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2009 DIGILAW 672 (BOM)

Bharat Rambhau Vairage v. State of Maharashtra

2009-06-10

A.S.OKA

body2009
JUDGMENT :- Rule was already issued and the petition was ordered to be fixed for final hearing at the end of the admission board. The challenge in this petition under Articles 226 and 227 of the Constitution of India is to an order of externment dated 20th November 2008 passed by the Deputy Commissioner of Police, Pune city in purported exercise of powers under section 56(BB) of the Bombay Police Act, 1951. Prior to passing the said order, a show cause notice dated 19 December, 2007 was issued to the petitioner. 2. There are various grounds of challenge incorporated in the petition. The learned counsel appearing in the petitioner has argued following two grounds: (i) The impugned order is excessive in as much as the same directs that the petitioner shall be externed from the area falling within the jurisdiction of Commissionarate of Pune and districts contiguous to the Pune district for a period of one and half year though the alleged prejudicial activities of the petitioner are confined to areas falling within the jurisdiction of Faraskhana and Hadapsar police stations within the limits of Commissionarate Pune; (ii) The show cause notice was issued on 19 December, 2007 and the impugned order has been belatedly passed on 20th November, 2008 and therefore the live link between the alleged prejudicial activities of the petitioner and the requirement of passing an order of preventive nature has been snapped. Reliance has been placed by the learned counsel appearing for the petitioner on various decisions of this Court. 3. The learned A.P.P supported the impugned order by pointing out that the show cause notice issued to the petitioner clearly states that an order of externment is proposed to be passed which will apply to districts contiguous to Pune district. He submitted that looking to the prejudicial activities of the petitioner there was every justification for passing the order of externment against the petitioner. The learned A.P.P submitted that there is no scope to interfere in the subjective satisfaction of the Deputy Commissioner recorded while passing the order of externment. The learned A.P.P submitted that considering the nature of prejudicial activities alleged against the petitioner, no interference be made in writ jurisdiction of this Court. 4. I have given careful consideration to the submissions. The learned A.P.P submitted that there is no scope to interfere in the subjective satisfaction of the Deputy Commissioner recorded while passing the order of externment. The learned A.P.P submitted that considering the nature of prejudicial activities alleged against the petitioner, no interference be made in writ jurisdiction of this Court. 4. I have given careful consideration to the submissions. In the show cause notice reliance has been placed on the in-camera statements of the witnesses A. Band C regarding prejudicial activities of the petitioner as well as seven cases registered against the petitioner. Out of seven cases, three have been registered with Farskhana police station at Pune and four have been registered at Hadapsar police station at Pune. The show cause notice has been peculiarly worded. In the 1st paragraph of the show cause notice it is stated that a proposal has been submitted by an officer of Hadapsar police station recommending that the petitioner should be externed from the city of Pune and Pune district for a period of two years. The last paragraph of the show cause notice records that the concerned police officer of Hadapsar police station, Pune has proposed that the petitioner should be externed from Pune city and contiguous districts for a period of two years. The order of externment directs that the petitioner shall be externed for a period of one and half year from the area falling within the jurisdiction of the Commissionarate Police of Pune and contiguous districts to district Pune. An attempt was made by the learned A.P.P to contend that order relates only to Pune district and the area falling within the Commissionarate of Pune. It must be however noted that the original Marathi words used in the order of externment are the English translation of which is "Pune Police Commissionarate and contiguous districts to Pune Districts". An order of externment affects liberty of an individual which is guaranteed by the Constitution of India. While passing the order of externment the authority is required to clearly specify the area from which a person is to be externed. Apart from the fact that the order extending to contiguous districts becomes excessive, it also shows non application of mind on the part of authority passing the order of externment. In the show cause notice it is suggested that the petitioner is proposed to be externed from Pune city and adjoining districts. Apart from the fact that the order extending to contiguous districts becomes excessive, it also shows non application of mind on the part of authority passing the order of externment. In the show cause notice it is suggested that the petitioner is proposed to be externed from Pune city and adjoining districts. At some other place in show cause notice it is stated that the petitioner is proposed to be externed from Pune city and Pune district. The show cause notice can be interpreted in two different ways. One interpretation can be that order of externment was proposed to be passed relating to Pune city and Pune district. The other interpretation is that the petitioner was put to notice that order may apply to the districts which are contiguous to the Pune district. If that is so, the elementary principles of natural justice required the authority to specify and describe the specific districts or specific areas from which the petitioner was proposed to be externed. The impugned order has been passed on the basis of a show cause notice which can be interpreted to mean that the same applies to not only the area falling within the jurisdiction of the Commissionarate Police, Pune but also to districts continguous to Pune district. The names of the districts from which the petitioner was proposed to be externed have not been mentioned in the show cause notice. Therefore, it was not possible for the petitioner to give effective reply to the show cause notice. Therefore, there was a breach of principles of natural justice. 5. As stated earlier, all the prejudicial activities of the petitioner are confined to jurisdiction of two police stations at Pune, viz, Faraskhana and Hadapsar. It is well settled that in a given case considering the facts peculiar to externee, the order of externment need not be confined to the area in which illegal activities of the externee are being carried out and a larger area may always form part of the externment order. However, the area to which the order of externment is to operate must be chosen with a view to deal with the situation created by the objectionable acts of the person sought to be externed. Mere geographical proximity is no ground to extend the order of externment to another adjoining district in which there are no objectionable activities by the externee. Mere geographical proximity is no ground to extend the order of externment to another adjoining district in which there are no objectionable activities by the externee. There is nothing stated in the order to show that considering the facts peculiar to the petitioner there was necessity of extending the order to any other districts abutting the Pune district. Therefore, on the face of it the order of externment is excessive. 6. The second ground is regarding delay in passing the order. The show cause notice was issued on 19 December. 2007 and the order of externment was passed on 20 November, 2008. The question is whether this delay of eleven months vitiates the order of externment. It will be necessary to refer to a decision of this Court in the case of Dilip Laxman Kokare Vs. S. M. Ambedkar and another (1991 Maharashtra Law Journal 833). In this case there was a delay of one and half years in passing the order of externment. The order of externment was challenged on the ground of delay. It will be necessary to refer to paragraph 4 of the said decision which reads thus: "4. It needs to be reiterated in these cases that the law visualises a situation where an offender has become so persistently troublesome or dangerous to society around him that his physical presence in that area has to be done away with in the public interest. Delay in implementation, therefore, runs counter to and frustrates the objective behind these provisions. More importantly, a reviewing authority such as a Court, is unable is cases of gross delay, to ascertain as to whether the situation complained about is still in existence at the latter point of time when the order was passed. In the likely event of the wrongdoer at least in a few cases, having completely ceased indulgence in the offensive acts after service of the preliminary notice, and a prolonged period of good behaviour having followed the earlier activity that was complained of, the passing of an adverse order even if earlier justified may no longer be valid. Alternately, in the case of hardened and habitual offenders, with whom the police are most concerned, it is imperative that their activities are curbed at the earliest point of time. Alternately, in the case of hardened and habitual offenders, with whom the police are most concerned, it is imperative that their activities are curbed at the earliest point of time. Dragging on enquiries for months and years will subject the society to the torture from the offenders right through that long period and seriously undermine public confidence in the administration opening it to be inevitable charge of collusion. The casual and cavalier manner in which these proceedings were hitherto conducted, will have to be replaced by a sense of purpose and vigour. In serious matters of public security, such as these, speed is the watchwords, where the eye should be guided by the clock rather than the calendar, if at all there is honesty of approach." In another case (Hansraj Kanji Maru Vs. Deputy Commissioner of Police & Anr.) 1998 ALL MR (Cri) 1257) this Court held that the delay of eight and half months in passing the order of externment was not fatal in view of the satisfactory explanation given by the authorities. It is not axiomatic that in every case the delay in passing the order of externment will vitiate the order. Such a delay by itself is not fatal. However, there has to be some satisfactory explanation for the delay and the delay should not be such that the same has a result of snapping the live link between prejudicial activities of the petitioner and the necessity of passing an order of externment. In this petition, the ground of delay has been specifically taken by the petitioner. Rule was issued on 08 April, 2009. There is no reply filed to the petition containing an explanation for delay. In absence of any explanation for delay, the question is whether the live link is snapped. Out of seven offences registered against the petitioner, three are relating to years 1995,1996 and 1998 respectively. One offence relates to the year 2005 and the two other relate to the year 2006. The last one relates to the year 2007. The chapter cases relied upon are of the years 2002 and 1999 respectively. The in-camera statements relied upon in the show cause notice dated 19th December, 2007 relate to incidents which have taken place two months prior to the date of issuing show cause notice. Thus, the said incidents are approximately of October, 2007. The chapter cases relied upon are of the years 2002 and 1999 respectively. The in-camera statements relied upon in the show cause notice dated 19th December, 2007 relate to incidents which have taken place two months prior to the date of issuing show cause notice. Thus, the said incidents are approximately of October, 2007. The impugned order has been passed on 20 November, 2008. There is total absence of any explanation for delay. Considering the prejudicial activities of the petitioner which are relied upon in the show cause notice and the impugned order, it is obvious that the delay resulted in snapping the live link between the preventive action and allegations against the petitioner. In view of the decision of this Court in case of Mohammad Alam Ibrahim Shaikh Vs. The State of Maharashtra [2005 ALL MR (Cri) 2593] it will have to be held that considering the peculiar facts of the case the delay has vitiated the order of externment. 7. Hence, the petition must succeed and I pass the following order: Rule is made absolute in terms of prayer clause A. Ordered accordingly.