It is of utmost importance to pay here our full and unremitting attention to the most significant finding of the Bombay High Court in a learned, logical, laudable, landmark and latest judgment titled Imtiyaz Hussain Sayyad vs The State of Maharashtra and Ors. In Writ Petition No. 2805 of 2023 that was pronounced as recently as on 19 January 2024 wherein it was held that alleged offences which are under investigation and for which a chargesheet has not been filed cannot be considered for passing an externment order against the accused. It must be mentioned here that the Single Judge Bench of Hon’ble Mr Justice NJ Jamadar quashed and set aside an externment order against one Imtiyaz Hussain Sayyad observing precisely that the externing authority considered two crimes against him even though the charge sheets had not been filed yet. Of course, it also certainly deserves mentioning here that the order had been issued by the Deputy Commissioner of Police Zone XII, Mumbai and partly upheld by the Divisional Commissioner, Konkan Division. No doubt, it also definitely warrants mentioning here that the petitioner had very rightly challenged the externment order dated January 4, 2023 that was passed under Section 56(1) of the Maharashtra Police Act, 1951.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Hon’ble Mr Justice NJ Jamadar sets the ball in motion by first and foremost putting forth in para 2 that:
Rule. Rule made returnable forthwith. With the consent of the parties, heard finally.”
To put things in perspective, the Bench then envisages succinctly in para 3 that:
The Petitioner who has been externed by invoking the provisions contained in Section 56(1) of the Maharashtra Police Act, 1951 has assailed the legality and validity of the externment order dated 24 January 2023 passed by the Deputy Commissioner of Police Zone XII, Mumbai (Respondent No.2) and the order dated 10 July 2023 passed by the Divisional Commissioner, Konkan Division (Respondent No.3) partly allowing the appeal to the extent of reducing the period of externment from two years to 18 months.”
As we see, the Bench then enunciates in para 4 that:
Few crimes have been registered against the Petitioner at Samta Nagar Police Station, Mumbai. On 9 July 2022, a notice to show cause as to why the Petitioner should not be externed, came to be issued to the Petitioner under Section 59 of the Act. The pendency of the crimes registered against the Petitioner and confidential in-camera statements of the witnesses were adverted to in the said notice to allege that the movements and acts of the Petitioner are causing or calculated to cause alarm, danger or harm to person or property and the Petitioner has been engaged in the commission of offences involving force or violence or offences punishable under Chapter XVI and XVII of the Indian Penal Code, and the witnesses were not coming forward to give evidence in public against the Petitioner fearing safety of their person or property.”
Further, the Bench then states in para 5 that:
The Petitioner, it seems, did participate in the proceedings before the Respondent No.2. However, the Petitioner had neither submitted any material nor examined any witness in the rebuttal. Evidently, by an order dated 24 January 2023, the Respondent No.2 directed the Petitioner to remove himself from the Districts of Mumbai City, Mumbai Suburban, Thane, Vasai, Palghar and Dahanu Taluka of Palghar District and Panvel, Karjat Taluka of Raigad District within a period of two days of the service of the said order, for a period of two years.”
As it turned out, the Bench discloses in para 6 that:
Being aggrieved, the Petitioner preferred an appeal, being Appeal No.32 of 2023, before the Respondent No.3 under Section 60 of the Act, 1951. After appraisal of the material and the submissions on behalf of the parties, by the impugned order dated 10 July 2023, the Respondent No.3 found no reason to interfere with the order of externment as the satisfaction arrived at by the Respondent No.2 to extern the Petitioner was based on objective material. However, the appellate authority was of the view that the externing authority had not ascribed reasons for externing the Petitioner for the maximum period of two years and, therefore, the order of externment was modified by reducing the period of externment to 18 months from two years. Thus, the appeal came to be partly allowed to the extent of duration of the externment only.”
Furthermore, the Bench then mentions in para 13 that:
A reference was also made to two confidential in-camera statements of the witnesses, who allegedly stated about the acts of violence and robbery allegedly committed by the Petitioner. On the date of the passing of the externment order by the Respondent No.2, C.R.No.284 of 2020 for the offence punishable under Sections 354, 354BD, 509, 323, 504 of IPC, was still under investigation.”
Be it noted, the Bench notes aptly in para 14 that:
The Petitioner was ordered to be externed by invoking the provisions contained in Section 56(1)(a) and (b) of the Act, 1951. The measure of externment by its very nature is extra-ordinary. It has the effect of forced displacement from the home and surroundings. Often it affects the livelihood of the person ordered to be externed. Thus, there must exist justifiable ground to sustain an order of externment. The order of externment, therefore, must be strictly within the bounds of the statutory provisions. Under clause (a) of sub-Section (1) of Section 56, the externing authority must be satisfied on the basis of the objective material that the movements or acts of the person to be externed are causing or calculated to cause alarm, danger or harm to person or property. Under clause (b), there must be an objective material on the strength of which the externing authority must record subjective satisfaction that there are reasonable grounds for believing that the externee is engaged or about to be engaged in the commission of offences involving force or violence.”
Do also note, the Bench notes in para 15 that:
Mere registration of a number of offences by itself does not sustain an externment under Section 56(1)(b) of the Act. The offences must either involve elements of force or violence or fall under Chapters XII, XVI and XVII of the Indian Penal Code. In addition, the externing authority must record satisfaction that 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.”
Quite forthrightly, the Bench observes in para 16 that:
In effect, to sustain an action of externment under sub-clause (b), the offences the externee has engaged in must be under one of the Chapters enumerated therein and that the acts or conduct of the externee is such that the witnesses are terrified and dissuaded from giving evidence against the externee in public fearing safety of their person or property.”
Simply put, the Bench then mentions in para 17 that:
In the light of the aforesaid conspectus of the requirements of Section 56(1)(a) and (b), the aforementioned challenges deserve to be appreciated. First, the consideration of the offences which do not fall within the ambit of clause (b) of sub-Section (1). Perusal of the chart (extracted above) indicates that the crime at Sr. No.1 i.e. C.R.No.246 of 2018 for the offences punishable under Sections 37(1) read with Section 135 of the Maharashtra Police Act, 1951 and at Sr. No.3 i.e. C.R.No.103 of 2019 for the offences punishable under Section 160 of the IPC and Section 4 read with Section 25 of the Arms Act and Sections 37(1)(a) read with Section 135 of the Maharashtra Police Act, 1951, do not fall within the ambit of clause (b).”
While continuing in the same vein, the Bench points out in para 18 that, “Likewise, when the notice was issued on 9 July 2022, two of the crimes i.e. Sr. Nos.6 and 7 were under investigation and the chargesheet had not been lodged. On the date of the externment order also, the crime at Sr. No.6 i.e. C.R.No.284 of 2020 for the offences punishable under Sections 354, 354BD, 509, 323, 504 of IPC was under investigation.”
Most significantly, the Bench postulates in para 19 that:
The situation which thus obtains is that the externing authority had noted pendency of two cases which did not satisfy the requirement of class of cases stipulated by clause (b) and also considered the crimes which were under investigation and chargesheet had not been filed. It is trite, the crimes which are still under investigation cannot be taken into consideration as depending upon the outcome of the investigation, the investigating agency may or may not send the accused for trial. It is true, in one of the crimes, subsequently chargesheet came to be filed. However, a submission could be advanced that the chargesheet was filed with a view to justify and support the order of externment. Reliance placed by Mr. Gupta on the judgment of the learned Single Judge of this Court in the case of Ganesh Laxman Dhabale V/s. State of Maharashtra and Ors. AIR OnLine 2023 Bom 231 appears to be well founded.”
Most commendably, the Bench propounds in para 20 that:
Secondly, the objection based on the absence of live link between the cases filed against the Petitioner and the externment order also carries some substance. The cases at Sr. Nos.2 i.e. C.R.No.568 of 2019, at Sr. No.4 i.e. C.R.No.2 of 2020, at Sr. No.5 i.e. C.R.No.187 of 2020 were registered in the years 2019 and 2020. Action for externment was initiated in the month of July 2022 and the order of externment came to be passed on 24 January 2023. Considerable period elapsed from the registration of the aforesaid crimes till the initiation of the action for externment. The purpose of externment is not punitive. Externment is with a view to disable a person by moving him away from surroundings which prove favourable for the commission of the offences and thereby disarm his influence in the said area. Thus, there ought to be a live link between the acts of the externee and the action of externment. Stale cases cannot be used to support the externment order. This also bears upon the subjective satisfaction arrived at by the externing authority.”
It is worth noting that the Bench notes in para 22 that:
In the case at hand, the externing authority had not recorded any reasons as to why the Petitioner was externed for a full period of two years. Nor any consideration was bestowed on the duration of the externment order.”
Most forthrightly and most sagaciously, the Bench expounds in para 23 that:
It is true the appellate authority interfered with the externment order on the said count and reduced the period of externment to 18 months. Had that been the only ground of challenge, the Court would have appreciated the effect of modification of the duration of the externment order in a different perspective. However, in the case at hand, apart from the absence of reasons to justify the externment for the period of two years, the order passed by the Respondent No.2 suffers from the vice of nonapplication of mind on account of consideration of cases, which ought not to have been taken into account, and absence of live link between the cases, which could have been legitimately taken into account, and the externment order.”
As a corollary, the Bench then directs in para 24 that:
Resultantly, the impugned order deserves to be quashed and set aside.”
Finally, the Bench concludes by holding in para 25 that:
Hence, the following order :
ORDER
- The Writ Petition stands allowed in terms of prayer clause (i).
- Rule made absolute to the aforesaid extent.
All told, we thus see that the Bombay High Court has made it indubitably clear that offences under investigation cannot be considered basis for an externment order against accused. It is certainly the bounden duty of the courts to pay heed to what the Bombay High Court has held so explicitly in this leading case and act accordingly in similar such cases. There can be just no denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
