Bombay High Court
Sandip S/O Dnyanoba Gude vs The State Of Maharashtra And ... on 16 December, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1373 OF 2016
Sandip S/o. Dnyanoba Gude
Age 27 years, Occ. Agri.
R/o. Pangaon,
Tq. Renapur, Dist. Latur.
.. PETITIONER.
VERSUS
1] The State of Maharashtra,
Through Secretary,
Home Department,
Mantralaya, Mumbai.
2] The Divisional Commissioner,
Aurangabad Division, Aurangabad.
3] The Superintendent of Police
Latur, District Latur.
4] The Sub-Divisional Magistrate,
Ausa-Renapur, Dist. Latur.
5] Sub-Divisional Police Officer,
Chakur, Tq. Chakur, Dist. Latur.
6] The Police Inspector,
Police Station, Renapur,
Tq. Renapur, Dist. Latur.
... RESPONDENTS.
...
Mr. P.B. Jadhav with Mr. P.M. Shinde, for petitioners
Mr. A.A. Jagatkar, Advocate for respondent Nos. 1 to 6.
with
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CRIMINAL WRIT PETITION NO. 1374 OF 2016
Rahul S/o. Dnyanoba Done,
Age 27 years, Occ. Agri.
R/o. Pangaon,
Tq. Renapur, Dist. Latur.
.. PETITIONER.
VERSUS
1] The State of Maharashtra,
Through Secretary,
Home Department,
Mantralaya, Mumbai.
2]
The Divisional Commissioner,
Aurangabad Division, Aurangabad.
3] The Superintendent of Police
Latur, District Latur.
4] The Sub-Divisional Magistrate,
Ausa-Renapur, Dist. Latur.
5] Sub-Divisional Police Officer,
Chakur, Tq. Chakur, Dist. Latur.
6] The Police Inspector,
Police Station, Renapur,
Tq. Renapur, Dist. Latur.
... RESPONDENTS.
...
Mr. P.B. Jadhav with Mr. P.M. Shinde, for petitioners
Mr. A.A. Jagatkar, Advocate for respondent Nos. 1 to 6.
with
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CRIMINAL WRIT PETITION NO. 1375 OF 2016
Bhagwat S/o. Maruti Bansode,
Age 55 years, Occ. Agri.
R/o. Pangaon,
Tq. Renapur, Dist. Latur.
.. PETITIONER.
VERSUS
1] The State of Maharashtra,
Through Secretary,
Home Department,
Mantralaya, Mumbai.
2]
The Divisional Commissioner,
Aurangabad Division, Aurangabad.
3] The Superintendent of Police
Latur, District Latur.
4] The Sub-Divisional Magistrate,
Ausa-Renapur, Dist. Latur.
5] Sub-Divisional Police Officer,
Chakur, Tq. Chakur, Dist. Latur.
6] The Police Inspector,
Police Station, Renapur,
Tq. Renapur, Dist. Latur.
... RESPONDENTS.
...
Mr. P.B. Jadhav with Mr. P.M. Shinde, for petitioners
Mr. A.A. Jagatkar, Advocate for respondent Nos. 1 to 6.
CORAM : S.S. SHINDE &
K.K. SONAWANE, JJ.
DATE : 16TH DECEMBER, 2016.
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ORAL JUDGMENT : {PER S.S. SHINDE, J }:-
1] Rule. Rule made returnable forthwith. Heard finally by consent
of parties.
2] Since the question of law involved in all these petitions is same,
all the petitions are being heard and disposed of by the common judgment
and order.
3] In Criminal Writ Petition No. 1373 of 2016, the petitioner has
challenged the propriety, correctness and legality of the order dated
12.08.2016 passed by the Sub Divisional Magistrate, Ausa-Renapur and the
order dated 23.9.2016 passed by the Sub Divisional Officer, thereby partly
confirming the order passed by the Sub Divisional Officer in externment
proceedings. In other two petitions also, the dates of impugned orders are
identical.
4] It appears that the respondent No.5 submitted report to the
respondent No.4 for initiating externment proceedings against the
petitioners. The respondent No.4, after receiving the said proposals issued
show cause notices to the petitioners, why the petitioners should not be
externed from Latur, Beed and Osmanabad Districts. It appears from perusal
of the record that the petitioners did not file reply to the said show cause
notices. The respondent No.4, by order dated 12 th August, 2016, externed
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the petitioners from the jurisdiction of Latur, Beed and Osmanabad Districts.
The petitioners aggrieved by the said order of externment, filed appeals
before the Divisional Commissioner, Aurangabad. The Divisional
Commissioner, by order dated 23.9.2016 partly allowed the appeal and
confined the operation of the order of externment within the jurisdiction of
Latur District. Being aggrieved by the order passed by the respondent No.4
and respondent No.2, these writ petitions are filed by the petitioners under
Articles 226 and 227 of the Constitution of India.
5]
Learned counsel for the petitioners invites our attention to the
provisions of Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 and
submits that respondent No.4 did not adhere to the mandate of the
provisions of Section 56(1)(a), inasmuch as, there is no mention in the show
cause notice issued to the petitioners that the witnesses are not coming
forward to depose against the petitioners due to fear to their person or
property from the petitioners. It is submitted that in absence of said
requirements, if proceedings are initiated culminating in passing the order of
externment for the reason that there is no fulfillment of the mandate of the
provisions of Section 56(1)(b), the subject satisfaction arrived at by
respondent No.4 stood vitiated and, therefore, the orders of externment are
not legally sustainable.
6] In support of his contention that if the externing authority, who
has passed the order of externment has not adhered to the provisions of
Section 56(1)(b) of the said Act, and in-camera statements of witnesses are
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not recorded and to that effect, if reference is not made in the show cause
notices, the subjective satisfaction arrived at by the authorities stands
vitiated and consequently, the orders of externment cannot be sustained,
learned counsel pressed into service the exposition in the case of Yashwant
Damodar Patil Vs. Hemant Karkare, reported in 1989(3) Bom.C.R. 240.
7] He further submits that respondent No.4 has not assigned any
reason in the impugned order of externment, why externment of the
petitioners is warranted from the Beed and Osmanabad Distrits when the
alleged activities of the petitioners are confined to Renapur Police Station.
In support of said contention, learned counsel for petitioners pressed into
service the exposition of law in the case of Balu Shivling Dombe vs. The
Divisional Magistrate Pandharpur, reported in 1969 Mh.L.J. 387.
8] He further submits that though the appellate authority modified
the order passed by the respondent No.4, nevertheless, did not take into
consideration, the aforementioned legal aspects and by cryptic reasons,
passed the impugned orders, thereby confined the effect and operation of
the externment orders within the jurisdiction of Latur District.
9] On the other hand, learned APP, relying upon the original record
submits that, as a matter of fact, in-camera statement of one of the
witnesses was recorded on 14th August, 2016. However, he fairly concedes
that there is no mention in the show cause notice issued to the petitioners
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that the witnesses are not coming forward to depose against the petitioners,
out of fear to their person or property. He further submits that activities of
the petitioners are causing danger to the public order. They are involved in
serious offences, even assaulting police officers and, therefore, the order of
externment of petitioners is justified in the peculiar facts of this case.
Therefore, he submits that the petitions may be rejected.
10] We have carefully considered the submission of the learned
counsel for the petitioners and learned APP appearing for the State; and with
their able assistance carefully perused the grounds taken in the petition,
annexures thereto, reasons assigned by the respondent Nos.2 and 4 in the
impugned judgment and order and also the original record made available
for perusal of this Court.
Upon careful perusal of the contents of the show cause notices,
it is abundantly clear that there is no mention that witness are not coming
forward to depose against the petitioners by reason of apprehension on their
part as regards the safety of their person or property. The Division Bench of
the Bombay High Court, at the Principal Seat in the case of Yashwant
Damodar Patil Vs. Hemant Karkare (supra) while explaining the scope of
interpreting the provisions of Section 56(1)(a), in para.3, held thus :-
"3. Section 56 (i) 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
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analyse the two situations which are covered by Clauses (a) and
(b) of section 56 (i) 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 (i) 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 the Indian Penal Code. This is
so provided in the latter part of clause (b) of section 56 (i) 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."
11] Even upon careful perusal of the orders passed by the
respondent No.4, only it is mentioned that witnesses are not coming
forward, however, there is no reference that, as a matter fact, respondent
No.4 recorded statement of one of the witnesses and gist of the statements
of said witness is taken. Therefore, it is abundantly clear from reading
para.3 of the judgment in the case of Yashwant Damodar Patil vs.Hemant
Karkare (supra) , that the mandate of Section 56(1)(a)(b) to record the in-
camera statements of the witnesses so as to ascertain that the witnesses are
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not coming forward to depose against the proposed externees, out of fear to
property or person, is necessary to be mentioned in the show cause notices
and also in the orders of externment. However, the said mandate of the
aforementioned provisions has not been made in the facts of the present
cases.
12] We find considerable force in the submissions of the counsel
appearing for the petitioners that respondent No.4 has not assigned any
and Beed Districts.
reasons, why externment of the petitioners was warranted from Osmanabad
Upon careful perusal of the reasons assigned by
respondent Nos.2 and 4, in the impugned orders, we find that there is no
discussion, why the externment of the petitioners was warranted from Beed
and Osmanabad Districts when the alleged activities of the petitioners are
confined within the jurisdiction of Renapur Police Station of Latur District.
13] In the light of the discussion in foregoing paragraphs, inevitable
conclusion is that, subjective satisfaction arrived at by the respondent No.4
while passing the order of externment stood vitiated. Consequently, the
impugned orders externing the petitioners from Latur District and also other
two Districts, namely, Beed and Osmanabad, are not legally sustainable.
Respondent No.2 did not consider the legal aspects of the matter and with
cryptic reasons modified the orders passed by the respondent No.4 and
confined the enforcement of Externment Orders only in Latur District.
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14] For the aforesaid reasons, we are inclined to allow these writ
petitions. Accordingly, writ petitions are allowed. The impugned orders
dated 12th August, 2016 and 23rd September, 2016 are quashed and set aside.
Petitions are disposed of in above terms.
[K.K.SONAWANE] [S.S. SHINDE]
JUDGE JUDGE
grt/-
