Quashed

Mahesh Vithal Patil v. Purushottam Karad and Anr.

Bombay HC5 Sept 2013WP/2340/2013

Case brief

AI extract

What is this about?

The High Court of Bombay quashed an externment order and an appellate confirming order. The court held the territorial expansion was excessive, the nexus with registered cases was weak, and the mandatory finding on witness safety was absent, constituting non-application of mind under Section 56 of the Bombay Police Act, 1955.

What did the court decide?

Quashing and setting aside of the external order dated 06-07-2012 and the appellate order dated 06-05-2013.

Mahesh Vithal Patil Vs Purushottam Karad and Anr. — Writ and Judicial Review | Bombay HC (2013)

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WP2340-13-D

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Shephali

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 2340 OF 2013

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Shri. Mahesh Vithal Patil.

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Aged: Adult, 24 years, R/o Bandu
Prem Bldg., C-19,
Kopar Khairne, Navi Mumbai.…Petitioner

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versus

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1. Shri Purushottam Karad. Dy. Commissioner of Police, Zone I, Vashi, Navi Mumbai.

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2. The State of Maharashtra.

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…Respondents

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Mr. S. K. Chitnis i/b Mr. Nitin Sejpal and Poja Bhojane for the
Petitioner.

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Mr. J. P. Yagnik, APP for the Respondents-State.

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CORAM:S.C. Dharmadhikari,
& G.S.Patel, JJ.

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JUDGEMENT RESERVED ON :2nd September 2013
JUDGEMENT PRONOUNCED ON :5th September 2013

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JUDGMENT : (Per G.S. Patel, J.)

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1.Rule, returnable forthwith. Mr. Yagnik, Learned APP, waives
service on behalf of the Respondents. By consent, called out and taken
up for hearing and final disposal.

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WP2340-13-D

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2.We have heard Mr. Chitnis, learned senior counsel appearing for
the Petitioners and Mr. Yagnik, learned APP for the Respondents at
some length. In our view, the impugned externment order dated 6th
July 2012 passed by the Respondent No. 1 and the Appellate Order
dated 6th May 2013, both cannot be sustained. Our reasons follow.

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3.The impugned externment order directs the Petitioner to
remove himself “the territorial jurisdiction of Greater Mumbai,
Mumbai Suburbs, Thane, Navi Mumbai and district Raigad for a
period of two years. In our view, this is excessive. Navi Mumbai is not
a district, and it is not and cannot be said to be contiguous with all the
other districts from which the Petitioner has been asked to remove
himself. In itself, the contiguity, or want of it, may or may not be a
reason to invalidate the externment order, but the fact remains that the
vastness of the area covered by the externment order is wholly
unjustified. This can be gauged from the fact that the externment order
proceeds on the basis of two criminal cases, namely C.R.No. 197 of
2009 and C.R.No. 109 of 2011. Both those criminal cases are registered
with the APMC Police Station. Neither of them is related to the
Petitioner engaging in any criminal activities spread over the
geographical area in question.

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4.That apart, there is also the material factor that the two C.Rs are
not even reasonably proximate in time to the impugned externment
order. One criminal case is of 2009. The second is of 2011. The
impugned Externment Order is dated 6th July 2012, well over a year

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WP2340-13-D

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after the two criminal complaints. There is, therefore, no live or
tenable link between the alleged activities on which the Externment
Authority is relied. In respect of F.I.R. No. 109 of 2011, the Petitioner
has been enlarged on bail. There is no material to show that he has,
after obtaining bail, ever misused that liberty or abused the terms and
conditions of that bail. Why the Petitioner is therefore thought to be fit
to be externed is entirely unclear.

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5.Furthermore, we find that Mr. Chitnis is justified in his
contention that there is no finding in the Externment Order or
Appellate Order that witnesses are unwilling to come forward to
depose against the Petitioner in public. The only statement in the
Externment Order is that people are unwilling to file complaints
against the Petitioner. This is not the same thing. The requirements of
Section 56 of the Bombay Police Act, 1955, it is now far to well settled
to merit repetition, are that the authorities must return a positive
finding that witnesses, out of fear of danger to their lives or property at
the hands of the proposed externee, are unwilling to come forward to
depose against him in public. Absent such a finding, an Externment
Order cannot be sustained. The two in-camera witness statements
relied on by the authorities do not carry the matter further. Neither
deposes to any material that could reasonably be said to warrant an
order of externment. Both allege that the Petitioner abused and
threatened them. Both witnesses speak of incidents in August 2011,
just short of a year before the externment order of 6th July 2012.

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These two in-camera witness statements cannot possibly lend any
credence to the externment order.

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6.We are also at a loss to understand how the Police Authorities
propose to continue with the two criminal complaints against the
Petitioner and the trials in respect thereof if he is supposed to remove
himself entirely not only from the immediate vicinity of the local
Police Stations and the local Courts but from a very widely dispersed
area. The Externment Order and the Appellate Order are both, in that
sense, entirely illogical. At the very least, it was expected that the
appellate authority would consider the Petitioner’s representation, in
which all these points are raised, judiciously and with some
circumspection, given that this externment, like all externments, is an
encroachment on and a curtailment of sacrosanct civil liberties. If
those rights are to be abrogated, even temporarily and in a limited area,
it must be for sound and compelling reasons, the delineation of which
must necessarily demonstrate a proper application of mind and a
weighing of all factors. This is altogether absent in the impugned
orders.

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7.In the circumstances, we have no hesitation in holding that both
the Externment Order dated 6th July 2012 and the Appellate Order
dated 6th May 2013 are entirely unsustainable, and demonstrate a fatal
non-application of mind. Both are therefore quashed and set aside.
Rule is made absolute in terms of prayer clause (b) which read as
follows:

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“(b) This Hon'ble Court by a Writ of Mandamus or Writ in the nature of Mandamus or any other suitable writ, order or direction, in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India, be pleased to quash and set aside the impugned order dated 06.05.2013 passed by the Secretary (Special), Home Department, Govt. of Maharashtra in Appeal No. EXT-2012/249/SPL-3(B) thereby confirming the impugned order of externment No.4835 of 2012 dated 06.07.2012 issued by the Respondent No.1.”

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8. There will be no order as to costs. All concerned to act on an authenticated copy of this order.

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(S.C. Dharmadhikari, J.)

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(G.S. Patel, J.)

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Mahesh Vithal Patil v. Purushottam Karad and Anr.

Case brief

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Mahesh Vithal Patil v. Purushottam Karad and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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