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2021 Supreme(Bom) 306
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, N.J. JAMADAR, JJ.
Mr. Ravindra Sudam Adhikari – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Writ Petition No.2559 of 2021
Decided on : 11-08-2021.
Advocate Appeared:
For the Appellant : Mrs. Vrishali Raje
For the Respondent: Mrs. S.D. Shinde
Point of Law: Externment proceedings - Because of externing petitioner from Palghar district, by impugned order, fundamental right of petitioner to reside at place of his choice or move from one place to another has been curtailed and taken away for period mentioned in said order.
Headnote:
Maharashtra Police Act - Sections 59, 60 and 56(1) (a)(b) - Reduction in the attendance at the Government offices - Petitioner is deprived of his right to make effective representation - Allegations made against the petitioner in the show cause notice - Petitioner is deprived of his right to make effective representation - Petitioner was served with a notice bearing no. Notice under Section 59 of Maharashtra Police Act issued by Respondent No. 3 - Petitioner attended office of Respondent No. 3 and gave his reply and also examined witnesses in his support. After considering the reply and submissions on behalf of petitioner - Allegations, issued another show cause notice - Petitioner filed Writ Petition No. 2089 of 2021 before this Court - Court directed the appellate authority to decide appeal of petitioner expeditiously.
Finding of the Court :
Authority concerned is satisfied that witnesses are unwilling to come forward to give evidence in public against proposed externee by reason of apprehension of their part as regards safety of their persona and property - Division Bench held that what is stated in show cause notice cannot be the basis to assume that concerned authority was subjectively satisfied about existence of aforesaid fact and in absence of such subjective satisfaction of fact - Petitioner from Palghar district, by impugned order fundamental right of petitioner to reside at place of his choice or move from one place to another has been curtailed and taken away for period mentioned this is a fit case wherein interference under writ jurisdiction is warranted - Considered view that impugned order passed by externing authority, thereby externing petitioner from revenue boundaries of Palghar district, cannot legally sustained and same deserves to be quashed and set aside.
Result: Writ petition is allowed.
JUDGMENT :
S.S. SHINDE, J.
1. Rule. Rule made returnable forthwith and heard with the consent of learned counsel appearing for the parties.
2. This writ petition is filed with the following substantive prayer:-
A) This Hon’ble court be pleased to quash and set aside the order dated 26/3/2021 passed by the Sub Divisional Magistrate Palghar Division, Palghar the Respondent no. 3 herein in the externment proceedings bearing no. 08/2019 and the order dated 29/6/2021 passed by Respondent no. 2 in Externment Appeal No. 36 of 2021.
3. It is the case of the petitioner that, in the month of November, 2019, the petitioner was served with a notice bearing no. POV/Ravindraadhikari/Externment/Notice/2775/2019 under Section 59 of the Maharashtra Police Act issued by Respondent No. 3. Pursuant to the said notice the petitioner attended the office of Respondent No. 3 and gave his reply and also examined witnesses in his support. After considering the reply and submissions on behalf of the petitioner, the Respondent No. 3 concluded that there is no threat or alarm caused at the instance of the petitioner and he recommended that the proceedings as against the petitioner be dropped/cancelled.
On 18th September, 2020, the Respondent No. 3 communicated his recommendation to Respondent No. 2. Respondent No. 2 without considering the recommendations of the Respondent No. 3, on the same set of allegations, issued another show cause notice dated 21/12/2020 and thereafter, the Respondent No.2 by his order dated 26th March, 2021, externed the petitioner for period of six months from revenue boundaries of Palghar district. On 6th April, 2021, the petitioner preferred appeal under section 60 of the Maharashtra Police Act, being Externment Appeal No. 36 of 2021 before the Divisional Commissioner (Revenue) Kokan Bhavan Mumbai, Respondent No. 1. However, due to the lockdown restrictions imposed through out the state of Maharashtra and reduction in the attendance at the Government offices, the appeal of the petitioner was not heard. Therefore, petitioner filed Writ Petition No. 2089 of 2021 before this Court. On 19th June, 2021, this Court directed the appellate authority to decide the appeal of the petitioner expeditiously. On 25th June, 2021, the appellate authority heard the appeal. On 29th June, 2021 the appellate authority dismissed the appeal filed by the petitioner. Hence, this petition.
4. Learned counsel for the petitioner submits that Respondent No. 2 has however, failed to mention the general nature of material allegations made against the petitioner in the show cause notice. Therefore, Petitioner is deprived of his right to make effective representation. On this ground alone the impugned order deserves to be set aside. In support of aforesaid contention, the learned counsel for the petitioner has relied upon following judgments.
1. Isac Santan Fernandes Vs. K.P. Raghuvanshi, Dy.Comm of Police & Anr, 1987(3) BCR 323.
2. Kishor Rajaram Durge Vs. Dy Comm of Police & Anr, 2004 (Supp) BCR 481.
3. Iqbal Munnaf Sayyed Vs. Assistant Commissioner of Police & Anr, Writ Petition No. 3163 of 2012, decided on 27th November, 2012.
5. It is further urged that the impugned order is based on extraneous material as the externing authority has relied upon statements of witness B recorded in-camera, however, no such statement is reflected in either of the two notices issued to the petitioner. It is further submitted that the externing authority did not arrive at subjective satisfaction that the witnesses are unwilling to come forward in public to give evidence against the proposed externee i.e. the petitioner herein by reason of apprehension to safety of their part, persona and property. According to the petitioner, though he was acquitted in two cases, the Respondent No. 3 failed to consider the said aspect and relied upon the said two cases while passing the impugned order. The externing authority arrived at erroneous conclusion that the alleged activities of the petitioner
