Bombay High Court
Akash S/O Gopal Sharma vs The State Of Maharashtra And ... on 21 July, 2016
Bench: A.V. Nirgude
criwp1514.15
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1514/2015
Akash s/o Gopal Sharma
Aged 22 years, Occ.Student
R/o Teachers Colony,
Mondha Road, Jalna ... PETITIONER
[original appellant-Non-
ig applicant]
VERSUS
1] The State of Maharashtra
Through the Police Station,
Officer, Chandanzira Police Station
Jalna.
2] The Divisional Commissioner
Aurangabad Division, Aurangabad
3] The Sub Divisional Magistrate,
Jalna Sub Division, Jalna
4] The Assistant Police Inspector
Chandanzira Police Station,
Jalna. .. RESPONDENTS
[Respondent No.1 is
the original Applicant
Respondent No.2 is the
Appellate Authority,
Respondent No.3 is the
Sub Divisional
Magistrate at Jalna who
has passed the
externment Order in
case of Petitioner,
Respondent No.4 is the
Assistant Police
::: Uploaded on - 30/07/2016 ::: Downloaded on - 30/07/2016 23:35:01 :::
criwp1514.15
-2-
Inspector, Chandanzira
Police Station,Jalna.]
...
Mr. S.S.Choudhary,Advocate for appellant.
Mrs. P.V.Diggikar, APP for Respondent-State
...
CORAM : A.V.NIRGUDE &
V.L.ACHLIYA,JJ.
DATED : 21ST JULY,2016
ORAL JUDGMENT [PER V.L.ACHLIYA,J.] :-
Rule. Rule returnable forthwith. By consent heard finally at
the stage of admission.
2] The petitioner in this case has challenged the order of
externment dated 26/8/2015 passed by Sub Divisional Magistrate,
Jalna as well as the order in Appeal dated 5/11/2015 passed by
Divisional Commissioner, Aurangabad Division, Aurangabad
confirming the order passed by the Sub Divisional Magistrate, Jalna.
3] The Assistant Commissioner of Police, Jalna issued a show
cause notice dated 10/6/2015 to petitioner whereby the petitioner
was called upon to explain as to why he shall not be externed for a
period of two years from the local limits of District Jalna. In the
notice issued, it is alleged that as many as 6 cases are registered
against the petitioner with police station Sadar Barzar, Jalna and 3
cases registered with Taluka police station, Jalna. It is further
alleged that the petitioner habitually indulges into criminal activities
and because of his terror, the witnesses are not coming forward to
depose against him. Petitioner has responded to the said show
criwp1514.15
cause notice and submitted his written reply on 29/5/2015. Vide order
dated 26/8/2015, the Sub Divisional Magistrate, Jalna passed the
impugned order whereby the petitioner has been externed for a
period of 2 years from the local limits of District Jalna as well as
Aurangabad District. Being aggrieved, the petitioner preferred an
appeal before the Divisional Commissioner, Aurangabad Division,
Aurangabad. Since there was inordinate delay in deciding the
appeal, the petitioner approached this Court and filed Criminal Writ
Petition No.1380/2015. Vide order dated 29/10/2015 the said Writ
Petition was disposed of by directing to the Divisional
Commissioner, Auragnabad to pass order within two weeks from the
date of receipt of order. Ultimately, the Divisional Commissioner
decided the appeal vide order dated 5/10/2015 and dismissed the
appeal preferred by the petitioner. Being aggrieved by the orders
passed by the S.D.M. Jalna and the Divisional Commissioner,
Aurangabad, the petitioner has preferred this Writ Petition on various
grounds as set out in the petition. However, the learned counsel for
petitioner has restricted his argument to challenge the order on the
ground of excessiveness.
4] We have heard Mr.S.S.Choudhary, learned counsel for the
petitioner and Mrs.P.V.Diggikar, learned APP for the State. We have
perused the impugned show cause notice, the order passed by
S.D.M., as well as the order passed by the Divisional Commissioner,
Aurangabad.
5] In our view, the impugned orders are not sustainable in law for
the sole reason that the orders passed are without proper application
of mind and same suffer from vice of excessiveness. Perusal of the
show cause notice dated 10/6/2015, issued by the Assistant
Commissioner of Police, Jalna, appears to be vague notice. In the
criwp1514.15
notice issued, except the bare words that because of the activities of
the petitioner, the witnesses are not coming forward no such
instances have been mentioned in the notice. No material to form
such opinion was made available to petitioner. No specific instances
were given in the notice to form the basis to initiate such action under
Section 56(1)(a)(b) of Bombay Police Act 1951. It is pertinent to note
that while issuing the notice, the proceeding registered under Section
107 of IPC against the petitioner also referred as one of the crime
registered against the petitioner. The notice refers to commission of
offences by petitioner within the local limits of police station, Sadar
Bazar, Jalna. In the notice issued, it is nowhere mentioned that the
petitioner found to be indulged into criminal activities within entire
District of Jalna or beyond the District of Jalna. It is quite settled
position in law that while taking action as contemplated under
Section 56 of the Bombay Police, Act, the authority concerned must
apply its mind and the action to be taken must be based upon
material to justify such action. The notice to be issued must be
specific and supported by material to support such action. The last
offence registered against the petitioner was in the year 2013. The
notice was issued on 10/6/2015. Thus within a period of more than 1
year, no crime was registered against the petitioner. In the reply filed
to the show cause notice, the petitioner has specifically stated that in
most of the cases in which he is shown to be an accused have
resulted into an acquittal. He has also stated that he is student and
completed education upto 12th standard. He has further stated that
since his childhood, he is working with Art and Craft Anandnagari. He
has supported his say by filing documents to that effect. He has
further stated that after the murder of his father, registration of
offences against him have been stopped. He has also named the
persons who were instrumental in getting the offences registered.
He has produced the certificate issued by President of Art and Crafts
criwp1514.15
institution certifying his behaviour to be Good. However, the S.D.M.
passed the impugned order without taking in consideration the reply
filed by petitioner. It is rather surprising to note that though the notice
confined to extern the petitioner from the local limits of District Jalna,
the learned S.D.M. has passed order to extern the petitioner from
the local limits of District Jalna as well as District Aurangabad. While
passing such order to extern the petitioner from the local limits of
District Aurangabad, no reasons have been assigned. This reflects
non application of mind on the part of the S.D.M. in passing the
order. It was expected on the part of the S.D.M to have pass order
within the scope of show cause notice. In absence of notice to
extern the petitioner from District Aurangabad, the learned S.D.M.,
should not have passed such order.
6] Perusal of the order passed by the S.D.M., reflects that he has
referred to some statements made by the witnesses in-camera who
alleged to have stated that they are unable to come forward to
depose against the petitioner due to his terror. It is pertinent to note
that there is no reference of such statement being recorded, in the
show cause notice nor copies of such statements made available to
the petitioner. In absence of such material being made available
and opportunity of hearing was given to him, the S.D.M. should not
have referred and relied upon such material against the petitioner.
7] We have also noticed that the notice issued to the petitioner is
completely vague and no ingredients of Section 56 (a) (1) (b) of
Bombay Police Act mentioned in the show cause notice. The
Divisional Commissioner who has decided the appeal has also not
applied his mind. He has not taken any pains to find out as to
whether there is any material to justify such action under Section
56(a) (1) (b) of Bombay Police Act. Since the orders to extern the
criwp1514.15
person leads to deprive the personal liberty and curtail the movement
of the person, it is expected that the authorities vested with such
powers, must examine the material before passing such orders. The
order of such nature cannot be passed merely on asking of police
authority. The order to be passed must be based upon material to
justify such drastic action.
8] The impugned orders suffer from vice of excessiveness for the
sole reason that the offences alleged against the petitioner though
confine to city of Jalna, the petitioner has been externed from District
Jalna as well as Aurangabad. The show cause notice nowhere
refers offences registered against the petitioner outside the limits of
Jalna City. As per proposal received the petitioner was required to
be externed from District Jalna. The show cause notice issued to
petitioner also restricts to extern the petitioner from the local limits of
Jalna District, however, the order has been passed to extern the
petitioner from the District Jalna as well as local limits of Aurangabad
District. No reasons have been recorded in the order passed by the
learned S.D.M. to extern petitioner from the local limits of
Aurangabad District. The manner in which order has been passed
reflects callous approach on the part of said authority in such orders
affecting the personal liberty and movement of the person. On this
count also the orders passed deserves to be set aside.
9] In the result, we are inclined to allow the petition. Accordingly
the petition is allowed in terms of prayer clauses "A" and "B". The
impugned orders are set aside. Rule made absolute in above terms
with no order as to costs.
(V.L.ACHLIYA,J.) (A.V.NIRGUDE,J.)
umg/
