Anand @ Anant Shirishkumar ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 5660 Bom

                                                    916.2017 Cri.WP.odt
                                    1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO.916 OF 2017  

          Anand @ Anant Shirishkumar Pardeshi
          Age-29 Years, Occ-Business 
          R/o. Pardeshpura, Chandrashekhar Chowk 
          Sangamner, Tq.Sangamner, Dist-Ahmednagar
          Presently residing at Flat No.101, 
          G Wing, Akashnidhi Housing Society,  
          Ramdev Park Road, Mira Road,  
          Mumbai.                           PETITIONER

                     VERSUS

          1.       The State of Maharashtra 
                   Through Secretary,  
                   Home Department,  
                   Mantralaya, Mumbai 

          2.       The Superintendent of Police,  
                   Ahmednagar, Dist-Ahmednagar.  

          3.       Deputy Superintendent of Police,  
                   Sangamner, Sub Division, Sangamner 
                   Dist. Ahmednagar.  

          4.       The Sub Divisional Officer / Magistrate, 
                   Sangamner, Taluka-Sangamner, 
                   Dist-Ahmednagar.             RESPONDENTS

                               ...
          Mr.S.S.Dixit, Advocate for the Petitioner 
          Mr.V.M.Kagne, APP for the Respondent / State
                               ...

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

Date: 04.08.2017.

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

1. Heard.

2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. This Petition is filed praying

therein for quashing and setting aside the

order dated 13th April, 2017, passed by the

Divisional Commissioner, Nashik Division,

Nashik in Externment Appeal No.15/2017 and

the order dated 31st January, 2017, passed by

the Sub Divisional Officer, Sangamner in

Externment S.R.No.5/2016.

4. It is the case of the petitioner

that on 17th January, 2017, the petitioner had

received a show cause notice from the office

of Sub Divisional Officer, Sangamner, thereby

intimating the petitioner that the proposal

for externment of the petitioner is proposed

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by respondent no.2. On 25th January, 2017, the

petitioner has replied the said show cause

notice thereby replying to the allegations

made against the petitioner in the show cause

notice. Thereafter, on 31st January, 2017, the

Sub Divisional Officer, after considering the

record and after hearing the petitioner, was

pleased to extern the petitioner from three

Districts for two years. Being aggrieved by

the said order, the petitioner preferred an

appeal before the Divisional Commissioner,

Nashik Division, Nashik on various grounds.

On 13th April, 2017, the Appellate Authority

modified the order passed by the Sub

Divisional Officer thereby externing the

petitioner from Ahmednagar District for one

year. Hence this Petition.

5. The learned counsel appearing for

the petitioner invites our attention to the

contents of the show-cause notice and submits

that in the said show cause notice, there is

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no mention about the in-camera statements of

the witnesses. He submits that while passing

the impugned order, the respondent no.4 has

placed reliance on as many as 3 offences

without taking into consideration the fact

that the petitioner has not been convicted

even prior to issuance of the show cause

notice. He further submits that the order

passed by respondent authorities is excessive

inasmuch as though the offences registered

against the petitioner are at Sangamner City

Police Station, District Ahmednagar, the

petitioner was externed from the boundaries

of Ahmednagar, Nashik and Pune Districts. In

support of his aforesaid contentions, he

pressed into service exposition of law in the

cases of Rajendra Karbhari Kale Vs. State of

Maharashtra and others1, Shanno @ Shamali

Jafar Pathan Vs. The State of Maharashtra &

Ors.2, Shaikh Mukhtyar s/o.Mustafa Shaikh Vs.

1 2017 [1] Mh.L.J.[Cri.] 4791 2 2017 ALL MR [Cri.] 2192

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State of Maharashtra & Ors.3, Yashwant

Damodar Patil Vs. Hemant Karkare, Deputy

Commissioner of Police, Thane & another4,

Umar Mohamed Malbari Vs. K.P.Gaikwad, Dy.

Commissioner of Police & another5 and Nisar @

Nigro Bashir Ahmed Khan Vs. Dy. Commissioner

of Police & Ors.6. Therefore, he submits that

the Petition may be allowed.

6. On the other hand, learned APP

appearing for the respondent-State relying

upon the reasons assigned by the respondents

authorities in the impugned judgments and

orders submits that the authorities, after

adhering to the procedure prescribed under

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

of the Act of 1951, have rightly externed the

petitioner from the boundaries of the

Ahmednagar District.

3 2017 ALL MR [Cri.] 268 4 1989 Mh.L.J. 1111 5 1988 Mh.L.J. 1034 6 2013 [3] Bom.C.R.[Cri.] 566

916.2017 Cri.WP.odt

7. We have heard learned counsel

appearing for the petitioner, and learned APP

appearing for the respondent-State at length.

With their able assistance, we have carefully

perused the grounds taken in the petition,

annexures thereto, and the original record of

the case maintained by the office of the

respondents. Upon careful perusal of the

contents of the show-cause notice sent by the

Sub Divisional Police Officer, Sangamner, to

the petitioner, it appears that in the said

notice as many as 3 offences have been

mentioned. Out of those three offences, the

offences at serial nos.1 and 2 are shown to

be pending adjudication and offence at serial

no.3 is shown to be under investigation. All

the offences have been registered at

Sangamner City Police Station, District

Ahmednagar. In the said notice, it is

mentioned that the witnesses are not willing

to come forward to give evidence in public

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against the petitioner by reason of

apprehension on their part as regards the

safety of their person or property. The

petitioner has given reply to the said notice

stating therein that out of three offences

registered against him and pending

adjudication; in one of the offences, he is

not prime accused and necessarily involved

out of vengeance, one is likely to be

compromised.

8. We have carefully perused the

proposal submitted by the Sub Divisional

Police Officer, Sangamner to respondent no.4

on 26th September, 2016. In the said proposal,

4 offences registered at Sangamner Police

Station against the petitioner are shown. In

one of the offences at serial No.1 i.e. Crime

No.79/2006, the petitioner is shown to have

been acquitted. The offences at serial Nos.2

and 3 are shown pending adjudication, whereas

the offence at serial no.4 is shown to be

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under investigation. There is reference in

the said proposal about secret statements

given by the people in the vicinity.

Ultimately, the Sub Divisional Police Officer

has recommended that the petitioner should be

externed from the boundaries of Ahmednagar,

Nashik and Pune Districts.

9. The respondent no.4 passed the order

in the month of January, 2017. Upon careful

perusal of the contents of the said order,

there is reference of Section 56 [1] [a] [b]

of the Act of 1951, and also to the proposal

submitted by Sub Divisional Police Officer,

Sangamner with recommendation for externing

the petitioner from the three Districts.

10. In the reply to the said show cause

submitted by the petitioner, he has

specifically stated that the offences

referred in the show cause notice are yet to

be decided by the competent authority and the

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petitioner is not prime accused and has been

involved out of vengeance. According to the

petitioner, he is a business man and has not

committed any of the offences. Since none of

the offences are proved against him by the

competent authority, it cannot be said that

he is guilty of the said offences, there is

no question of causing danger to any body's

life or property. Therefore, respondent

authorities without adverting to the said

contention of the petitioner, proceeded to

consider the proposal submitted by the Sub

Divisional Police Officer, Sangamner. It

shows complete non-application of mind to the

facts of the case by the competent

authorities. It is mentioned in the said

order that the witnesses are not willing to

come forward to depose or to give complaint

against the petitioner due to his fear.

However, on careful perusal of the original

record, we do not find statements of

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witnesses recorded in-camera by the concerned

authority.

11. 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 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

916.2017 Cri.WP.odt

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]

12. 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

916.2017 Cri.WP.odt

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 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.

Keeping in view the above legal

position, it was incumbent upon respondents,

who dealt with an externment 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

916.2017 Cri.WP.odt

safety of their person or property.

The Division Bench of the Bombay High

Court [at Principal seat] in the case of

Yeshwant Damodar Patil [supra] 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 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

916.2017 Cri.WP.odt

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 (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

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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]

13. Upon careful perusal of the offences

registered against the petitioner, it is

abundantly clear that all offences have been

registered at Sangamner City Police Station,

Taluka Sangamner, District Ahmednagar. Upon

careful perusal of the discussion in the

impugned judgment of respondent no.4, there

are no specific reasons assigned for the

externment of the petitioner from Nashik and

Pune Districts.

14. Though the Appellate Authority i.e.

Divisional Commissioner, Nashik Division,

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Nashik has restricted the implementation and

operation of the order of externment passed

by respondent no.4 from the boundaries of

Ahmednagar District, nevertheless the

Appellate Authority did not consider the

procedural irregularities and illegalities

committed by respondent no.4 while passing

the impugned order, and also by the Sub

Divisional Police Officer while initiating

the proposal for externment of the petitioner

from three Districts.

15. In that view of the matter, we pass

the following order:

ORDER

i] The impugned order dated 13th April,

2017 passed by the Divisional

Commissioner, Nashik in Externment

Appeal No.15/2017 and the order

dated 31.01.2017 passed by the Sub-

Divisional Officer, Sangamner in

916.2017 Cri.WP.odt

Externment S.R. No.5/2016 are hereby

quashed and set aside.

ii] Rule is made absolute on the above

terms. The Petition stands disposed

of accordingly.

              [S.M.GAVHANE]             [S.S.SHINDE]
                  JUDGE                     JUDGE  
          DDC