Dismissed

Mohammed Ali Fakruddin Sayyed v. the Assistant Commissioner of Police, Matunga Division

Bombay HC22 Apr 2014WP/3512/2013

Case brief

AI extract

What is this about?

Petitioner challenged externment order for two years from Mumbai and environs. High Court found natural justice followed, material relevant, acquittals not relevant to pending case basis, and extent reasonable for law and order. Petition dismissed.

What did the court decide?

Petition dismissed; orders of externment byrespondents12 and appeal by respondent3 upheld.

Mohammed Ali Fakruddin Sayyed Vs the Assistant… — Service and Employment | Bombay HC (2014)

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903.WPNo.35122013.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 3512 OF 2013

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Shri. Mohammed Ali Fakruddin Sayyed, Age. 36 Years, Occu. Driver, Resi. At. : Zopadi No.918, New Transit Camp, Bangali Pura, Antop Hill, Mumbai 400037 ... Petitioner V/s. 1) The Assistant Commissioner of Police, Matunga Division, Matunga, Mumbai. 2) The Dy. Commissioner of Police, Matunga Division, Zone IV, Matunga, Mumbai. 3) The Principal Secretary, Home Department, Mantralaya, Mumbai – 400 032. 4) The State of Maharashtra ... Respondents .....

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Mr.Pankaj Shinde a/w. Jitendra Agrawal i/by Amar Bhau, Advocate for the Petitioner.

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

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.... CORAM : NARESH H. PATIL AND V.L.ACHLIYA, JJ. Reserved on : 11th 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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Gaikwad RD

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The petitioner has challenged the order of externment dated 10/04/2013 passed by the Dy.Commissioner of Police, Matunga Division, Zone-IV, Mumbai i.e. respondent No.2 and order dated 17/07/2013 passed in appeal by the Principal Secretary, Home Department, Government of Maharashtra i.e. respondent No.3.

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

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On 31/01/2013 a notice u/s. 59 of the Bombay Police Act was issued to the petitioner to show cause as to why he should not be externed from local limits of Mumbai City, suburb city of Mumbai and District Thane and Raigarh for the period of two years. Show cause notice mention the details of criminal cases registered against the petitioner as well as his continuing unlawful activities which has prompted the authority to initiate proceeding of externment. It has been specifically mentioned in show cause notice that one C.R.No.226 of 2012 for offence u/s.143, 144, 145, 147, 148 149, 307, 326, 504 and 506 r/w. 34 of IPC has been registered against him on 03/10/2012 with Police Station, Antop Hill in respect of which criminal case is pending before the Court. Beside case registered vide C.R.No.226 of 2012, two in-camera statements of witnesses referred in notice on the basis of which the proposed action for his externment for the period of two years from city of Mumbai, suburb Mumbai and District of Thane and Raigarh was initiated. The petitioner was granted ample opportunity to defend the proceedings. The case was heard on 05/02/2013, 08/02/2013, 13/02/2013, 16/02/2013, 21/02/2013, 27/02/2013, 07/03/2013 and 14/03/2013. After giving full opportunity of hearing Inquiry Officer i.e.

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Gaikwad RD

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Assistant Commission of Police submitted proposal to Deputy Commissioner of Police, Zone No.4, Mumbai for taking action u/s. 56 of the Bombay Police Act. On due consideration of proposal and satisfaction that the petitioner needs to be externed for the period of two years from the aforesaid area as a preventive measure, the respondent has passed the order on 10/04/2013 u/s. 56 (1) (a)(b) of the Bombay Police Act, 1951 after giving due opportunity of hearing to petitioner. Being aggrieved by the order passed by the Deputy Commissioner of Police, Zone No.4, the petitioner has preferred appeal u/s.60 of the Bombay Police Act before the State Government. The appellate authority after giving due opportunity of hearing rejected the appeal by order dated 17/07/2013. The appellant authority has upheld the order of externment passed by Deputy Commissioner of Police, Zone No.4. Being aggrieved by said orders, the petitioner has preferred this petition.

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We have heard the learned counsel for the petitioner and learned APP for the State. We have perused the record and thoroughly considered the show cause notice dated 31/01/2013, the order passed by the externing authority as well as appellate authority.

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The learned counsel for the petitioner by referring the show cause notice dated 31/01/2013 and consequential order dated 10/04/2013 passed by respondent No.2 vehemently contended that the order passed by the respondent No.2 is nothing but reproduction of contents of show cause notice dated 31/01/2013, which itself sufficient to infer that the externing

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Gaikwad RD

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authority did not apply his mind while passing the impugned order. It is further contended that though the petitioner has pointed out to authority that out of seven cases referred in show cause notice, he was acquitted in three cases and in remaining three cases his name is not mentioned in the FIR, still the externing authority as well as appellate authority ignored the contentions of the petitioner. The learned counsel has further submitted that issuance of notice referring the cases in which the petitioner was acquitted itself show that as how casually and mechanically the orders have been passed in the proceedings. It is further contended that though the alleged activities of the petitioner were confined to police station Antop Hill, still the petitioner is externed from entire city of Mumbai, suburb of Mumbai, Thane and Raigarh. It is, therefore, contended that order is excessive and liable to be quashed. During the course of hearing, the learned counsel for the petitioner has produced on record the copy of order dated 05/05/2012 passed in Criminal Case No.1428/PW/2005 and copy of order dated 21/09/2013 passed in Criminal Case No.1371/PW/2005 whereby the petitioner was acquitted by Metropolitan Magistrate, 51^st Court, Kurla, Mumbai. The learned counsel has placed reliance upon the rulings reported in 2013 All MR (Cri.) 74, Ganesh Nilkanth Patil V/s. Dy. Commissioner of Police & Ors., 2012 All MR (Cri.) 2250, Shri.Baburao Changa Patil V/s. The State of Maharashtra & Anr., (1987)1 Bom.CR 425, Subhas Ganu Bhoir V/s. K.P.Raghuwanshi & Anr., and 2006 All MR (Cri.) 2645( SC) Lt. Governor, NCT & Ors. V/s. Ved Prakash @ Vedu .

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Gaikwad RD

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On the other hand, the learned APP for the State has supported the impugned orders. It is contended that the orders passed by the externing authority as well as the appellate authority are legal proper and call for no interference in exercise of writ jurisdiction. It is contended that principles of natural justice has been followed by the authority. After due opportunity of hearing to petitioner, the orders have been passed by both the authorities. It is further contended that order passed by the authority cannot be termed as arbitrary or excessive. No illegality or procedural lapse resulting in serious miscarriage of justice is pointed out by petitioner in passing the order. It is further contended that no case is made by petitioner to invoke the extraordinary jurisdiction of this Court to interfere with the orders passed.

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Before adverting to appreciate the submissions advanced by learned counsel for the petitioner and learned APP for the State, it is necessary to consider the scope and powers of Writ Court to interfere with the orders passed by the statutory authority as that of respondent Nos.1 and 2. The Apex Court in the case of Lt. Governor, NCT and Ors. Vs. Ved Prakash @ Vedu reported in 2006 ALL MR (Cri.) 2645 (S.C.) has broadly considered the scope and powers of Writ Court against the statutory authority, the Apex Court has observed as under :

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“When the validity of an order is questioned, what would be seen is the material on which the satisfaction of the authority is based. The satisfaction of the authority although primarily subjective, should be based on objectivity. But Sufficiency of material as such may not be gone into by the writ court unless it is found that in passing the impugned order the authority has failed to take into

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Gaikwad RD

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consideration the relevant facts or had based its decision on irrelevant factors not germane therefor. Mere possibility of another view may not be a ground for interference. It is not a case where malice was alleged against the third Appellant. The High Court and Apex Court would undoubtedly jealously guard the fundamental rights of a citizen. While exercising the jurisdiction vested in them invariably, the courts would make all attempts to uphold the human right of the proceedee. The fundamental right under Article 21 of the Constitution undoubtedly must be safeguarded. But while interpreting the provisions of a statute like the present one and in view of the precedents operating in the field, the court may examine the records itself so as to satisfy its conscience not only for the purpose that the procedural safeguards available to the proceedee have been provided but also for the purpose that the witnesses have disclosed their apprehension about deposing in court truthfully and fearfully because of the activities of the proceedee. Once such a satisfaction is arrived at, the superior court will normally not interfere with an order of externment. The court, in any event, would not direct the authorities to either disclose the names of the witnesses or the number of cases where such witnesses were examined for the simple reason that they may lead to causing of further harm to them. In a given case, the number of prosecution witnesses may not be many and the proceedee as an accused in the said case is expected to know who were the witnesses who had been examined on behalf of the prosecution and, thus, the purpose of maintaining the secrecy as regards identity of such persons may be defeated. The court must remind itself that the law is not mere logic but is required to be applied on the basis of its experience. ”

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The learned counsel for the petitioner has strenuously contended that the impugned orders are not sustainable in law as same are passed without proper application of mind and they have acted mechanically in passing the orders. Whereas the learned APP for the State has supported the orders passed with contention that orders have been passed after due opportunity

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Gaikwad RD

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of hearing to the petitioner and orders are based upon material to justify the orders of externment passed against the petitioner.

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It is not disputed that on 31/01/2013, the show cause notice was issued to petitioner and the petitioner was put to notice the material on the basis of which the authority proposed to initiate the externment proceeding. The orders of externment passed by respondent No.1 reflects that fair opportunity was given to the petitioner. Proceeding of the case was repeatedly adjourned from 05/02/2013 to 14/03/2013 to offer an opportunity of hearing to petitioner. The opportunity of hearing given to the petitioner duly reflected in the order dated 10/04/2013. Therefore, the order passed by the respondent No.1 cannot be said to be passed without proper application of mind, nor order can be termed as arbitrary as the entire material relied to pass the impugned order has been discussed in the order. We are, therefore, not inclined to accept the submission of learned counsel for the petition that the orders have been passed without proper application of mind.

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The next submission advanced by the learned counsel for the petitioner that impugned notice takes into account three cases in which the petitioner has been acquitted. During the course of hearing, the learned counsel has produced xerox copy of two orders. It reflects that in Criminal Case no. 1424/PW/2005, the petitioner was acquitted as the complainant in the case has not supported the prosecution. He has deposed before the Court that he did not remember the incident dated 09/04/2004. In view of

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Gaikwad RD

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complainant has not supported the case of prosecution, the Metropolitan Magistrate has closed the proceeding and acquitted the accused. Petitioner has produced xerox copy of the order dated 21/09/2013 passed in Criminal Case no. 1371/PW/2005. The copy of the order produced reveals that the complainant in the case has compounded the offence u/s.325, 506 r/w.34 of IPC with three accused in the case. In view of compounding of offence, the petitioner was acquitted from the case. The order dated 21/09/2013 in Criminal Case no. 1371/PW/2005 has been passed much after the order was passed by the externing authority as well as appellate authority. Therefore, there was no reason for them to consider the same. The order passed in the said proceedings reflects that the witnesses of the prosecution are not willing to depose against the petitioner which supports the case of respondent that witnesses are not willing to depose against the petitioner. The cases registered against petitioner referred in show cause notice was not the basis for passing of externment order. The proceeding of externment was initiated on the basis of C.R.No.226 of 2012 and in-camera statements of witnesses.

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The order passed by externing authority to extern the petitioner was passed on the basis of C.R.No.226 of 2012 and in-camera statements of witnesses as referred in show cause notice and not on the basis of past criminal record of petitioner. Therefore, the acquittal of petitioner in some of those cases is not relevant to assess the validity of order passed by externing authority.

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Gaikwad RD

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The learned counsel for the petitioner has further argued that although the activities of the petitioner confined to Police Station, Antop Hill, the order of externment has been passed externing the petitioner from city of Mumbai, suburb city of Mumbai, district Thane and Raigarh. He has, therefore, submitted that order passed by externing authority is excessive and liable to be quashed. We are not inclined to accept this submission for the sole reason that the issue in this regard is no more res integra, as the Apex Court as well as this Court in catena of cases has upheld the passing of externment order beyond the area of operation i.e. contiguous district. In this context, it is useful to refer the judgment of the Apex Court in the case of Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra, reported in AIR 1973 SC 630 , wherein the Apex Court has dealt the issue and upheld the order of externment beyond the area of operation of the police station and extending the contiguous district. The said decision has been relied by this Court in number of cases. In said judgment, the Apex Court has observed as under :

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“But Balu Shivling's case furnishes no analogy in the instant matter. A vast city like Bombay presents its own peculiar problems of law and order. It has an ever-growing industrial complex and the city has spread its areas far and wide. A fair proportion of its teeming population is, mobile, with large multitudes streaming in and out of the city in the pursuit of their daily avocations. An order of externment restricted to the particular area chosen by the externee for his unlawful activities and to a small periphery thereof would in such circumstances fail of its true purpose. It would be impossible to secure obedience to such an order and its enforcement would raise practical problems which would impair the efficacy of the order. An order in the instant case if restricted, say, to the areas within the jurisdiction of the Vile Parle police station and its periphery would not serve its purpose. Rather than

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Gaikwad RD

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solving a problem of law and order, it would create yet one more.

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That is why, on similar facts, the Bombay High Court has consistently repelled challenges made to externment orders on the ground that they extended not only to the district of Greater Bombay but to the district of Thana as well. In Criminal Application No. 1427 of 1968 a Division Bench (Kotval C. J. and Kamat J.) observed in their judgment of March 17, 1968 :-

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"In the present case the area of activity of the externee was undoubtedly stated to be Santacruz, but Santacruz is a fairly wide area. Moreover, it is very intimately connected with the surrounding area of Thana district. It is common knowledge that Thana town in the surrounding area is also an area where large industries have grown contiguous with the industrial area of Greater Bombay and that the entire industrial area is connected together by several means of communication including suburban trains of which there are several during each day, by taxis plying to and from Greater Bombay and by bus services operating between Greater Bombay and several parts of Thana District. Therefore, the Police could reasonably have thought that it would not be sufficient to ask the petitioner to keep off only from the area of Greater Bombay which has an equally busy and highly industrialized area contiguous to it. Therefore, the order was extended to Thana District."

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A similar view taken by Palekar and Gatne JJ. in Criminal Applications 30 and 93 of 1970 decided on 23/02/1970 (Bom.) by Tulzapurkar J. in 73 Bombay L.R. 442 at pp. 453- 454 and by Bhasme and Kania JJ. in Criminal Application No. 149 of 1972 decided on 3-3-1972 (Bom.). As against the judgment last mentioned the externee had filed special leave petition No. 487 of 1972 in this Court, one of the grounds stated therein being that the externment order was void because the externee was asked to remove himself not only out of the district of Greater Bombay but from the limits of Thana district as well. The petition was dismissed by this Court (Palekar and Dwivedi JJ.) on 20-9-1972. ”

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We are, therefore, not inclined to accept the submission of learned

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Gaikwad RD

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advocate that on the ground of operation the impugned order can be termed as excessive and liable to be set aside.

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We are of the view that the impugned orders have been passed by the respondents after following the procedure prescribed by the law. The orders passed by the externing authority not suffers from vice of arbitrariness nor it can be termed as excessive. The principles of natural justice has been duly followed while passing the orders. The satisfaction of the authority in passing the order is reflected from the face of the order. The past record of criminal cases filed against petitioner, the chapter proceedings, as well as MPDA proceedings initiated against the petitioner as well as case registered against the petitioner in the year 2012 and the incamera statements of two witnesses are sufficient to demonstrate that orders have been passed after assessment of the material lying before the authority. For this reason also the impugned orders cannot be said to be bad in law.

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In exercise of the writ jurisdiction, the Court is expected to confine it's inquiry to limited aspect as referred in forgoing paras. The Writ Courts are not expected to sit as a Courts of appeal over the orders passed by the authority and to re-appreciate the evidence which forms the basis in passing the orders of externment by the concerned authorities unless the case is made out that the order is passed on irrelevant consideration or failed to take into consideration the relevant material. In our view, no case is made out by petitioner to invoke the writ jurisdiction. The rulings cited

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Gaikwad RD

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by the learned counsel for the petitioner have no bearing upon the facts of the present case as the facts of case are distinguishable from facts of the present case. In view of conclusion to which we have reached no case is made to interfere with orders passed by both the authorities. In the result, the petition stands dismissed.

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

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Gaikwad RD

Mohammed Ali Fakruddin Sayyed v. the Assistant Commissioner of Police, Matunga Division

Case brief

What is this about?

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Mohammed Ali Fakruddin Sayyed v. the Assistant Commissioner of Police, Matunga Division

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