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2013 DIGILAW 1801 (BOM)

Ayub Abdul Sattar Shaikh v. Dy. Commissioner of Police, Zone-VI

2013-09-04

G.S.PATEL, S.C.DHARMADHIKARI

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JUDGMENT G.S. Patel, J. 1. Rule, returnable forthwith. Mr. Saste, Learned APP, waives service for the Respondents. By consent, taken up for hearing and final disposal. 2. On 16th May 2012, the Assistant Commissioner of Police, Trombay Division, in his capacity as an Inquiry Officer, issued a show cause notice to the Petitioner. That notice proposed an externment of the Petitioner for two years from the Mumbai Suburban, Navi Mumbai, Thane and Raigad Districts. Various offences were noted in the show cause notice as the basis of the proposed externment. The Petitioner appeared before the Assistant Commissioner of Police and made his submissions, orally and in writing. The Assistant Commissioner of Police closed the case and sent it on to the Externing Authority, the 1st Respondent, for further action. The latter then passed the impugned Externment Order No.180/C/43 under Section 56(1)(a)(b) of the Bombay Police Act, 1951 ordering the externment of the Petitioner from those four districts for four years. The Petitioner filed an appeal to the 2nd Respondent, who rejected it by his order dated 28th January 2013. The Petitioner then filed the present Writ Petition under Article 226 of the Constitution of India assailing the Externment Order and the Appellate Order. 3. Mr. Tripathi, Learned Advocate for the Petitioner, and Mr. Saste, Learned APP for the Respondents, have taken us through the Petition and its annexures. We have considered these with care. We believe Mr. Tripathi is correct in saying that the impugned orders cannot be sustained. The externment order is entirely excessive. The alleged prejudicial activities noted in the show cause notice and the externment order are all within the limits of the Deonar and Mankhurd Police Stations. The externment order travels much further afield, covering very large areas. There is no mention in the externment order of any prejudicial activities of the Petitioner in any of these areas. 4. We should have thought that the law on this aspect is by now so well-settled as not to merit repetition. Yet, in matter after matter, we find it seems continually to elude externing and appellate authorities, who both seem to continue to labour under the impression that they have powers of the widest latitude when it comes to the proscribing of districts. Indeed they do not. Yet, in matter after matter, we find it seems continually to elude externing and appellate authorities, who both seem to continue to labour under the impression that they have powers of the widest latitude when it comes to the proscribing of districts. Indeed they do not. It is fundamental that an order of externment is a curtailment of civil liberties and, for that reason alone, demands a degree of precision, care and non-arbitrariness. Two principles regarding the specified areas of externment are inviolate: first, that the externment order must not be excessive, i.e., it must not cover a larger area than is reasonably necessary; and second, there must be some objectively assessable, rational nexus and a live link between the areas of externment and the prejudicial activities of the externees (SandipAnanda Mahalungkar v State of Maharashtra, Criminal Writ Petition No.2403 of 2013, decided on 5th September 2013). This is a view we have taken repeatedly (Shiva Shrimant Pawar v State of Maharashtra & Ors., Criminal Writ Petition No.2349 of 2013, decided on 5th August 2013; NazarNoor Khan v State of Maharashtra & Ors, Criminal Writ Petition No. 1260 of 2012, decided on 30th July 2013; Mohd Jalaluddin Mohd Amin Khan @ Jalal vs. The Dy Commissioner of Police & Ors., Criminal Writ Petition No.2247 of 2013, decided on 23rd August 2013; ShahidAziz Asadi vs. Dy Commissioner of Police & Ors., Criminal Writ Petition No. 3230 of 2012, decided on 28th June 2013; BajrangSidaram Jadhav v State of Maharashtra & Ors., Criminal Writ Petition No. 282 of 2013, decided on 23rd August 2013). We see no reason to differ from the view we have already taken. To the contrary: when § 56(1) of the Bombay Police Act, 1951 speaks of the power to order an externee “to remove himself from such area or areas in the State of Maharashtra”, we conceive this to mean such area or areas as bear a rational, intelligible nexus to the activities considered prejudicial and none other. 5. Albeit in criminal law, orders of externment are nonetheless administrative proceedings, and must satisfy the twin tests of Wednesbury reasonableness and the doctrine of proportionality. The latter, in particular, means that an administrative action must not be excessive (Moni Shankar v Union of India (2008) 3 SCC 484 ; Coal India Ltd v Mukul Kumar Choudhuri (2009) 15 SCC 620 ). The latter, in particular, means that an administrative action must not be excessive (Moni Shankar v Union of India (2008) 3 SCC 484 ; Coal India Ltd v Mukul Kumar Choudhuri (2009) 15 SCC 620 ). Given that the authorities have wide discretion, that discretion must result in an action that can be said to be necessary on an objective assessment; i.e., one that shows an equilibrium between the (prejudicial) activities and the administrative action. Where the latter goes beyond what is necessary, and where it cannot be shown from the record that there is a nexus between the prejudicial activities and the order of externment, there exists an imbalance that a court, in exercise of jurisdiction under Article 226 of the Constitution of India, must step in to correct. 6. In the case at hand, the impugned externment order refers to four criminal cases registered against the Petitioner. These span a period of 11 years, from 2001 to 2012. It is unclear which of these, if any, is the proximate cause justifying externment. That is not all. In one of these cases, CR No.147 of 2001, the Petitioner has been acquitted. That could hardly have formed the basis of any order of externment. Yet it finds mention in the externment order. Even more strangely, in paragraph 7 of the Affidavit in Reply, the status of this very case is shown as “trial pending”. 7. Three in-camera witness statements are relied on in the externment order. The Petitioner says he has not been provided with copies of these statements and cannot, therefore, making an effective representation against the externment order, as is his right. There is substance in this submission too. 8. The appellate order suffers from the same defects as the externment order, possibly more; for the appellate authority seems not to have applied his mind at all to the material before him, even slurring over the fact, though duly noted, of the Petitioner’s acquittal in one of the criminal cases. In paragraph 5(g) of the appellate order, the 2nd Respondent notes the acquittal but says that the cases are mentioned to “show the criminal background of the externee” and that “however these offences are not considered for the proceedings”. This defies logic. In paragraph 5(g) of the appellate order, the 2nd Respondent notes the acquittal but says that the cases are mentioned to “show the criminal background of the externee” and that “however these offences are not considered for the proceedings”. This defies logic. If the criminal cases are not considered, then other than the in-camera witness statements (of which copies were not supplied), there can be no basis at all for the externment order. The existence of previous criminal cases does not, per se, exhaust the entirety of the universe of requirements for a valid order of externment under § 56(1) (a)(b) of the Bombay Police Act. There must also be, under § 56(1)(a), a subjective satisfaction that the movements or acts of the person in question cause or are calculated to cause alarm, danger or harm to person or property. “Subjective satisfaction” does not mean that the authorities have a free hand or that they can be whimsical or capricious. It means, rather, that on the basis of some material that lends itself to an objective assessment, (YeshwantDamodar Patil v Hemant Karkare, 1989 (3) SCR 240) they have taken an informed decision. If the material is lacking, or is incapable of objective testing, or the decision is found to be unreasonable or arbitrary, then the decision cannot be sustained. The administrative and legal mesh of an externment order must remain very closely woven, demonstrating an undeniable and proximate nexus between the person’s prejudicial actions, their impact on the public as required by the statute, the documented material and the resultant decision. If not, the externment order and the appellate order must both fail. 9. In this case, fail they must. Rule is made absolute in terms of prayer clauses (b) and (c). There will be no order as to costs.