Vinod @ Balu Vithal Khandare vs The State Of Maharashtra And Ors
2016 Latest Caselaw 3494 Bom

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pdp




                                                                                    
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION
                  CRIMINAL WRIT PETITION NO. 1505 OF 2016




                                                            
      Vinod @ Balu Vithal Khandare
      Age 26 yrs. Occ: Construction
      R/o 122 Malhar Peth, Satara,




                                                           
      Tal. - Dist. - Satara
      Presently residing at post - Chikali
      Tal.-Haveli, District - Pune                                 .. Petitioner




                                                 
                    Versus

      1.
      2.
            The State of Maharashtra
            Divisional Commissioner &
                                     
            Appellate Officer, Pune Division,
                                    
            Pune.
      3.    Sub Divisional Magistrate,
            Satara Division, Satara.
      4.    Senior Police Inspector
             

            Satara City Police Station, Satara.                    .. Respondents
          



      Mr. K. S. Patil i/by Mr. Shailesh D. Chavan for petitioner.

      Mr. K. V. Saste, APP for State.





                                           CORAM: NARESH H. PATIL &
                                                  PRAKASH D. NAIK, JJ.

                               RESERVED ON        :   JUNE 15, 2016.

                        PRONOUNCED ON             :   JUNE 30, 2016






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    JUDGMENT [ Per Naresh H. Patil, J.] :




                                                                               
                                                       

1. Rule. Rule made returnable forthwith. Heard by consent of

parties.

2. An order of externment was passed by respondent no.3 - Sub

Divisonal Officer, Satara Sub Division, Satara, on 19/2/2016 externing

him for a period of one year from Satara District. The petitioner filed an

appeal against the said order. By an order dated 6/4/2016, respondent no.2

- Divisional Commissioner & Appellate Officer, Pune Division, Pune,

dismissed the said appeal. The petitioner challenges both these orders by

the present petition.

3. A show-cause notice under Section 59 (1) invoking provisions

of Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 (hereinafter

referred to as "the Act") was issued by the concerned authority against the

petitioner on 12/10/2015. The petitioner filed written say on 6/2/2016 to

the said show-cause notice. By an order dated 19/2/2016, the externment

order was passed under Section 56(1)(a)(b) of the Act.

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4. In the show-cause notice, the respondent-authority referred to

list of cognizable and non-cognizable offences registered against the

petitioner. In two cases, preventive action was taken against the petitioner,

one on 11/9/2012 under Section 110(a) of Cr. P.C. and in another case on

2/8/2013 under Section 56(1)(b) of the Act. In the show-cause notice, the

respondent-authority placed reliance on in-camera statements of witnesses

"A" and "B". It was recorded that as witnesses are not coming forward to

depose against the petitioner and considering the cases registered against

the petitioner, the respondent-authority was convinced that the activities of

the petitioner are required to be controlled by taking preventive measures

of externing him from the concerned area. After the reply was filed, the

Sub Divisional Officer, Satara Sub Division, Satara passed an order,

externing the petitioner under Section 57(1)(a) of the Act.

5. The appeal filed by the petitioner against the order of

externment came to be dismissed by the Divisional Commissioner &

Appellate Officer, Pune Division, Pune on 6/4/2016.

6. Learned counsel appearing for the petitioner submitted that the

offences registered against the petitioner from 2011 onwards were taken

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into consideration for externing the petitioner. Even non-cognizable

offences registered in the year 2013 were part of consideration of the

concerned authority. Though the earlier proceeding initiated for externing

the petitioner was dropped, the same was referred in the show-cause notice,

which demonstrates that the show-cause notice was issued with

predetermined and bias mind and based on the material which was stale

and not relevant for the purposes of issuing such show-cause notice.

Learned counsel further submitted that in-camera statements referred in the

show-cause notice do not refer to necessary details of date and time of the

commission of so called offence by the petitioner, which is a non

compliance of mandatory requirements for a valid show-cause notice. It

was submitted that though the order of externment is said to have been

passed under Section 56(1)(a)(b) but in the body of the order, the

respondent-authority referred to action under Section 57(1)(a) of the Act,

which reflects non application of mind. Learned counsel submitted that the

Divisional Commissioner passed mechanical order without applying him

mind to the facts and the mandate of law.

7. Learned APP submitted that there are number of cases lodged

against the petitioner. Earlier authorities had initiated proceeding for

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externing the petitioner but due to default on the part of the petitioner, the

said proceeding had to be dropped. The petitioner cannot take benefit of the

same. Learned APP submitted that two in-camera statements are relied

upon by the authorities concerned. The Sub Divisional Officer passed a

reasoned order, which was confirmed by the Divisional Commissioner and,

therefore, no interference is warranted.

8. We have perused the record. We find substance in the

submission of learned counsel appearing for the petitioner that cognizable

and non-cognizable offence registered against the petitioner and as

mentioned in the show-cause notice were considered by the concerned

authority while issuing show-cause notice. In-camera statements of

witnesses "A" and "B" were also considered by the concerned authority

and accordingly show-cause notice was issued under Section 59(1)

invoking provisions of Section 56(1)(a)(b) of the Act. In the facts of the

case, we find that criminal cases registered in the years 2011 and 2012

could not be a ground for externing the petitioner. Once the authority had

initiated proceeding for externing the petitioner in the year 2013 but in the

year 2015 the said proposal was dropped. We do find that the reference to

in-camera statements of witnesses "A" and "B" are lacking in complying

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the mandatory requirements. Necessary details as regards date of

commission of offence and time are not mentioned while referring to the

in-camera statements of the witnesses. The satisfaction of the authority

concerned is also not reflected.

9. While passing final order, reliance was placed on the cases

registered against the petitioner from the year 2011 onwards, which include

cognizable and non-cognizable offences and two instances of preventive

steps taken against the petitioner. The Externing Authority was convinced

that the earlier proposal to extern the petitioner initiated in the year 2013

was dropped in the year 2015. Reliance was also placed on C.R. No. 395

of 2015 wherein the name of the petitioner was deleted as an accused. This

instance was considered to be an act of pressuring tactics adopted by the

petitioner on the witnesses.

10. We have perused the order passed by the Appellate Authority,

the Divisional Commissioner of the Pune Region. The Appellate Authority

appreciates the case in para 7 of the order. We are not convinced with the

way the case has been appreciated at the appellate stage. The mandatory

requirements in law are not referred to, neither it is discussed. It is

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necessary for the Appellate Authority to consider all the necessary details,

facts and mandatory requirements in law.

11. The petitioner placed reliance on the following judgments :-

(a) 2014 ALL MR (Cri) 2161 - Bilal Gulam Rasul Patel vs.

Diviosnal Magistrate Thane and ors.

(b) 2013 ALL MR (Cri) 18 - Mohamad Siddiki Haji Moha

vs. State of Maharashtra.

(c) (1999) Vol. 101 (1) Bom. L. R. 631 - Iqbal Hussain

Abid Hussain Qureshi vs. State of Maharashtra.

(d) 2014(2) BCR (Cri) 503 - Sunil Mani Shetty vs. Dy.

Commissioner of Police.

(e) 2003 ALL MR (Cri) 2023 - Kishor Durga Vs. Deputy

Commissioner of Police.

(f) 1991 Mah. L. J. 474 - Abdul Kadir Razzaque Beg vs.

SDM Nashik.

(g) 1987 (1) Bom. C.R. 425 - Subhash Ganu Bhoir vs. K.

P. Raghuwanshi and ors.

(h) 1998 ALL MR (Cri) 1566 - Rajendra @ Raju Desai vs.

State of Maharashtra.

(i) 2007 ALL MR (Cri) 3147 - Sanjay Pandurang Nagpur vs. State of Maharashtra.

(j) 1987 (3) Bom. C.R. 325 - Jeevan Patil vs. State of

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Maharashtra.

(k) 1998 Cri. L.J. 1347 - Mandan Patel vs. H. R. Ghalat

and ors.

(l) 1989 Mh. L. J. 1111 - Yashwant Damodar Patil vs. Hemant Karkare.

(m) 1988 Cr. L. R. (Mah) 507 - Gurunath Atmaram vs. P.A.

Prasad and ors.

(n) Cri. W.P. No. 2242 of 2013 - Ganesh Ambadas Sherla vs. Dy. Commissioner and anr.

(o) Cri. W. P. No. 2276 of 2010 - Prakash Komkar vs. Dy.

Commissioner and ors.

We have also perused the judgment delivered by the Division

Bench of this court in the case of Amit Arjun Phale vs. Dy. Commissioner

of Police and ors. [2014(3) Bom.C.R. (Cri) 281].

12. For the reasons stated above, we are of the view that the

impugned orders deserve to be quashed and set aside.

ORDER

(i) Impugned order dated 6/4/2016 passed by the Divisional

Commissioner & Appellate Authority, Pune Division,

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Pune and the Impugned order of externment dated

19/2/2016 passed by the Sub Divisional Officer, Satara

Sub Division, Satara are hereby quashed and set aside.

                (ii)     Rule is made absolute in above terms.




                                                       
    (PRAKASH D. NAIK, J.)                               (NARESH H. PATIL,J.)