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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1216 OF 2017
Satish S/o Bhimrao Dolse .. Petitioner
Age : 30 years, Occ : Service,
R/o Vara, Man Deulgaon,
Tq. Badnapur, Dist. Jalna.
Versus
1) The Superintendent of Police .. Respondents
Jalna, Dist. Jalna.
2) The Sub-Divisional Magistrate,
Jalna, Dist. jalna.
3) The Divisional Commissioner,
Aurangabad Division,
Aurangabad.
Mr. P.P. More, Advocate for the petitioner.
Mr. M.M. Nerlikar, A.P.P. for respondents/State.
CORAM : S.S.SHINDE &
MANGESH S. PATIL,JJ.
RESERVED ON : 10th November, 2017 PRONOUNCED ON :15th November, 2017 JUDGMENT [PER : S.S. SHINDE,J.] :-
1. Rule. Rule made returnable forthwith and heard finally with the consent of the parties. ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:18 :::
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2. This petition takes an exception to the impugned order dated 2nd August, 2016 passed by Respondent No.2 - Sub-Divisional Magistrate, Jalna vide Proceeding No.2016/MAG/CR-01 as well as the order dated 18th November, 2016 passed by the respondent no.3 in Appeal No.2015/SR/Pol-1/Externment/CR-21.
3. The background facts for filing the present Petition, as disclosed, in the memo in brief as under :
It is the case of the petitioner that, the office of Respondent No.2 has issued show-cause notice dated 27th January, 2016 under Section 59 of the Maharashtra Police Act, 1951, in order to extern the petitioner from the limits of Jalna district for a period of two years under the pretext that, the petitioner has indulged into various criminal activities. It is the case of the petitioner that, the petitioner filed a detailed reply to the said show-cause notice on 11th February, ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:18 ::: (3) crwp1216.17 2016 and contended that, the crimes which are shown in the notice are investigated and the petitioner has been released on bail. It is the case of the petitioner that, the concerned officer has filed a report on 17th March, 2016 to Respondent No.2 and accordingly recommended that, the petitioner be externed from Jalna district. Thereafter, respondent no.2 issued a notice to the petitioner on 21st March, 2016 intimating that, the petitioner is to remain present on the date of hearing and also to submit a reply along with documents, if any, which he wants to rely and also the witnesses if any. Accordingly, the petitioner appeared and filed his reply on 18th April, 2016 to the said notice. It is the case of the petitioner that, the petitioner filed reply on 18th April, 2016. Thereafter no further date is given and directly the impugned order came to be passed on 2nd August, 2016, by which the petitioner is externed from the boundaries of Jalna district for a period of two years. Thereafter, the petitioner preferred an appeal before Respondent No.3 and Respondent No.3 has rejected ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:18 ::: (4) crwp1216.17 the said appeal on 18th November, 2016. Hence this Criminal Writ Petition.
4. The learned counsel appearing for the petitioner submits that, since the order passed by respondent No.2 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, respondent No.2 did not form 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. He further submits 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 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:18 ::: (5) crwp1216.17 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. He submits that, the externment proceedings are initiated out of political vendatta when there was elections of Zilla Parishad. Therefore, the learned Counsel appearing for the petitioner, relying upon grounds taken in the petition and annexures thereto, submits that the petition deserves to be allowed.
5. On the other hand, the learned APP appearing for the respondents relying upon the reasons assigned by the Respondent Nos. 2 and 3 in the impugned orders, submits that, the authorities, after adhering to the procedure prescribed under the provisions of Section 56(1)(a)(b) of the said act, have rightly externed the petitioner from the boundaries of Jalna district.
6. We have given careful consideration to the submissions of learned Counsel appearing for the ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:18 ::: (6) crwp1216.17 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.2 and 3 in the impugned orders and also relevant provisions. 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 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 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:18 ::: (7) crwp1216.17 their person or property, or x x x x x"
7. 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 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 ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:18 ::: (8) crwp1216.17 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."
8. 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 person by reason of apprehension on their part as regards the safety of their person or property. ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:18 :::
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9. Admittedly, in the notice which was issued by respondent No.2 i.e. Sub-Divisional Magistrate, Jalna, 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 makes mention that in- camera statements of the witnesses have been recorded and they are not willing to come forward to give evidence in ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:18 ::: ( 10 ) crwp1216.17 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 intent while enacting provisions of Section 156(1)(b) of the Act is crystal clear that the concerned officer who is ultimate ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:18 ::: ( 11 ) crwp1216.17 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.
10. Upon carefully considering the reasons assigned by respondent Nos.2 and 3, an externment of the petitioner from Jalna District, there are no specific reasons are assigned. It is not necessary for us to elaborate the reasons. Suffice it to say that the orders passed by respondent Nos.2 and 3 are not legally sustainable.
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11. In that view of the matter, petition succeeds, the Criminal Writ Petition is allowed in terms of prayer clause (C). Rule made absolute in above terms. The Petition is disposed of accordingly.
[MANGESH S. PATIL,J.] [S.S. SHINDE,J.] sga/-
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