Bombay High Court
Bharat S/O Chhedilal Chaudhari vs The Divisional Commissioner, ... on 17 June, 2016
Bench: B.P. Dharmadhikari
1 wp116.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.116 OF 2016
Bharat s/o Chhedilal Chaudhari,
aged about 47 years,
occupation : labour, r/o Yashoda
Nagar No.1, Amravati, Tahsil
and District Amravati. ig ... Petitioner
- Versus -
1) The Divisional Commissioner,
Amravati Division, Amravati,
Tahsil and District Amravati.
2) Deputy Commissioner of
Police, Zone-1, Amravati,
Tahsil and District Amravati.
3) Police Station Officer, Police
Station, Rajapeth, Amravati,
Tahsil and District Amravati. ... Respondents
-----------------
Shri R.D. Wakode, Advocate for petitioner.
Shri N.S. Rao, Additional Public Prosecutor for respondents.
----------------
CORAM : B.P. DHARMADHIKARI AND
KUM. INDIRA JAIN, JJ.
DATED : JUNE 17, 2016
2 wp116.16
ORAL JUDGMENT (PER KUM. INDIRA JAIN, J.) :
Rule. Rule is made returnable forthwith. Heard finally
with consent of learned Counsel for the parties.
2) This petition under Articles 226 and 227 of Constitution of
India takes exception to the order of externment passed by
respondent no.2 Deputy Commissioner of Police, Amravati on
13/12/2014 whereby petitioner was directed not to enter the limits of
Amravati City and Rural for a period of two years.
3) Petitioner was served with show cause notice on
21/11/2014 under Section 59 of the Maharashtra Police Act, 1951
(hereinafter referred to as "the Act") proposing externment. In
pursuance of show cause notice, petitioner appeared before the
appropriate Authority and submitted his reply.
4) Considering the reply, material placed before the
Authority and on hearing the petitioner, impugned order dated
13/12/2014 was passed by respondent no.2 externing petitioner as
stated above. Being aggrieved by the externment order, petitioner
filed an appeal under Section 60 of the Act before respondent no.1.
3 wp116.16
Vide order dated 30/12/2015, respondent no.1 dismissed the
appeal. Hence, this petition.
5) According to petitioner, Section 56(1)(b) of the Act clearly
provides that a person, who is engaged in serious crimes is covered
and where minor offences are alleged, provisions of
Section 56(1)(b) of the Act would not be attracted. Petitioner
submitted that looking to the chart of the cases given in the
externment order, it is apparent that none of the offences alleged
against him is punishable with death or imprisonment for life. In this
background, petitioner urged that the show cause notice itself was
bad in law.
6) Another contention raised on behalf of petitioner is that
all the offences alleged against him were registered at Frezarpura
Police Station. He has been externed from the limits of Amravati
City and Rural. He alleges that impugned order of excessive
externment is affecting his fundamental rights. He is a bread
winner in the family and in case externment order is not set aside,
his entire family would suffer starvation. Petitioner submits that
impugned order is illegal, arbitrary and same is liable to be quashed
4 wp116.16
and set aside.
7) We have heard learned Counsel for the parties and
perused the impugned order of externment passed by respondent
no.2 and confirmed by respondent no.1. From the externment
order it can be seen that ten criminal cases and one chapter case
have been registered against petitioner. Three cases are pertaining
to offences punishable under Sections 353, 354, 504, 448 and 294
of the Indian Penal Code. One case is under Section 135 of the
Maharashtra Police Act. Six cases are under Section 12-A of the
Maharashtra Prevention of Gambling Act and one as stated above
is chapter case under Sections 107 and 116(3) of Criminal
Procedure Code. Shri Wakode, learned Counsel for petitioner,
states that in Crime No. 233/2010 registered for the offence
punishable under Section 353 read with Section 34 of Indian Penal
Cod, petitioner came to be acquitted on 16/1/2016. So far as other
cases are concerned, none of the cases relates to an offence
punishable with death or imprisonment for life.
8) Section 56(1)(b) of the Act provides that when there are
reasonable grounds for believing that such person is engaged or is
5 wp116.16
about to be engaged in the commission of an offence involving force
or violence or an offence punishable under Chapter XII, XVI or XVII
of the Indian Penal Code or in the abetment of any such offence, the
externing Authority can issue show cause notice to such person.
9) In the present case, as indicated above, only three cases
were registered against petitioner for the offences under Indian
Penal Code. In one case, he has been acquitted and there is no
dispute about it. Remaining two are pertaining to the period 2012
and 2013. In this premise, we find that grievance of petitioner
regarding non-applicability of provisions of Section 56(1)(b) of the
Act cannot be said to be without substance.
10) In support of another contention of petitioner regarding
excessive externment, Shri Wakode, learned Counsel for petitioner,
placed reliance on the decision of this Court in Ravindra @ Ravi
s/o Harisingh Jadhav vs. State of Maharashtra and another
(2016 (1) Mh.L.J. (Cri.) 192). In that case, externment order was
found excessive and placing reliance on other decisions of this
Court, the entire order was quashed and set aside.
6 wp116.16
11) In the case on hand, crimes were registered against
petitioner in Police Station, Frezarpura, Amravati. He was externed
from the limits of Amravati City and Rural. Upon careful reading of
the impugned order, prejudicial activities of petitioner are described
in the limits of Frezarpura Police Station. No subjective satisfaction
has been recorded by the Authority why externment of petitioner
from the limits of Amravati City and Rural was necessary. It is only
mentioned in the impugned order that there is a possibility that
petitioner would continue his activities in these limits. Therefore, it
is crystal clear that in the absence of subjective satisfaction, order of
externment was excessive and in view of the decision of this Court
relied upon by learned Counsel for petitioner and other decisions
referred therein, the same would not sustain in law.
12) In this premise, we quash and set aside the order dated
13/12/2014 passed by Externing Authority and appellate order dated
30/12/2015 passed by respondent no.1.
13) Rule is made absolute in the aforesaid terms. No order
as to costs.
7 wp116.16
JUDGE JUDGE
khj
