Bombay High Court
Anna S/O Bhimrao Dhawale vs The State Of Maharashtra And ... on 25 October, 2016
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1041 OF 2016
Anna s/o. Bhimrao Dhavale,
Age 28 Years, Occu. Agri.,
R/o. Tapneshwar, Tq. Jamkhed,
Dist. Ahmednagar. PETITIONER
VERSUS
1.
The State of Maharashtra,
Through Principal Secretary,
Home Department,
Mantralaya, Mumbai-32.
2. The Divisional Commissioner,
Nashik Division, Nashik.
3. The Superintendent of Police,
Ahmednagar.
4. The Sub Divisional Magistrate,
Karjat Division, Karjat,
Dist. Ahmednagar. RESPONDENTS
...
Mr.Suhas R. Shirsat, Advocate for the
petitioner
Mr.M.M.Nerlikar, APP for Respondent Nos.1 to
4 - State.
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 20.10.2016
Pronounced on : 25.10.2016
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JUDGMENT: (Per S.S.Shinde, J.):
Heard. Rule. Rule made returnable
forthwith, and heard finally with the consent
of the parties.
2. This Petition takes exception to the
order dated 16.06.2016 passed by the
Divisional Commissioner, Nashik Division,
Nashik in Externment Appeal No.12/2016.
3. It is the case of the petitioner
that respondent no.4 issued a notice on
13.05.2015 stating therein that, why the
petitioner should not be externed from the
limits of Ahmednagar, Beed, Osmanabad and
Solapur Districts for the period of two years
on the ground that the petitioner has
indulged into various criminal activities
causing danger and alarm to the public order.
The petitioner filed a detailed reply to the
said notice and denied the allegations and
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also filed documents supporting his
contention that the show-cause-notice is
issued under the pressure of political
persons. On 31st March, 2016, respondent no.4
passed an order invoking the provisions of
the Bombay Police Act, 1951, thereby
externing the petitioner from the limits of
Ahmednagar and Beed District for the period
of two years. The said order was assailed by
the petitioner before the Appellate Authority
i.e. Divisional Commissioner, Nashik
Division, Nashik. The Appellate Authority
modified the order passed by respondent no.4
and restricted its operation within the
limits of Ahmednagar District. Hence this
Writ Petition.
4. The learned counsel appearing for
the petitioner submits that in the show-cause
notice issued by respondent no.4, there are
no specific allegations that due to fear the
witnesses are not ready to come forward and
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depose against the petitioner. If the
contents of the said notice are perused
carefully, those are general in nature and
without referring to the specific acts of the
petitioner, which are causing danger or alarm
to the public order. It is submitted that
unless the mandate of the provisions of
Section 56 (1) (a) and (b) of the Bombay
Police Act, 1951 (for short 'the said Act')
is fulfilled, respondent no.4 should not have
proceeded to pass an order of externment of
the petitioner from Ahmednagar and Beed
Districts. It is submitted that when the
alleged offences are registered against the
petitioner in Police Station Jamkhed, there
was no reason for respondent no.4 to extern
the petitioner from the limits of Beed
District.
5. The learned counsel for the
petitioner submits that the Regular Criminal
Case No.143/2008, arising out of Crime
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No.112/2008 registered with Jamkhed Police
Station, for the offences punishable under
Section 324, 323, 504, 506, 34 of the Indian
Penal Code, Section 4 (25) of the Arms Act
and Section 37 (1) (3) and 135 of the Bombay
Police Act was tried and the said case is
resulted into acquittal of the petitioner on
2nd September, 2013. He further submits that
even the Criminal Case No.104/2013 arising
out of Crime No.108/2011, registered with
Jamkhed Police Station for the offences
punishable under Sections 143, 147, 148, 323,
504 and 506 of the Indian Penal Code has also
resulted into acquittal of the petitioner on
21st July, 2014. He further submits that even
in Regular Criminal Case No.72/2012, arising
out of Crime No.121/2011 registered with
Jamkhed Police Station for the offences
punishable under Sections 143, 147, 148, 323,
504 and 506 of the Indian Penal Code also
resulted into acquittal of the petitioner by
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the judgment and order dated 1st January,
2014. He further submits that the Criminal
Case arising out of the Crime No.109/2014
registered with Jamkhed Police Station for
the offences punishable under Sections 326,
323, 504, 341, 34 of the Indian Penal Code is
pending before the Court at Jamkhed in which
the original informant viz. Akash Bansi
Chandan has filed Criminal Writ Petition No.
3858/2012. It is further submitted that so
far Chapter Case No.35/2014 under Section 110
(e) (g) of the Criminal Procedure Code is
concerned, the petitioner is ready to furnish
surety and execute final bond. Therefore, the
learned counsel appearing for the petitioner
submits that though the petitioner is
acquitted from three afore-mentioned crimes
and one case is pending before the High Court
in Criminal Writ Petition No.3858/2012, show
cause notice issued to the petitioner makes
mentioned of all these cases. It is submitted
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that when the petitioner is acquitted from
three cases, there was no reason why those
cases have been mentioned in the impugned
show cause notice. It shows non-application
of mind of the respondent authorities. He
further submits that though the Appellate
Authority has restricted the enforcement/
operation of the order of externment within
Ahmednagar District, the said Authority
failed to take into consideration that the
order of externment passed by respondent no.4
is without complying the mandate of the
provisions of Section 56 (1) (a) and (b) of
the said Act. In support of the contention
that the order of externment is not in
conformity with the requirement of mandate of
the provisions of Section 56 (1) (a) and (b)
of the said Act and also the same is
excessive, the learned counsel appearing for
the petitioner places reliance on the
decision in the case of Iqbaluddin Ziauddin
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Pirzade Vs. The State of Maharashtra & Ors1,
Ashraf s/o. Shamsher Ali Jagirdar Vs. The
State of Maharashtra & Ors.2 and Firojkhan
s/o. Imamkhan Vs. State of Maharashtra &
Anr.3. Therefore, the learned counsel
appearing for the petitioner submits that the
Petition deserves to be allowed.
6. The learned APP appearing for
respondent - State relying upon the averments
in the affidavit-in-reply filed on behalf of
respondent no.4 and original record submits
that, respondent no.4 upon appreciation of
the material placed on record and in the
light of the enquiry report submitted before
him, has reached to the conclusion that the
activities of the petitioner are harmful and
prejudicial to the public at large, and
therefore, it was necessary to extern the
petitioner from the Ahmednagar and Beed
1 2015 ALL MR (Cri) 2298
2 2015 ALL MR (Cri) 2945
3 2014 ALL MR (Cri) 2968
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Districts, and accordingly passed the
impugned order of externment. The Appellate
Authority modified the order passed by
respondent no.4, and made it operative within
the limits of Ahmednagar District. It is
further submitted that, though the petitioner
is externed from Ahmednagar District for one
year, still he has committed offence in the
jurisdiction of Jamkhed Police Station on
30.08.2016 under Sections 395, 307, 143, 147,
148, 149 of the IPC etc. and therefore FIR
came to be registered as Crime No. 140 of
2016. Therefore, the learned APP appearing
for the respondent - State submits that the
Petition may be rejected.
7. We have heard the learned counsel
appearing for the petitioner and the learned
APP appearing for the respondent - State at
length. With their able assistance, perused
the pleadings in the Petition, grounds taken
therein, annexures thereto, affidavit-in-
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reply filed by respondent no.4 and also the
original record made available by the APP.
The section 56 (1) (a) and (b) of the said
Act reads thus:
56. Removal of persons about to
commit offence
(1) ....
(a) that the movements or acts of
any person are causing or calculated
to cause alarm, danger or harm to
person or property or
(b) that there are reasonable
grounds for believing that such
person is engaged or is about to be
engaged in the commission of an
offence involving force or violence
or an offence punishable under
Chapters XII, XVI or XVII of the
Indian Penal Code, or in the
abetment of any such offence and
when in the opinion of such officer
witnesses are not willing to come
forward to give evidence in public
against such person by reason of
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apprehension on their part as
regards the safety of their person
or property, or
8. Upon careful perusal of the afore-
mentioned provisions, it is necessary for the
concerned authority to form opinion that due
to the movements or acts of any person, there
is danger or harm to person or property and
because of fear of such person, witnesses are
not willing to come forward to give evidence
in public against such person by reason of
apprehension on their part as regards the
safety of their person or property.
9. In the present case, upon careful
perusal of the discussion and the reasons in
the order passed by respondent no.4 and also
the Appellate Authority, there is no
reference to the contention raised by the
petitioner that out of 5 offences which are
shown in the show cause notice or the
impugned order, he is already acquitted from
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three offences. Secondly, there is no mention
in the show cause notice 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
property. Even the concerned authority has
not recorded the statements of the witnesses
to form opinion 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 property. There is
no mention in the show cause notice as to on
what date, time and place the petitioner used
force against the so called witnesses, which
created fear in their minds and therefore,
they did not dare to depose against the
petitioner. If that be so, the petitioner
cannot be said to have got an opportunity to
challenge the externment proceedings.
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10. If the order of externment passed by
respondent no. 4 is perused carefully, it is
mentioned that the Police have not mentioned
in their report about registration of new
offences against the petitioner in the year
2015. It further appears that respondent no.
4 thought it appropriate to extern the
petitioner from the limits of Ahmednagar and
Beed Districts. However, there are no reasons
mentioned in the impugned order warranting
externment of the petitioner from the limits
of Beed District. It is true that the
Appellate Authority confined operation of the
order of externment within limits of
Ahmednagar District, however, failed to take
into consideration fact that respondent no.4
has not recorded subjective satisfaction or
formed opinion that the witnesses are not
willing to come forward to give evidence in
public against the petitioner by reason of
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apprehension on their part as regards the
safety of their person or property. Even the
Appellate Authority has not referred to the
contention of the petitioner that out of 5
alleged offences, already he is acquitted
from three offences. It appears that there is
no proper application of mind either by
respondent no.4 and/or by the Appellate
Authority. There is no compliance of the
mandate of Section 56 (1) (a) and (b) of the
said Act. The Bombay High Court in the case
of Juber Abdul Vahid Kureshi Vs. State of
Maharashtra & ors in Criminal Writ Petition
No. 1511 of 2006 decided on 10th September,
2007, in para 3 held thus:
"3. There is no doubt that the
impugned order of externment has
been passed under Section 56 (1)
(b) of the Bombay Police Act,
1951 which indicates that there
were reasonable grounds for
believing that the petitioner
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was engaged or was 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 and in the opinion
of such officer there were no
witnesses willing to come
forward to give evidence in
public against such person by
reason of apprehension on their
part as regards the safety of
their person or property. To
support the order of externment
passed on such ground, it is
imperative that the Competent
Authority before passing the
order of externment went through
such in-camera statements
recorded and duly verified and
reached to the conclusion that
the witnesses were apprehensive
to come in the open and depose
against the petitioner /
externee."
[Underlines added]
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11. So far contention of the learned APP
that the petitioner has committed offence in
the jurisdiction of Jamkhed Police Station on
30.08.2016 under sections 395, 307, 143, 147,
148, 149 of the IPC etc. and therefore, FIR
came to be registered as Crime no. 140 of
2016 is concerned, the respondents are free
to take appropriate action/decision in that
respect. The aforesaid contention of the
respondents would fall beyond the scope of
writ jurisdiction and therefore we decline to
consider the said contention on merits.
12. In the light of discussion in the
foregoing paragraphs, inevitable conclusion
is that the order of externment passed by
respondent no.4 and confirmed by the
Appellate Authority cannot legally sustain,
hence both the orders are quashed and set
aside.
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13. Rule is made absolute in above
terms. Writ Petition stands disposed of
accordingly.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
