Amjad Afjal Hussein Shaikh vs State of Maharashtra

G.S. Patel, J.—Rule. Mrs. Mhatre, learned APP, waives service on behalf of the respondents. By consent, Rule made returnable forthwith and petition taken up for final hearing and final disposal. The petitioner challenges an Externment Order dated 18th March 2013, and an Appellate Order therefrom dated 17th June 2013, both purportedly issued u/s 56(1)(b) of the Bombay Police Act, 1951, by which the petitioner was externed from the limits of Pune City and Pune District for a period of two years.

We have heard Mr. Deshmukh, learned Counsel appearing for the petitioner, and Mrs. Mhatre, learned APP, and, with their assistance, have read both impugned orders as well as the petition and its various annexures. The Externment Order relies on six criminal complaints said to have been registered against the petitioner. All these offences are registered at a single Police Station, namely, Wanwadi, Pune. These offences range from the years 2005 to 2012. In addition, in the Externment Order, there is a reference to and reliance on the proceedings under. Chapter VIII of the Code of Criminal Procedure, 1973. The Externment Order also relies on two in-camera witness statements said to have been recorded by the Police against the petitioner.

We are unable to understand how cases that are two and three years old can have any possible bearing on externment proceedings proposed and initiated in the year 2013. The essence of externment proceedings is a subjective satisfaction by the Externment Authority of imminent necessity. This means that there must be some live link or nexus between the previous criminal complaint or cases, if any, and the proposed externment proceedings. Not only is there no such link, but in respect of C.R. No. 148 of 2005, relied on by the respondents, the petitioner was actually acquitted. Although this has been noted by the Appellate Authority, he seems to have found nothing amiss in the Externing Authority relying on an acquittal as an instance of criminality justifying externment. Even more strangely, in the Externment Order this very case is shown to be pending in Court, which is factually incorrect. Furthermore, reliance is sought to be placed on proceedings under Chapter VIII of the Code of Criminal Procedure, 1973 to support the externment. These are wholly irrelevant to externment proceedings under the Bombay Police Act, 1951. That has been repeatedly stated by this Court in a large number of decisions.

The Appellate Order makes for very sorry reading. It not only displays a complete non-application of mind, but has glaring factual inaccuracies. For instance, the Appellate Authority, while referring to the in-cam-era witness statements, suggests that the record shows that "no one is coming forward to depose against the petitioner". There are two problems with this finding. First, this is not a requirement of section 56(1)(b) of the Bombay Police Act, 1951. The requirement of that section is that witnesses must be unwilling to give evidence against the externed in public apprehending a threat to their lives or property. There must be a subjective satisfaction and a finding to that effect. There is none. Secondly, the Appellate Authority''s finding is itself incorrect. The Externment Order does not say that no one is willing to come forward to depose against the petitioner; only that persons are unwilling to lodge complaints against the petitioner. That is not the same thing, and it is not permissible for the Appellate Authority to improve on the externment order in appeal in this fashion.

It is embarrassing to have to note, yet again, that the Appellate Authority persists in confusing the clear-cut legal distinction between confidential statements and in-camera statements. Similarly, in this case, as in a very large number of similar previous cases, the Appellate Authority refers to a so-called disturbance of public peace and order, as if to suggest that this has anything to do with externment proceedings u/s 56(1)(b) of the Bombay Police Act, 1951. As we have repeatedly stated that these are extraneous and irrelevant considerations.

We also note that both the Externing Authority as well as the Appellate Authority have sought to question the petitioner''s acquittal in 2005 criminal case, by saying that it was not a clean acquittal. This is entirely irrelevant and it is not for the Authorities to decide whether, or not the acquittal was justified.

There remains the question of the territorial extent of the Externment Orders. All six offences said to have been registered against the petitioner are only at Wanwadi Police Station. Yet the petitioner has been purported to be externed from Pune City and Pune District. We find this to be excessive and wholly unjustified. There is nothing in either the Externment Order or the Appellate Order to show that the petitioner''s externment from such a large area was necessary. We also find nothing to justify the petitioner''s externment for a period of as long as two years, especially given that the cases referred to by the respondent-authorities go back at least eight years. The petitioner, therefore, must succeed. Rule is made absolute in terms of prayer Clause (b). There will be no order as to costs.