Bombay High Court
Nagesh Gangadhar Vibhute vs The State Of Maharashtra And ... on 1 August, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 744 OF 2017
Nagesh Gangadhar Vibhute
Age : 26 years, Occ : Agri.,
R/o Chondi, Tq. Dharmabad,
Dist. Nanded. PETITIONER
VERSUS
1. State of Maharashtra
2. Deputy Superintendent of Police,
Dharmabad, Dist. Nanded.
3. Sub-Divisional Magistrate,
Dharmabad, Dist. Nanded.
4. Divisional Commissioner,
Aurangabad
RESPONDENTS
...
Mr.Mohasin Latif Khan Pathan, Advocate for
the Petitioner
Mr.V.M. Kagne, APP for Respondent/State.
...
CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
Reserved on : 27.07.2017
Pronounced on : 02.08.2017
JUDGMENT: (Per S.S.Shinde, J.):
Rule. Rule made returnable
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forthwith, and heard finally with the consent
of the parties.
2. This Petition is filed with the
following prayer :-
"B. The Externment order passed by the
respondent no.3 - Sub- Divisional
Magistrate, Dharmabad dated 17.01.2017
and the order passed by the Divisional
Commissioner in appeal no. CR-02 dated
30.05.2017 may kindly be quashed and
set aside."
3. The learned counsel appearing for
the petitioner submitted that, respondent
no.2 issued notice to him on 21st September,
2016 stating therein that, why externment
proceedings should not be initiated against
him. In the said proceedings, four offences
were mentioned. However, the petitioner was
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already acquitted of from the said offences
even before issuance of such notice. He
further submits that, while conducting the
proceedings by respondent no.3, there is no
compliance of mandate of provisions of
Section 56(1)(a) and (b) of the Maharashtra
Police Act, 1951. He further submits that,
the petitioner was externed from Nanded,
Latur, Hingoli and Parbhani districts by
respondent no.3, however, the offences from
which he was already acquitted, were
registered with Police Station, Dharmabad. He
submits that, the appellate authority relied
upon Crime No. 438 of 2014 registered with
Police Station, Dharmabad under section 107
of the Code of Criminal Procedure dated 9th
October, 2016, though the said crime is not
mentioned in the show-cause notice. He
submits that, though the appellate authority
partially modified the order passed by
respondent no.3 and made it enforceable
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restricting to Nanded district only,
nevertheless, the other legal aspects, as
agitated by the petitioner, have not been
considered by the said authority. The learned
counsel appearing for the petitioner pressed
into service the exposition of law in the
cases of Mahesh Bajrang Dalvi V/s The State
of Maharashtra1, Balaji S/o Ganpati Chame V/s
The State of Maharashtra and others 2 and
Sopan Satappa Kore V/s The State of
Maharashtra and others3, and submits that the
Petition may be allowed.
4. On the other hand, the learned
A.P.P. appearing for respondent/State,
relying upon the reasons assigned by
respondent nos.3 and 4 in the impugned
orders, submits that, the authorities have
adhered to the proper procedure and have
passed the appropriate orders.
1 2017 All MR (Cri) 777
2 2017 All MR (Cri)719
3 2017 All MR (Cri) 764
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5. We have carefully considered
submissions of the learned counsel appearing
for the petitioner, and the learned APP
appearing for the respondent - State. With
their able assistance, we have carefully
perused the grounds taken in the petition,
annexures thereto and also the original
record maintained by the office of Respondent
No.3, and the reasons assigned by respondent
nos.3 and 4 in the impugned orders.
6. The contention of the learned
counsel appearing for the petitioner that,
the petitioner was acquitted of from four
offences even prior to issuance of the show-
cause notice by the respondents deserves
acceptance, in as much as, there is no
discussion in the impugned orders passed by
respondent nos.3 and 4 about the contention
of the petitioner that, he was acquitted from
all those offences mentioned in the show-
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cause notice even prior to issuance of the
said notice, and therefore, no reliance can
be placed on said offences. In the show-cause
notice as well as in the impugned order
passed by respondent no.3, Crime Nos.77/2013,
80/2014 06/2014 and 93/2014 are shown pending
for trial before the Court.
7. Upon careful perusal of contents of
the show-cause notice dated 19.12.2016 issued
by the Respondent No.2, it is nowhere
mentioned 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. It is
true that, it is not expected from the
authority that the names of such witnesses or
date of such incident or other material
particulars should be mentioned in the show
cause notice. However, the Supreme Court in
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the case of Pandharinath Shridhar Rangnekar
Vs. Dy.Commissioner of Police, State of
Maharashtra4, held that, proposed externee is
entitled, before an order of externment is
passed under Section 56, to know the material
allegations against him and general nature of
those allegations.
8. At this juncture, it would be apt to
make reference to the provisions of Section
56(1)(a)(b) of the Act of 1951, which 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
4 AIR 1973 SC 630
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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 apprehension on
their part as regards the
safety of their person or
property, or
[Underlines are added]
9. 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
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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
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 with externment
proceedings, should be of 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.
Keeping in view the above legal
position, it was incumbent upon respondent
no.3, who dealt with an externment
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proceedings, to arrive at 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.
10. Upon careful perusal of the
discussion by respondent no.3 in the impugned
order, it appears that, there is no reference
of recording in camera statements of the
witnesses. 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 & another5 had
occasion to consider the scope of provisions
of Section 56 [1] [a] and [b] 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
5 1989 (3) Bom.C.R. 240
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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 force
or violence. It is so provided
in the first part of clause (b)
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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]
11. It appears that, the authorities
have not made discussion in the impugned
orders showing live link and proximity in
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between the initiation of externment
proceedings by respondent nos.2 and 3, and
the offences from which the petitioner stands
already acquitted even prior to the issuance
of the show-cause notice. Further though all
the offences mentioned in the show-cause
notice and also in the impugned order passed
by respondent no.3 are registered at
Dharmabad Police Station, Dist. Nanded, the
petitioner was externed by respondent no.3
from Latur, Hingoli and Parbhani districts,
without assigning any reasons why his
externment was necessary for the abovesaid
districts.
12. Though the Appellate Authority i.e.
respondent no.4 has restricted the
implementation and operation of the order of
externment passed by respondent no.3 from the
boundaries of Nanded District, nevertheless
the Appellate Authority did not consider the
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procedural irregularities and illegalities
committed by respondent no.3 while passing
the impugned order, and also by respondent
no.2 while initiating the proposal for
externment of the petitioner from four
Districts.
15. In that view of the matter, we are
of the considered view that, the impugned
orders passed by respondent nos.3 and 4
cannot legally sustain, hence both the orders
are quashed and set aside. Rule is made
absolute on above terms. The petition stands
disposed of accordingly. No order as to
costs.
[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
SAG
