioner in the year 2009. As to the next case she submitted that this was cross case where opponent was also charged for attempting to commit murder. This does not reduce the complicity of the petitioner's involvement in activity which could be covered under Clause (b) of Section 5 WP 964-2010 56(1) of the Bombay Police Act. There are two more cases, one registered at Vanwadi Police Station which is stated to be committing of riot and the next case is of the offence punishable under Section 395 of the Indian Penal Code registered at Vishrantwadi Police Station. The learned Counsel for the petitioner submitted that in this case, parties have filed an application for compounding the case. It is not known as to how Section 395 would be compounded. But this fact too would not entirely tilt the balance in favour of the petitioner. It may show that even in cases of dacoity, the petitioner can prod the victim to enter into settlement. 7. The learned Counsel for the petitioner submitted that one of the requirements for action under Section 56(1) of the Bombay Police Act is that witnesses should not be forthcoming and for this purpose relied on an old Judgment of this Court in Ram Narayan 6 WP 964-2010 Patil Versus The State of Maharashtra and others, reported at 1987(1)Bom.C.R.471. It would be difficult to draw ratio from this Judgment that when the witnesses have been specifically named in a charge sheet there can be no grievance that these witnesses are not coming forward or that the corollary would be that there would be no material for the authority to proceed against the petitioner. The fact that there are some cases would show that some persons had courage to come forward and give report. Statements of witnesses A & B which recorded in camera show that they had been subjected to extortion by the petitioner and they had not given report because they had been threatened by the petitioner. 8. The learned Counsel for the petitioner next relied on Judgment of the Division Bench of the Court in CHHOTU SIDDINATH KUNWAR vs. STATE OF MAHARASHTRA and another, reported at 1989 Mh.L.J.1021 to state that the activities 7 WP 964-2010 of the petitioner were not such as to cause alarm, danger or harm. Now, in this case, apart from the statements of two witnesses recorded in camera, the petitioner is involved in an offence of dacoity for which he was prosecuted in the year 2008. Thus, it cannot be said that there is no material to show that the petitioner has not been indulging in activities causing alarm, danger or harm to person or property. Therefore, the order cannot be assailed even on this ground. 9. The petitioner seems to be claiming that he is President of an organization known as 'Lashkar-E-Bhima'. This type of claim to preside over an organization with 'Lashkar-E- Bhima' in its name itself is enough for an ordinary man to imagine consequences of resistance. 10. Though the learned Counsel for the petitioner submitted that the petitioner had 8 WP 964-2010 not been given adequate opportunity, it does not appear from the record that the petitioner was not heard before the order was passed by the Deputy Commissioner of Police, Pune. 11. In view of this, it cannot be said that externment of the petitioner for a period of one and half years was unwarranted or excessive. Since the learned Counsel for the petitioner submitted that only yesterday the petitioner has under gone angioplasty, he may remove himself from the area from which he is externed within a period of seven days. 12. Writ Petition is, therefore, dismissed. (R.C.CHAVAN, J.)