Bombay High Court
Rohit S/O. Ramesh Nalawade vs The State Of Maharashtra And ... on 19 July, 2017
Bench: S.S. Shinde
(1) crwp708.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 708 OF 2017
Rohit s/o. Ramesh Nalawade .. Petitioner
Age. 27 years, Occ. Business,
R/o. Sambhaji Nagar, Near Hawaldar
Hospital, Jalna.
Versus
1. The State of Maharashtra .. Respondents
Through Principal Secretary,
Home Department, Mantralaya,
Fort, Mumbai.
2. The Superintendent of Police,
Jalna.
3. The Sub-Divisional Magistrate,
Jalna.
4. The Additional Superintendent of
Police, Jalna.
5. The Police Inspector,
Sadar Bazaar Police Station,
Jalna.
6. The Divisional Commissioner,
Aurangabad.
Mr.Amol P. Khedkar, Advocate for the petitioner.
Mr.V.M. Kagne, A.P.P. for respondent Nos. 1 to 6.
CORAM : S.S.SHINDE &
S.M.GAVHANE,JJ.
DATED : 19.07.2017
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ORAL JUDGMENT [PER : S.S. SHINDE,J.] :-
1. Rule. Rule made returnable forthwith and heard
finally with consent of the parties.
2. The petitioner has filed this petition
challenging the final order dated 02.05.2017 passed by
the Divisional Commissioner at Aurangabad, thereby
externing the petitioner from the area of Jalna district
for a period of two years. The petitioner submits that
he is running Om Sai Enterprise and xerox business and
meanwhile certain offences are registered against the
petitioner. The petitioner has contended that there was
RCC No.369 of 2011 against him and two others for offence
punishable under sections 353, 332, 504 and 506 read with
34 of the Indian Penal Code [for short "IPC"]. As per
judgment dated 24.02.2014, said accused were acquitted of
the offence under sections 504 and 506 read with section
34 of the IPC. The accused were convicted for the offence
under section 353 read with 34 of the IPC and sentenced
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to suffer simple imprisonment for six months and to pay a
fine of Rs.1000/-, in default to undergo simple
imprisonment for one month. Further, they were convicted
for offence under section 332 read with section 34 of the
IPC and sentenced to suffer simple imprisonment for six
months and to a fine of Rs.1000/- in default they shall
further undergo simple imprisonment for one month. The
petitioner submits that he preferred Criminal Appeal
No.30 of 2014 before the Sessions Court, Jalna against
the conviction order dated 24.02.2014 in RCC No.369 of
2011 which is pending adjudication.
3. The petitioner states that the S.D.P.O. Jalna
vide order dated 24.10.2016 conducted enquiry and
submitted report vide letter No.2210/2016 dated
06.12.2016. The externment proceedings came to be
initiated against the petitioner on the ground that
petitioner is involved in Crimes punishable under the IPC
and created terror in the locality. However, a notice
dated 02.11.2016 issued by the S.D.P.O. Jalna was served
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to the petitioner, wherein reply was called from the
petitioner to submit his say regarding the allegation.
Accordingly, the petitioner appeared and submitted
written statement before enquiry officer dated
29.11.2016. On the basis of said report, respondent No.3
issued a notice dated 23.12.2016 to the petitioner in
respect of initiation of externment proceedings against
him. The petitioner appeared in the said proceedings on
given date and filed written statement against show cause
notice, dated 04.02.2017. The petitioner asked for
personal hearing, however, the said request of the
petitioner was not considered and the respondent No.3
passed impugned order dated 27.02.2017, thereby ordering
externment of petitioner from Jalna, Aurangabad, Buldhana
districts for a period of two years in Ws No.2016/MAG/cr-
41.
4. It is the case of the petitioner that before
passing said order, the respondent No.3 ought to have
strictly adhered to the principles of natural justice. It
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is further case of the petitioner that none of the
offences registered against the petitioner are registered
within the boundaries of Aurangabad and Buldhana
districts, still he is ordered to be externed from entire
Jalna, Aurangabad and Buldhana districts, whereas the
offences are registered against the petitioner only at
Sadar Bazar Police Station, Jalna. Thus, the petitioner
states that the impugned order is excessive and
unsustainable.
5. The petitioner further states that respondent
No.3 has committed an error while passing the order dated
22.02.2017. Therefore, the petitioner prays that since
the said order of externment is excessive, the same
deserves to be quashed, in view of the law laid down by
this High Court in the case of Sharad s/o. Vithalrao
Mundhe Vs. State of Maharashtra & Ors., reported in 2017
ALL MR (Cri) 388, including in the case of Umar Mohammad
Malbari Vs. K.P. Gaikwad & Anr., reported in 1988 (2)
Bom.C.R.724 (Division Bench), also in case of Gunwanta
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Gajanan Khandekar Vs. S.D.O., reported in 2008 (1)
BomC.R. (Cri.)329, Silva @ Gora Silva Ayanar Vs. Nawal
Bajaj & Anr., reported in 2007 (1) Bom.C.R. (Cri.) 331
and a recent unreported judgment dated 03.12.2009 of this
Court in the case of Waseem Khan s/o. Hakim Khan Vs.
State of Maharashtra in Criminal Writ Petition No.472 of
2009.
6. The petitioner further states that being
aggrieved by the impugned final order dated 27.02.2017
passed by the respondent No.3 the Sub-Divisional
Magistrate, Jalna, thereby externing the petitioner from
the area of Jalna, Aurangabad and Buldhana districts for
a period of two years, earlier the petitioner preferred
the writ petition in this Court being Criminal Writ
Petition No.511 of 2017, which came to be disposed of
vide order dated 05.04.2017 thereby granting liberty to
the appellant to prefer an appeal before the respondent
No.6 - the Divisional Commissioner, Aurangabad.
Accordingly, the appeal was preferred which was disposed
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of on 02.05.2017 by the Divisional Commissioner,
Aurangabad, thereby externing the petitioner from the
area of only Jalna district for a period of two years.
Hence, this petition.
7. Learned Counsel appearing for the petitioner
invites our attention to the show cause notice and the
order passed by the Sub-Divisional Magistrate and also
the Divisional Commissioner and submits that, in the show
cause notice the S.D.M., Jalna mentioned that why the
petitioner should not be externed from the jurisdiction
of the Jalna district, however, the petitioner is
externed from other districts also. He submits that when
the order was passed by respondent No.3, to the surprise
of the petitioner, the petitioner was externed from the
boundaries of Jalna, Aurangabad and Buldhana districts.
He submits that even the Divisional Commissioner did not
consider the contentions raised by the petitioner that
the order passed by respondent No.3 suffers from serious
procedural irregularities as well as illegalities and
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same is not sustainable. Therefore, relying upon grounds
taken in the petition and annexures thereto, he submits
that the petition deserves to be allowed.
8. On the other hand, learned APP appearing for the
respondent/State relying upon reasons recorded by
respondent Nos.3 and 6 in the impugned judgments -
orders, submits that the authorities after adverting to
the material collected by respondent No.5 and contents of
the forwarding report, have reached to the correct
conclusion. However, he fairly submits that section
57(A)(5), which is mentioned in the show cause notice and
in the impugned order, does not find place in the
Maharashtra Police Act, 1951. He further submits that he
has perused the original record, however, did not notice
the statements of witnesses recorded 'in-camera', by
respondent authorities.
9. We have given careful consideration to the
submissions of the learned Counsel appearing for the
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petitioner and learned APP appearing for the State.
Perused the grounds taken in the petition and annexures
thereto and contents of the show cause notice which was
issued to the petitioner and also the reasons assigned by
respondent Nos.3 and 6 while passing the impugned orders.
Upon careful perusal of the show cause notice issued by
respondent No.3, it is abundantly clear that reply was
called from the petitioner why he should not be externed
from the boundaries of Jalna district. However, when
respondent No.3 passed the final order, it appears that
the petitioner was externed from the boundaries of Jalna,
Aurangabad and Buldhana districts.
10. Respondent No.3 in his order has crystallized/
mentioned as many as eight grounds carved out from the
appeal memo filed by the appellant. The respondent No.3
has also in the impugned judgment has mentioned the
conditions to be verified before the proposed externee is
externed by passing final order. Those are as under :-
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(1) His movements or acts should be
causing or calculated to cause alarm danger or
harm to person or property, or there should be
reasonable grounds for believing that such
person is engaged or is about to be engaged in
the commission of offence involving force or
violence.
(2) That the witnesses are not willing to
come forward to give evidence in public against
the person by reason of apprehension.
(3) The cases registered against a non-
applicant are under Chapter 12,16 and 17 of IPC,
1960.
11. Upon careful perusal of aforementioned three
conditions mentioned in the impugned order by respondent
No.3 and also the points for consideration carved out
from the appeal memo by respondent No.6 in the impugned
judgment, clearly shows that before the order of
externment is passed by the concerned authority, such
authority is legally bound to record in-camera statement
of the witnesses stating that due to fear to property and
person from the proposed externee, the witnesses are not
willing to come forward to give evidence in public
against the proposed externee by reason of apprehension
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on their part as regards the safety of their person or
property. Admittedly, such exercise has not been done by
respondent No.3. In order to meet the requirement of law,
it was incumbent upon respondent No.3 to record statement
of the witnesses so as to form opinion that witnesses are
not willing to come forward to depose against the
petitioner due to fear to their person or property.
12. 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
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
1 1989 (3) Bom.C.R. 240
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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) 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]
13. It is not necessary for us to assign reasons in
greater length. Suffice it to say that there is total
non-application of mind by the authorities and as a
result, legally unsustainable orders have been passed,
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thereby externing the petitioner from the boundaries of
Jalna, Aurangabad and Buldhana districts by respondent
No.3 and said order is confirmed by the appellate
authority except modifying the same thereby restricting
the externment of the petitioner from boundaries of Jalna
district. Even if we take into consideration Crime No.48
of 2011 registered against the petitioner for the
offences punishable under sections 353, 323, 504, 506
read with section 34 of the Indian Penal Code, registered
with Sadar Bazar Police Station, Jalna, said offence has
been registered in the year 2011. Therefore, there is no
live link/proximity between the registration of such
offence against the petitioner and the proceedings of
externment initiated against the petitioner. In that
view of the matter, for the reasons aforesaid the orders
impugned in this petition cannot legally sustain. Hence,
the following order :-
14. The impugned order dated 02.05.2017 passed by
the Divisional Commissioner at Aurangabad in JA
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No.2017/SAPRA/KAKSHA-1/POLE-1/EXTERN/CR-23, is quashed
and set aside.
15. The writ petition is accordingly allowed and
disposed of. Rule made absolute in above terms. No
costs.
[S.M.GAVHANE,J.] [S.S.SHINDE,J.]
snk/2017/JUL17/crwp708.17
