Gajanan Bhimrao Wankhede vs Dy. Commissioner of Police Zone IV

P.D. Kode, J.—Rule. Made returnable forthwith.

Learned APP appears waiving service for the Respondents.

By this petition preferred under Article 226 and 227 of the Constitution of India, the petitioner assails order of externment passed by Respondent No. 1 dated 12th December, 2013 under the provisions of Bombay Police Act, 1951 externing him for a period of one year from City and District of Pune.

Respondent No. 2, authorized by D.C.P. Zone 4 Pune had issued notice dated 8th October, 2013 u/s 59(1) of Bombay Police Act (hereinafter referred as "said Act") to the petitioner on the basis of report received from Senior Police Inspector, Yerwada police station, amongst other for showing cause as to why action of an externment for a period of two years from City and District of Pune as proposed should not be taken against him u/s 56(1)(b) of the said Act.

Respondent No. 2 had issued said notice to the petitioner on the count that he was involved in the commission of offences on 7th and 21st of August 2013 as depicted in In-camera statements of witnesses referred as "A" and "B" in said notice and so also being involved in commission of in all five cognizable/non-cognizable offences, out of which two were culminated in reprimanding him, while cases for three other offences were still pending in the Court i.e. for the offences as detailed in said notice. It was also issued on the count of preventive proceeding also being required to be taken against him. Thus, the said notice was issued on the count of there being no improvement in his behaviour in spite of himself being reprimanded by the Court and three cases being pending against him, himself having no occupation and being a desperado and hardcore person involved in the activity of extorting money by threatening people at the point of lethal weapon possessed by him and as such prevailing of atmosphere of fear and terror about him in the people and due to the same the victims being not ready to dare to lodge the complaint regarding offences committed by him against them and thus there being a danger to the person and property of the people at the large, at his hand, and so also every possibility of himself committing similar offences in future.

In the proceedings taken after hearing petitioner, respondent No. 1/Externment Authority arrived at the subjective satisfaction that it was necessary to extern the petitioner for a period of one year from City and District Pune as sought and accordingly had passed the impugned order of externment referred earlier.

The petitioner assailed said order by preferring an appeal before the Joint Secretary, Home Department, Mantralaya, Mumbai. However, after hearing his Advocate, the Appellate Authority was pleased to dismiss the appeal preferred by order dated 17th April, 2014 amongst other observing that the order of externment passed by Respondent No. 1 was legal and proper.

Mr. Deepak Girme, learned counsel for the petitioner assailed the order passed by the Respondent No. 1/Externment Authority as well as by the Appellate Authority on the count of the petitioner having not received adequate notice of the case which he was supposed to meet in the externment proceedings taken out by Respondent No. 1. It is submitted that issuance of the said notice and passing of the order was amongst other founded upon the occurring of incidents referred into in the In-camera statements referred in the notice.

Learned counsel by meticulously taking us through said show cause notice submitted that the same failed to depict either time and precise place at which said incidents referred in In camera statement had taken place and further failed to depict the date on which the statements of the persons reporting so called incidents were recorded. It is submitted that the orders passed by the Externment Authority as well as the Appellate Authority are wholly silent regarding existence of any material denoting genuineness of occurrence of such incident or reporting of it being verified by superior officer of the police i.e. superior to the officer who had allegedly recorded said In camera statements.

The learned counsel, by heavily placing reliance upon the unreported decision of this Court delivered on 4th July, 2013 in the case of "Sunil Mani Shetty vs. Dy. Commissioner of Police and Ors. in Cri. W.P. No. 1583 of 2013" contended that for the similar reason, this Court has come to the conclusion that such defect in externment proceedings in term denotes proceedings for externment being conducted in violation of the principles of natural justice and the order passed therein can not be legally sustained.

It was contended that the ratio of the said decision would be squarely applicable to the case of the petitioner and as such the order of externment passed against him as well as the order mechanically confirming the said order by Appellate Authority without taking into consideration the said crucial aspect which has resulted in petitioner being forced to face proceeding without fully knowing the case which he was supposed to meet, deserved to be quashed and set aside by allowing the petition.

Learned APP for the State, on the contrary, submitted that orders impugned in this petition, do not suffer from any illegality nor the same can be said to have been passed by violating the principles of natural justice. It is submitted that the orders impugned were passed on the basis of show cause notice issued with necessary detail and germinating from the detailed report received from Senior Police Inspector, Yerwada police station. It was urged that the matters stated in the show cause notice considered in proper perceptive reveals that the petitioner had all opportunity to know the case against him and hence he has participated in the proceedings and thereafter only the order of externment was passed.

It is submitted that submissions of similar nature advanced before the Appellate Authority were negated by the Appellate Authority and as such no fault can be found with the orders of externment passed and confirmed by the Appellate Authority by rejecting the appeals preferred by the petitioner. It was thus contended that there is no merit in the petition preferred and as such the same deserve to be dismissed.

Thoughtful considerations were given to the submissions advanced, the petition and the documents annexed thereto were carefully considered for appreciating the merits in the submissions canvassed.

Now perusal of the impugned order of externment reveals that respondent No. 1 had arrived at subjective satisfaction that it was necessary to extern the petitioner on the basis of incidents depicted in In camera statements and other material mentioned in the report received from Senior Police Inspector, Yerwada police station. It reveals that respondent No. 1 had arrived at subjective satisfaction of petitioner being a person of criminal character, desperado, active and dangerous person on the basis of the offences committed by him and further on the basis of the fact of people at large due to his terror being not ready to lodge complaint with the police regarding commission of the offences by him and only after the assurance of the police that they would not call them as witnesses in any proceedings and their names would be kept confidential, had come forward to give their in camera statements regarding offences committed by the petitioner against them. The further part of the said order reveals that hence the respondent No. 1 had come to the conclusion that it was necessary to extern the petitioner as there was no change in his criminal behaviour in spite of himself being arrested in the offences committed reprimanded in two cases and three cases being pending and in spite of prohibitory actions taken against him.

Now considering the main ground on which the learned counsel for the petitioner has assailed the orders of externment passed against the petitioner and considering the reasons for which the order was passed, it is abundantly clear that while passing said order, respondent No. 1 had heavily taken into consideration the incidents referred in two camera statements mentioned in the respective reports.

It is indeed true that the other material showing involvement of the petitioner in the offences mentioned as well as the preventive proceeding taken, were also taken into consideration by respondent No. 1 while arriving at the subjective satisfaction of the necessity of externing the petitioner. However, even without taking into consideration the involvement of the petitioner in the offences mentioned in the said reports and requiring of taking the preventive proceeding against him, still it can be said that while arriving at subjective satisfaction of it being necessary to extern the petitioner, respondent No. 1 has heavily placed reliance upon occurrence of incident revealed from the material contained in In camera statement mentioned in the report. As a matter of fact, even cursory perusal of an order reveal that the said material has been utilized and or taken into consideration against the petitioner while arriving at such a subjective satisfaction by Respondent No. 1.

Now from the said angle examining the criticism advanced by the learned counsel for the petitioner, the perusal of said material relied against the petitioner reveals that the same lacks the details regarding precise place at which the said incident dated 7th August 2013 had taken place for which the said statement was recorded. Significantly, it is rightly canvassed by the learned counsel for the petitioner, the relevant material or the entire report is blissfully silent regarding the date on which the said matter was reported by the said victims to the police. The same is the case with regard to the incident which allegedly occurred on 21st August, 2013. Though the relevant material some what sound that the incident had taken place in front of a public latrine, the same lacks to denote the date on which the said incident was reported to the police by the said victims.

Now considering the order of externment passed by respondent No. 1, the same also do not denote that any other material was placed before respondent No. 1 giving a clue regarding after how much of passage of time the said incidents were reported to the police. Furthermore, the order of externment also do not reveal that the reporting of occurrence of such a incident, as claimed in the in-camera statements were verified by any superior officer of the police other than the person who had recorded the said incident. Even perusal of the order passed by the Appellate Authority do not reveal that any cogent material was placed before the said Authority regarding dates on which the relevant incidents were either reported to police or fact of reporting of such a incident was verified by the superior officer of police.

Having regard to the same, the submissions canvassed by the learned counsel for the petitioner that in order to give weightage to the matters stated in the in-camera statements, it was necessary for the Externment Authority to take into account the time gap after each of such incidents, was allegedly reported by the victims to the police and if verification of genuineness of such a reporting was made by superior officer can not be said to be without merit. He was also very much right in submitting the said important aspects, were completely lost sight of by the said Authority. There also appears substance in the submissions canvassed that material thereto being not placed and or the relevancy/significance of the same being not taken into consideration by the said authority denotes that the order of externment was passed de hors the said aspect. Having regard to the same, there appears substance in the further submissions canvassed by the learned counsel for the petitioner that the petitioner had not received due opportunity to meet the said material for the lack of details i.e., dates on which the said incidents were reported and the others as canvassed. There appears substance in submissions canvassed that such happenings squarely denote that proceedings were taken in utter violation of the principles of natural justice without there being due opportunity to petitioner to know the case which he was supposed to meet in the said proceeding and so also the details of the material relied in support of the said case i.e. precisely at least regarding the incidents referred in In camera statements.

The reference to decision relied upon by the learned counsel for the petitioner also reveals similar view having been taken by this Court. The said decision relied upon, also reveals consistently such a view being taken in earlier by this Court and amongst other having observed that following the principles of natural justice being utmost necessary for such proceedings which has effect of encroaching upon the freedom of movement or choice of residence by the affected persons.

In the premises aforesaid, their appears substance in the submissions canvassed that proceeding held against the petitioner being held in utter violation of the principles of natural justice in view of having not received an adequate opportunity to know the material in entirety due to lack of details pointed and consequently the case which he was supposed to meet in the proceeding taken for externing him.

Now considering nature of proceedings required to be held by the respondent No. 1 before passing an order of externment with such a violation, the orders passed by respondent No. 1 and mechanically upheld by the Appellate Authority without understanding the significance of the relevant aspect clearly denote non-application of mind. Having regard to the same, the said order can not be legally sustained and will be required to be quashed and set aside.

In the aforesaid premises, the petition deserve to be, and accordingly, is allowed. The order passed by the Externment Authority, as well as the Appellate Authority dismissing appeal preferred by the petitioner, are hereby quashed and set aside.

Rule is made absolute in the aforesaid terms.