Bombay High Court
Ashok @ Aau vs The State Of Maharashtra on 5 October, 2012
Bench: Shrihari P. Davare
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.425/2012
Ashok @ Aau s/o Pitambar Choudhary
age 38 yrs, Occ. Business,
R/o Jamner Road, Badri Plot,
Bhusawal, Tq. Bhusawal,
Dist. Jalgaon. PETITIONER
VERSUS
1.
The State of Maharashtra
through its Principal Secretary,
Home Department, Mantralaya,
Mumbai (Copy to be served on
Public Prosecutor, High Court of
Judicature of Bombay, Bench at Aurangabad.)
2. The Principal Secretary, (Special Duty),
Mantralaya, Mumbai.
3. The Sub-Divisional Magistrate,
Bhusawal, Tq. Bhusawal,
Dist. Jalgaon.
4. The Sub Divisional Police Officer,
Bhusawal, Tq. Bhusawal,
Dist. Ahmednagar. RESPONDENTS
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Mr. R.N. Dhorde Senior Counsel h/f Mr. V.R.Dhorde advocate for
Petitioner.
Mr. B.J.Sonwane APP for Respondent-State.
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2
CORAM : SHRIHARI P. DAVARE, J.
....
DATE OF RESERVING ORDER : 26.09.2012
DATE OF PRONOUNCING ORDER : 05.10.2012
...
JUDGMENT :
1. Heard learned respective counsel for the parties. Rule.
Rule made returnable forthwith. With the consent of the parties, Petition
is taken up for final hearing.
2. By the present petition, filed by the petitioner, under
Article 14, 21, 226 and 227 of the Constitution of India, prayed that the
impugned order dated 05.12.2011 passed by the respondent No.3 Sub
Divisional Officer, Bhusawal and order dated 19.04.2012 passed by the
respondent No.2, Officer on Special Duty in Appeal No.235/2011 be
quashed and set aside.
3. The petitioner is the aggrieved person against whom action
under section 57 of the Bombay Police Act, 1950 has been taken by the
respondents, whereas respondent no.1 is the State of Maharashtra
represented through its Principal Secretary, Home Department,
Mantralaya, Mumbai and respondent no.2 is the Appellate authority
which has passed the impugned order dated 19.4.2012 confirming the
order passed by the lower authority and the respondent No.3 is the Sub
Divisional Officer, who has passed the impugned order dated 5.12.2011
externing the present petitioner out of Jalgaon District for a Period of two
years, whereas respondent no.4 is concerned Sub Divisional Police
Officer who has submitted the proposal for externment. Present
petitioner is challenging the legality and validity of the impugned orders
dated 5.12.2011 passed by the respondent no.3 and order dated
19.04.2012 passed by the respondent no.2.
4. FACTUAL MATRIX :-
It is the contention of the petitioner that he is the active
member of of Rashtravadi Congress Party (N.C.P.) in Bhusawal
Municipal Council. At the instance of political rivals certain offences
were registered against him which were out come of political
indifference. Accordingly, externment proceedings were initiated by the
Police Authorities against him. However, competent authority has
dropped the said externment proceedings on 7.8.2007 observing that
there were no sufficient grounds to extern the petitioner under section 56
(B) of Bombay Police Act. However, according to the petitioner after
lapse of about four years and that too on the verge of the elections of
Municipal Council, a show cause notice was issued to the petitioner by
the respondent no.4 on 9.9.2011 asking him to show cause why he should
not be externed with a view to prevent him from contesting the Elections
at the behest of the political opponents. The petitioner replied to the said
notice by reply dated 13.9.2011 and, pointed out that there was no
material to initiate the externment proceedings against him since,
offences as alleged were for the period of 2006. Thereafter, respondent
no.3 issued a show cause notice to the petitioner on 4.10.2011 to extern
the present petitioner from Jalgaon District since he was to contest the
elections. Pursuant to the said notice, respondent no.3 passed externment
order on 5.12.2011 which is annexed herewith at Exh.E under section 57
(1) of Bombay Police Act and, thereby externed the petitioner from the
Limits of Jalgaon District for the period of two years on the ground that
he was convicted and sentenced in Crime No.89/2000 of Bhusaval City
Police Station and petitioner has impugned said order in the present
petition.
5. Thereafter, petitioner preferred an appeal under section 60
of thee Bombay Police Act before the Appellate Authority i.e. respondent
no.2 challenging the order passed by respondent no.3 on 5.12.2011.
However, said appellate authority i.e. respondent no.2 rejected the said
appeal by passing order dated 19.4.2012 and, confirmed the order dated
5.12.2011 passed by the respondent no.3 and, said order was
communicated to the petitioner herein by communication dated
23.4.2012 and, petitioner has also impugned said order in the present
petition.
6. Being aggrieved and dissatisfied by the aforesaid orders
dated 5.12.2011 passed by respondent no.3 and order dated 19.4.2012
passed by respondent no.2 the petitioner has approached this court by
filing present petition and prayed for quashment thereof.
7. SUBMISSIONS :-
Learned Senior Counsel for the petitioner canvassed that
earlier in the year 2007 proposal was initiated to extern the petitioner but
same was dropped by respondent no.3 by order dated 7.8.2007 and
offences/crimes alleged therein as well as offences / crimes in the show
cause notice dated 4.10.2011 pertaining to impugned order dated
5.12.2011 are almost identical and said crimes can be enumerated as
under :-
1. Crime No.166/2006 Bhusawal Bajarpeth Police Station.
2. Crime No.179/2006 Bhusawal Bajarpeth Police Station.
3. Crime No.182/2006 Bhusawal Bajarpeth Police Station.
4. Crime No.192/2006 Bhusawal Bajarpeth Police Station.
5. Crime No.89/2000 Bhusawal City Police Station.
But still action of externment was taken by the impugned order
dated 05.12.2011 based upon the said offences/crimes though, in most of
the cases he was acquitted and only considering the conviction and
sentence against the petitioner in Crime No.89/2000 of Bhusawal City
Police Station which is arbitrary. In so far as said conviction and
sentence under Crime No.89/2000 is concerned, the learned Senior
Counsel submitted that the petitioner filed Criminal Appeal No.449/2011
before this court challenging the same and said appeal was admitted and
he was enlarged on bail suspending the substantive sentence imposed
upon him during the pendency of said appeal. Moreover, he further
asserted that even conviction imposed upon the petitioner was suspended
by order passed by this Court in Criminal Application No.5011/2011 on
21.11.2011 and therefore since the conviction and sentence against the
petitioner was suspended under Crime No.89/2000 as mentioned herein
above, the respondent no.3 erred in taking cognizance thereof while
passing the order dated 5.12.2011. Besides, learned Senior Counsel
submitted that there was only solitary conviction and sentence against the
petitioner i.e. under crime no.89/2000 of Bhusawal City Police Station
and said conviction and sentence were suspended as mentioned herein
above and therefore, ingredients of section 56 and 57 of Bombay Police
Act were not attracted and activities of petitioner cannot be construed as
prejudicial to public peace and order and certainly cannot be construed as
antisocial or dangerous and hence, action of externment taken against the
petitioner is malafide.
8. In the said context, he also canvassed that action of
externment taken against the petitioner by respondent no.3 on the basis
of solitary conviction under Crime No.89/2000 of Bhusawal City Police
Station is not real import of section 57 of the Bombay Police Act and
hence, submitted that impugned order dated 5.12.2011 passed by
respondent no.3 is without application of mind and same is erroneous
and unsustainable.
9. As regards the impugned order dated 19.4.2012, passed by
respondent no.2 i.e. appellate authority, learned Senior Counsel
submitted that said appellate authority has reiterated the order passed by
respondent no.3 and passed said order Arbitrarily and there is no
application of any mind while passing the said order and, thereby
dismissed the appeal filed by the petitioner mechanically. Hence, learned
senior counsel submitted that both the impugned orders deserve to be
quashed and set aside and he placed reliance on the judicial
pronouncement in the case of Prakash Sitaram Shelar Vs. State of
Maharashtra reported at [1950-91] 2 B. Cr. C 37.
10. The respondent nos. 3 and 4 filed their respective affidavits
in replies and denied the avernments and contentions made by the
petitioner categorically unless admitted specifically. It is submitted that
section 57 (a) (i) clearly spells out that "if a person has been convicted
for an offence under chapter XII, XVI and XVII of Indian Penal Code,
Sub Divisional Magistrate, if he has reason to believe that such person is
likely again to engage himself in the commission of an offence similar to
that for which he was convicted, may direct such person to remove
himself outside such area" and since there was no conviction against the
petitioner, earlier proceedings was dropped against the petitioner in the
year 2007 however, since sentence was inflicted upon the petitioner in
crime no.89/2000 of Bhusaval City Police Station, and since documents
on record submitted by Sub Divisional Officer Bhusawal and after
satisfaction by respondent no.3 that petitioner is likely to engage himself
again in the commission of an offence similar to that for which he was
convicted, has passed externment order under section 57 (a) (i) that too
after issuing show cause notice to him and therefore, said externment
order has been passed by respondent no.3 rightly after giving due
opportunity to the petitioner. Moreover, it is further submitted that even
the appellate authority i.e. respondent no.2 also heard the petitioner and
the arguments canvassed by him during the hearing is well dealt by the
said appellate authority and thereafter dismissed the appeal preferred by
the petitioner by order dated 19.4.2012. Hence, said order also has been
passed by respondent no.2 with due application of mind. In so far as the
suspension of sentence in crime no.89/2000 of Bhusaval City Police
Station in Criminal Appeal No.449/2011 by this court is concerned, it is
submitted that said sentence was suspended while granting bail to the
applicant during pendency of appeal. As regards suspension of
conviction is concerned, it is submitted that said conviction was
suspended by this court by order dated 21.11.2011 to enable the
petitioner to fill up the nomination forms to avail the opportunity to
contest the elections of Municipal Council and not beyond that.
11. It is further submitted by the respondents that the petitioner
is engaged in commission of the offences involving force and violence
under Chapter XII, XVI, and XVII of Indian Penal Code and petitioner's
behavior is dangerous and causing harm to the persons and property of
the concerned vicinity. Hence, considering all these aspects, it is
submitted that respondent no.3 has rightly passed the order which is
legal, reasoned and proper and same was rightly confirmed by the
respondent no.2 in the appeal and hence, no interference is warranted in
the present petition and, hence, respondent nos. 2 and 3 urged that
present petition be dismissed.
12. CONSIDERATON :-
I have perused the present petition, its annexures,
impugned orders dated 5.12.2011 passed by respondent no.3 and dated
19.4.2012 passed by respondent no.2 and also the order passed in
Criminal Application No.5011/2011 in Criminal Appeal No.449/2011 in
respect of suspension of conviction against the applicant and heard
submissions advanced by learned Senior Counsel for the petitioner and
learned APP for the respondents anxiously and also perused the judicial
pronouncement cited by the learned Senior Counsel for the petitioner
carefully.
13. At the outset, it would be useful to reproduce Section 57
(1) of the Bombay Police Act 1951 for the reference as follows :-
57. Removal of persons convicted of certain offences :-
[(1)] If a person has been convicted -
(a) (i) of an offence under Chapter XII, XVI, XVII of the Indian
Penal Code, 1949 ; or
(ii) of any offence under section 65, 66A or 68 of the Bombay
Prohibition Act, 1949 ; or
(iii) of an offence under section 3,4,5,6, or 9 of the Suppression
of Immoral Traffic in Women and Girls, Act 1956 ; or
(iv) of an offence under section 135 of the Customs Act, 1962 ;
or
(v) of an offence under section 4, or for accepting bet in any
public street or thoroughfare or in any place to which the public have or
are permitted to have access, or in any race course under clause (a) or
section 12 or under section 12A of the Bombay Prevention of Gambling
Act, 1887 ; or
(b) twice or more of an offence under the Bombay Prohibition
Act, 1949 not being an offence under section 65, 66A and 68 or ;
[b-a] twice or more of an offence under section 3 or 4 of the
Railway Property (Unlawful Possession) Act, 1966; or]
(c) thrice or more of an offence under section 122 or 124 of
this Act, the Commissioner, the District Magistrate, or the Sub-
Divisional, Magistrate empowered by the State Government in this
behalf, if he has reason to believe that such person is likely again to
engage himself in the commission of an offence similar to that for which
he was convicted, may direct such person [notwithstanding anything
contained in this Act or any other law for the time being in force, to
remove himself outside such area or areas in the State of Maharashtra
(whether within the local limits of the jurisdiction of the officer or not
and whether contiguous or not), by such route, and within such time, as
the officer may specify and not to enter or return to the area or areas so
specified from which he was directed to remove himself.]
14. Hence, it is apparently clear from the very text of Section
57 (1) of Bombay Police Act that if a person has been convicted for an
offence under Chapter XII, XVI and XVII of Indian Penal Code and the
Sub Divisional Magistrate, if he has reason to believe that such person
is likely again to engage himself in the commission of an offence similar
to that for which he was convicted, may direct such person to remove
himself outside such area. Applying said parameters in the instant case,
it is a matter of record that, conviction and sentence was inflicted upon
the petitioner in Crime No 89/2000 of Bhusawal City police Station for
the offence p/u/s 307 of Indian Penal Code i.e. offence against human
body, which comes under the Chapter XVI of Indian Penal Code and
hence, considering the conduct of the petitioner and also considering the
apprehension that there was likelihood of the petitioner to engage in the
offences of similar type to which he was convicted, the respondent no.3
issued show cause notice to the petitioner on 4.10.2011 asking him to
show cause why he should not be externed from the limits of Jalgaon
District and, accordingly, due opportunity was given to the petitioner and
petitioner filed his clarification and, also audience was given to him
through his Advocate and thereafter, having comprehensive view of the
matter, the respondent no.3 passed an order on 5.12.2011 and thereby
externed the petitioner from the limits of Jalgaon District for the period
of two years and said order appears to have been passed by the
respondent no.3, after following principles of natural justice and after
giving due opportunity to the petitioner and, also after conducting due
inquiry before passing said order.
15. Thereafter, being aggrieved and dissatisfied by the said
order passed by respondent no.3, the petitioner preferred an appeal
before respondent no.2 i.e. Appellate Authority. It appears from the
contents of the order passed by the Appellate authority on 19.04.2012 i.e.
respondent no.3 that even the appellate authority gave opportunity to the
petitioner to put forth his case before it and, considering the contentions
of the petitioner and also the contentions of the other side, the Appellate
authority has passed the order on 19.4.2012 and, thereby dismissed the
appeal filed by the petitioner. Hence, it is apparently clear that the
appellate authority also gave due opportunity to the petitioner and
thereafter, passed the impugned order dated 19.04.2012, dismissing the
appeal of the petitioner and therefore, no interference is warranted in the
present petition.
16. In so far as the argument canvassed by learned Senior
counsel for the petitioner that the petitioner filed criminal appeal No.
449/2011 challenging the conviction under Crime No.89/2000 and same
has been admitted and he is enlarged on bail suspending the substantive
sentence imposed upon him during the pendency of said appeal. There is
no dispute about the same and, when the appeal is filed against the
conviction, the petitioner has got right to prefer an application for bail
and as such the appeals against conviction are generally admitted by the
Appellate court and while granting bail the substantive sentence imposed
upon the petitioner was suspended during the pendency of said appeal.
As regards the suspension of conviction imposed upon the petitioner, in
Criminal Application No.5011/2011 by order dated 21.11.2011, I perused
the said order dated 21.11.2011 which has been passed by this court only
and it is apparent from the tenor of the said order that the conviction
imposed upon the petitioner under Crime No.89/2000 was suspended
during the pendency of above referred appeal with a view to facilitate the
petitioner to contest the ensuing elections of Municipal Council,
Bhusawal and it is not expected from the petitioner to take advantage
thereof in the present matter of externment.
17.
As regards further argument canvassed by learned Senior
Counsel for the petitioner that action of externment has been taken
against the petitioner by respondent no.3 on the basis of solitary
conviction under crime no.89/2000 of Bhusawal City Police Station is
not real import of Section 57 of the Bombay Police Act. Apparently, I
am not impressed by the said argument since, the order passed by the
respondent no.3 is within the four corners of Section 57 of the Bombay
Police Act and fact remains that conviction has been imposed upon the
petitioner under section 307 of Indian Penal Code which comes under
chapter XVI of the said code which is offence against human body and
considering the petitioners conduct, behavior and dangerous activities
causing harm to the persons and property in the concerned vicinity
(prejudicial to public peace and antisocial), the respondent no.3 rightly
initiated action against the petitioner under section 56 of the Bombay
Police Act and thereby gave show cause notice to him and thereafter,
took action of externment of petitioner under section 57 of the Bombay
Police Act which comes within the ambit and purview of the said
provisions under section 57 of the Bombay Police Act and, therefore,
there is no substance in the arguments canvassed by the learned Senior
Counsel for the petitioner that action was initiated by respondent no.3
only on a solitary conviction against the petitioner. In so far as judicial
pronouncement cited by the learned Senior Counsel for the petitioner is
concerned, on careful consideration, it is seen that the facts and
circumstances in the said case and facts and circumstances in the present
case defer from each other and said, decision cannot be of any aid and
assistance to the petitioner.
18.
In the circumstances, having comprehensive view of the
matter, I am of the opinion that the impugned order dated 5.12.2011
passed by respondent no.3 and order dated 19.4.2012 passed by
respondent no.2 do not appear to be erroneous and unsustainable and
hence, no interference therein is warranted in the present petition and
therefore, present petition deserves to be rejected.
19. In the result, present petition which is sans merits stands
dismissed. Rule is discharged accordingly.
( SHRIHARI P. DAVARE )
JUDGE
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