Bombay High Court
Kakasaheb S/O Annanda Shinde vs The State Of Maharashtra & Ors on 28 April, 2016
Bench: R.M. Borde
cwp96.16.doc
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 96 OF 2016
Kakasaheb s/o Ananda Shinde
aged 50 years, occ. Pensioner
r/o Vanjar Umrad, Tq. & Dist. Jalna
at present Aurangabad
Tq. & Dist. Aurangabad. .. PETITIONER
VERSUS
1. The State of Maharashtra
Through the Secretary
Home Department,
Mantralaya, Maharashtra 32.
2. The Superintendent of Police
Jalna District, Jalna.
3. The Police Inspector,
Taluka Police Station,
Jalna Taluka and District Jalna. .. RESPONDENTS
Mr. R.R. Imale, advocate for petitioner.
Mr. K.S. Patil, APP for the State.
=====
CORAM : R.M. BORDE &
P. R. BORA, JJ.
DATE : 28th APRIL, 2016.
ORAL JUDGMENT : ( [PER R. M. BORDE, J. )
1. Rule. Rule made returnable forthwith. Heard finally with the
consent of learned counsel for the respective parties.
2. Petitioner is objecting to the order passed by the Sub-Divisional
Officer, Jalna on 11.09.2015, directing his removal out of the boundaries of
Jalna district for a period of two years. The order issued by the externing
authority has been confirmed by the Divisional Commissioner, Aurangabad,
cwp96.16.doc
the appellate authority, while considering the appeal presented by
petitioner.
3. Petitioner is alleged to have been involved in commission of six
offences, details of which are recorded in the show cause notice issued on
12.09.2013. The first entry relates to Crime No. 162/1988 for commission
of offence under section 429 r/w section 34 of the Indian Penal Code.
According to petitioner, the police authorities have presented B summary
which has been accepted by the Magistrate. Second entry relates to Crime
No. 205/1994 in respect of offence punishable under sections 353, 143, 147,
447, 336, 504 of the Indian Penal Code r/w section 135 of the Bombay
Police Act. Petitioner is stated to have been acquitted of the charges levelled
against him. Third entry is in respect of Crime No. 176/2008 for offence
punishable under section 354 of the Indian Penal Code. Petitioner is stated
to have been acquitted of the charges levelled against him. The only
criminal case that is pending against petitioner is for offence punishable
under section 143, 447, 427, 504, 506 of the Indian Penal Code. There are
two non-cognizable offences registered in the year 2009 and, the petitioner
has been directed to execute bond at the relevant time for keeping peace. It
has not been reported that petitioner at any point of time, violated the
conditions of bond and indulged in criminal activities during the relevant
period. Offences alleged against petitioner relate to the years 1988, 1994,
2008 and, non-cognizable cases of the year 2009 do not have any proximate
connection to the action taken i.e. externment of petitioner in the year 2015.
Apart from this, delay of about two years in taking action against petitioner
cwp96.16.doc
after issuance of notice in the year 2013, is also quite unreasonable and the
notice itself cannot be said to be proximate in time which can form a basis
of action in the year 2015. In order to take action under section 56 of the
Act, it is to be demonstrated that the movements or acts of any person are
causing or calculated to cause alarm, danger or harm to person or property
or 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 violation or an offence punishable under Chapters XII, XVI or XVII
of the Indian Penal Code, 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 their person or property. As stated above,
there can be no proximate connection with reference to the offence in
respect of which involvement of petitioner was alleged and the action that
has been taken in the year 2015. The offences which form basis for the
action pertain to the year 1988, 1994, 2008 and 2009 which cannot form
basis for the action in the year 2015 i.e. after period of six years from the
last offence or criminal activity in which petitioner is alleged to have involved
himself. So far as the criminal case pending against the petitioner is
concerned, it cannot be concluded that the witnesses are not willing to come
forward and depose against petitioner. In respect of offences at serial nos. 2
and 3, the petitioner has been acquitted whereas in in Crime No. 162/1988,
the investigating machinery has presented B summary. It has not been
demonstrated that acquittal of petitioner in the aforesaid offence was as a
result of reluctance of witnesses to come forward to depose against him.
cwp96.16.doc
Petitioner contends that there is some civil litigation initiated by certain
villagers concerning the property of which petitioner claims to be the owner.
According to petitioner, the villagers who claim to have interest in the
property are instrumental in initiating action against him. On perusal of
record, we are of the opinion that apprehension expressed by petitioner may
bear some truth.
4. For the reasons recorded above, we are of the opinion that order
passed by the Sub-Divisional Officer curtailing liberty of petitioner without
there being any proper foundation is liable to be quashed and the same is
accordingly quashed. In view of quashment of order passed by the Sub-
Divisional Officer, appellate order also shall be deemed to have been
quashed. Rule made absolutely accordingly.
( P. R. BORA ) ( R. M. BORDE )
JUDGE JUDGE
dyb
