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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.473 OF 2017
Nirmala w/o. Bandu Ladke,
Aged 45 years, Occ. Household,
r/o. Plot No.6, Old Sakkardara,
Near Hanuman Mandir,
Gawandipura, Nagpur. .......... PETITIONER
// VERSUS //
1. Deputy Commissioner of Police,
Zone 4, Nagpur, District
Nagpur.
2. Assistant Commissioner of
Police, Sakkardara Division,
Nagpur. .......... RESPONDENTS
____________________________________________________________
Mr.A.M.Jaltare, Advocate for the Petitioner.
Mr.S.S.Doifode, A.P.P. for Respondent Nos. 1 and 2.
____________________________________________________________
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CORAM : SMT. VASANTI A NAIK
AND
M.G.GIRATKAR, JJ.
DATED : 9th August, 2017.
ORAL JUDGMENT (Per Smt. Vasanti A Naik, J) :
Rule. Rule made returnable forthwith. Heard finally by the consent of the parties.
By this Criminal Writ Petition, the petitioner challenges the order of his externment dt.8.4.2017.
The petitioner was convicted for the offence punishable under Section 12 and 12A of the Bombay Prevention of Gambling Act, 1887. On the conviction of the petitioner on two occasions, the respondent no.1 passed the impugned order externing the petitioner out of the precincts of the Nagpur City by the order dt.8.4.2017 The said order is challenged by the petitioner in the instant petition.
Mr.A.M.Jaltare, learned Counsel for the petitioner submitted that the petitioner has been illegally externed for the maximum period of two years, as is prescribed in Section 58 of the ::: Uploaded on - 14/08/2017 ::: Downloaded on - 15/08/2017 01:59:47 ::: 3 wp473.17.odt Maharashtra Police Act, though the petitioner was convicted for the offence under Section 12 and 12A of the Bombay Prevention of Gambling Act and a fine of Rs.500/- was imposed upon the petitioner on the acceptance of the charge. It is submitted that the externment of the petitioner for two years is extremely harsh and disproportionate as the petitioner has been convicted of a lesser offence under Section 12 and 12A of the Bombay Prevention of Gambling Act on the acceptance of the charge. It is submitted that the impugned order of externment is implemented and the petitioner has stayed away from Nagpur for nearly four months. It is submitted by placing reliance on the Judgment reported in 2013 ALL MR (Cri) 4407, Sagarsingh Kesharsingh Bawari .vs. Ministry of Home Department and Others that the prosecution under the Prevention of Gambling Act and under the Bombay Prohibition Act cannot be taken into consideration for passing an order of externment. It is stated that it is wrongfully held by respondent no.1 in the impugned order of externment that the petitioner is likely to commit the offence under the Bombay Prevention of Gambling Act and that peace and tranquility in the locality would be disturbed. It is stated that the said observations could not have been made when the petitioner is convicted only for the offence punishable under Sections ::: Uploaded on - 14/08/2017 ::: Downloaded on - 15/08/2017 01:59:47 ::: 4 wp473.17.odt 12 and 12A of the Maharashtra Prevention of Gambling Act, moreso on the acceptance of the charge.
The learned Assistant Public Prosecutor appearing on behalf of the respondents supported the impugned order. It is stated that under Section 58 of the Maharashtra Police Act, a convict could be externed to a maximum period of two years. It is stated that, in view of Section 57(1)(a)(v) of the Maharashtra Police Act, if a person is convicted for an offence punishable under Section 12 or 12(A) of the Maharashtra Prevention of Gambling Act, an order of externment could be passed in his case. It is stated that the order is in consonance with the provisions of Sections 57 and 58 of the Maharashtra Police Act and hence, the Criminal Writ Petition is liable to be dismissed.
It appears on a reading of the provisions of the Maharashtra Police Act, specifically Sections 56, 57 and 58 thereof, that the respondent no.1 was not justified in externing the petitioner for a period of two years from the precincts of Nagpur City. Section 58 of the Act provides for the maximum period of operation of orders that are passed under Sections 55, 56, 57 and 57(A). The gravity of ::: Uploaded on - 14/08/2017 ::: Downloaded on - 15/08/2017 01:59:47 ::: 5 wp473.17.odt the acts and the Offences likely to be committed under Sections 55 and 56 could be much greater than the gravity of the offence for which the petitioner has been convicted. The petitioner has been convicted for the offence punishable under Sections 12 and 12(A) of the Maharashtra Prevention of Gambling Act whereas Sections 55 and 56 relate to the cases in which the persons who are liable to be externed are likely to cause alarm, danger or harm to the persons or property and are likely to be involved in the acts which may be prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal Anti-Social and Other Dangerous Activities Act, 1980. In a given case the act likely to be committed by a person who is liable to be externed under Section 56 of the Act could be more grave and serious and could disturb the peace and tranquility in the locality. In such cases, the persons could be externed for a longer period. It is difficult to gauge as to how a person convicted for an offence punishable under Section 12 or 12A of the Maharashtra Prevention of Gambling Act would disturb the peace and tranquility in the locality as observed in the impugned order or would commit acts which would cause danger to the general public. As rightly submitted on behalf of the petitioner, we find that the respondent no.2 has not exercised his discretion in a judicious ::: Uploaded on - 14/08/2017 ::: Downloaded on - 15/08/2017 01:59:47 ::: 6 wp473.17.odt manner while externing the petitioner for a period of two years. The impugned order was passed on 8.4.2017 and the petitioner is staying in Wardha and out of the precincts of Nagpur City since four months. In our considered view, ends of justice could be met if the externment period is restricted to 4 months as we do not find any merit in the observation made in the impugned order that the petitioner would disturb the peace and tranquility in the locality if he indulges in the gambling activities in future. Since the petitioner has already stayed away from Nagpur for four months, we would modify the impugned order and reduce the term of externment from two years to four months.
Hence, for the reasons aforesaid, the Criminal Writ Petition is partly allowed. The impugned order is modified and the period of externment of two years is reduced to a period of four months. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE [jaiswal] ::: Uploaded on - 14/08/2017 ::: Downloaded on - 15/08/2017 01:59:47 ::: 7 wp473.17.odt ::: Uploaded on - 14/08/2017 ::: Downloaded on - 15/08/2017 01:59:47 :::