Dismissed

Vijaysingh Chauhan v. the Dy. Commissioner of Police and Ors.

Bombay HC22 Apr 2014WP/335/2014

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging a two-year externment order against the petitioner. The court held that the authority acted fairly, adhered to natural justice, and did not rely on extraneous material or ignore relevant facts, rejecting the claim that the order was arbitrary or procedural flaws existed.

What did the court decide?

The writ petition was dismissed, confirming the order of externment for two years.

Vijaysingh Chauhan Vs the Dy. Commissioner of Police… — Writ and Judicial Review | Bombay HC (2014)

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39.WPNo.3352014.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 335 OF 2014

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Shri.Vijaysingh Chauhan, Aged 46 years, residing at Flat No. 201, “A” Wing, Sadguru Apartment, Phase-II, Film City Road, Goregaon (E), Mumbai. ... Petitioner V/s. 1) The Dy. Commissioner of Police, Zone-XII, Mumbai 2) The Assistant Commissioner of Police, Samta Nagar Division, Mumbai. 3) The Principal Secretary, State of Maharashtra Home Department, Mantralaya, Mumbai – 400 032. 4) The State of Maharashtra ... Respondents .....

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Mr.Prakash Naik i/by Mr.Ganesh Bhujbal, Advocate for the petitioner. Mr.J.P.Yagnik, APP for the State.

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....
CORAM	: NARESH H. PATIL AND
	V.L.ACHLIYA, JJ.
Reserved on	: 27th February, 2014.
Pronounced on	: 22nd April, 2014.

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Judgment :- (Per V.L.Achliya J.)

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Rule. Rule returnable forthwith. By consent, taken up for final hearing.

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The petitioner has challenged the order of externment dated 17/10/2013 passed by the Dy. Commissioner of Police, Zone-XII, Mumbai (hereinafter referred to as 'externing authority') and order dated 17/01/2014 passed by Additional Chief Secretary, Department of Home, Government of Maharashtra (hereinafter referred to as 'appellate authority') confirming the order passed by externing authority.

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

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On 15/07/2013 the the respondent No.2 issued a show cause notice u/s.59(1) of the Bombay Police Act to petitioner, whereby the petitioner was called upon to explain as to why he should not be externed for the period of two years from the local limits of Commissionerate of Mumbai Police. In the show cause notice issued by the respondent No.2 has given the detail particulars of pending cases against the petitioner including two chapter cases and order passed therein as well as the registration of C.R.No.116 of 2013 on 21/04/2013 with Police Station, Kurar for offence punishable u/s. 332, 353, 323, 504, 506(II) r/w. 34 of IPC. Beside C.R.No. 116 of 2013, the respondent No.2 has also referred in show cause notice the two in-camera statements on the basis of which the the action was proposed. The notice was duly served upon the petitioner on 24/07/2013. Petitioner has responded to show cause notice and contested the same by filing reply. Petitioner has also produced witnesses in support of his defence. After conducting inquiry, the respondent No.2 has submitted proposal to respondent No.1 to extern the petitioner for the period of two years from the local limits of Commissionerate of Mumbai Police. After considering proposal, the respondent No.1 issued notice to petitioner and

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called upon to appear before him on 20/09/2013. During the course of hearing, the petitioner requested for providing copies of certain documents, which includes in-camera statements of witnesses recorded by respondent No.2. Respondent No.1 has granted the request of petitioner and directed the respondent No.2 to provide the copies of the same. The direction was complied and the copies were supplied to petitioner. After supplying the copies to petitioner, the respondent No.1 proceeded with the hearing of the case. It appears from the face of the order passed by the externing authority that the petitioner was represented through advocate during the course of hearing before respondent No.1. After giving due opportunity of hearing to petitioner, the externing authority i.e. the respondent No.1 has passed order. By the order passed, the petitioner has been externed for the period of two years from the local limits of City of Mumbai and suburb city of Mumbai. Being aggrieved the petitioner has preferred appeal before the State Government as contemplated u/s. 60 of the Bombay Police Act. After hearing the petitioner, the Additional Chief Secretary (Home) has rejected the appeal filed by the petitioner vide order dated 17/01/2014. Being aggrieved by the order passed by the respondent No.1 and 3, petitioner has preferred this writ petition on various ground as set out in petition.

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We have heard the submissions advanced by learned advocate for the petitioner as well as learned A.P.P. for the State and further perused the record and proceedings. After carefully considering the submissions advanced, we are of the view that the petition is devoid of any substance and merit therein.

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The learned counsel for the petitioner has strenuously contended that the orders passed by the externing authority is not sustainable in law for the sole reason that the externing authority has relied upon the extraneous and additional material in passing the order, which was not disclosed to petitioner in notice issued u/s. 59 of the Bombay Police Act. The learned counsel for the petitioner has argued that in the order passed by the externing authority, there is a reference of offence u/s. 420 of IPC registered vide C.R.No.274 of 2013 on 26/09/2013 with Police Station, Kurar, which was not at all referred in show cause notice issued to the petitioner. It is further contended by the learned counsel for the petitioner that the local MLA from the area was instrumental in initiating the proceedings against the petitioner. The copy of the letter sent by the local MLA has been considered by the respondent No.2 while dealing with the proceedings. It is contended that in absence of reference of C.R.No. 274 of 2013 made in show cause notice, the impugned order is not sustainable in law and the order is liable to be set aside. In support of this contention, the learned counsel has relied on the judgments in the case of Isac Santan Fernandes Vs. K.P.Raghuvanshi, Deputy Commissioner of Police & Anr., reported in 1987(3) Bom.C.R. 323 and Iqbal Munnaf Sayyed Vs. The Asst. Commissioner of Police & Ors., reported in 2013 ALL MR (Cri.) 117 .

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On the other hand, Mr.J.P.Yagnik, the learned APP for the State has submitted that C.R.No.226 of 2012 was registered during the pendency of hearing before the externing authority. The show-cause notice was issued

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on 15/07/2013 whereas the C.R.No.226 of 2013 was registered on 26/09/2013 i.e. after issuance of notice and therefore, same not find place in the show cause notice. It is further contended that no extraneous or additional material was taken into account in passing the order. The order passed by externing authority was very much confined to show cause notice issued to petitioner.

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In order to appreciate the submissions advanced, we have throughly perused the record and proceedings. In our considerate view, the contentions of the learned counsel for the petitioner cannot be accepted for the sole reason that no extraneous material has been relied by the externing authority in passing the order. Show cause notice was issued to petitioner on 15/07/2013. In show cause notice, the past record of the cases as well as chapter cases registered against the petitioner has been mentioned in detail. In the reply filed to the show cause notice, the petitioner has not disputed the fact of registration of cases as referred in show cause notice dated 15/07/2013. In reply to show cause notice, the petitioner has taken the stand that the cases were registered against him at the behest of persons who are at loggerhead with him. So far as two chapter cases registered against the petitioner are concerned, the petitioner has admitted that in one chapter case initiated u/s. 110(a)(g) of Cr.P.C., he has executed the bond. He has also admitted that pursuant to order passed of breach of bond executed, he has deposited the penalty. As far as the second chapter proceeding is concerned, the petitioner has submitted that the same is pending for hearing. The externment proceedings initiated against the

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petitioner was not initiated on the basis of earlier cases registered or the chapter proceedings initiated against the petitioner. In fact the externment proceedings was initiated on the basis of registration of C.R.No.116 of 2013 with Police Station, Kurar u/s. 332, 353, 323, 504, 506(II) r/w. 34 of IPC on the basis of complaint lodged on 21/04/2013 by Pratap Devilal Rajput (Forest Officer-Wild Life-2), Sanjay Gandhi National Park, Mumbai. In the complaint lodged, the complainant has alleged that on 21/04/2013, he received telephonic information from Chief Conservator of Forest and Director-Sanjay Gandhi National Park, Borivali that some people are erecting unauthorized structure at Mangalya Ladkya Ghatal Compound, Aappapada, Malad (E), Mumbai within the forest area. He was instructed by his superior to visit the site and take immediate action. He, therefore, visited the site along with personnel working with Forest Department. After he reached on site, he noticed some persons embedding iron poles in the land. He asked those persons to stop the work. When they were asked as to who has instructed them to do that work, the persons disclosed the name of petitioner. They were not aware as to whether any permission was obtained or not for carrying out said work. They were asked to stop the work. While the employees of the Forest Department were removing the poles, the petitioner reached on the spot. He rushed towards the complainant and started abusing them. He asked them to leave the place otherwise he will kill each of them. He was accompanied with his associates. They manhandled and beaten the employees of the Forest Department and obstructed the work of officials of the Forest Department, who were then discharging their duty as a public servant. Beside the case

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registered vide C.R.No.116 of 2013, the notice was also issued on the basis of in-camera statements recorded. In show-cause notice, it is specifically mentioned that the petitioner was continuously indulging into the acts of grabbing the government land, erecting illegal structure, threatening the people and forcibly evicting people from the premises in their occupation and he was creating terror in the locality. He was terrorizing the people in locality which includes the businessmen, rickshawalls and also involved in extorting money from the people. It is further mentioned in the notice that the petitioner was indulging into act of collecting haptas from the people from locality. Because of his terror in the locality, people were not coming froward to lodge complaint against him as well as to depose against him. Number of cases were registered against the petitioner and his associates with Police Station Kurar, Dindoshi and Mira Road. In in-camera statements recorded the persons whose identity has been concealed, they have stated in length as to the criminal activities of the petitioner and his associates and because of his terror people are not willing to come forward to depose and lodge complaint against him.

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On consideration of material produced in support of proposal submitted by the respondent No.1, the Dy. Commissioner, Zone No.12, has issued show cause notice to petitioner. The Dy.Commissioner has provided full-fledged opportunity of hearing to petitioner. Petitioner who appeared before Dy.Commissioner demanded the copies of the statements recorded during the course of inquiry by the respondent No.2. The copies were furnished to petitioner. Petitioner has produced the copies of the same with

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the petition. From the copies annexed with petition, it clearly reflects that the entire material which includes statements of witnesses recorded during the course of inquiry as well as copy of the letter dated 28/05/2013 received from local MLA along with enclosures was furnished to petitioner. In the letter addressed to respondent No.1, the local MLA has requested for taking stern action against the petitioner in view of complaints made to her by people from the constituency of his continuous criminal activities and criminal background of registration of nine criminal cases and 25 noncognizable offences against the petitioner. The local MLA has stated in her letter that the petitioner has created terror in the locality and also indulging into act of cheating the people. She has specifically complained that the petitioner has collected the amount at the rate of Rs.1,70,000/- per person from number of persons by making them false promises to provide room. She has also invited attention of the Dy. Commissioner of Police to order passed by High Court to take strict action against the petitioner. The material which was before the externing authority was very much made available to the petitioner and petitioner was fully aware of the complaint made by the local MLA, while he appeared for hearing before the externing authority. It is pertinent to note that in reply field by petitioner, the petitioner has specifically made reference of complaint made by Mrs.Vidya Chavan-local MLA from the area. He has specifically stated that the complaint made by MLA against him is false and bogus. Hence, we are not inclined to accept the submission of learned advocate for petitioner that the order has been passed by the externing authority relying on extraneous material.

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So far as the reference made in the order passed by the externing authority of registration of C.R.No. 274 of 2013 with Police Station, Kurar we are of the view that the proceeding cannot said to be vitiated, as said crime was registered on 26/09/2013, while the proceeding was pending for hearing before the externing authority. Show cause notice was issued on 15/07/2013. Therefore, there was no reason for respondent No.2 to have mentioned C.R.No.274 of 2013 in the show cause notice issued on 15/07/2013. The reference of C.R.No. 274 of 2013 in the order dated 17/10/2013 passed by the externing authority was not made basis to extern the petitioner. The reference was made only to reflect as to what was transpired during the course of hearing of the proceedings. It appears from the order that externing authority, while passing order has mentioned in the order to what transpired on each date of hearing of the proceedings. He has mentioned that on 01/10/2013, while the hearing of the case was fixed before him, P.S.I.-Bhopale produced the copy of C.R.No.274 of 2013 registered on 26/09/2013 against the petitioner. He has further mentioned that on that day at the request of petitioner the proceeding was adjourned to 08/10/2013. If we read the entire order, then it reflects that the externing authority has given date-wise details as to what was transpired on each date of hearing of the proceedings. Only in context as to what was transpired during the course of hearing on 01/10/2013, the reference of C.R.No.274 of 2013 has been made in the order. The impugned order has not been passed on the basis of registration of C.R.No. 274 of 2013. We are, therefore, not inclined to accept the submissions of learned counsel for the petitioner that impugned order dated 17/10/2013 has been passed on the basis of

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extraneous material, which was not reflected in show cause notice dated 15/07/2013. The rulings relied by the learned counsel for the petitioner have no bearing upon the facts of the present case as the facts of the present case are distinguishable from the facts of the cases cited.

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It is well settled position in law that while exercising the writ jurisdiction, Writ Court is not supposed to sit as a court of appeal over the orders passed by the statutory authority. Sufficiency of material cannot be gone into by the writ court unless it is found that in passing the impugned order the authority has failed to take into consideration the relevant facts or had based its decision on irrelevant factors not germane to case. Only for the reason that there is possibility of another view can not be a ground to interfere with such order. We have already discussed in foregoing paras that the show cause notice issued to the petitioner has disclosed the material on the basis of which the action was proposed against the petitioner. Petitioner was offered full opportunity of hearing to meet the allegations against him as well as the proposed action. Petitioner has filed reply to show cause notice and also produced the witnesses in his support. The copies of the documents as requested by the petitioner were furnished to petitioner. The orders passed by the externing authority also reflects that the petitioner was allowed to present his case through advocate. The order passed by the externing authority clearly spell out that the order has been passed on due application of mind and on the basis of material available on record and no extraneous material was relied in passing the impugned order. So also, we have found no procedural flaw in the order passed by

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the externing authority. Principles of natural justice has been strictly adhered by the externing authority. So also, the order passed cannot be termed as arbitrary or passed in abuse of process of law. We are also of the view that on the basis of material available on the record, the externing authority was fully justified in passing the order. We have found no merit in the petition. In the result, the petition stands dismissed.

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

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Vijaysingh Chauhan v. the Dy. Commissioner of Police and Ors.

Case brief

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Vijaysingh Chauhan v. the Dy. Commissioner of Police and Ors.

Case brief

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