Allowed

Imran Irfan Patel v. the State of Maharashtra and Anr.

Bombay HC19 Mar 2014WP/2462/2013

Case brief

AI extract

What is this about?

Petitioner challenged externment orders for two years under the Bombay Police Act. The High Court held the orders were excessive, colourable exercises of power, and unsustainable as they lacked sufficient material regarding public alarm or harm and failed to justify the drastic restriction on personal liberty. Petition succeeded.

What did the court decide?

The impugned order of externment dated 15/10/2012 and the appellate order dated 30/04/2013 are quashed and set aside.

Imran Irfan Patel Vs the State of… — Constitutional and Fundamental Rights | Bombay HC (2014)

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2.WPNo.24622013.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 2462 OF 2013

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Imran Irfan Patel, Aged : 23 years, Occupation – Education, Res – 472, Indiranagar Zopadpatti,Pune. ... Petitioner V/s.

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The State of Maharashtra,

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Deputy Commissioner of Police Zone – 2, Pune City. ... Respondents. .....

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Mr.R.S.Kadam, for the Petitioners. Mr.K.V.Saste, APP for the State.

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	....
CORAM	:	NARESH H. PATIL AND
		V.L.ACHLIYA, JJ.
Reserved on	:	22nd January, 2014.
Pronounced on	:	19th March, 2014.

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P.C. :- (Per V.L. Achliya, J.)

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Rule. Rule made returnable forthwith. Heard by consent of parties.

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The petitioner has challenged the order of externment dated 15^th October, 2012 passed by the Deputy Commissioner of Police, Zone-II, Pune (hereinafter referred to as 'externing authority') and the order dated 30th April, 2013 passed by the Secretary (Spl.), Home Department, Government of Maharashtra (hereinafter referred to as 'appellate authority') confirming the order passed by externing authority.

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Gaikwad RD

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In brief, the facts leading to filing of petition are as under :

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On 20/09/2012, Assistant Commissioner of Police, Swargate, city of Pune issued show cause notice to petitioner u/s. 59 of the Bombay Police Act. By the notice issued the said authority called upon the petitioner to show cause as to why he should not be externed from city of Pune, District Pune and adjoining five districts for the period of two years u/s. 56(1)(a)(b) of the Bombay Police Act for the reason set out in the notice. In nutshell, it was alleged that earlier three crimes were registered against the petitioner. So also, some chapter proceedings u/s. 107 and 110(e)(g) of Cr.P.C. were initiated against him. Still he continued to indulge into criminal activities. He has created terror in the locality to such extent that the people from locality were not coming forward to lodge complaint against him. The petitioner responded to show cause notice. He denied all the allegations made against him. In nutshell, the petitioner has contended that he is doing the business in the name of his establishment 'Maharashtra Welding Works'. He has not indulged in to any criminal activity. Since last 22 years, he is doing social work. On the basis of false complaints lodged, the cases were registered against him. He has further submitted that his family consist of father, mother, wife and son and they are wholly dependent on him. Passing of order of externment would cause serious prejudice to him and his family. On 15/10/2012, the externing authority passed order against the petitioner and the petitioner was externed for the period of two years from the local limits of District Pune. Being aggrieved by order dated 15/10/2012, the petitioner preferred an appeal before the State Government, which was registered as Appeal No.EXT-2012/251/

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SPL-3(B). The appellate authority disposed of appeal vide order dated 30/04/2013. The appeal preferred by the petitioner was rejected. Being aggrieved by the said order, the petitioner has filed this writ petition challenging the orders of the externing authority as well as appellate authority on the various grounds set out in the petition.

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We have heard the learned advocate for the petitioner and the learned A.P.P. For the State. By referring the show cause notice, the reply filed by the petitioner, the orders passed by the externing authority and the appellate authority, the learned advocate for the petitioner has contended that the orders have been passed without application of mind. The cases referred in the notice were pending before the court. In none of the case, he was convicted. There was no material available before the externing authority for initiating proceeding against 56(1)(a)(b) of the Bombay Police Act. In the order passed by the externing authority, although it is reflected that the action against the petitioner was contemplated u/s. 56(b) of the Bombay Police Act, but there is no reflection that petitioner indulged into the act of abetment of offences punishable under the Indian Penal Code as contemplated u/s. 56(1)(b) of the Bombay Police Act. It is further contended that no opportunity was given to the petitioner to cross-examine the persons who alleged to have deposed against him. The order passed by the externing authority nowhere reflects that the order has been passed after due satisfaction of the material before the authority.

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The learned advocate for the petitioner has further contended that the orders passed are not only erroneous and illegal, but they are also excessive

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Gaikwad RD

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and passed in colourable exercise of power vested with the authority resulting into violation of fundamental rights of the petitioner. There was no material, much less justifiable to pass such drastic order of externment for the period of more than two years from the District Pune, was available before the authority as all the cases registered against petitioner were confined to local limits of Police Station, Swargate.

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On the other hand, the learned A.P.P. for the State has supported the orders passed by the externing authority as well as the appellate authority. It is contended that the orders passed by the authorities are perfectly legal and well in the four corners of the law. In-camera statements of two witnesses were recorded which reflects that the petitioner indulges into criminal activity of a nature that those witnesses were not willing to come forward to lodge complaint against the petitioner.

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We have perused the show cause notice and the impugned orders passed by the externing authority as well as appellate authority. On consideration of the evidence relied to pass the order to extern the petitioner for the period of two years from the local limits of District Pune, we are of the view that the orders are excessive and colourable exercise of powers. There is no reference in the order passed by the externing authority that the witnesses are not willing to come forward to depose against the petitioner as contemplated u/s. 56(1)(b) of the Bombay Police Act. Considering the over all evidence relied against the petitioner, the order passed by the externing authority appears to be excessive and in

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Gaikwad RD

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colourable exercise of powers. The order passed by the externing authority nowhere justifies for taking such drastic action against the petitioner to extern him for the period of two years. The orders passed u/s. 56 makes a serious inroad on personal liberty of the person. The expression “alarm, danger or harm to person or property” occurs in section 56(a) of the Bombay Police Act refers to the public at large and not to one or two individual. The orders passed nowhere reflect the existence of sufficient material available for the satisfaction of the authority that the order was passed in the interest of public at large. We are, therefore, of the view that the impugned order of externment is not sustainable in law. Therefore, the petition deserves to be allowed.

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The petition, therefore, succeeds. The impugned order of externment dated 15/10/2012 passed by the Deputy Commissioner of Police, Zone-II, Pune City and the appellate order dated 30/04/2013 are quashed and set aside. Rule is made absolute in the above terms.

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(V.L.ACHLIYA, J.) (NARESH H. PATIL, J.)

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Gaikwad RD

Imran Irfan Patel v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Imran Irfan Patel v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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