High Court quashed an order of externment for being excessive as it lacked nexus with the petitioner's confined area of operation and was passed in violation of natural justice, as the authority proceeded in his absence.
Absolute rule quashing the order of externment and setting it aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Crim.Writ Petition No. 131 of 2006
Shri Vinaykumar Parmanand Mishra ..Petitioner
vs.
1. The State of Maharashtra
and others ..Respondents
Mrs.S.Y.Mohite for petitioner
Mr.S.S.Pednekar, A.P.P. for respondents.
CORAM: S.C.DHARMADHIKARI J.
16th June, 2007
P.C.
1. The order of externment passed against the petitioner
and confirmed in appeal by the Appellate Authority is
under challenge in this petition.
2. The show cause notice was issued on 11th March,2005
and received by the petitioner calling upon him to show
cause as to why he should not be externed from Thane
District, Mumbai city, Mumbai Suburban Limits, Navi
Mumbai, Raigad and Nasik districts for two years.
3. The allegations in the show cause notice pertain to
some cases filed against the petitioner from November,
1998. However, the show cause notice states that the
petitioner resides at Shivaji Nagar, Kamatghar, Bhiwandi
and cases against him are registered within the limits of
Bhiwandi Shahar Police Station. The first case is
registered in 1998 and 2nd, 3rd and 4th cases are
registered in 2004 at the same police station. It is
stated that incamera statements recorded would demonstrate
that the activities of the petitioner are such as would
amount to creating terror in the mind of the
people/residents. It is alleged that the people are not
coming forward to complain or depose out of fear and
threat to their lives and properties. It is on the basis
of the cases registered and 3 incamera statements that the
petitioner was sought to be externed.
4. The petitioner replied to the show cause notice and
dissatisfied with the explanation, the Externment
Authority passed the order of externment against the
petitioner on 20th September, 2005. The petitioner was
externed for two years from Thane District, Mumbai City,
Mumbai Suburban Limits and Nashik District.
5. The order of externment was challenged in appeal but
the appellate authority cocurred with the view of the
externing authority and dismissed the petitioner’s appeal.
6. Aggrieved and dissatisfied with the above order that
the present petition has been filed.
7. Ms.Mohite appearing for the petitioner submits that
the impugned order is vitiated on four counts. She
submits that the show cause notice is vague. Further,
before passing the externment order, no personal hearing
was given to the petitioner. Thirdly, the externing
authority has not considered the relevant material in as
much as out of the four cases referred to and relied upon
the petitioner has been acquitted in one case. The fourth
ground which vitiates the order is that the same is
excessive in as much as the activities of the petitioner
are confined to Bhiwandi city limits. There is no reason
for externing the petitioner from Thane District, Mumbai
City, Mumbai Suburban Limits and Nashik District as these
areas have absolutely no nexus with the alleged illegal
and criminal activities of the petitioner.
8. Mr.Pednekar, A.P.P. submits that the petitioner has
been indulging in the activities for considerable period
of time and it is not as if the externment order is passed
as a matter of course. The petitioner was permitted to
appear and satisfy the authority by producing all the
material in favour of his case set out in the reply,
However, despite opportunities, the petitioner did not
produce and chose to submit his reply/written statement
through his Advocate.
9. In such circumstances, according to Shri Pednekar,
there is no substance in the complaint and the order is
exparte. In sofar as the activities of the petitioner are
concerned, there is clear nexus established and,
therefore, it cannot be said that the order is excessive
as well. For all these reasons he submits that the
petition be dismissed.
10. With the assistance of the petitioner’s Advocate so
also that of the learned A.P.P. I have perused the show
cause notice. The show cause notice does not state as to
why the petitioner is sought to be externed from the
entire Thane District, Mumbai City, Mumbai Suburban
limits, Raigad and Nashik districts so also Navi Mumbai
area for two years. If the activities of the petitioner
are confined to Bhiwandi and nearby areas (city limits and
vicinity) as to why the petitioner is sought to be
externed from entire Thane district and Mumbai city,
Mumbai Suburban limits so also from Nashik district has
not been explained at all. The impugned order is,
therefore, clearly excessive. The entire order is silent
with regard to the area of operation of the petitioner and
the nexus therewith to the above mentioned districts. It
is not a coincidence that the order sets out the said five
areas and thereafter finally the Externing Authority
restricts itself to Thane District, Mumbai city, Mumbai
Suburban limits and Nashik district. Navi Mumbai is not a
district but that invariably escapes the attention of the
externing authority and in all show cause notices Navi
Mumbai is mentioned as a district.
11. Similarly the petitioner’s activities being confined
to Bhiwandi there is no occasion as to why the petitioner
needs to be externed from Thane District, Mumbai City,
Mumbai Suburban limits and Nashik District. It is well
settled that a nexus has to be prima facie established by
the Externing Authority and thereafter permitted to be
controverted by the externee. There is no such
satisfaction arrived at nor is any material referred in
that behalf in the impugned order. For these reasons, the
impugned order deserves to be quashed and set aside on
this ground alone.
12. Further, it appears to me that the externing
authority has passed the order in absence of the
petitioner. The petitioner’s Advocate has referred to the
show cause notice, copy of which is at Annexure A. The
same is dated 11th March, 2005. The petitioner was
directed to appear in pursuance thereof on 22nd March,
2005. It is the case of the petitioner and which is made
good in the reply to the show cause notice, copy of which
is at annexure B with the petition, that the petitioner
appeared on 22nd March, 2005 and prayed for time to file
the reply. The petitioner had made this request
personally on 22nd March, 2005. Further, the petitioner
was present on that date along with five witnesses and
their statements were recorded. In such circumstances, as
to on what basis, a finding is recorded that the
petitioner has avoided or has failed to remain present
before the externing authority is not clear to me at all.
The impugned order of externment which is passed in
absence of the petitioner is confirmed in appeal by
relying upon some communications and the fact that on 21st
July, 2005 and 6th August, 2005 the petitioner was given
opportunity but he forwarded his written arguments through
the Advocate and thus did not avail of the same. There is
no material produced in as much as once the petitioner has
appeared and have recorded the same through the Advocate’s
letter I have no reason to disbelieve the version of the
petitioner. Thus, I find that the externing authority was
in patent error in proceeding in absence of the
petitioner. The petitioner could not have been externed
unless the principles of natural justice were complied
with in letter and spirit. This is a serious matter and
the petitioner will have to be given full opportunity
before the order of externment was passed. In the facts
and circumstances of the present case, the impugned order
is vitiated and deserves to be set aside on this ground as
well. Once the conclusion is reached it is not necessary
to consider the other arguments of Ms.Mohite with regard
to the show cause notice being vague and the externing
authority having failed to consider the relevant material.
Once I am satisfied that the order is excessive and
vitiated for breach of principles of natural justice as
well, the petition deserves to be succeed. Rule is made
absolute in terms of prayer clauses (a) and (b).
(S.C.DHARMADHIKARI J.)
2 issues framed by the court
Whether the order of externment is excessive as it covers areas where the petitioner has no nexus with the alleged activities.
Whether the order of externment was passed in violation of principles of natural justice due to absence of the petitioner.
Shri Vinaykumar Parmanand Mishra
The State of Maharashtra
S.C. DHARMADHIKARI
As recorded by the court registry
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