Judgment:
Nutan d. Sardessai, J.
1. Heard Shri Arun De Sa, learned Advocate for the petitioner and Shri S.R. Rivonkar, learned Public Prosecutor for the State.
2. Rule. Rule made returnable forthwith with the consent of the learned counsel appearing for the parties. Shri S.R. Rivonkar, learned Public Prosecutor waives service on behalf of the State.
3. The petitioner has sought to invoke the writ jurisdiction of this Court praying to quash and set aside the order dated 18/11/2015 passed by the respondent no.1 through the Chief Secretary and the impugned externment order dated 21/1/2015 passed by the respondent no.2 District Magistrate whereby he was sought to be externed for the maximum period i.e. for a period of two years under the provisions of the Sections 3 and 4 (a) of the Goa Maintenance of Public Order and Safety Act, 1988 ( the Act for short hereinafter) and since he was continuing to cause alarm, danger and harm to the person and the property in association with the gang of persons and his presence in the district was prejudicial to the maintenance of public order and tranquility.
4. The respondent no.3 had made a report dated 22/10/2011 to the respondent no.2 against the petitioner under Sections 3 and 4 (a) of the said Act pursuant to which the Case No.68/11/JUD/POSA/2003 came to be registered against him and thereafter he was issued a show cause notice dated 22/2/2013 calling upon him why an order under Sections 3 and 4 (a) of the said Act should not be passed against him and directing him to remove himself from the jurisdiction of the district for a period which may extend to two years. He had shown cause by his reply dated 17/6/2013 in which he had carved a case that he was not supplied with the proper material to defend the proceedings, and that he was seeking a personal hearing and cross-examination of all the witnesses concerned in the report and the material on which the report was based and the basis of which the proceedings were initiated against him.
5. However, the learned Public Prosecutor placed on record on 4/8/2014 F.I.R. vide the Crime no.121/2013 registered at the Porvorim Police Station against him and others alleging that he had committed the offences punishable under Sections 143, 144, 147, 148, 150, 323, 341, 342, 356, 395, 397, 399, 402, 427, 436, 440, 452 and 120B read with Section 149 of the Indian Penal Code and which came to be allowed even though it did not form a part of the original report dated 22/10/2011 based on which the respondent no.2 had arrived at a prima facie satisfaction and issued the show cause notice dated 22/2/2013 calling upon him to show cause.
6. The petitioner had by his supplementary reply dated 5/1/2015 had shown cause why he should not be externed and the proceedings under Sections 3 and 4 (a) of the Act ought not to be dropped on the premise that the F.I.R. No.121/2013 could not be considered unless he was given an opportunity to cross-examine the witnesses and moreover the same could not be taken on record when the trial in respect of the same was pending before the Sessions Court. Moreover, the respondents were required to give an opportunity to cross-examine all the witnesses in respect of the earlier as well as the new documents produced on record.
Shri Arun De Sa, learned counsel came to be heard on his behalf who relied in Hanuman Rajaram Mhatre Vs. State of Maharashtra [2013 (2) Bom. C.R.(Cri.) 53] and Krishna @ Gotia Bajarang Chikne Vs. The Dy. Commissioner of Police and others in Writ Petition No.3451 of 2013 and Shri S.R. Rivonkar, learned Public Prosecutor on behalf of the State, each canvassing their point to drop the proceedings/pursue the proceedings against the petitioner.
7. The petitioner had assailed the order of externment dated 22/1/2015 passed by the respondent no.2 before this Court in the Criminal Writ Petition No.20/2015 which however came to be withdrawn at his instance as he wanted to seek recourse to an alternate remedy under Section 7 of the Act before the State Government. He was again before this Court in the Criminal Writ Petition No.85/2015 as the appeal was not disposed off and thereupon by an order dated 3/8/2015, the statement of the learned Public Prosecutor came to be accepted that the proceedings would be disposed off within three months from the date of the order and accordingly the petition was disposed off as withdrawn.
8. The petitioner is at large assailing the order dated 18/11/2015 passed by the respondent no.1 through the Chief Secretary pursuant to which an objection was raised before the respondent no.1 that the respondent no.2 was not specifically empowered by the State Government to act in terms of the said Act and thereupon the respondent no.1 through the Chief Secretary held otherwise and against the petitioner. A plea was also canvassed before the respondent no.1 that the show cause notice was belatedly issued by the respondent no.2 which aspect too was considered namely that the externment proceedings were initiated on 22/10/2011 and the show cause notice though issued in February 2013, it revealed that the petitioner after failing to appear on three occasions had appeared only on 17/6/2013 and there was delay at his instance. However, the learned Chief Secretary did not at all account for the delay between the initiation of the externment proceedings on 22/10/2011 and the issuance of the show cause notice by the respondent no.2 only on 22/2/2013.
9. It was urged on behalf of the petitioner that the material placed by the Externing Authority did not pertain to the public order thereby affecting the subjective satisfaction of the Externing Authority which contention however did not find favour from the omnibus observation that a perusal of the records made it evident that sufficient material was placed on record to establish that the petitioner posed a threat to the public peace and tranquility and there were numerous cases of a serious nature pending against him registered in the different Police Stations. Moreover, he had continued to indulge in the unlawful activities even thereafter and a charge-sheet was later filed against him which however, had no link qua the date of the initiation of the externment proceedings i.e. 22/10/2011 and the issuance of the show cause notice belatedly on 22/2/2013.
10. The learned Chief Secretary on behalf of the respondent no.1 had also not considered the various judgments relied upon on behalf of the petitioner although a reference was made in an omnibus manner that a reliance was placed on his behalf on a number of judgments of the various Courts but there was no reference to any of them muchless any discussion thereon on their applicability to the facts at large before him. The learned Chief Secretary however observed that though the petitioner had been acquitted in the earlier cases filed against him, it did not hamper the externment proceedings as long as there were reasonable grounds to believe that he was a person acting or about to act in any manner prejudicial to the maintenance of public order and concluded that there were no reasonable grounds to interfere in the externment order passed by the respondent no.2.
11. There was on the face of the material on record no material to conclude that there was subjective satisfaction recorded by the learned Chief Secretary that there were reasons to conclude that the petitioner would pose a danger to the maintenance of law and order or that he was likely to engage himself in criminal activities similar to the ones for which he thus stood charged and or acquitted by the Courts. The learned Chief Secretary had also not indicated in the order that there was a sufficient nexus established between the initiation of the externment proceedings on 22/10/2011 and what was the justification for the delay in issuance of the show cause notice on 22/2/2013, more than 15 months later.
12. The respondent no.2 had considered the externment report of the respondent no.3 against the petitioner under the said Act, enumerated the number of cognizable and chapter cases initiated against him, referred to the show cause notice issued to the petitioner and his reply and gave weightage to the subsequent F.I.R. filed by the learned Public Prosecutor by an application dated 4/10/2013. The respondent no.2 had given weightage to the contentions on behalf of the learned Public Prosecutor that the petitioner was involved in various criminal activities and the cases against him were of a serious nature while at the same time observing that he had been directed to keep peace in the chapter cases filed against him and that the proceedings were dropped against him but on technical grounds. There was no reason for the respondent no.2 to give weightage to the incidents or offences purportedly after the initiation of the externment proceedings in 2011 which showed a colourable exercise of jurisdiction.
13. Section 4 of the Act contemplates the removal of persons about to commit an offence - Whenever it appears to the District Magistrate, or the Sub-Divisional Magistrate specially empowered by the State Government in that behalf, to exercise powers within his jurisdiction that -
(a) the movements or acts of any person are causing or are calculated to cause alarm, danger or harm to the person or property .......
the said Officer may, by an order in writing duly served on such person, or otherwise as he thinks fit, direct such person or immigrant to so conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease, to remove himself outside the area or areas within the local limits of his jurisdiction or such area and any district, districts or any part thereof continguous thereto by such route, and with such time, as he may specify and not to enter or return to the area or areas (hereinafter referred to as the specified area or areas) from which he was directed to remove himself.
14. The petitioner had canvassed before the respondent no.2 that neither this provision or that of Section 3 of the Act was attracted to his case and that he did not present an imminent danger to the peace and order. He had also put-forth his case that he should be given an opportunity to cross-examine all the prosecution witnesses in respect of all the documents new and old produced by the learned Public Prosecutor. This request too was disallowed by the learned respondent no.2 on the premise that no examination-in-chief was done of the witnesses by the prosecution and, therefore, no right crystallized in favour of the petitioner to cross-examine the witnesses. The learned respondent no.2 went in an omnibus manner to record that there was sufficient material available on record to show that the respondent continued to cause or calculated to cause alarm, danger or harm to any person or property on the premise that there were a number of cases pending against him pertaining to the different police stations which showed the criminal proclivity of the petitioner and that he continued to pose a danger to the public peace and order and allowed the externment proceedings against him.
15. This order passed by the respondent no.2 does not pass the test of reasonableness and fairness as it is infringing upon the personal liberty of the petitioner. It is apparent from the order of the respondent no.2 that the Externing Authority had not applied its mind as to why the petitioner was required to be externed clearly reflecting that the impugned order was excessive and arbitrary. Mere incantation that the petitioner was likely to cause harm to the persons or property or that there were reasonable grounds to believe that he was engaged in committing offences and or that the witnesses were not forthcoming to give evidence against him per se would not justify the order of externment when juxtapositioned with the personal liberty of the petitioner under Article 21 of the Constitution of India which is sacrosanct.
16. In Hanuman Rajaram Mhatre (supra), a Division Bench of this Court held that the impugned order of externment suffered from the vice of exercise of excessive jurisdiction which had ordered his externment to vast areas of Mumbai suburb, Raigarh and New Mumbai areas when the list of cases pending against him were limited to Vishnu Nagar, Dombiwali area of Thane and besides when it was found that he was acquitted in five cases while four were pending and there was no any instance of past conviction against him. This Court had therefore allowed the petition and quashed the externment order.
17. In Krishna @ Gotia Bajarang Chikne (supra) another Division Bench of this Court reiterated the settled law that ordinarily it is for the authority to decide what is the area from which a person should be externed and for how long. Any order of externment must be non-arbitrary and cannot be excessive and cannot be more than the situation demands. The learned Bench had found that the show cause notice and the Externment Order made a reference to at least 13 cases previously registered against the petitioner dating back to the year 2001 and were therefore unable to understand how the cases of such antiquity would have any possible bearing on the externment proceedings taken in the year 2013. It was further observed that there had to be some live link between the criminal activities attributed to the externee and the proposed externment and when it was found that in at least three out of the 13 cases, he had been acquitted. The absence of any material justifying the externment order and the appellate order which both suffer from the vice of being excessive, therefore, cannot be sustained and hence, the petition succeeds. We, therefore, allow the petition and pass the following order:-
Order
(i) The impugned order of externment dated 21/01/2015 and the appellate Order dated 18.11.2015 are therefore quashed and set aside.
(ii) Rule is made absolute in the above terms.