Allowed

Gautam Shantilal Dayma v. the State of Maharashtra and Ors.

Bombay HC3 Sept 2015WP/1769/2015

Case brief

AI extract

What is this about?

This High Court quashed two externment orders against the petitioner under the Bombay Police Act. The Court held that the authorities failed to record subjective satisfaction regarding witness apprehension as a basis for the order. Additionally, the Court noted the petitioner could not be termed a habitual offender based on a single cognizable case.

What did the court decide?

The impugned orders dated 08.04.2014 and 09.04.2015 were quashed and set aside.

Gautam Shantilal Dayma Vs the State of… — Constitutional and Fundamental Rights | Bombay HC (2015)

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WP1769_15.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO.1769 OF 2015

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Gautam Shantilal Dayma … Petitioner Vs. State of Maharashtra and others … Respondents

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Mr. Digajmaan G. Mishra a/w. Mr. Yashmaan G. Mishra i/b. Brahmand Lexis for Petitioner. Mr. K. V. Saste, APP for Respondents-State.

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CORAM: RANJIT MORE & R. G. KETKAR, JJ.

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DATE : 03^rd SEPTEMBER, 2015.

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PC:

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Heard Mr. Mishra, learned Counsel for petitioner and Mr. Saste,

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learned APP for respondents-State.

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Rule. By consent, Rule made returnable forthwith. Since the controversy involved is very short, Petition is taken for hearing immediately.

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By this Petition filed under Article 227 of the Constitution of India, petitioner is challenging the orders dated 08.04.2014 and 09.04.2015 passed by the respondent No.2 and respondent No.1 respectively under Sections 56(1) and 60 of the Bombay Police Act, 1951 (for short 'Act') whereby he came to be externed for the period of 18 months from Mumbai

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WP1769_15.doc

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and Mumbai Suburban District.

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We have gone through the notice dated 31.12.2013 issued to the petitioner under Section 59, order dated 08.04.2014 passed by the respondent No.2 under Section 56(1) and the order dated 09.04.2015 passed by the respondent No.1 under Section 60 of the Act. We have also gone through the provisions of Sections 56, 59 and 60 of the Act and considered the rival submissions of the respective Counsel. It is settled principle that to pass externment order under Section 56(1)(a) and (b) of the Act, the externment authority must record his subjective satisfaction that acts of externee are causing or calculated to cause alarm, danger or harm to the person or property or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, 1860 AND, witnesses are not willing to come forward to give evidence and unless such opinion is formed by the officer, he cannot pass the order for the externment of the person. It is also settled principle of the natural justice that no material which is adverse to the party can be relied upon, unless that party is given an opportunity.

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Perusal of the notice under Section 59 issued by the respondent No.2 to the petitioner does not reveal any allegation against the petitioner that the witnesses are not willing to come forward to give evidence in public

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WP1769_15.doc

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against the petitioner by reason of apprehension on their part as regards the safety of their person or property. In other words, the petitioner was not put on the notice about these allegations, which forms the basis for an order under Section 56(1)(a) and (b). The impugned orders, therefore, deserve to be quashed and set aside on this ground alone.

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Be that as it may, the petitioner was externed on the ground that two F.I.R.s are pending against him viz. C.R.No.2889 of 2013 and C.R.No.361 of 2013. The first F.I.R. was registered with Nirmal Nagar Police Station. It it not disputed that so far as the first C.R. is concerned, the same is registered for the offences punishable under Sections 504 and 427 of the Indian Penal Code. Both the offences are not cognizable. This C.R., therefore, could not have been taken into consideration while passing the externment order. So far as second C.R. is concerned, the same is registered for the offences punishable under Sections 170 and 382 of the Indian Penal Code. These offences are are cognizable one and the offence under Section 382 falls under Chapter XVII. But the fact remains that this is the only case pending against the petitioner, and admittedly, in other cases, he has already been acquitted. There is no past incident of conviction recorded against the petitioner, and therefore, we are of the opinion that on the basis of the registration of the single case, petitioner cannot be termed as a 'habitual offender'.

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WP1769_15.doc

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Respondent No.2 in his order observed that due to the apprehension of the petitioner, people are not coming forward to make complaint to the police. However, in support of his observation, there is no material. At least, the order of respondent No.2 does not disclose any such material. The observation that people are not coming forward to make complaint to the police because of apprehension of the petitioner is without any basis. That apart, the appellate order also does not record subjective satisfaction that witnesses are not willing to come forward to give evidence in public against the petitioner by a reason of apprehension on their part as regards safety of their person or property. In the absence of such subjective satisfaction, the externment order cannot be sustained.

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The petitioner was externed for the period of 18 months by respondent No.2 by an order dated 08.04.2014. Already 17 months are over. In these circumstances, coupled with the observations made hereinabove, we are inclined to allow the Petition. Petition is accordingly disposed of by passing the following order:

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a. The impugned orders dated 08.04.2014 and 09.04.2015 are quashed and set aside;

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b. Rule is made absolute in terms of prayer clause (a).

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Parties to act on the authenticated copy of this order.

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[R. G. KETKAR, J.]

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[RANJIT MORE, J.]

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Minal Parab

Gautam Shantilal Dayma v. the State of Maharashtra and Ors.

Case brief

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Gautam Shantilal Dayma v. the State of Maharashtra and Ors.

Case brief

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