Rajesh Jairam Keni Vs Dy. Commissioner of Police and Ors.

cr wp 1039-10.doc

RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 1039 OF 2010

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Rajesh Jairam Keni.. Petitioner

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Vs

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Dy. Commissioner of Police, Zone-II,
Panvel & Ors.. Respondents

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Mr. U.N. Tripathi for the Petitioner

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Mr. S.A. Shaikh, APP for the State

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CORAM : SMT. V.K. TAHILRAMANI, J
RESERVED ON : 5th OCTOBER, 2010
PRONOUNCED ON: 14th OCTOBER, 2010

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P.C.:

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1. Heard learned Advocate for the Petitioner and learned APP for the State.

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2. Rule. By consent, Rule is made returnable forthwith
and the matter is heard finally.

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3. The petitioner has challenged the order of externment dated 18.11.2009 passed against him under section 56(1)(a)

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(b) of the Bombay Police Act. The externment order was passed
against the petitioner by the respondent no.1-Dy.

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Commissioner of Police, Zone-II, Panvel. The said order has
been confirmed by the appellate authority by order dated
18.03.2010 which order has also been challenged.

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4.The externment order was naturally preceded by a show
cause notice. The show cause notice is dated 28.08.2009. By
the said show cause notice, the petitioner was called upon
to show cause as to why an order of externment should not be
passed against him under section 56(1)(a)(b) of the Bombay
Police Act. Thereafter, impugned order came to be passed on
18.11.2009.

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5. It is submitted on behalf of the petitioner that there
is a reference to in camera statements of witnesses ‘A’ and
‘B’ in the externment order. However, no details as to the
date, time and place of those incidents narrated by these
two witnesses, has been mentioned in the show cause notice.
Therefore, the petitioner was deprived of an opportunity to
effectively meet the allegations made in respect of the
statements made by the two in camera witnesses.

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6. As against this, it is submitted on behalf of the
respondents that the details given in the show cause notice
with regard to the in camera statements of the two witnesses
‘A’ and ‘B’, are sufficiently giving the details as well as

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particulars as to where the incident occurred and when.

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7. Perusal of the show cause notice shows that the

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statement of incamera witness ‘A’ was recorded which
indicated that the witness has stated that the petitioner
used to visit construction sites around Pethali village and
used to threaten builders to give him work of supply
material. It is further stated that in the month of July,
the proposed externee threatened some persons that he would
not keep them alive if they stepped on land disbursed by
CIDCO. On account of fear and threats from the proposed
externee that if the police is informed, they would face dire
consequences, these people did not inform the police. Thus as
far as witness ‘A’ is concerned, Mr. Tripathi submitted that
no place or date is mentioned,hence, the petitioner was
unable to effectively meet the allegations.

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8.The learned APP stated that the place where the
incident took place is mentioned i.e construction sites
around Pethali village, however, it is noticed that with
reference to the incident which has taken place in the month
of July, the place where this incident took place is not
mentioned in the show cause notice. The incidents at
construction sites around Pethali village pertain to the
petitioner threatening builders to give him work of

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cr wp 1039-10.doc

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supplying material, however, the incident relating to month
of July is of a different nature. This incident pertains to
giving of threats to people that they should not step on
CIDCO land. As to where this incident took place is not
stated anywhere. Even the approximate area is not mentioned.

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9.In reply to the contention that no date is mentioned as
to when the incident stated by incamera witness 'A' took
place, the learned APP pointed out that in the said
statement, it is mentioned that the incident relating to the
witness ‘A’ had occurred in the month of July. According
to me, some more particulars could have been furnished as to
when the incident took place. In order to protect the
identity of the witness, it may not be possible to give the
exact date and time but at least the approximate date or time
of month could have been given i.e the time period should
have been reasonably specified.

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10. As regards statement of incamera witness ‘B’, there is
no mention of any date or even approximate date, when the
incident occurred. In fact, as far as witness ‘A’ is
concerned, it was stated that the incident had occurred in
the month of July but in case of witness ‘B’ this averment is
also not found in relation to his statement. The averments
made in relation to witness ‘B’ is very vague in nature and

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cr wp 1039-10.doc

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as such not enough for the petitioner to give an effective
reply to the same.

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11. Thus it is clear that the averments relating to the
incamera statements of the two witnesses, which are
mentioned in the show cause notice are extremely vague
allegations, without giving sufficient details and thereby
the petitioner was deprived of meeting those allegations
made against him.

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12.A show cause notice is required to be issued to the
proposed externee before any externment order is issued,
with a view to enable him to meet the allegations made
against him in the show cause notice. If the proposed
externee is not even informed the particulars like
approximate time of the incident, approximate area and
general nature of the incident, this itself is a sufficient
ground for quashing the order of externment because it
deprives the proposed externee of an opportunity to explain
the allegations made against him in the show cause notice.
This is clearly illegal. Similar view is taken by this Court

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in the a case of Mr. Kishore Durge vs. Dy. Commissioner of
Police, reported in 2003 ALL MR(Cri.) 2023. I may hasten to
add that the exact date and time need not be stated in the
show cause notice but the approximate time like last week of

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cr wp 1039-10.doc

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January or 1st week of June could at least be stated. If it
is stated two months prior to recording statement, then in
such case, the date when the statement was recorded should
be given so that the approximate date can be ascertained. So
also if not exact spot of the incident, at least the area or
locality should be mentioned. From the show cause notice,
the approximate time when the incidents relating to incamera
witness 'B' occurred, cannot be ascertained and as far as
second incident stated by incamera witness 'A' is concerned,
the approximate area where it took place cannot be
ascertained.

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13.Both the Supreme Court and this Court have consistently
taken the view that the general nature of the material
allegations should be set out in the show cause notice for
the notice in question to pass the test of legal scrutiny.
It is also essential that while setting out the charges
against the person concerned, the time, the date, the place,
the nature of the incident, etc., should be circumscribed
within such reasonable limits that it would be possible for
the person concerned to adequately meet those charges. The
Supreme Court in the case of State of Gujarat Vs Mehbubkhan
reported in AIR 1968 SC 1468 has set out one such
illustration when it pointed out that unless the time period
is reasonably specified, it may be difficult for the person

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cr wp 1039-10.doc

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against whom the charges are made to sustain a defence of
alibi by saying that he was not at that particular place
around that period of time or by bringing forth documentary
evidence in support of his contention that he was at some
other place.

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14.On going through the show cause notice, it is observed
as far as incamera witness 'A' is concerned, the area or
locality where the second incident took place cannot be
ascertained and as far as the second incamera witness is
concerned, the approximate time, when the incident referred
by witness 'B' took place cannot be ascertained. In such
case, it can be said that the show cause notice suffers from
the vice of vagueness due to which it was not possible for
the petitioner to effectively reply to the show cause notice,
hence, the externment order is liable to be struck down.

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15.In the result, the petition is allowed. The externment
order passed against the petitioner is hereby quashed and
set aside. Rule is made absolute in the above terms.

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 [SMT. V.K. TAHILRAMANI, J.]

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Rajesh Jairam Keni v. Dy. Commissioner of Police and Ors.

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Rajesh Jairam Keni v. Dy. Commissioner of Police and Ors.

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