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2013 DIGILAW 1634 (BOM)

Akram Ajij Shaikh v. State of Maharashtra

2013-08-20

ABHAY M.THIPSAY, S.C.DHARMADHIKARI

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JUDGMENT : AbhayM. Thipsay, J. Rule. By consent, Rule made returnable forthwith. The learned APP waives service of notice on behalf of the respondents. By consent, heard finally forthwith. 2 By this writ petition, the petitioner is challenging the externment order passed by the Deputy Commissioner of Police, Zone-II, Pune City, under the provisions of Section 56 (1)(a) and 56 (1)(b) of The Maharashtra Police Act, 1951 (Act No. XXII of 1951) [Previous short title changed by the Maharashtra (Change of Short Titles of Certain Bombay Acts) Act 2011, (Mah. Act No. 24 of 2012], (hereinafter referred to as “the said Act”) and confirmed in appeal by the Secretary (Spl.), Home Department, Government of Maharashtra. 3 The petitioner is a resident of 425/26, Audogik Vasahat Zopadpatti, Pune. The petitioner was served with a show cause notice dated 21/1/2013 under Section 59(1) of the said Act, informing him that it had been proposed to extern him from Pune City, Pune District and the adjoining five districts, for a period of two years and calling upon him to show cause why he should not be so externed. The notice referred to clauses (a) and (b) of sub-Section (1) of Section 56 of the said Act. It was alleged in the said notice that offences of serious nature had been registered against the petitioner, by referring to 3 criminal cases pending against him and that, the petitioner had no occupation, that he is addicted to liquor, that, therefore, he threatens persons passing by the road, that he was causing damage to public property etc.; and that because of his terror in the locality, people were not coming forward to lodge a report against him. 4 The petitioner appeared before the externing authority and filed his statement of defence. The petitioner, inter alia, denied the allegations made in the show cause notice against him and claimed that there were three cases pending against him and that in those cases he had been falsely implicated and that he would be acquitted from the said cases. The externing authority on 28/3/2013, passed the impugned order, externing the petitioner from limits of Pune city and Pune district for a period of two years under the provisions of Section 56(1)(a) and 56(1)(b) of the said Act. The externing authority on 28/3/2013, passed the impugned order, externing the petitioner from limits of Pune city and Pune district for a period of two years under the provisions of Section 56(1)(a) and 56(1)(b) of the said Act. 5 The appeal filed by the petitioner u/s 60 of the said Act was heard by the Secretary (Spl.) Home Department, Government of Maharashtra, who by an order dated 4/6/2013 'rejected' the appeal. 6 We have heard Mr. Bhushan Deshmukh, learned counsel for the petitioner and Mrs. M. H. Mhatre, learned APP for the respondents. We have gone through the petition, the annexures thereto and the affidavit-in-reply filed by the externing authority. 7 A number of contentions have been raised by the petitioner, such as, that the externment order is illegal; that it is malafide; that the petitioner was not given proper and sufficient opportunity to defend himself; that the order suffers from the vice of being excessive, etc. It is also contended that the show cause notice u/s 59 of the said Act, mentioned it to be a notice for action u/s 56(1) clauses (a) and (b) both, but that there was no mention in the notice of any activity carried out by the petitioner as would fall within clause (a) of the said sub-Section. It is also contended that the notice was defective as there was no clear mention under which part of clause (b), the petitioner was proposed to be externed. 8 We have carefully considered the matter. 9 There are 3 cases pending against the petitioner, as per the following details which are found in the show cause notice u/s 59 of the said Act. 10 In the view that, we are taking, it is not necessary to discuss the contentions raised by the petitioner in the petition. In our opinion, there is one aspect of the matter that needs to be considered, though, such a point has not been specifically raised by the petitioner. 11 A perusal of the externment order shows that the externing authority has not applied its mind as to the pendency of the cases against the petitioner and the effect of the externment order upon the pending cases. Obviously, the petitioner is on bail in the 3 cases, said to be pending against him, which have been mentioned in the show cause notice and also in the externment order. Obviously, the petitioner is on bail in the 3 cases, said to be pending against him, which have been mentioned in the show cause notice and also in the externment order. The prosecution of criminal cases pending against a person is a serious matter. The petitioner's presence before the concerned court would be essential for the progress of the said cases. Naturally, due to the externment order, the petitioner would not be in a position to attend the court in connection with the cases pending against him, as the court is situated in the area from which the petitioner has been externed. In our opinion, the externing authority would not be justified in not taking into consideration the consequences of the externment order in relation to the criminal cases, pending against the petitioner. 12 The pending prosecutions are serious affairs and the State is not expected to take a light or casual approach in respect of such prosecutions. It would be more so, when the petitioner is alleged to be a person of notorious character and indulging repeatedly into offences. If the State would be able to secure a conviction of the petitioner, in any of the pending cases, it would have more serious and drastic consequences for the petitioner, and it would be more effective than the externment order. As such, the State is expected to be keen on successful prosecution of the petitioner. If the petitioner would not be able to attend the court, the criminal cases against him would remain pending, reducing the chances of successfully establishing the charges against the petitioner, because of the time gap. Moreover, the concerned court is not expected to be aware that the petitioner has been externed and, therefore, likely to view his absence as serious, taking various coercive steps against him. Even if the court is, later on, informed that the petitioner is unable to attend because he has been externed, the court is not obliged to stay the trial on that ground. 13 We do not suggest that, in view of the pendency of the cases, an order for externment ought not to be passed, but what we hold is that the fact of the pendency of the cases, and the effect of the externment order on the pending cases must be considered by the externing authority before taking a decision to pass the externment order. In this context, the externment authority is expected to apply its mind with respect to the stage of the cases and the likelihood of the cases being disposed of within a short time. The least that can be expected of the externing authority in such cases is that, the authority must grant a general permission, to be specified in the externment order, that the person externed shall be permitted to enter the area, out of which he has been externed, for the purpose of remaining present in the courts in connection with the criminal cases pending against him. In the instant case, there has neither been any discussion in the externment order, indicating that the externing authority applied its mind as to the position of the criminal cases pending against the petitioner, and as to the effect of the externment order on the pending criminal cases, nor has the externing authority granted a general permission to the petitioner to enter the area from which he was being externed, for the purpose of remaining present before the court in connection with the cases against him. 14 In our opinion, pending prosecutions against a person cannot be considered as secondary or unimportant matters so that the effect of the externment order on the pending prosecutions would be of no consequence at all. Therefore, the awareness on the part of the externing authority that because of the externment proceedings, the criminal proceedings against the accused would be delayed; that it might cause problems for the accused on account of not being able to attend the court on the dates of such cases and also to the trial court for being unable to procure the presence of an accused before it and to proceed with the trial, should be reflected in the externment order itself. If the externing authority would apply its mind to this aspect of the matter, it is likely to grant a general permission to the person externed for entering into the specified area for the purpose of remaining present before the courts of law in connection with pending criminal cases against the petitioner. In our opinion, non-application of mind in respect of the aforesaid angles of the matter, amounts to leaving out relevant considerations, and vitiates the order of externment. The appellate authority also did not consider this aspect of the matter. In our opinion, non-application of mind in respect of the aforesaid angles of the matter, amounts to leaving out relevant considerations, and vitiates the order of externment. The appellate authority also did not consider this aspect of the matter. 15 Further, the Order of Externment directs that the Petitioner is externed from Pune City and entire Pune District. A general conclusion that the petitioner can carry on his activities in these areas because of easy availability and accessibility to modern means of transport and communication cannot be upheld. More so, when in the Penultimate para of the impugned order, the Authority, has held that the petitioner is indulging in criminal activities within the limit of Swargate Police Station of Pune City and Audyogik Vasahat. 16 In our opinion, the impugned order, therefore, is bad in law, excessive and arbitrary and needs to be interfered with. 17 The petition is allowed. 18 The order dated 28/3/2013, passed by the Deputy Commissioner of Police, Zone-II, Pune City, as also the order dated 4/6/2013 passed by the Secretary (Spl.), Home Department, Government of Maharashtra, are quashed and set aside. 19 Rule is made absolute in the aforesaid terms.