Allowed

Sarfaraz Mushtaque Khan Alias Saif Pathan v. the State of Maharashtra and Ors.

Bombay HC6 Sept 2021WP/2278/2021

Case brief

AI extract

What is this about?

This court quashed an externment order and its confirmation because the authorities failed to record specific reasons justifying exclusion from districts beyond the jurisdiction of the registered offence, violating statutory requirements for witness safety concerns.

What did the court decide?

The impugned order of externment dated 11th January 2021 and its confirmation dated 2nd March 2021 are quashed and set aside.

Sarfaraz Mushtaque Khan Alias Saif Pathan Vs… — Pension and Retirement Benefits | Bombay HC (2021)

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Sherla V.

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15_wp.2278.2021 (J).doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE

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CRIMINAL WRIT PETITION NO.2278 OF 2021

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Sarfaraz Mushtaque Khan alias Saif Pathan 36 years, Occ.: Social Worker r/at: Flat No.701 … Petitioner Savitri Niwas Vinay CHS Ltd., Near Zaini Classes, Dabholkar Road Mumbra, Thane – 400 612 Vs. 1) State of Maharashtra 2) The Divisional Commissioner Konkan Bhavan, Appellate Branch, 15, Madam Cama Road, Mantralaya Mumbai-400032 3) The Deputy Commissioner of Police, Zone-I .. Respondents Jail Road, Near old RTO, Thane-400601 4) The Asst. Commissioner of Police Kalwa Division, Thane 5) The Senior Inspector of Police Mumbai Police Station, Thane - 400612 Mr.Pankaj Panday with Mr.Firoz I. Shaikh for the Petitioner Mr.J.P. Yagnik, APP, Public Prosecutor, for Respondent – State

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CORAM: S.S. SHINDE & N.J. JAMADAR, JJ.

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JUDGMENT RESERVED ON: SEPTEMBER 3, 2021 JUDGMENT DELIVERED ON: SEPTEMBE 6, 2021

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JUDGMENT (PER S.S. SHINDE, J.):

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1. Rule. Rule made returnable forthwith with the consent of the

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learned Counsel appearing for the parties and heard finally.

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2. This petition is filed praying for the following substantive

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relief:

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b) This Hon’ble Court be pleased to quash and set-aside impugned order dated 02-03-2021 passed by Respondent No.2 in Appeal No.15 of 2021 and impugned order dated 1101-2021 passed by Respondent No.3 u/s 56(1)(a)(b) of the Maharashtra Police Act, 1951.

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3. The brief facts leading to the filing of the present writ petition

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are as under:-

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On 19^th October, 2020, the petitioner was issued a show-cause notice by Respondent No.4 under section 59 of the Maharashtra Police Act seeking explanation as to why he should not be externed under section 56(1)(a)(b) of the Maharashtra Police Act, 1951. A reply was submitted by the petitioner on 7^th November, 2020 to the said notice. Thereafter, another show-cause notice was issued to the petitioner on 30^th November, 2020 similar to the show-cause

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notice dated 19^th October, 2020, to which the petitioner filed his reply dated 11^th December, 2020. After considering the reply of the petitioner, Respondent No.3 - the Deputy Commissioner of Police, Zone – I, Thane passed an externment order dated 11^th January 2021 thereby externing the petitioner from the revenue boundaries of Thane, Mumbai City, Mumbai Suburban, Raigad and Palghar Districts for a period of two years. The said order was challenged by the petitioner before Respondent No.2 – The Divisional Commissioner, Mumbai by filing an Externment Appeal No.15 of 2021, which was dismissed by Respondent No.2 vide his order dated 2^nd March, 2021. Hence, this petition.

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4. The learned Counsel appearing for the petitioner submitted that the impugned order of externment is excessive. He submitted that the externing authority has relied upon the statements of unknown witnesses in absence of any specific date, time and events mentioned in the said statements. The learned Counsel submitted that the petitioner is a social worker and works to help poor and needy section of the society by distributing food and

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other necessities. Accordingly, he has been awarded by many organisations/NGOs. It is submitted that there is no justifiable grounds to conclude that the petitioner has become so persistently troublesome and dangerous to the society that his physical presence in the aforesaid five districts is against public interest. The petitioner is neither a convict of any offence nor any charges are framed against him in any case including that of the above alleged offences. The learned Counsel has submitted that the alleged adverse action against the petitioner is at the behest of a local politician for opposing various illegalities and corruption in the local administration. It is submitted that there there are no reasonable grounds recorded in the impugned orders showing that the movements of externee cause any threat, alarm or danger to any person or property. It is further submitted that there is no reason to extern the petitioner from the aforesaid five districts at once without any specific reasons.

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5. In support of his arguments, the learned Counsel relied on the following judgments:

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i) Rahmat Khan @ Rammu Bismillah Vs. Deputy Commissioner (Criminal Appeal No.912 of 2021 (@SLP

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(Cri.) No.1676 of 2021))

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ii) Judgement of the Bombay High Court in Ganesh Murgesh Bajantri vs. The State of Maharashtra & Others (Criminal Writ Petition No.374 of 2020 decided on 9^th October, 2020)

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iii) Punjaji Dagdu Gaikwad vs. State of Maharashtra reported in 2002 (2) ALL M.R. 839

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iv) Prem Chand vs. Union of India reported in 1981 AIR SC 613.

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6. Insofar as the offences registered against the petitioner are concerned, the learned Counsel appearing for the petitioner submitted that the law will take its own course and those offences will be tried before the jurisdictional Court. Therefore, relying upon the pleadings and grounds taken in the petition, the learned Counsel submitted that the petition deserves to be allowed by quashing the impugned orders.

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7. On the other hand, learned APP appearing for the Respondent – State and its authorities, relying upon the reasons

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recorded in the impugned order of externment and also by the appellate authority, submitted that the petition is devoid of any merit and the same may be dismissed.

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8. We have given a careful consideration to the rival submissions of the parties. With the able assistance of the learned Counsel appearing for the petitioner and the learned APP appearing for the Respondent – State, we have carefully perused the pleadings and the grounds taken in the petition, the annexures thereto and the reasons assigned by the respondent – authorities while passing the impugned externment order and while dismissing the appeal filed by the petitioner.

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9. Upon a perusal of the impugned order passed by the Deputy Commissioner of Police, Zone I, Thane, we find that there are two offences registered at Mumbra police station. There are no specific reasons assigned as to why the externment of the petitioner is necessary from the aforesaid five districts when the alleged activities are confined to the jurisdiction of Mumbra police station. The petitioner is externed for a period of two years from the aforesaid five districts which appears to be disproportionate vis a vis the acts attributed to him.

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10. We have carefully perused the externment order and find that there is a casual reference to the statements of alleged witnesses A and B, however, neither any date nor any specific instance has been mentioned in the impugned order. There is only a general discussion. It appears that the petitioner has been externed from Thane, Mumbai City, Mumbai Suburb, Raigad, Palghar districts. No doubt, the respondent – authority has jurisdiction to extern the proposed externee from the concerned district and adjoining districts, however, it is necessary to give reasons for such externment from the adjoining Talukas or Districts, where there is no offence registered against the proposed externee. However, in the impugned order, there is no specific discussion to that effect.

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11. We have gone through the in-camera statements of the witnesses ‘A’ and ‘B’ and we find that there is no place or date as to when such incidents as alleged by the witnesses have taken place. The respondents in their impugned orders did not record any specific finding that due to the fear of the petitioner, witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension on their part as regards

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the safety of their person and property. The mandate of section 56 (1) (a) and (b) of the Maharashtra Police Act can be fulfilled only by way of assigning reasons that due to the alleged activities of the externee, the witnesses are not willing to come forward to give evidence in public against the externee by reason of apprehension on their part as regards the safety of their person or property. In absence of such discussion or reasons in the impugned order, the order of externment cannot be legally sustained.

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12. In the light of the discussion in the foregoing paragraphs, after a careful perusal of the order passed by the appellate authority, we have noticed that the appellate authority has mechanically endorsed the findings recorded by the Deputy Commissioner of Police, Zone I, Thane.

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13. Insofar the C.R. No.140 of 2019 dated 26.32019 registered with Mumbra Police Station, Thane under section 353 read with section 34 of the Indian Penal Code and under section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and C.R. No.344 of 2020 registered with Mumbra Police Station, Thane under sections 143, 147, 148, 149, 188, 323, 326 and 506 of the Indian Penal Code are concerned,

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the law will take its own course and in case, the petitioner has committed such offences, in that case, the concerned trial Court will take appropriate decision.

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14. In that view of the matter, for the reasons aforesaid, the impugned order of externment dated 11^th January, 2021 passed by Respondent No.3 u/s 56(1)(a)(b) of the Maharashtra Police Act, 1951, confirmed in Appeal No.15 of 2021 by order dated 2^nd March, 2021 passed by Respondent No.2 are quashed and set aside.

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Rule is made absolute in terms of prayer clause (b). The Writ Petition is disposed off accordingly.

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(N.J. JAMADAR, J.) (S.S. SHINDE, J.)

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Digitally signed by VISHWANATH VISHWANATH SATYANARAYANA SATYANARAYANA SHERLA SHERLA Date: 2021.09.06 14:17:57 +0530

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Sarfaraz Mushtaque Khan Alias Saif Pathan v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Sarfaraz Mushtaque Khan Alias Saif Pathan v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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