Bombay High Court
Ganesh Nandu Barne vs The State Of Maharashtra on 12 August, 2016
Bench: Naresh H. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.733 OF 2016
Ganesh Nandu Barne .. Petitioner
V/s.
The State of Maharashtra .. Respondent
......
Ms.Jyostna Kamble, Advocate for the Petitioner.
Mr. K. V. Saste, APP for the Respondent - State.
......
ig CORAM : NARESH H. PATIL AND
PRAKASH D. NAIK, JJ.
RESERVED ON : AUGUST 3, 2016.
PRONOUNCED ON : AUGUST 12, 2016.
JUDGMENT (Per PRAKASH D. NAIK, J.) :
Rule. Rule is made returnable forthwith.
2 Learned APP waives service for Respondent - State.
3 Petition taken up for hearing forthwith.
4 The petitioner has challenged the order of
externment issued against him purportedly under Section 56(1)
(b) of the Maharashtra Police Act, 1951 (hereinafter referred to
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as "the said Act"). The said order was issued on 14 th January,
2015 and the petitioner has been directed to remove himself from
the area of Pune city Police Commissionerate as well as Pune
Rural for the period of two years.
5 Petitioner has invoked writ jurisdiction of this Court
under Article 226 of the Constitution of India for challenging the
aforesaid order of externment. Prior to issuance of impugned
order of exterment, show-cause notice dated 23 rd September,
2014 was issued to him in exercise of powers under Section 59 of
the said Act. said show-cause notice was issued by the Assistant
Commissioner of Police Chaturshrungi Division, Pune city.
6 In the show-cause notice, purportedly issued under
the aforesaid provisions it was proposed to extern petitioner from
the area of Pune city and Pune district for a period of two years.
In the said notice, reference was made to statements of two
persons which were recorded in-camera and referred to as
witnesses A and B. Said witnesses had alleged about the crime
committed by petitioner on 6th May, 2012 and 15th January, 2012.
Said witnesses did not lodge complaint on account of fear. Notice
further refers to four offences registered against the petitioner
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vide C.R.Nos. 239 of 2011, 124 of 2012, 1408 of 2013 and 62 of
2014. The said offences were registered at Hinjewadi police
station. It is further alleged that petitioner is indulging in
antisocial activities and created terror in the areas of his
operation. The acts committed by him amounts to offences
covered by Chapters 16 and 17 of Indian Penal Code.
7 Pursuant to the show-cause notice, impugned order of
externment was issued on 14th January, 2015. Said order was
issued under Section 56(1)(b) of the said Act as mentioned
therein. The first three cases referred to in order are pending
against him in the Court of law. It also refers to the statements of
persons recorded in-camera. It is further alleged that petitioner
has committed offences covered by Chapters 16 and 17 of the
IPC. Petitioner has created terror and there is danger to life and
property of the citizens in the local areas. The witnesses are not
willing to come forward to depose against him on account of fear
of their life and property. Hence, taking into consideration his
activities, apprehension of danger in the mind of citizens and with
a view to prevent him from committing such activities and in the
public interest, it is necessary to issue an order of externment.
Petitioner was directed to remove himself from the above
mentioned areas for the period of two years.
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8 Petitioner preferred an appeal against the aforesaid
order of externment before the Divisional Commissioner, Pune
Division. Appeal was heard and vide order dated 3rd August, 2015,
same was rejected.
9 We have perused the show-cause notice as well as
order of externment issued against petitioner. We have also gone
through the order passed by the appellate authority. Learned
counsel appearing
ig for petitioner submitted that order of
externment is contrary to law. It is further submitted that there
was no material before the authorities to initiate externment
proceedings against petitioner. It is submitted that there is total
non-application of mind while issuing the show-cause notice as
well as the order of externment against petitioner. Learned APP
supported the order of externment and submitted that there is
compliance of procedural safeguards and taking into
consideration the activities of the petitioner, the externing
authority has initiated action.
10 On perusal of show-cause notice, it can be seen that
there is reference of statements of witnesses recorded in-camera
as well as cases registered against petitioner. Although, show-
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cause notice mentioned that the same has been issued with a
view to initiate an action under Section 56(1)(b) of the said Act,
on perusal of the contents it appears that the allegations are
covered by Section 56(1)(a) as well as Section 56(1)(b) of the said
Act. Although there is a reference of in-camera statements
wherein it is stated that said witnesses had not come forward to
depose against petitioner. There is no reference to the fact that
witnesses are not willing to come forward to depose against
petitioner qua the other allegations reflected in the show-cause
notice. However, on perusal of order of externment, it can be
seen that order refers to various allegations and the satisfaction
is recorded by the externing authority that the witnesses are not
willing to come forward to depose against petitioner. It is further
stated in the order of extenment that petitioner have created
terror and there is danger to life and property of the citizens in
the local areas. It is further mentioned that on account of fear
the victims in the crimes committed by the petitioner are not
willing to come forward to depose openly against the petitioner
as witnesses on account of fear to their life and property. It is also
mentioned that to prevent him from allowing any such activities
and in the public interest, it is necessary to extern him. Order of
externment although purportedly issued under Section 56(1)(b) of
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the said Act contains the allegations which are covered by both
the Sections of 56 of the said Act. The satisfaction as stated above
regarding witnesses are not willing to come forward to depose
against the petitioner openly on account of danger to their person
and property and that it is necessary to initiate an action in the
interest of public is not reflected in show-cause. Thus, order of
externment has been passed on extraneous consideration. The
purpose of issuing a notice under Section 59 is to give an
opportunity to a person to deal with an allegation made against
him. Order cannot be based on extraneous material of which no
notice is given to proposed externee. Order of externment is
violative of fundamental rights of petitioner under Article 19 of
the Constitution of India and on account of the aforesaid
circumstances, order deserves to be quashed and set aside.
11 Hence, we pass the following order:
:: O R D E R ::
(i) Rule is made absolute;
(ii) Impugned order of externment dated 14 th
January, 2015 passed by the Deputy
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Commissioner of Police Zone 3, Pune city under
Section 56 (1)(b) of the Maharashtra Police Act,
1951 and order dated 3rd August, 2015 passed
by the Divisional Commissioner, Pune are
quashed and set aside;
(iii) Parties to act on an authenticated copy of this
order.
(PRAKASH D. NAIK, J.) (NARESH H. PATIL, J.)
