Dnyaneshwar Madhav Malve vs The Divisional Commissioner ...
2017 Latest Caselaw 5323 Bom

                                     (1)                             crwp872.17

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO. 872 OF 2017


Dnyaneshwer Madhav Malve                              ..       Petitioner
Age. 43 years, Occ. Agri.,
Permanent R/o. A/o. Kolpewadi,
Tq. Kopargaon, Dist. Ahmednagar
At present R/o. C/o. 
Mangesh Madhav Malve
Sheetal Nagar, Satara parisar,
Ekta Swarup Apartment,
Flat No.4, Aurangabad.

                                    Versus


1)    The Divisional Commissioner                     ..       Respondents
      Nashik Division, Nashik.

2)    The Sub-Divisional Police Officer,
      Shirdi Division, Shirdi,
      Tq. Rahata, Dist. Ahmednagar.

3)    The Sub-Divisional Magistrate,
      Shirdi Division, Shirdi,
      Tq. Rahata, Dist. Ahmednagar.


Mr. K.B. Borde Patil, Advocate for the petitioner.
Mr. M.M. Nerlikar, A.P.P. for respondents/State.


                                     CORAM :  S.S.SHINDE &
                                              S.M.GAVHANE,JJ.

DATED : 01.08.2017

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ORAL JUDGMENT [PER : S.S. SHINDE,J.] :-

1. Rule. Rule made returnable forthwith and heard

finally with the consent of the parties.

2. At the outset learned Counsel appearing for the

petitioner makes oral prayer to correct designation of

respondent No.3 in the cause title of the memo of

petition. The prayer is granted. The amendment be

carried out forthwith.

3. This petition takes an exception to the order

dated 28.04.2017 passed by the Divisional Commissioner,

Nashik in Externment Appeal No.24 of 2017, thereby

confirming the order passed by respondent No.3. It is

not necessary to make reference to the facts in greater

length stated in the petition. Suffice it to say that

the petitioner assailed the order passed by respondent

No.3 which is confirmed by respondent No.1 principally on

two grounds. Firstly, the order is excessive in as much

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as though the alleged offences which are mentioned in the

show-cause notice issued by respondent No.3 are

registered at Kopargaon Police Station, however, the

petitioner is externed from the boundaries of Kopargaon,

Rahata, Shrirampur, Sangamner Talukas (Tahsil) of

Ahmednagar District; Yeola, Sinnar and Niphad Talukas of

Nashik District and Vaijapur Taluka of Aurangabad

District. It is submitted that respondent Nos.1 and 2

have not assigned any reasons in the impugned order why

the externment of the petitioner is necessary from

aforementioned Talukas of Nashik and Aurangabad

Districts. He further submits that since the order

passed by respondent No.3 is taking recourse to the

provisions of section 56(1)(a)(b), of the Maharashtra

Police Act [for short "the said Act"]; there is no

compliance of mandate of section 56 (1)(b) of the Act, in

as much as, though there is reference to the statement of

witnesses recorded in camera by respondent No.2,

respondent No.3, did not form opinion that witnesses are

not willing to come forward to give evidence in public

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against such person by reason of apprehension on their

part as regards the safety of their person or property.

It is submitted that when the Sub-Divisional Magistrate

is empowered to deal with the proceedings under the

provisions of Section 56(1)(a)(b) of the Act, said

Officer is supposed to apply his mind to the material

before him and in particular the statements of witnesses,

so as to form opinion that the witnesses are not willing

to come forward to give evidence against the proposed

externee in public by reason of apprehension on their

part as regards the safety of their person or property.

Therefore, learned Counsel appearing for the petitioner,

relying upon grounds taken in the petition and annexures

thereto, submits that the petition deserves to be

allowed.

4. On the other hand, learned APP appearing for the

respondents relying upon section 59 of the said Act

submits that there is no provision in law that only the

Sub-Divisional Magistrate has to issue notice. In his

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submission the Sub-Divisional Police Officer i.e.

respondent No.2 is competent authority, who had issued

notice to the petitioner and therefore, there is

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

Act. He submits that pursuant to the notice issued by

respondent No.2, the petitioner filed reply and

thereafter considering the reply of the petitioner,

proposal was forwarded to respondent No.3 by respondent

No.2 so as to take the externment proceeding at its

logical end. He submits that notice given by respondent

No.2 contains the general nature of material allegations

against the petitioner and also reference is made to the

in-camera statements of the witnesses verified by the

Sub-Divisional Police Officer and recorded by Police

Inspector at the time of forwarding the proposal for

externment of the petitioner from the aforementioned

three Districts. He submits that even, the contents of

the notice issued by respondent No.3 on 02.04.2016

(Exh."D" - page 22 of the compilation of writ petition)

would make it clear that, there is reference in the said

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notice to the proceedings initiated and notice issued by

the Sub-Divisional Police Officer. Therefore, in his

submission, even though in the notice issued by the

respondent No.3, there is no mention about the fact that

the statements of the witnesses have been recorded in-

camera and they have deposed that the witnesses are not

willing to come forward to give evidence against the

petitioner i.e. proposed externee, in public by reason of

apprehension on their part as regards the safety of their

person or property, it cannot be said that, there is non-

compliance of mandate of Section 56(1)(b) of the Act. He

submits that respondent Nos.1 and 3 have assigned

sufficient reasons, why externment of the petitioner is

warranted from not only Kopargaon, Rahata, Shrirampur,

Sangamner Talukas of Ahmednagar District but also from

adjacent two Districts i.e. some Talukas of Nashik and

Aurangabad.

5. We have given careful consideration to the

submissions of learned Counsel appearing for the

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petitioner and learned APP appearing for the respondents.

With their able assistance we have carefully perused the

grounds taken in the petition and annexures thereto, the

reasons assigned by respondent Nos.1 and 3 in the

impugned order and also relevant provisions and the

judgments cited across the bar by the learned Counsel

appearing for the petitioner and also learned APP for the

State. At the outset, it would be apt to reproduce

herein below the provisions of section 56(1)(a)(b) of the

said Act, which reads as under :-

Removal of persons about to commit offence "56. .

(1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under Sec. 7 to the Commissioner and in other area or areas to which State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf-

(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 (XLV of 1860), or in the abetment of any such

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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 x x x x x"

6. The Division Bench of this Court in the case of

Yashwant Damodar Patil Vs. Hemant Karkare, Deputy

Commissioner of Police, Thane & Anr., 1989 Mh.L.J.1111,

had occasion to consider the scope of section 56 (1)(a)

(b) of the said Act. Para 3 from the said judgment reads

as under :-

"3. Section 56(1) 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 analyze the two situations which are covered by Clauses (a) and

(b) of section 56(1) 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 force or violence. It is so provided in the first part of clause (b) of section 56(1) of the Act. An order of externment can also be passed against a person if that

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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(1) 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."

7. Upon reading para 3 from the said judgment, it

is abundantly clear that the order of externment can be

passed against a person if there are reasonable grounds

believing that such person is engaged or about to be

engaged in commission of offence involving force or

violence under Chapter XII or Chapter XVI or Chapter XVII

of the Indian Penal Code. This is so provided in the

later part of clause (b) of section 56(1) 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

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person by reason of apprehension on their part as regards

the safety of their person or property.

8. Admittedly, in the notice which was issued by

respondent No.3 i.e. Sub-Divisional Magistrate, Shirdi,

there is no mention about the general nature of material

allegations against the petitioner, that the witnesses

are not willing to come forward to give evidence against

him in public by reason of apprehension on their part as

regards safety of their person or property. It is true

that it is not necessary for the concerned authority to

mention the names of such witnesses or time of the

incident or any other material particulars.

Nevertheless, in view of ratio laid down by the Supreme

Court in the case of Pandharinath Shridhar Rangnekar Vs.

Dy. Commissioner of Police, State of Maharashtra, AIR

1973 SC 630, the proposed externee is entitled to know

the general nature of the material allegations against

him. Therefore, the contention of learned APP appearing

for the State that the notice issued by respondent No.2

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makes mention that in-camera statements of the witnesses

have been recorded and they 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, and said compliance

is sufficient, would run contrary to the legislative

intent as reflected under the provisions of Section 56(1)

(b) of the said Act. The Designated officer who

exercises powers under section 56 of the Act is the

Officer, who ultimately passes the order of an externment

under the said Act. Said officer has to form 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. It is not a mechanical process. He

has to apply his mind and then pass the appropriate

order. If the order of an externment is passed against a

person, his fundamental right to move from one place to

another or the right to reside at a particular place of

his choice, gets curtailed. Therefore, the legislative

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intent while enacting provisions of Section 156(1)(b) of

the Act is crystal clear that the concerned officer who

is ultimate authority to pass the order of the

externment, shall form his opinion by applying his mind

to facts of the case and material placed before him, and

after verifying the statements of the witnesses, shall

form his opinion that the witnesses are not willing to

come forward against the proposed externee to depose in

public by reason of apprehension on their part as regards

the safety of their person or property. As already

observed, said compliance is not an empty formality and

the said officer is bound to strictly adhere to the

provisions of section 56 (1)(b) of the said Act.

9. Upon carefully considering the reasons assigned

by respondent Nos.1 and 3, an externment of the

petitioner from Yeola, Sinnar and Niphad Talukas of

Nashik District and Vaijapur Taluka of Aurangabad

District, there are no any specific reasons are assigned,

or it is not discussed that some of the offences

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mentioned in the order are in relation to such unlawful

activities of the petitioner, which have been registered

in the Police Stations situated in aforesaid Talukas from

the Nashik and Aurangabad Districts. It is not necessary

for us to elaborate the reasons. Suffice it to say that

the orders passed by respondent Nos.1 and 3 are not

legally sustainable for two reasons. Firstly, there is no

compliance of mandate of provision of Section 56(1)(b) of

the said Act and secondly, the order of externment is

excessive.

10. In that view of the matter, petition succeeds,

the Criminal Writ Petition is allowed in terms of prayer

clause (B). Rule made absolute in above terms. No order

as to costs.

       [S.M.GAVHANE,J.]                       [S.S. SHINDE,J.]


snk/2017/AUG17/crwp872.17