Quashed

Guddu @ Mudassar Munawar Majid v. the State of Maharashtra and Ors.

Bombay HC1 Oct 2010WP/2080/2010

Case brief

AI extract

What is this about?

The High Court quashed an externment order under section 56(1)(a)/(b) of the Bombay Police Act. The order was set aside because the preceding show-cause notice was vague and failed to disclose material particulars regarding the time, date, and place of incidents involving in-camera witnesses, thereby depriving the petitioner of an effective opportunity to reply.

What did the court decide?

The externment order dated 29.04.2010 passed by the Dy. Commissioner of Police, Zone-III, Kalyan, and its confirmation by the appellate authority are quashed and set aside.

Guddu @ Mudassar Munawar Majid Vs the State of… — Writ and Judicial Review | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 2080 OF 2010

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Guddu @ Mudassar Munnawar Majid

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.. Petitioner.

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V/s. The State of Maharashtra & Ors. .. Respondents.

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Miss Tajasweeta Kadam i/by Mr. R.D. Suryawanshi for the Petitioner.

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Smt. M.M.Deshmukh , APP for the State.

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CORAM : SMT. V.K. TAHILRAMANI, J.

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DATE : Reserved on 24.09.2010 Pronounced on 01 .10.2010

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P.C.

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

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State.

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2 Rule. By consent, Rule is made returnable forthwith.

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3 The petitioner has challenged the order of externment dated

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29.04.2010 passed against him under section 56(1)(a)(b) of the Bombay Police Act. The externment order was passed against the petitioner by the respondent no.2 -Dy. Commissioner of Police, Zone-III, Kalyan, Dist.Thane. The said order has been confirmed by the appellate authority by

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order dated 05.07.2010 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 17.03.2010. 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 29.04.2010.

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5 It is submitted on behalf of the petitioner that there is a reference to incamera 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 incamera 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 particulars as to where the incident occurred and when.

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7 Perusal of the show cause notice shows that the statement of incamera

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witness ‘A’ was recorded which indicated that the witness has stated that the petitioner used to steal cars as well as cattle which he use to sell. It is stated that about two months prior to the recording of statements while the witness was going home, the proposed externee and his associates accosted him; they threatened the witness, slapped and robbed him of Rs.230. The witness was threatened that if he informs the police he would face dire consequences. Thus as far as the witness ‘A’ is concerned, no place date or time is mentioned. Learned APP pointed out that in the said statement, it is mentioned that the incident relating to the witness ‘A’ had occurred two months earlier. However, the date of the recording of the statement of witness ‘A’ has not been indicated anywhere in the show cause notice. While issuing the order of externment, the Externing Authority has relied upon incidents which occurred in the year 2007, 2008 and 2009. Hence, it is not known as to when the statement of incamera witnesses was recorded i.e. whether it was recorded in the year 2007, 2008, 2009 or prior thereto or subsequent thereto. Thus averments relating to incamera witness ‘A’ are devoid of material particulars, due to which the petitioner was deprived of an opportunity to effectively reply to the same.

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8 As regards statement of incamera witness ‘B’, there is no mention of any time, date or place. In fact, as far as witness ‘A’ is concerned, it was

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stated that the incident had occurred two months prior to recording of the statement 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 as such not enough for the petitioner to give an effective reply to the same.

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9 Thus it is clear that the averments relating to the in-camera statements of the two witnesses, which are mentioned in the show cause notice are extremely vague allegations, without giving any definite details as to the incident and thereby the petitioner was deprived of meeting those allegations made against him.

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10 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 material 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 deprived the petitioner 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 in a case of Mr. Kishore Durge vs. Dy.

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Commissioner of Police, reported in 2003 ALL MR(Cri.) 2023. I may

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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 January or 1^st week of June should 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 locality should be mentioned. From the show cause notice, the approximate time when the incidents relating to incamera witnesses, cannot be ascertained. The show cause notice in the present case also does not state the area or even locality where the incident occurred. 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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11 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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Guddu @ Mudassar Munawar Majid v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Guddu @ Mudassar Munawar Majid v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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