Bombay High Court
Rahul Sahebrao Chabukswar vs The State Of Maharashtra And ... on 21 October, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION No.835 OF 2016
Rahul Sahebrao Chabukswar,
Age : 34 years, Occ. Business,
r/o. Husen Colony, Aurangabad ..Petitioner
Vs.
1. State of Maharashtra,
Through Home Department,
Mantralaya, Mumbai
2. State of Maharashtra,
Through Commissioner of Police,
Aurangabad, Dist. Aurangabad
3. Dy. Commissioner of Police,
CIDCO region, Aurangabad City
4. Dy. Commissioner of Police,
Zone No.2, Aurangabad City
5. Superintendent of Police,
Aurangabad, Dist. Aurangabad
6. Divisional Commissioner,
Aurangabad Region, Aurangabad ..Respondents
--
Mr.H.H.Padalkar, Advocate i/b. Mr.S.B.Rajebhosale,
Advocate for petitioner
Mr.D.R.Kale, A.P.P. for respondent nos.1 to 6
--
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CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : SEPTEMEBER 14, 2016
PRONOUNCED ON : OCTOBER 21, 2016
JUDGMENT (PER SANGITRAO S. PATIL, J) :
Heard. Rule, made returnable forthwith.
With the consent of the learned Counsel for the
petitioner and the learned A.P.P. for the
respondents, heard finally.
2. The petitioner has assailed the order
dated 29.06.2016 passed by respondent no.6 -
Divisional Commissioner, Aurangabad under sub-
section (3) of Section 60 of the Maharashtra
Police Act ("the Act" for short), whereby
respondent no.6 partly allowed the appeal
preferred by the petitioner against the order
dated 09.04.2016 passed by respondent no.4 -
Deputy Commissioner of Police, Zone-2, Aurangabad
City, under Section 56(1)(a) and (b) of the Act,
as a result whereof the petitioner has been
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externed from the local limits of the Aurangabad
Police Commissionerate only, for a period of two
years.
3. It is alleged that the petitioner has
been prosecuted for the following crimes :-
Sr. Name of igCrime Sections Status
No. Police Register
Station No.
1 Jawahar 27/2012 307, 147, 148, Pending
Nagar 149, 114, 120(B)
201 I.P.C.
2 Mukundwadi 219/2012 395, 427, 507, Pending
279 I.P.C.
3 M.CIDCO 188/2014 395 I.P.C. Pending
It is further alleged that from the in-camera
statements of the witnesses A and B, it was
noticed that the petitioner is indulging in the
offences against the persons and properties,
however, because of his alarming and dangerous
behavior, the witnesses did not disclose the
offending acts of the petitioner to anybody
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including the police. It is alleged that the acts
of the petitioner are causing or calculated to
cause alarm, danger or harm to the persons and
properties and that there are reasonable grounds
for believing that the petitioner is engaged or is
about to be engaged in the commission of the
offences involving force or violence or the
offences punishable under Chapters XVI and XVII of
the Indian Penal Code ("I.P.C.", for short) or in
the abetment of any such offences and that the
witnesses are not willing to come forward to give
evidence in public against the petitioner by
reason of apprehension on their part as regards
the safety of their person or properties.
4. Notice dated 22.05.2015 was served on the
petitioner vide Section 59(1) of the Act
containing all the details of the offences
registered against him and also the in-camera
statements of the witnesses. The petitioner was
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called upon to show cause as to why he should not
be externed from Aurangabad city as well as the
districts of Aurangabad and Jalna for a period of
two years.
5. The petitioner appeared before the
Assistant Commissioner of Police, CIDCO Region,
Aurangabad (City) and opposed the action of
externment proposed to be taken against him by
giving oral reply to the show cause notice on
29.05.2015. The Assistant Commissioner of Police
found sufficient grounds to proceed against the
petitioner for his externment. He, therefore,
submitted the proposal for externment of the
petitioner before respondent no.4.
6. Respondent no.4 conducted further
enquiry. He verified the in-camera statements of
the witnesses A and B. He further collected the
copies of the Charge Sheet filed against the
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petitioner in the above-referred crimes. He found
sufficient evidence to take action against the
petitioner for his externment. He, therefore,
called upon the petitioner vide notice dated
25.02.2016 to furnish further explanation as to
why the order for his externment should not be
passed. Accordingly, the petitioner appeared
before respondent no.4 on 12.03.2016 and furnished
his written reply denying all the allegations made
against him. After considering the evidence on
record as well as the replies of the petitioner,
respondent no.4 passed the order dated 09.04.2016
externing the petitioner from the local limits of
the Aurangabad Police Commissionerate and the
entire Aurangabad District for a period of two
years.
7. The petitioner challenged the order dated
09.04.2016 passed by respondent no.4 before
respondent no.6 by filing appeal. Respondent no.6
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extended the petitioner an opportunity of hearing.
After considering the grounds of objections raised
by the petitioner, respondent no.6 allowed the
appeal partly and maintained the externment order
passed against the petitioner to the extent of the
local limits of the Aurangabad Police
Commissionerate, for a period of two years.
8.
The learned Counsel for the petitioner submits
that the impugned order of externment passed
against the petitioner is not legal, proper and
correct. It has been passed by respondent no.6
without application of mind. Respondent no.6 was
not empowered to modify the order dated 09.04.2016
passed by respondent no.4 and reduce its
application to the local limits of the Aurangabad
Police Commissionerate only. He submits that when
respondent no.6 found that the order dated
09.04.2016 was excessive, he should have quashed
and set aside the same in its entirety. He submits
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that the order of externment against the
petitioner has not been passed after recording the
subjective satisfaction by respondent nos.4 and 6.
The said order is harsh and excessive. He submits
that one of the criminal cases registered against
the petitioner has ended in acquittal. He further
submits that the in-camera statements of the
witnesses produced on record are very vague and
general. They do not contain any date, time and
place of commission of offences by the petitioner.
According to him, by passing the impugned order of
externment, respondent nos.4 and 6 have imposed
unreasonable restrictions on the petitioner, which
amounts to infringement of his fundamental rights
under Article 19 of the Constitution of India. He
submits that the impugned order is illegal and
arbitrary. He, therefore, prays that the impugned
order of externment passed against the petitioner
may be quashed and set aside.
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9. As against this, the learned A.P.P.
submits that there are serious offences alleged
against the petitioner. He is a terror in the
city. The witnesses are not coming forward to
depose against him. He pointed out the judgment
dated 11.04.2016 delivered in S.C. No.132 of 2014,
arising out of Crime No.I-219/2012 registered in
Police Station, Mukundwadi for the offences
punishable under Sections 395, 279, 427, 506 and
201 of the I.P.C., whereby the petitioner and his
companion have been acquitted merely because the
witnesses turned hostile. He submits that this
fact itself is sufficient to show as to how the
witnesses are wandering under the threat and alarm
of the petitioner, which makes it difficult for
them to depose against the petitioner before the
Court. The learned A.P.P. submits that respondent
nos.4 and 6 have followed the requisite procedure
laid down under Sections 56 and 59 of the Act.
Respondent nos.4 and 6 have given fair and
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reasonable opportunity of being heard to the
petitioner. They have followed the principles of
natural justice. After their subjective
satisfaction based on the material produced before
them and considering the replies given by the
petitioner, both of them rightly decided to extern
the petitioner. He submits that respondent no.6
was empowered under Section 60 of the Act to
confirm, vary, cancel or set aside the order of
externment challenged before him in appeal. He
submits that since respondent no.6 found that it
was not necessary to make applicable the
externment order for the entire district of
Aurangabad, he rightly reduced its application to
the extent of the local limits of the Aurangabad
Police Commissionerate. He supports the impugned
order and prays that the petition may be
dismissed.
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10. It is well settled that it is primarily
for the externing authority to decide how best the
externment order can be made effective, so as to
sub-serve its real purpose. How long, within the
statutory limit of two years fixed by Section 58
of the Act, the order shall operate and to what
territories, within the statutory limitations of
Section 56 of the Act, it should extend, are the
matters which must depend for his decision on the
nature of the data which the authority is able to
collect in the externment proceedings. No general
formulation can be made that the order of
exernment must always be restricted to the area to
which the illegal activities of the externee
extend. Primarily, the satisfaction has to be of
the authority passing the order. If the
satisfaction recorded by the authority is
objective and is based on material on record, then
the Court would not interfere with the order
passed by the authority only because another view
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possibly can be taken. Interference in the order
can be made only if the satisfaction recorded is
either demonstratively perverse, based on no
evidence, misreading of evidence or which a
reasonable person could not form opinion or that
the person concerned was not given due opportunity
resulting in prejudicing his rights under the Act.
Keeping in mind this settled legal position
governing the externment proceedings, we propose
to consider the legality, propriety and
correctness of the impugned orders.
11. There is no dispute that the petitioner
was served with the notice dated 22.05.2015 issued
by the Assistant Commissioner of Police, calling
upon him to show cause as to why the order for his
externment should not be passed vide Section 56(1)
(a) and (b) of the Act. The said notice contains
the details of the three crimes registered against
the petitioner. Crime No.I-219 of 2012 was
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registered in Mukundwadi Police Station,
Aurangabad for the offences punishable under
Sections 395, 427, 507, 279, 201 of I.P.C., on the
basis of which Sessions Case No.132 of 2014 was
registered against him and others. When the said
notice was issued, the said Case was pending
before the Sessions Court, Aurangabad. It seems
that after recording evidence of the witnesses,
the learned Addl. Sessions Judge-5, Aurangabad
acquitted the petitioner and others of the above
mentioned offences as per the judgment and order
dated 11.04.2016. The certified copy of the
judgment of the said Sessions Case was not
produced by the petitioner before respondent no.4
when he passed the impugned order of externment on
09.04.2016. However, respondent no.6, while
passing the impugned order on 29.06.2016, took
into consideration that judgment of acquittal. He
noted that the petitioner came to be acquitted
because the witnesses did not support the
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prosecution. He, therefore, inferred, and rightly
so, that because of the Gundaizm, terror and fear
of the petitioner, the witnesses did not come
forward against him and therefore, the offence
charged against him could not be proved.
12. There are other two crimes registered
against the petitioner and his companions in
Jawaharnagar and M.CIDCO Police Stations
respectively for the offences punishable under
Sections 307 and 395 of the I.P.C., respectively.
The details of those offences have been mentioned
in the show cause notice dated 22.05.2015.
13. There is a reference of the in-camera
statements of the witnesses A and B in the show
cause notice dated 22.05.2015. The witness A
states that in the first week of October-2014,
when he was proceeding from near Gajanan Maharaj
temple, the petitioner and two of his companions
stopped him and forcibly took out an amount of
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Rs.1,000/- from him on the pretext of celebrating
birthday party and threatened him of dire
consequences in case he disclosed that fact to
anybody. Therefore, the said witness did not
inform about that incident to anybody and did not
lodge report to the police station. Witness B
states that in the month of October-2014, when he
was proceeding on the motorcycle from Gajanan
Maharaj temple to Pundliknagar, the petitioner
restrained him near Shivaji statue, removed the
ignition key of his motorcycle, threatened him
that he should not either purchase or sell the
plots in Garkheda, Aurangabad area, on the say
that the said area belonged to him. The said
witness got frightened and did not inform about
that incident to anybody and did not lodge report
to the police station against the petitioner.
14. The above contents of the show-cause
notice issued under Section 59 of the Act are
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quite clear, speaking, exhaustive and giving
correct idea to the petitioner as to what case he
was supposed to meet in the externment
proceedings. The petitioner did not file any
written reply to that notice. He gave a statement
before the Assistant Police Commissioner on
29.05.2015 and denied the allegations made in the
show-cause notice. According to him, he has been
falsely involved in the above-numbered crimes. He
denied that he ever threatened or used criminal
force against anybody or committed theft of any
property, as alleged. It is his case that the
contents of the notice are vague, general or
insufficient and that he would be unable to
furnish explanation on the basis of the said
contents.
15. After considering the in-camera
statements of the witnesses A and B as well as the
contents of the Charge Sheets filed against the
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petitioner in the above-numbered crimes,
respondent no.4 found sufficient and dependable
grounds to pass an order externing the petitioner.
Therefore, he issued one more notice dated
25.02.2016 prior to passing of the final order
calling upon the petitioner to appear before him
on 08.03.2016 to furnish further explanation as to
why he should not be externed from Aurangabad city
and Aurangabad district for a period of two years.
The petitioner filed written explanation to that
notice on 12.03.2016 denying all the adverse
allegations made against him. After considering
the material on record as well as the explanation
of the petitioner, respondent no.4 passed the
order on 09.04.2016 for externment of the
petitioner from the city of Aurangabad as well as
Aurangabad district for a period of two years.
The said order is quite speaking and exhaustive
and shows that respondent no.4 applied his mind to
the evidence that was produced before him and
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after recording his satisfaction, passed the order
of externment.
16. The petitioner filed Appeal before
respondent no.6 under Section 60 of the Act. The
impugned order passed by respondent no.6 on
29.06.2016 shows that the petitioner was given a
fair and reasonable opportunity of being heard.
Respondent no.6 considered the grounds of
objections raised by the petitioner against the
order of externment dated 09.04.2016 passed by
respondent no.4. After evaluating the evidence on
record, respondent no.6 partly allowed the Appeal
to the extent of reducing the area of operation of
the externment order limited to the local limits
of the Aurangabad Police Commissionerate. The
order passed by respondent no.6 exhibits
application of mind. It is quite speaking order.
We do not find any flaw in the said order.
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17. As stated above, the impugned orders of
externment have been passed by respondent nos.4
and 6 after following the due procedure as laid
down under Section 59 Act. They are not at all
perverse. The contention of the learned Counsel
for the petitioner that respondent no.6 was not
empowered to reduce the area of operation of the
externment order passed by respondent no.4 and he
should have quashed the said order in its
entirety, cannot at all be accepted. As per sub-
section (3) of Section 60 of the Act, respondent
no.6 was empowered to confirm, vary or set aside
the order passed by respondent no.4. Accordingly,
he has considered the facts of the case and
reduced the area of operation of the order of
externment passed by respondent no.4 to the extent
of the local limits of Aurangabad Police
Commissionerate. We do not find anything wrong in
the order passed by respondent no.6.
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18. The learned Counsel for the petitioner
relied on the decisions in the cases of (i) Syed
Noman Hussaini Kausar s/o. Syed Usman Hussaini Vs.
State of Maharashtra and anr., 2015(4) LJSOFT
101, (ii) Ashraf s/o. Shamsher Ali Jagirdar Vs.
State of Maharashtra and ors., 2015(10) LJSOFT 54,
(iii) Amjad Afjal Hussein Sheikh Vs. State of
Maharashtra and ors., 2014(2) Bom.C.R.(Cri.)482,
(iv) Sanket Balkrushna Jadhav Vs. State of
Maharashtra and anr., 2013(12) LJSOFT 248, and (v)
Ajit Champatrao Bhapkar Vs. State of Maharashtra
and ors., 2007(11) LJSOFT 93, wherein it has been
observed that the externment order directing the
externee to keep himself away, not only from the
city or the district where his alleged prejudicial
activities are confined, but also one or more
districts adjoining thereto, would be excessive
and harsh and, therefore, would be liable to be
quashed and set aside in its entirety. It is held
in these cases that the High Court has no powers
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to correct an excessive order by reducing the area
of operation of the externment. In the present
case, the petitioner has been externed from the
local limits of the Aurangabad Police
Commissionerate i.e. from the Aurangabad city
only, where the petitioner's prejudicial
activities are stated to have been done by him.
The impugned order of externment is not at all
harsh or excessive. Therefore, the above rulings
would be of no help to the petitioner to seek
quashment of the order of externment.
19. The learned Counsel for the petitioner
further relied on the judgment in the case of
Bajrang Sidaram Jadhav Vs. State of Maharashtra
and ors., 2013(10) LJSOFT 23, wherein the show-
cause notice issued under Section 59 of the Act
was lacking in the particulars about the material
allegations and was violative of the principles of
natural justice. Therefore, it was held that the
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externment proceedings were liable to be quashed
and set aside. In the present case, the show-cause
notices referred to above, issued against the
petitioner were containing all the material
particulars on the basis of which, the externment
of the petitioner was proposed. The principles of
natural justice have been followed by the
externing authorities. Therefore, this ruling
would not be applicable to the facts of the
present case.
20. In the case of Chandar Dayaldas Sindhi
Vs. M.W.Chitale, Dy. Commissioner of Police, Zone
II, Kalyan, 1984(1) LJSOFT 150 cited on behalf of
the petitioner, the allegations mentioned in the
notice were blissfully vague. There was no
indication of material against the petitioner
therein, to enable him to exercise his right of
tendering explanation. The general nature of the
material against the petitioner was not disclosed
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in that notice. Therefore, it was held that the
notice under Section 59 of the Act was bad and the
impugned order of externment passed on the basis
of that notice was set aside. In the present case,
the show-cause notices given to the petitioner, as
stated above, were quite speaking, exhaustive and
giving clear idea to the petitioner about the
allegations made against him to which he was
supposed to give plausible explanation. Since the
show-cause notices in the present case are quite
valid, the above-mentioned judgment would not
assist the petitioner in claiming quashment of the
impugned order of his externment.
21. In the above circumstances, we are of the
considered view that respondent nos.4 and 6 have
followed the due procedure as laid down under
Section 59 of the Act before passing the impugned
orders of externment. The said orders are based on
the concrete material on record. The order passed
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by Respondent No.4 has been rightly modified by
respondent no.6 thereby confirming the area of
operation thereof within the local limits of
Aurangabad Police Commissionerate. The impugned
order passed by respondent no.6 is not at all
harsh or excessive. We do not find any reason to
interfere in the said order. In the result, we
pass the following order :-
O R D E R
(i) Criminal Writ Petition stands dismissed.
(ii) Rule is discharged accordingly.
[SANGITRAO S. PATIL, J.] [S.S. SHINDE, J.]
kbp
