(1) crwp872.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 872 OF 2017
Dnyaneshwer Madhav Malve .. Petitioner
Age. 43 years, Occ. Agri.,
Permanent R/o. A/o. Kolpewadi,
Tq. Kopargaon, Dist. Ahmednagar
At present R/o. C/o.
Mangesh Madhav Malve
Sheetal Nagar, Satara parisar,
Ekta Swarup Apartment,
Flat No.4, Aurangabad.
Versus
1) The Divisional Commissioner .. Respondents
Nashik Division, Nashik.
2) The Sub-Divisional Police Officer,
Shirdi Division, Shirdi,
Tq. Rahata, Dist. Ahmednagar.
3) The Sub-Divisional Magistrate,
Shirdi Division, Shirdi,
Tq. Rahata, Dist. Ahmednagar.
Mr. K.B. Borde Patil, Advocate for the petitioner.
Mr. M.M. Nerlikar, A.P.P. for respondents/State.
CORAM : S.S.SHINDE &
S.M.GAVHANE,JJ.
DATED : 01.08.2017 ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:25:26 ::: (2) crwp872.17 ORAL JUDGMENT [PER : S.S. SHINDE,J.] :-
1. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.
2. At the outset learned Counsel appearing for the petitioner makes oral prayer to correct designation of respondent No.3 in the cause title of the memo of petition. The prayer is granted. The amendment be carried out forthwith.
3. This petition takes an exception to the order dated 28.04.2017 passed by the Divisional Commissioner, Nashik in Externment Appeal No.24 of 2017, thereby confirming the order passed by respondent No.3. It is not necessary to make reference to the facts in greater length stated in the petition. Suffice it to say that the petitioner assailed the order passed by respondent No.3 which is confirmed by respondent No.1 principally on two grounds. Firstly, the order is excessive in as much ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:25:26 ::: (3) crwp872.17 as though the alleged offences which are mentioned in the show-cause notice issued by respondent No.3 are registered at Kopargaon Police Station, however, the petitioner is externed from the boundaries of Kopargaon, Rahata, Shrirampur, Sangamner Talukas (Tahsil) of Ahmednagar District; Yeola, Sinnar and Niphad Talukas of Nashik District and Vaijapur Taluka of Aurangabad District. It is submitted that respondent Nos.1 and 2 have not assigned any reasons in the impugned order why the externment of the petitioner is necessary from aforementioned Talukas of Nashik and Aurangabad Districts. He further submits that since the order passed by respondent No.3 is taking recourse to the provisions of section 56(1)(a)(b), of the Maharashtra Police Act [for short "the said Act"]; there is no compliance of mandate of section 56 (1)(b) of the Act, in as much as, though there is reference to the statement of witnesses recorded in camera by respondent No.2, respondent No.3, did not form opinion that witnesses are not willing to come forward to give evidence in public ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:25:26 ::: (4) crwp872.17 against such person by reason of apprehension on their part as regards the safety of their person or property. It is submitted that when the Sub-Divisional Magistrate is empowered to deal with the proceedings under the provisions of Section 56(1)(a)(b) of the Act, said Officer is supposed to apply his mind to the material before him and in particular the statements of witnesses, so as to form opinion that the witnesses are not willing to come forward to give evidence against the proposed externee in public by reason of apprehension on their part as regards the safety of their person or property. Therefore, learned Counsel appearing for the petitioner, relying upon grounds taken in the petition and annexures thereto, submits that the petition deserves to be allowed.
4. On the other hand, learned APP appearing for the respondents relying upon section 59 of the said Act submits that there is no provision in law that only the Sub-Divisional Magistrate has to issue notice. In his ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:25:26 ::: (5) crwp872.17 submission the Sub-Divisional Police Officer i.e. respondent No.2 is competent authority, who had issued notice to the petitioner and therefore, there is compliance of the mandate of Section 56(1)(b) of the said Act. He submits that pursuant to the notice issued by respondent No.2, the petitioner filed reply and thereafter considering the reply of the petitioner, proposal was forwarded to respondent No.3 by respondent No.2 so as to take the externment proceeding at its logical end. He submits that notice given by respondent No.2 contains the general nature of material allegations against the petitioner and also reference is made to the in-camera statements of the witnesses verified by the Sub-Divisional Police Officer and recorded by Police Inspector at the time of forwarding the proposal for externment of the petitioner from the aforementioned three Districts. He submits that even, the contents of the notice issued by respondent No.3 on 02.04.2016 (Exh."D" - page 22 of the compilation of writ petition) would make it clear that, there is reference in the said ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:25:26 ::: (6) crwp872.17 notice to the proceedings initiated and notice issued by the Sub-Divisional Police Officer. Therefore, in his submission, even though in the notice issued by the respondent No.3, there is no mention about the fact that the statements of the witnesses have been recorded in- camera and they have deposed that the witnesses are not willing to come forward to give evidence against the petitioner i.e. proposed externee, in public by reason of apprehension on their part as regards the safety of their person or property, it cannot be said that, there is non- compliance of mandate of Section 56(1)(b) of the Act. He submits that respondent Nos.1 and 3 have assigned sufficient reasons, why externment of the petitioner is warranted from not only Kopargaon, Rahata, Shrirampur, Sangamner Talukas of Ahmednagar District but also from adjacent two Districts i.e. some Talukas of Nashik and Aurangabad.
5. We have given careful consideration to the submissions of learned Counsel appearing for the ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:25:26 ::: (7) crwp872.17 petitioner and learned APP appearing for the respondents. With their able assistance we have carefully perused the grounds taken in the petition and annexures thereto, the reasons assigned by respondent Nos.1 and 3 in the impugned order and also relevant provisions and the judgments cited across the bar by the learned Counsel appearing for the petitioner and also learned APP for the State. At the outset, it would be apt to reproduce herein below the provisions of section 56(1)(a)(b) of the said Act, which reads as under :-
Removal of persons about to commit offence "56. .
(1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under Sec. 7 to the Commissioner and in other area or areas to which 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 Chapters XII, XVI, or XVII of the Indian Penal Code (XLV of 1860), or in the abetment of any such ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:25:26 ::: (8) crwp872.17 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 x x x x x"
6. The Division Bench of this Court in the case of Yashwant Damodar Patil Vs. Hemant Karkare, Deputy Commissioner of Police, Thane & Anr., 1989 Mh.L.J.1111, had occasion to consider the scope of section 56 (1)(a)
(b) of the said Act. Para 3 from the said judgment reads as under :-
"3. Section 56(1) of the Bombay Police Act visualises three situations in which the order of externment could be passed by the designated officer. We will, however, ignore, for the purpose of the disposal of this petition the third type of situation and only analyze the two situations which are covered by Clauses (a) and
(b) of section 56(1) of the Act. An order of externment can be passed against a person whose movements or acts are causing or calculated to cause alarm, danger or harm to person or property. That is what is provided in clause
(a). The order of externment can also be passed against a person if there are reasonable grounds for believing that such a person is engaged or is about to be engaged in the commission of an offence involving force or violence. It is so provided in the first part of clause (b) of section 56(1) of the Act. An order of externment can also be passed against a person if that ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:25:26 ::: (9) crwp872.17 person is engaged or about to be engaged in the commission of an offence punishable under Chapter XII, of Chapter XVI, or Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause (b) of section 56(1) of the Act. But it is not enough that these conditions alone are satisfied. In addition to this the designated officer should be of the opinion that 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."
7. Upon reading para 3 from the said judgment, it is abundantly clear that the order of externment can be passed against a person if there are reasonable grounds believing that such person is engaged or about to be engaged in commission of offence involving force or violence under Chapter XII or Chapter XVI or Chapter XVII of the Indian Penal Code. This is so provided in the later part of clause (b) of section 56(1) of the Act. But it is not enough that these conditions alone are satisfied. In addition to this, the designated officer should be of the opinion that witnesses are not willing to come forward to give evidence in public against such ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:25:26 ::: ( 10 ) crwp872.17 person by reason of apprehension on their part as regards the safety of their person or property.
8. Admittedly, in the notice which was issued by respondent No.3 i.e. Sub-Divisional Magistrate, Shirdi, there is no mention about the general nature of material allegations against the petitioner, that the witnesses are not willing to come forward to give evidence against him in public by reason of apprehension on their part as regards safety of their person or property. It is true that it is not necessary for the concerned authority to mention the names of such witnesses or time of the incident or any other material particulars. Nevertheless, in view of ratio laid down by the Supreme Court in the case of Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra, AIR 1973 SC 630, the proposed externee is entitled to know the general nature of the material allegations against him. Therefore, the contention of learned APP appearing for the State that the notice issued by respondent No.2 ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:25:26 ::: ( 11 ) crwp872.17 makes mention that in-camera statements of the witnesses have been recorded and they are not willing to come forward to give evidence in public against the petitioner by reason of apprehension on their part as regards the safety of their person or property, and said compliance is sufficient, would run contrary to the legislative intent as reflected under the provisions of Section 56(1)
(b) of the said Act. The Designated officer who exercises powers under section 56 of the Act is the Officer, who ultimately passes the order of an externment under the said Act. Said officer has to form his opinion that 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. It is not a mechanical process. He has to apply his mind and then pass the appropriate order. If the order of an externment is passed against a person, his fundamental right to move from one place to another or the right to reside at a particular place of his choice, gets curtailed. Therefore, the legislative ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:25:26 ::: ( 12 ) crwp872.17 intent while enacting provisions of Section 156(1)(b) of the Act is crystal clear that the concerned officer who is ultimate authority to pass the order of the externment, shall form his opinion by applying his mind to facts of the case and material placed before him, and after verifying the statements of the witnesses, shall form his opinion that the witnesses are not willing to come forward against the proposed externee to depose in public by reason of apprehension on their part as regards the safety of their person or property. As already observed, said compliance is not an empty formality and the said officer is bound to strictly adhere to the provisions of section 56 (1)(b) of the said Act.
9. Upon carefully considering the reasons assigned by respondent Nos.1 and 3, an externment of the petitioner from Yeola, Sinnar and Niphad Talukas of Nashik District and Vaijapur Taluka of Aurangabad District, there are no any specific reasons are assigned, or it is not discussed that some of the offences ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:25:26 ::: ( 13 ) crwp872.17 mentioned in the order are in relation to such unlawful activities of the petitioner, which have been registered in the Police Stations situated in aforesaid Talukas from the Nashik and Aurangabad Districts. It is not necessary for us to elaborate the reasons. Suffice it to say that the orders passed by respondent Nos.1 and 3 are not legally sustainable for two reasons. Firstly, there is no compliance of mandate of provision of Section 56(1)(b) of the said Act and secondly, the order of externment is excessive.
10. In that view of the matter, petition succeeds, the Criminal Writ Petition is allowed in terms of prayer clause (B). Rule made absolute in above terms. No order as to costs.
[S.M.GAVHANE,J.] [S.S. SHINDE,J.]
snk/2017/AUG17/crwp872.17
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