Bombay High Court

Shanno @ Shamali Jafar Pathan vs The State Of Maharashtra And ... on 27 April, 2017

Bench: S.S. Shinde

                                                             463.2016 Cri.WP.odt
                                          1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO.463 OF 2017 

          Shanno @ Shamali Jafar Pathan 
          Age: 32 years, Occu. Agriculture 
          R/o. Bhikanwada, Pathardi,  
          Tq. Pathardi, Dist. Ahmednagar    PETITIONER 

                     VERSUS 

          1.       The State of Maharashtra 

          2.       The Sub Divisional Officer,  
                   Pathardi Sub Division, Pathardi,  
                   District Ahmednagar.  

          3.       The Divisional Commissioner,  
                   Nashik Division, Nashik.     RESPONDENTS

                               ...
          Mr.D.R.Jaybhar, Advocate for the Petitioner 
          Ms.P.V.Diggikar, APP for Respondent Nos.1  to 
          3/State
                               ...

                          CORAM:  S.S.SHINDE & 
                                  K.K.SONAWANE,JJ.

Reserved on : 24.04.2017 Pronounced on : 27.04.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. Heard.

2. Rule. Rule made returnable

463.2016 Cri.WP.odt

forthwith, and heard finally with the consent

of the parties.

3. This Writ Petition takes exception

to the judgment and order dated 17th March,

2017, passed by the Divisional Commissioner,

Nashik Division, Nashik in Appeal No.5/2017,

thereby confirming the judgment and order

dated 12th January, 2017, passed by the Sub

Divisional Magistrate, Pathardi Region,

Pathardi in Externment Case bearing No.S.R.

No.103/2016.

4. The learned counsel appearing for

the petitioner submits that, there are in all

6 cases, registered at Pathardi Police

Station, Pathardi, against the petitioner.

Out of the said 6 cases, which are relied

upon by the authorities, the petitioner is

acquitted from two cases. The said aspect

has not been considered by the respondent -

authorities before passing the impugned

463.2016 Cri.WP.odt

orders. It is submitted that the cases filed

against the petitioner are only with a view

to harass the petitioner. It is submitted

that the petitioner is the only bread earner

member of the family. An old aged parents are

dependent upon him. He is doing business of

selling the scrapped material in Pathardi

Town. It is submitted that, all alleged

offences have been registered against the

petitioner at Pathardi Police Station, and

therefore, without assigning any specific

reasons, the petitioner is unnecessary

externed from the boundaries of Ahmednagar,

Shevgaon and Pathardi Taluka from Ahmednagar

District and also from the boundaries of

Ashti and Shirur Kasar Talukas in Beed

District. It is submitted that, the order

passed by respondent no.2 is excessive. It is

submitted that issuance of show cause notice

and also the order passed by respondent no.2,

is without application of mind. There is no

463.2016 Cri.WP.odt

reference to the in-camera statements, either

in the show cause notice or in the impugned

order passed by respondent no.2. It is

submitted that though it is not expected to

give the names of witnesses, whose in-camera

statements have been recorded or other

material particulars of such recording of the

statement, nevertheless in view of the

mandate of Section 56 (1) (b) of the

Maharashtra Police Act, it is necessary to

record in-camera statements of the witnesses,

so as to arrive at the subjective

satisfaction by the concerned authority that

the 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. Therefore, the learned counsel

appearing for the petitioner submits that the

petition may be allowed.

5. The learned APP appearing for

463.2016 Cri.WP.odt

respondent-State, relying upon the original

record and also the reasons assigned in the

impugned orders, submits that, the petition

is devoid of any merits and the same may be

rejected. He further submits that there is

reference to the in-camera statements

recorded by the respondent authority 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.

6. We have carefully considered the

submissions of the learned counsel appearing

for the petitioner and the learned APP

appearing for the respondent-State. With

their able assistance, we have also carefully

perused the pleadings and grounds taken in

the petition, annexures thereto, original

record made available for perusal by the

respondents. Upon careful perusal of the

463.2016 Cri.WP.odt

impugned show cause notice and the orders

impugned in this Petition, it appears that,

all the offences registered against the

petitioner are at Pathardi Police Station,

Pathardi. Respondent no.2 has not given any

specific reason why the externment of the

petitioner from the Ahmednagar, Shevgaon and

Pathardi Taluka from Ahmednagar District and

also from the boundaries of Ashti and Shirur

Kasar Talukas in Beed District, was

necessary. It is true that, if there is

sufficient and cogent material on record, and

by assigning specific reasons, proposed

externee can be externed from other adjoining

Talukas or Districts. But in the present

case, respondent no.2 has not assigned any

specific reasons, why the petitioner's

externment was necessary from Ahmednagar,

Shevgaon and Pathardi Taluka from Ahmednagar

District and also from the boundaries of

Ashti and Shirur Kasar Talukas in Beed

463.2016 Cri.WP.odt

District. It is true that the Appellate

Authority i.e. respondent no.3 has reduced

the period of externment of 2 years to one

year and also externment of the petitioner is

restricted from Pathardi Taluka. However, an

initiation of the externment proceedings is

serious matter for the proposed externee,

inasmuch as, his right to move from one place

to another or right to reside / stay at the

particular place of his choice gets

restricted and curtailed, in case an

excessive externment order is passed.

Therefore, it is necessary for the concerned

authority while initiating an externment

proceedings, to strictly adhere to the

mandate of the provisions of Section 56 (1)

(a) (b) and 59 of the Maharashtra Police Act.

Therefore, the proper and conscious

application of mind by the authority in such

proceedings is indispensable, and the mandate

of law contemplates such exercise.

463.2016 Cri.WP.odt

7. Upon careful perusal of the show

cause notice and also the order passed by

respondent no.2, there is no reference to the

in-camera statements of the witnesses. At

this juncture, it would be apt to reproduce

herein below the provisions of Section 56 (1)

(a) and (b) of the Maharashtra Police 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

463.2016 Cri.WP.odt

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 apprehension on their part as regards the safety of their person or property, or

[Underlines are added]

8. Upon careful perusal of the

aforesaid provisions, an order of externment

can be passed against a person whose

movements or acts are causing or calculated

to cause alarm, danger or harm to person or

property as provided in clause (a). The order

of externment can also be passed against a

person if there are reasonable grounds for

believing that such a person is engaged or is

about to be engaged in the commission of an

offence involving force or violence as

provided in clause (b). An order of

463.2016 Cri.WP.odt

externment can also be passed against a

person if that person is engaged or about to

be engaged in the commission of an offence

punishable under Chapter XII, or Chapter XVI,

or Chapter XVII of the Indian Penal Code.

But in addition to the above, the concerned

Officer, who is dealing externment

proceedings, should be of the opinion that

the 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. The Division Bench of the Bombay

High Court [at Principal seat] in the case of

Yeshwant Damodar Patil Vs. Hemant Karkar, Dy.

Commissioner of Police & another1 had

occasioned to consider the scope of

provisions of Section 56 [1] [a] and [b] and

also the mandate of provisions of Section 59

1 1989 (3) Bom.C.R. 240

463.2016 Cri.WP.odt

of the Bombay Police Act. It would be gainful

to reproduce herein below para 3 of the said

judgment:

3. Section 56 (i) of the Bombay Police Act visualises three situations in which the order of externment could be passed by the designated officer. We will, however, ignore, for the purpose of the disposal of this petition the third type of situation and only analyse the two situations which are covered by Clauses (a) and (b) of section 56 (i) of the Act. An order of externment can be passed against a person whose movements or acts are causing or calculated to cause alarm, danger or harm to person or property. That is what is provided in clause (a). The order of externment can also be passed against a person if there are reasonable grounds for believing that such a person is engaged or is about to be engaged in the commission of an offence involving

463.2016 Cri.WP.odt

force or violence. It is so provided in the first part of clause (b) of section 56 (i) of the Act. An order of externment can also be passed against a person if that person is engaged or about to be engaged in the commission of an offence punishable under Chapter XII, of Chapter XVI, or Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause (b) of section 56 (i) of the Act. But it is not enough that these conditions alone are satisfied. In addition to this the designated officer should be of the opinion that 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.

[Underlines added]

10. The aforementioned provisions make

it abundantly clear that in order to fulfill

mandate of the provisions of Section 56 (1)

463.2016 Cri.WP.odt

(b), the designated officer has to record his

opinion that 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.

11. Yet in another exposition of law in

the case of Balu Vs. The Divisional

Magistrate, Pandharpur2, while appreciating

the facts involved in that case, this Court

held that extending the area of externment

not only outside Pandharpur Taluka but to the

Districts of Solapur, Pune and Satara is

illegal since the alleged activities against

the petitioner therein, as stated in the show

cause notice, were confined to the Pandharpur

City.

12. In the light of the discussion

herein above, it will have to be held that

there was no proper application of mind on 2 1969 Mh.L.J. 387

463.2016 Cri.WP.odt

the part of respondent no.2 and an order of

externment is excessive, inasmuch as, the

petitioner is externed from Ahmednagar,

Shevgaon and Pathardi Taluka from Ahmednagar

District and also from the boundaries of

Ashti and Shirur Kasar Talukas in Beed

District, through the offences are registered

only at Pathardi Police Station, Pathardi,

District Ahmednagar.

13. In the light of the discussion

herein above, we pass the following order:

ORDER

i) The Writ Petition is allowed. The

judgment and order dated 17th March,

2017, passed by the Divisional

Commissioner, Nashik Division,

Nashik in Appeal No.5/2017 and the

judgment and order dated 12th

January, 2017, passed by the Sub

Divisional Magistrate, Pathardi

463.2016 Cri.WP.odt

Region, Pathardi in Externment Case

bearing No.SR No.103/2016 stand

quashed and set aside.