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2014 DIGILAW 1012 (BOM)

Satish Sagun Korgaonkar v. State of Maharashtra

2014-04-21

ANUJA PRABHUDESSAI, NARESH H.PATIL

body2014
Judgment Anuja Prabhu Dessai, J. 1. Rule. Rule made returnable forthwith. Heard by consent of parties. 2. The petitioners herein have challenged the externment orders passed by the Deputy Police Commissioners under the provisions of Section 56(1) (a) (b) of the Bombay Police Act and confirmation thereof by the statutory authorities. 3. The externment order passed in Criminal Writ Petition No.1813 of 2013 was preceded with notice dated 26.3.2012 issued under Section 59 of the Bombay Police Act, and called upon the petitioner to show cause as to why he should not be externed from the limits of Gr. Bombay, New Mumbai and Thane District. The petitioner appeared before the concerned authority and filed his reply and also examined witnesses to refute the allegations leveled against him. Upon considering the material on record, the Externing Authority passed the impugned order externing the petitioner from the area of Gr. Mumbai, Thane and Raigad for a period of two years. 4. The petitioner filed Externment Appeal No. 287 of 2012 before the Appellate Authority challenging the order dated 5.9.2012, which appeal was dismissed by the Appellate Authority vide order dated 9.4.2013. Hence the present petition. 5. The petitioner has challenged the impugned orders on the ground that he was served with incomplete copy of notice. He further stated that the reply filed by him has not been considered and that the order has been passed without going into the merits of the matter and without considering the provisions of law. He has further stated that he was sought to be externed in the year 2012-2013 on the basis of the crimes registered in the year 2002-2003. The petitioner has further stated that though the allegations alleged against him relate to the city of Bombay, the externment order covers 23 districts and hence the order is excessive and is liable to be quashed. 6. The Deputy Commissioner of Police had served upon the petitioner in Criminal writ petition No. 529/2014 an externment order dated 26.9.2013, which was preceded with notice dated 20th August, 2013 under Section 59 of the Bombay Police Act. The Petitioner was called upon to show cause as to why he should not be externed from Mumabi, Mumbai Suburbs Thane and Raigad. The Petitioner was called upon to show cause as to why he should not be externed from Mumabi, Mumbai Suburbs Thane and Raigad. Upon considering the material on record and the reply filed by the petitioner, the Externing Authority externed the Petitioner from Mumbai and Mumbai Suburbs for a period of two years. The petitioner had challenged the order in appeal, which was dismissed by the appellate authority vide order dated 21st January, 2014. 7. The petitioner claims that he is a respectable citizen engaged in the business of service of providing internet and cable network and is also engaged in social and political activities. The petitioner has stated that his rivals have involved him in several criminal cases. The petitioner has stated that he was issued a notice to show cause why he should not be externed from the limits of Mumbai, Mumbai Suburbs, Thane and Raigad District. The said notice was based on old and stale cases and on wrong information. The petitioner has stated that despite his reply, the externing authority passed a cryptic order which is based on material which is not disclosed in the show cause notice. The petitioner has stated that the externment order is excessive. The petitioner has stated that there is no subjective satisfaction of the fact that the witnesses are not willing to come forward to give evidence in public against him by reason of apprehension of safety of their person or property. The petitioner has stated that he has been externed at the behest of his rivals while the main co-accused has been set free. The petitioner has stated that the externment order as well as the order passed by the Appellate Authority reflects non application of mind and deserves to be quashed. 8. Learned Senior Counsel Shri. Chitnis, appearing for the has argued that in view of Article 19 (d) and (e) it is the fundamental right of every citizen of India to move freely throughout the territory of India. 8. Learned Senior Counsel Shri. Chitnis, appearing for the has argued that in view of Article 19 (d) and (e) it is the fundamental right of every citizen of India to move freely throughout the territory of India. He has further argued that provisions of Section 56 of the Bombay Police Act, which is restrictive of fundamental rights, can be invoked if and only if the authority is satisfied that such action is essential to maintain public order or when the acts of the proposed externee causes danger, harm or alarm to person or property of the public at large and not of one or two persons from the public. The contention of learned Sr. Counsel Shri Chitnis is that there is no material to believe that the petitioner is involved in any activity referred to in clause (a) and (b) of Section 56(1) and that the order reflects total non-application of mind. 9. Learned Sr. Counsel Mr. Chitnis next contended that the alleged activity of the petitioner in Criminal Writ petition no. 1813/13, as alleged in the notice was restricted to Gopal Nagar and the areas within the jurisdiction of Worli Police Station and that the said petitioner was called upon to show cause why he should not be externed from the limits of Gr. Bombay, New Mumbai and Thane District. Whereas, the impugned order extends to Bombay, New Mumbai, Thane and Raigad Districts. He, therefore, claims that the order is excessive. Learned Sr. Counsel Mr. Chitnis has submitted that the restrictions imposed by the Authority are unreasonable and are violative of fundamental rights of the petitioner. 10. Learned Senior Counsel Mr. Chitnis has further argued that the order in Criminal Writ Petition No. 529 of 2014 stands vitiated for non compliance of provision under Section 59 of the Act. Learned Senior Counsel Mr. Chitnis has next contended that the Authority had not recorded the finding that the witnesses are not coming forward to give evidence against the petitioner in public so far as the grounds mentioned in the impugned order and that such satisfaction was not conveyed to the petitioner in the notice issued under Section 59 and that non compliance with mandatory requirements vitiates the externment proceedings. He has urged that the said order has been passed without going into the merits of the matter and without considering the provisions of law. Learned Sr. Counsel Mr. He has urged that the said order has been passed without going into the merits of the matter and without considering the provisions of law. Learned Sr. Counsel Mr. Chitnis has contended that the restrictions imposed by the Authority are unreasonable and are violative of fundamental rights of the petitioner and consequently the order cannot be sustained. 11. In support of this contention, learned Sr. Counsel Shri Chitnis has relied upon the following judgments:- i) Baluvs. The Divisional Magistrate, Pandharpur 1969 Mh.L.J. 387 ii) Pandharinath Shridhar Rangnekar vs. Dy. Commissioner of Police, AIR 1973 SC 630 . iii) Yeshwant Damodar Patil vs. Hemant Karkare, 1989 Mh.L.J. 1111. iv) Ganpat @Ganesh Tanaji Katare vs. Asst. Commissiner of Police 2005 All MR (Cri) 2717. 12. Learned APP Shri Yagnik has argued that the petitioner in Criminal Writ petition No. 1813/13 is involved in several serious crimes and that he had created terror in the minds of the witnesses, due to which they were not coming forward to depose against the petitioner and that the court cannot interfere with the subjective satisfaction of the authority. Refuting the contention that the order is excessive, learned APP Mr.Yagnik has contended that the areas of externment are contiguous and are in close proximity and considering the modes of transport and connectivity, and having regard to the criminal activities of the petitioner; the authority was fully satisfied in externing the petitioner from the limits of Mumbai, New Mumbai, Thane and Raigad Districts. He, therefore, claims that the order in criminal writ petition no.1813/13 is not excessive. 13. Learned APP Mr. Yagnik has contended that the petitioner in Criminal Writ Petition No.529 of 2014 is involved in serious crimes and had terrorized the witnesses due to which the witnesses were not coming forward to depose against the petitioner. Refutting to the in camera statements, he contends that there was sufficient record, for the Authority to record satisfaction that the witnesses were not coming forward to depose against the petitioner in Criminal Writ Petition No. 529 of 2014. He has vehemently argued that there is complete compliance with the mandatory provisions of the Act and that the subjective satisfaction of the Authority cannot be interfered with. 14. We have perused the material placed before us and considered the arguments advanced by the learned Sr. Counsel Mr. Chitnis for the petitioner and the learned APP Mr. Yagnik for the State. 14. We have perused the material placed before us and considered the arguments advanced by the learned Sr. Counsel Mr. Chitnis for the petitioner and the learned APP Mr. Yagnik for the State. 15. Article 19(1)(d) and (1)(e) of the Constitution of India guarantees fundamental rights to all citizens to move freely throughout the territory of India and to reside and settle in any part of the territory. Article 19(5) of the Constitution permits imposition of reasonable restrictions on exercise of such fundamental rights either in the interest of the general public or for the protection of the interests of any Schedule Tribe Section 56 of the Bombay Police Act is one of the provisions in Chapter V of the Bombay Police Act which, as a special measure of maintenance of public order and safety of the State, imposes temporary restrictions on the fundamental rights guaranteed by Article 19 of the Constitution of India. Section 56(1)(a) (b) provides that: [(1)] Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf - (a) That the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or. (b) 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, or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or. 15. Summarizing Section 56(1)(a)(b), it can be said that the Externing Authority can pass the order of externment on any one of the following activities:- a) That the movements or acts of any person are causing or calculated to cause alarm, danger or harm to the person or property. 15. Summarizing Section 56(1)(a)(b), it can be said that the Externing Authority can pass the order of externment on any one of the following activities:- a) That the movements or acts of any person are causing or calculated to cause alarm, danger or harm to the person or property. b) That there are reasonable grounds for believing that such person is engaged or is about to be engaged in commission of offence involving force or violence; Or an offence punishable under Chapter XII, XVI, XVII of I.P.C. ; Or in the abetment of any such offence; And when in the opinion of such officer, witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regard the safety of their person or property. 16. Section 59 of the Bombay Police Act mandates that before passing of externment order the proposed externee shall be informed in writing of the general nature of the allegations against him and give him a reasonable opportunity of tendering an explanation, and on filing the application, permit him to examine witnesses, unless the authority is of the opinion that such application was vexatious or made to delay the proceedings. 17. The scope and ambit of the Section 56(1)(a) and (b) was dealt by this court in the case of Baluvs. The Divisional Magistrate, Pandharpur reported in 1969 Mh.L.J. 387, it was held that: "The expression "alarm, danger or harm to person or property", which occurs in Section 56(a) of the Bombay Police Act, must if possible be so interpreted as to ensure that the provisions of that section are in conformity with the fundamental rights guaranteed by Art. 19(1)(d) and (e) of the Constitution. It must follow that the expression "alarm, danger or harm to person or property" must be held to refer to the alarm, danger or harm to person or property of the public at large, and not of one or two individuals among the public. It must follow that the expression "alarm, danger or harm to person or property" must be held to refer to the alarm, danger or harm to person or property of the public at large, and not of one or two individuals among the public. This inference also follows from the fact that Chapter V of the Bombay Police Act, in which Section 56 falls, bears the heading "Special Measures for Maintenance of Public Order and Safety of State." … It seems obvious that an order under Section 56(a) cannot be made on the ground that such an order was necessary for the preservation of peace or the maintenance of law and order in a particular locality. 18. In the case of PandharinathShridhar Rangnekar vs. Dy. Commissioner of Police reported in AIR 1973 SC 630 , the Apex Court has held that: ...These provisions show that the reasons which necessitate or justify the passing of an externment order arise out of extraordinary circumstances. An order of externment can be passed under Clause (a) or (b) or selection 56 if, and only if, the authority concerned is satisfied that witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety of their person or property. … Section 59 of the Act imposes but a limited obligation on the authorities to inform the proposed externee "of the general nature of the material allegations against him". That obligation fixes the limits of the correlative right of the proposed externee. He is entitled before an order of externment is passed under s. 56 to know the material allegations against him and the general nature of those allegations. He is not entitled to be informed of specific particulars relating to the material allegations. 19. In the case of Yeshwant Damodar Patil vs. Hemant Karkare reported in 1989 Mh.L.J. 1111, this Court has held that: “The fact that the proposed externee is engaged or is about to be engaged in one or the other type of the activity or movement in Clauses (a) and (b) of section 56(i) of the Bombay Police Act, is not sufficient by itself to warrant an order of externment. That fact, coupled with the opinion formed by the designated officer that witnesses are not willing to come forward to give evidence in public for the reasons mentioned in clauses (a) and (b) of section 56(i) of the Bombay Police Act, will provide a proper basis for the exercise of the power of externment under the provisions of the Act.... ...in every case of acts involved on the part of the proposed externee, where an order of externment proposed to be passed, it is necessary that the officer concerned must be satisfied that witnesses are not willing to come forward to give evidence against him. Notice of such satisfaction must also necessarily be given to the proposed externee under section 59 of the Bombay Police Act. 20. As regards the area of the externment, in the case of Pandharinath (supra) the Apex Court has held it was held that:- “.. It is primarily for the externing authority to decide how best the externment order can be made effective so as to subserve its real purpose. How long, within the statutory limit of 2 years fixed by Section 58, the order shall operate and to what territories, within the statutory limitations of Section 56, it should extend, are matters which must depend for their decision on the nature of the data which the authority is able to collect in the externment proceedings. There are cases and cases and therefore no general formulation can be made that the order of externment must always be restricted to the area to which the illegal activities of the externee extend. A larger area may conceivably have to be comprised with the externment order so as to isolate the externee from his moorings.” 21. In the case of Ganpat @ Ganesh Tanaji Katare vs. Asst. Commissioner of Police 2005 All MR (Cri) 2717, this Court has held that : “….the order or externment needs to be restricted to the area in which illegal activities of the externee are carried on. A larger area may always form part of externment order. In case where activities are confined to particular district, the order may extend to both districts. Mere geographical proximity is no ground to extend the order of externment to another district in which there are no objectionable activities by the externee. A larger area may always form part of externment order. In case where activities are confined to particular district, the order may extend to both districts. Mere geographical proximity is no ground to extend the order of externment to another district in which there are no objectionable activities by the externee. … The area to which order of externment is to operate must be chosen with a view to meet the situation created by the objectionable acts of the person sought to be externed.” 22. It is thus well settled that the externment can be ordered only when it is necessary to prevent any person from acting in any way prejudicial to public safety or maintenance of public order. The object of externment is to keep the externee away from the place of his moorings and to make it as difficult as possible to return to the place of his activities. However, there is no straight jacket formula to determine the area of externment. It is primarily for the Externing Authority to deide how best the externment order can be made effective so as to subserve the real purpose and it is within the domain of the Externing Authority to exercise judicial discretion and determine the extent of the area/areas from which the externee is to be externed. Such decision would vary from case to case depending on peculiar facts and exigencies of each case, area/areas of objectionable activities, connectivity, available mode of transport, the purpose of externment etc. It therefore follows that the externment beyond the area of activity cannot per se be excessive if it is necessitated to meet the object of externment and provided the procedure laid down under the Act is duly followed. The test of excessiveness is whether the order exceeds the object of externment. 23. Reverting to the facts of the present petitions, the petitioner in Criminal Writ Petition No. 1813 of 2013 was issued notice under Section 59 of the Act. The notice states that since 2001 the petitioner and his associates were involved in committing criminal activities such as extorting money, assaulting and abusing and had thereby caused or attempted to cause danger to the lives or the property of the residents, hawkers and businessmen from Gopal Nagar and other adjoining areas within the jurisdiction of of Worli police station. The notice states that since 2001 the petitioner and his associates were involved in committing criminal activities such as extorting money, assaulting and abusing and had thereby caused or attempted to cause danger to the lives or the property of the residents, hawkers and businessmen from Gopal Nagar and other adjoining areas within the jurisdiction of of Worli police station. The said notice refers to five crimes registered against the petitioner at Worli Police Station and the preventive measures taken against him under Section 107 and 110 of Cr.P.C. in the year 2002, 2003, 2006 and 2009. 24. The notice further states that the discreet inquiry revealed that apart from the said crimes, the petitioner and his associates were also extorting money from the residents, hawkers and businessmen from Worli, Dadar and adjoining areas within the jurisdiction of Worli and Dadar Police Station, and that due to the fear, the said aggrieved persons were not coming forward to give evidence against the petitioner. The petitioner was called upon to show cause why he should not be externed from Gr.Mumbai, New Mumbai, and Thane. Subsequently by the impugned order which is within the purport of Section 56(1)(a),(b) of the Bombay Police Act the petitioner was externed from Gr.Mumbai, Thane and Raigad for two years. 24. The notice reveals that the alleged activities of the petitioner were restricted to Gopal Nagar and adjoining areas within the jurisdiction of Worli and Dadar Police Stations and the petitioner was called upon to show cause as to why he should not be externed from the limits of Gr. Mumbai, New Bombay and Thane. The show cause notice does not state that the petitioner was involved in committing any illegal or criminal activities at Raigad. The petitioner was not called upon to show cause why he should not be externed from Raigad. Despite which the petitioner has been externed not only from Gr. Mumbai and Thane but is externed also from Raigad, without there being any nexus between the said area of externment and the alleged area of criminal activity. The Externing Authority has not given any reasons for externing the petitioner from Raigad i.e. beyond the area of criminal activity or the area spelt out in the notice. The externment order therefore is in violation of principles of natural justice and suffers from vice of excessive externment. The Externing Authority has not given any reasons for externing the petitioner from Raigad i.e. beyond the area of criminal activity or the area spelt out in the notice. The externment order therefore is in violation of principles of natural justice and suffers from vice of excessive externment. The externment order amounts to unreasonable restriction on the fundamental rights of the petitioner. Consequently, the order in Criminal Writ petition is liable to be quashed. 25. Reverting to the facts of the Criminal Writ petition No. 529 of 2014, by the externment order dated 26.09.2013 the petitioner has been externed from Mumbai and Mumbai Suburbs. The externment order specifically states that petitioner has carried out activities and committed offences which constitute grounds of externment under Clause (a) of Section 56(1) as well as first and second part of clause (b) of Section 56(1) of the Bombay Police Act. The Externing Authority has also recorded satisfaction that due to the illegal and criminal activities of the petitioner, the witnesses and the victims are not ready to depose against the petitioner by reason of their apprehension as regards the safety of their person or property. 26. The impugned order therefore is within the purport of Section 56(1)(a) and (b) of the Act. It is however to be noted that vide notice dated 28.05.2012 the petitioner was informed that since January 2012 his movements and activities had caused or were calculated to cause danger, harm and alarm to the persons or properties of the residents, shop owners business men and women from the area/areas within the jurisdiction of Trombay Police Station. The petitioner was informed that he was involved in commission of serious offences involving force and violence. In Para no.3(a) of the notice it was stated that the petitioner was involved in intimidating and assaulting the residents, businessmen etc of the said locality by means of deadly weapons and had terrorized the said residents businessmen etc by committing offences punishable under Chapter XVI and XVII of I.P.C. A brief narration of C.R.No. 247 of 2012 and 97 of 2013 is given in para 3(a)(i) and (ii) of the notice and the details of the other crimes are specified in para 5 of the notice. 27. 27. The notice at para 3(b) further states the petitioner and his associates were assaulting and terrorizing the people due to which, no one was ready to depose against him in public. A brief narration on In camera statement is given in para 3(b)(1) and (2) of the notice. At para 4 of the notice it is stated that due to the activities specified in para 3(b) (1) and (2) of the notice, the victims and the witnesses were not coming forward to depose against him in public as they apprehended danger to their lives and properties. The petitioner was therefore called upon to show cause why he should not be externed from the limits of Mumbai, Mumbai Suburban, Thane and Raigad District. 28. The notice spells out the activities which constitute grounds under clause (a) of Section 56(1) as well as grounds under first and second part of clause(b) of Section 56(1) of the Act. However, satisfaction that the witnesses are not coming forward to depose against the petitioner is recorded only in respect of the activities stated in para 3(b) (1) and (2) of the notice, which constitutes grounds under first part of Clause (b) of Section 56(1) of the Act. No such satisfaction is spelt out in respect of activities stated in paras 2, 3(a) & 5 of the notice, which constitute grounds under clause (a) of Section 56(1) and second part of clause (b) of Section 56(1) of the Act. Nonetheless the Externing Authority has externed the petitioner under clause (a) and second part of clause (b) of Section 56(1) of the Act. The order is not in accordance with the principles laid down by the Division Bench of this Court in the case of Yeshwant vs. Hemant Karkare (Supra) and is in breach of rules of natural justice. The impugned order amounts to unreasonable restriction on the fundamental right guaranteed by Article 19 of the Constitution and hence cannot be sustained. 29. Under the circumstances and in view of discussion supra, we pass the following order: ORDER i. Both petitions are allowed. ii. The order of externment dated 5.9.2012 passed by the Deputy Commissioner of Police against Satish Shagun Korgaonkar, who is petitioner in Writ Petition No.1813 of 2013, and the order dated 26.9.2013 passed by the Appellate Authority, thereby dismissing the appeal filed by the petitioner are quashed and set aside. iii. ii. The order of externment dated 5.9.2012 passed by the Deputy Commissioner of Police against Satish Shagun Korgaonkar, who is petitioner in Writ Petition No.1813 of 2013, and the order dated 26.9.2013 passed by the Appellate Authority, thereby dismissing the appeal filed by the petitioner are quashed and set aside. iii. The order of externment dated 26.9.2013 passed by the Deputy Commissioner of Police against Akbar Hussein Shafi Hussein, who is petitioner in Writ Petition No. 529 of 2014, and the order dated 21.1.2014 passed by the Appellate Authority, thereby dismissing the appeal filed by the petitioner are quashed and set aside. iv. Rule is made absolute in above terms.