Bombay High Court
Lakhan S/O Ramesh Sale vs The State Of Maharashtra on 21 March, 2016
Bench: A.V. Nirgude
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crwp1544.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
APPELLATE SIDE JURISDICTION
CRIMINAL WRIT PETITION NO. 1544 OF 2015
Lakhan s/o Ramesh Sale,
age 23 years, occ. Private Service
and Labour,
R/o Pahadsingpura,
Tq. & Dist. Aurangabad ...Petitioner
VERSUS
The State of Maharashtra,
through its Deputy Commissioner
of Police, Aurangabad,
District Aurangabad ...Respondent
***
Mr. B.L.Sagar Killarikar, Advocate for the petitioner
Mr. S.D.Ghayal, APP for Respondent/State
***
CORAM : A.V.NIRGUDE & INDIRA K. JAIN, JJ.
DATE OF RESERVING
JUDGMENT : 18.2.2016
DATE OF PRONOUNCEMENT
OF JUDGMENT : 21.3.2016
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JUDGMENT [Per Indira K.Jain, J.]
Rule. Rule is made returnable forthwith. By consent of the learned
counsel for the parties Petition is heard finally.
2] This Criminal Writ Petition challenges the externment order,
passed by Deputy Commissioner of Police, Aurangabad on 6.2.2015 and
decision in appeal dated 6.11.2015 by the Divisional Commissioner
(Revenue), Aurangabad. By the externment order petitioner is externed for
the period of two years from Aurangabad District.
3] Certain factual position emerging from the material produced
in the Writ Petition can be narrated in order to have proper perspective of
the matter and to decide the challenge to the impugned orders.
(i) The proceedings commenced on the basis of
proposal submitted by the Police Sub-Inspector,
Begumpura police station, Aurangabad City, District
Aurangabad to the Assistant Commissioner of Police,
Chhavani Division alleging that petitioner/proposed
externee was engaged in commission of offences
involving force and violence and witnesses were not
willing to come forward to lodge their complaints against
petitioner. The action was proposed on the basis of five
offences registered against the petitioner.
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(ii) On 23.9.2014 Assistant Commissioner of Police,
Chhavani Division, Aurangabad issued show cause notice
under Section 59 of the Bombay Police Act, 1951
(hereinafter referred to as, 'the Act' for the sake of brevity)
calling upon the proposed externee/petitioner to explain as
to why he should not be externed for two years from
Aurangabad and Jalna Districts.
(iii) Petitioner appeared and denied the contents of
show cause notice. He prayed for cancellation of
proposed action of externment.
(iv) On seeking explanation of the petitioner and
considering the record, Assistant Commissioner of Police,
Chhavani Division, Aurangabad forwarded the proposal to
Deputy Commissioner of Police, Circle Aurangabad for
taking action under Section 56(1)(a) and (b) of the Act.
(v) The proposal was accepted by Deputy
Commissioner of Police on 6.2.2015 and petitioner was
externed from Aurangabad District for a period of two
years.
(vi) The order of externment was carried in appeal
under Section 60(1) of the Act before the Divisional
Commissioner (Revenue), Aurangabad. Vide order, dated
6.11.2015 appellate authority rejected the appeal and
confirmed the order of externment passed by Deputy
Commissioner of Police.
(vii) Being aggrieved thereof petitioner has come up in
the writ jurisdiction of this court.
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4] It is the case of petitioner that show cause notice and order of
externment are not in strict compliance of the provisions of Section 56(1)(a)
and (b) of the Act as externing authority has not recorded it's satisfaction in
respect of the alleged activities of petitioner and mechanically stated in the
notice that witnesses are not willing to depose against petitioner in public
due to fear of petitioner.
5] Another contention raised on behalf of petitioner is that in
show cause notice and externment order though it is stated that incamera
statements were recorded, the dates of incidents and dates of recording
statements have not been given in show cause notice and the order of
externment would vitiate for non-compliance of requirement of Section 56
of the Act.
6] The third ground on which impugned orders have been
assailed is that show cause notice and order of externment are silent on
the point of correctness or authenticity of incamera statements. They were
not verified by the authority. In the absence of verification, statements
could not have been considered as material in support of subjective
satisfaction. Petitioner submitted that material relied upon by the externing
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authority would not indicate that petitioner was a danger to the public at
large. According to petitioner externment order is in violation of the
principles of natural justice and being illegal deserves to be quashed and
set aside.
7] In support of the grounds raised, petitioner placed reliance on
the following authorities.
(i) Yeshwant Damodar Patil
Vs Hemant Karkare, Dy.Commissioner of Police & anr.
[1989 (3) BomCR 240 (Bom)]
(ii) Vishwas Damduji Choudhari Vs State of Maharashtra & anr.
[2010 All M.R. (Cri.) 123 (Bom)]
(iii) Nisar @ Nigro Bashir Ahmed Khan
Vs Dy.Commissioner of Police & Ors.
[2013 All M.R.(Cri.) 122 (Bom)]
(iv) Sudhir Raviraj Choudhary Vs State of Maharashtra & Ors.
[2013 All M.R.(Cri.) 175 (Bom)]
(v) Mohammed Sagir Idris Ansari @ Raju Ansari
Vs Vineet Agrawal & Ors.
[2013 ALL M.R. (Cri) 3882 (Bom)]
(vi) Sachin Hiraman Tayade Vs Dy. Commissioner of Police & Ors.
[2014 All M.R.(Cri.) 1310 (Bom)]
(vii) (Satish Sagun Korgaonkar and anr. Vs State of Maharashtra & Ors.
[2014 All M.R. (Cri.) 2181 (Bom)]
(viii) Amit Arjun Phale Vs Dy.Commissioner of Police & Ors.
[2014 All M.R.(Cri.) 2757 (Bom)]
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8] In so far as the law governing the question of externment as
grounds to be incorporated in the notice and the externment order is
concerned, it is clear without any ambiguity that an order of externment
cannot be based on material not put to externee, lest it will result in
violation of principles of natural justice. An order of externment can be
passed under clause (a) or (b) of Section 56 of the Act if and only the
authority concerned is satisfied that witnesses are unwilling to come
forward to give evidence in public against the proposed externee by reason
of apprehension on their part as regards the safety of their person or
property. Section 59 of the Act imposes an obligation on the authority to
inform the proposed externee of the general nature of the material
allegations against him. This obligation fixes the limit of co-relative right of
the proposed externee. As indicated earlier externee is entitled before an
order of externment is passed under Section 56 of the Act to know the
material allegations against him and the general nature of those
allegations.
9] In the present case on going through the show cause notice, it
is apparent that following five offences and one preventive action were
initiated against the petitioner.
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Offences Registered
Sr. Police F.I.R. No. Section/s Date of Case Remark
No. Station Registr- No.
ation
1 Begum- 162/2011 143, 147, 149, 324, 323, 26.11.11 1804/12 Pending
pura 504, 506 of the Indian
Penal Code with
Sec.135 of Maharashtra
Police Act
2 -do- 769/2013 323, 504, 34 of the 28.8.13 - Non-
Indian Penal Code cognizable
offences
3 -do- 1008/2013 504, 506 34 of the 04.11.13 - -do-
Indian Penal Code
4 -do- 137/2013 143, 147, 149, 324, 16.11.13 997/14 Pending
323, 504, 506 of the
Indian Penal Code
with Sec. 135 of
Maharashtra Police
Act and Secs. 4 and 5
of the Prevention of
Damage to Public
Property Act
5 -do- 22/2014 341, 506 of Indian Penal 27.1.14 2210/14 Pending
Code
Preventive Action
6 -do- 12/2013 110 (e) (g) of the Code 04.12.13 - On bond of
of Criminal Procedure Rs.50,000/-
dt. 9.12.2013
10] The show cause notice further indicates that statements of two
witnesses came to be recorded. The witnesses stated that they received
threats from petitioner to their lives and property. Those who gave their
statements have mentioned about the incidents occurred in Begumpura.
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11] Needless to state that provisions of Section 56 of the Act make
a serious inroad on personal liberty but such restraints have to be suffered
in the larger interests of the society. In the cases referred (supra) by the
learned counsel for petitioner subjective satisfaction was not recorded by
the authority in the show cause notice and the entire material which was
considered for passing the externment order was not the part of show
cause notice. It was therefore observed that order of externment was
vitiated.
12] In the case on hand, perusal of show cause notice and the
externment order disclose that entire material was put to the externee in
the show cause notice and the same was considered by the authority while
passing the externment order. Petitioner was entitled to know the material
allegations against him and the general nature of those allegations. That
was the part of show cause notice and also the externment order. In our
view petitioner was not entitled to be informed of specific particulars
relating to material allegations. If the show cause notice was to furnish to
the proposed externee concrete material, like specific dates of incidents,
dates of recording statements, names of the persons whose incamera
statements were recorded, it would be easy enough to fix the identity of
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those who out of fear of injury to their person or property are unwilling to
depose in public. It is not the purpose of Section 59 of the Act.
13] On careful perusal of order of externment it is apparent that the
order shows application of mind and the reasons. The order in no manner
indicates that material other than put in show cause notice to the petitioner
was relied upon. On the basis of material put in show cause notice
satisfaction was recorded that witnesses are not coming forward to publicly
depose against the externee and to file a report about the fear of injury to
life and property as petitioner has indulged in threatening the witnesses.
The Deputy Commissioner of Police has, therefore, passed the order of
externment based on material already incorporated in the show cause
notice and upon application of mind and the reasons.
14] Further on perusal of the order of appellate authority, it is
apparent that appellate authority has considered the points as urged in
appeal memo and in laconic way re-appreciated the material and recorded
convincing reasons in the order concurring with the authority on the point of
externment of the petitioner for the period of two years from Aurangabad
District.
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15] In the above premise, we find the impugned orders well
reasoned, based on material which was put to the petitioner and absolutely
there is no indication of non-observance of principles of natural justice. In
the given facts, petition does not deserve any indulgence. Hence the
following order.
ORDER
(i) Criminal Writ Petition No. 1544 of 2015 is
dismissed.
(ii) Rule is discharged.
[ INDIRA K. JAIN, J.] [A.V.NIRGUDE, J.]
dbm/crwp1544.15
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