Vikrant S/O. Prabhakar Nawle vs The Divisional Commissioner ...
2017 Latest Caselaw 6384 Bom

                                                               Cri.W.P.870/2017
                                      1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                   CRIMINAL WRIT PETITION NO. 870 OF 2017

Vikrant s/o Prabhakar Nawle,
Age 31 years, Occu. Agri.,
& Vegetable business,
Permanent r/o A/p Puntamba,
Taluka Rahata, District
Ahmednagar
At present r/o c/o Digvijay Gavli,
Ramwadi, Panchvati, Nashik                           ..Petitioner

        Versus

1.      The Divisional Commissioner,
        Nashik Division, Nashik

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

3.      The Sub-Divisional Officer,
        Shirdi Division, Shirdi,
        Taluka Rahata, Dist.Ahmednagar               ..Respondents

Mr K.B. Borde, Advocate for petitioner
Mrs P.V. Diggikar, A.P.P. for respondents

                                     CORAM : S.S. SHINDE AND
                                             R.M. DHAVALE, JJ.

                                     DATE OF RESERVING
                                     THE JUDGMENT : 9th August 2017

                                     DATE OF PRONOUNCING
                                     THE JUDGMENT :21st August 2017


JUDGMENT (Per A.M. Dhavale, J.)

1. By this petition under Articles 226 and 227 of the Constitution of

India, the petitioner seeks quashing of order of exeternment dated

30.5.2017 passed by the Divisional Commissioner, Nashik in

Externment Appeal No.24 of 2017, confirming the order passed by the

Sub Divisional Officer dated 25.10.2016 externing the petitioner from

Cri.W.P.870/2017

eight talukas from Ahmednagar, Nasik and Aurangabad districts for

two years.

2. Mr Borde, learned Advocate for the petitioner has challenged

the order on the following grounds:

(I) Three criminal cases filed against the petitioner, two of which

were of 2011 and one of 2014 do not show that the activities of

petitioner are prejudicial to the public tranquility and there is no

proximity with the alleged activities and the order of externment.

(II) The subjective satisfaction of the competent authority that the

witnesses were not ready to come forward to lodge reports has not

been recorded. The in camera statements were not referred in the

notice, but those were considered.

(III) The statements did not disclose the specific incident or specific

place and date.

(IV) Earlier, there was externment proceedings taken on the basis of

two of the three criminal proceedings and the said case ended in

favour of the petitioner. Those two cases are again taken into

consideration to take a contrary view.

(V) The competent authority has indulged in excessive jurisdiction.

The alleged offences are registered at Rahata police station but the

petitioner has been externed from eight talukas i.e. Kopargaon,

Cri.W.P.870/2017

Rahata, Shrirampur, Sangamner, Yeola, Sinnar, Niphad, Vaijapur.

(VI) The impugned order is not in consonance WITH provisions of

Sections 56 and 57 of the Maharashtra Police Act.

3. Learned A.P.P. supported the impugned judgment. She

submitted that proper procedure was followed. There was preliminary

enquiry by Sub Divisional Police Officer after issuing due notice to the

petitioner. After submission of report by the Sub-Divisional Police

Officer, the Sub Divisional Officer had again issued show cause notice

dated 16.10.2015. Full opportunity was granted to the petitioner and

due procedure was followed. The petitioner was fined twenty one

times for extracting and theft of sand from the river bed of Godavari.

He has formed a gang and has created atmosphere of terror. The

public tranquility has been affected. The people are not ready to

come forward against the petitioner on account of fear. In camera

statements of two witnesses were recorded and were considered.

There is no flaw in the procedure followed by the competent authority.

Hence, the petition deserves to be dismissed.

4. The learned Advocate for the petitioner and learned A.P.P. for

the State relied on following rulings :

1. Yasin Khan Masum Khan Multani Vs. State of

Maharashtra and ors., 2015 ALL MR (Cri) 1467

2. Ashraf Shamsher Ali Jagirdar Vs. State of Maharashtra

and ors., 2015 ALL MR (Cri) 2945.

Cri.W.P.870/2017

5. After considering the arguments of the parties, the issue for our

consideration is, 'whether the impugned externment order confirmed

by the Divisional Commissioner on 30.5.1917 is sustainable on facts

and in law ?' We answer it in negative for following reasons.

6. The notice was issued under Section 56 (1) (a) (b) of the

Maharashtra Police Act, which reads thus :

" Sec. 56 (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 apprehension on their part as regards the safety of their person or property, or

(c) The said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or such prejudicial act, or the outbreak or spread of such disease or notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the officer or not and whether continguous

Cri.W.P.870/2017

or not), by such route, and within such time, as the officer may specify and not to enter or return to the area or areas specified (hereinafter referred to as "the specified area or areas") from which he was directed to remove himself].

7. The original record produced by the learned A.P.P. is perused. It

shows that the petitioner is facing prosecution in three cases, out of

which two cases are of theft of sand registered at Rahata Police

Station in 2011. One case No.114/2014 is regarding obstruction to the

public servant in performance of their official duty of holding auction

of sand and committing riot. It is registered at Rahata Police Station

in 2014.

8. When the first two cases were pending against the petitioner,

an externment proceeding was initiated against him and by order

dated 30.4.2013, the learned Sub Divisional Officer, Shrirampur felt

that one opportunity of improvement should be given to the petitioner

and the request for externment was turned down.

9. The third case was registered on 19.8.2014 for offences

punishable under Sections 143, 353, 186, 323, 504, 506 read with

sec.149 of Indian Penal Code. That day, Naib Tahsildar had initiated

process of public auction of sand. It is alleged that The petitioner and

his accomplice gathered there and intimidated the revenue Officers

by opposing and by using threatening language and interfered with

the process of auction. The petitioner's case is that the Tahsildar was

holding the auction contrary to the provisions of law. Hence, he had

attended the said auction along with his Advocate and had served

Cri.W.P.870/2017

notice through his Advocate. The Naib Tahsildar at the instance of

political leaders quarreled with the petitioner and his Advocate and

implicated them in a case. When the Bar Association of Rahata took a

morcha, the name of Advocate was deleted from the said case. He

has not committed any offence.

10. The fresh process for externment was initiated with issuance of

show cause notice dated 8.6.2015 by Sub Divisional Police Officer,

Shirdi. The said notice indicated that the activities of the petitioner

were dangerous to the people residing in the vicinity and there was

fear and threat to the public at large. He and his accomplice were

indulging in beating, intimidating, abusing and spreading atmosphere

of terror so that the people should not make complaint against him at

the Police Station. The petitioner indulged in theft of sand thereby

causing loss of environmental balance. There was reference to in

camera statements of two witnesses disclosing that the petitioner was

using weapons, creating terror so as to have unobstructed free play in

the matter of extraction and theft of sand. The petitioner was

regularly committing theft of sand but due to fear of the petitioner

and his accomplice, the people were not ready to disclose their

names. There was breach of peace. This notice was replied by the

petitioner by reply dated 14.7.2015. He claimed that Murlidhar

Thorat, Ex-Sarpanch had political rivalry with him. The externment

proceedings initiated on the basis of first two cases have already

ended into dismissal. The third case was fabricated, as he has

opposed the Tahsildar from holding illegal public auction of sand.

Cri.W.P.870/2017

11. On going through the papers of enquiry, we find following

material infirmities, which go to the root of the matter.

(1) Excessive Jurisdiction :

In the present case, we find that all the three cases registered

against the petitioner were from the jurisdiction of Rahata Police

Station. The Sub-Divisional Officer exceeded his jurisdiction while

externing the petitioner from seven other taluka places namely

Kopargaon, Shrirampur, Sangamner, Yeola, Sinnar, Niphad and

Vaijapur. The reasons recorded that there are to justify such

externment. On this ground alone, the impugned order deserves to be

quashed.

There is consistent view that the externment should be from

those areas or taluka places, wherein the answerable party was

carrying out his illegal activities. In Rajendra Kale Vs. State of

Maharashtra ALL MR 824, Division Bench of this Court to which one

of us (Justice S.S. Shinde) was a party and in Yasin Khan

Masum Khan Multani Vs. State of Maharashtra and ors., 2015

ALL MR (Cri) 1467 and Ashraf Shamsher Ali Jagirdar Vs. State

of Maharashtra and ors., 2015 ALL MR (Cri) 2945, it is held that

externment of persons from district places, where there are no

criminal activities is a case of excessive jurisdiction in violation of

Article 14 and 19 (1) (d) and 21 of the Constitution of India.

                                                                 Cri.W.P.870/2017


(2)     Improper notice

It is also observed that the competent authority has relied on

two in camera statements recorded during enquiry by subordinates,

but the competent authority in his show cause notice issued under

Section 56 and 59 of the Maharashtra Police Act dated 16.10.2015 did

not record that the in camera statements were seen and verified by

him and were found to be true and correct. There is absolutely no

reference to these in camera statements, which have been used for

passing the impugned order. The order does not disclose that these

statements related to the third incident. As held in Nandkishor Vs.

Deputy Commissioner, 2013 ALL MR (Cri.) 3481, Yeshwant

Damodar Patil vs Hemant Karkare, Dy.Commissioner of Police,

1989(3) BCR 240 and Kanifnath Radhakishan Popalghat Vs.

The State of Maharashtra 2017 ALL MR (Cri) 795 Division Bench

judgment of this Court to which one of us ( Justice S.S. Shinde ) was a

party, Rajendra Karbhari Kale Vs. The State of Maharashtra,

2017 ALL MR (Cri) 824, Division Bench judgment of this Court to

which one of us (Justice S.S. Shinde) was a member the subjective

satisfaction of the competent authority that the witnesses were afraid

to come forward in public and give evidence against the externment is

a sine qua non. It is not recorded.

(3) It is also noticed that the Sub-Divisional Officer, Shirdi relied on

twenty one cases of excavation of sand in which fine has been

imposed on the petitioner, but the preliminary enquiry conducted by

Sub-Divisional Police Officer was totally silent about the same. No

Cri.W.P.870/2017

opportunity was given to the petitioner to controvert the allegations

made against him.

(4) Besides, there is no close nexus between alleged activities and

date of initiation of action. Two cases were four to five years old while

one was almost two years old. We have gone through the in camera

statements produced in sealed envelope. Holding of enquiry and

giving opportunity to the answerable party is not empty formality. It

should be real, genuine and not illusory. In the present case, the

answerable party had raised certain defences in his reply. He has

stated that on account of political enmity he has been falsely

implicated by giving in camera statements. He has not

committed any act which can be treated as activities dangerous or

harmful to any person or property. This defence was not at all

considered. We find that there is non application of mind. The facts

alleged do not attract Section 56 (a) of the Bombay Police Act.

12. After carefully going through the papers, we find that though all

the details about the allegations cannot be disclosed, but some details

should be given and the allegations should not be extremely vague

and should not be mere re-production of provisions of Section 56 (1)

(a) of the Maharashtra Police Act.

13. The competent authority has not applied, its mind to the fact

that two out of three cases were of 2011 and on the basis of those

cases of sand theft, the answerable party was earlier enquired into for

Cri.W.P.870/2017

externment and was exonerated. As far as the third incident is

concerned, the explanation by the answerable party in his reply has

not at all been considered. The petitioner had visited the place of

auction along with his Advocate for raising legal objections to the sale

of the sand without prior notice. The act of the petitioner in raising

objection was not liked by the Tahsildar and he prosecuted the

petitioner as well as his Advocate, but later on the name of his

Advocate was required to be deleted. We find that the competent

authority has not followed the proper procedure for taking action

under Section 56 (1) (a) and (b) of the Maharashtra Police Act. The

impugned order is, therefore, not sustainable. Hence, the writ petition

deserves to be allowed. Hence, the order :

ORDER

(I) The Criminal Writ Petition No. 870 of 2017 is allowed.

(II) The impugned order passed by the Divisional Commissioner,

Nasik dated 30th May 2017 in Externment Appeal No.24 of 2017 is

hereby set aside.

(III) Rule is made absolute in above terms. No order as to costs.

        ( A.M. DHAVALE, J.)                  ( S.S. SHINDE, J.)




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