Pintu @ Ramesh S/O. Uttamrao Gapat vs The State Of Maharashtra
2017 Latest Caselaw 4994 Bom

                                                    462.2016 Cri.WP.odt
                                    1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO.462 OF 2016 


          Pintu @ Ramesh s/o. Uttamrao Gapat,  
          Age: 40 years, Occ: Agri.,  
          R/o. Indapur, Tq. Washi,  
          Dist. Osmanabad.                 PETITIONER 

                     VERSUS 

          1.       The State of Maharashtra 
                   Through its Principal Secretary,  
                   Home Department, Mantralaya,  
                   Mumbai-32.  

          2.       The Divisional Commissioner,  
                   Aurangabad.  

          3.       The Sub-Divisional Magistrate,  
                   Kallamb, Tq. Kallamb, 
                   Dist. Osmanabad.  

          4.       The Sub-Divisional Police Officer,  
                   Bhoom, Tq. Bhoom, Dist. Osmanabad.  

                                                    RESPONDENTS
                                ...
          Mr.V.R.Dhorde, Advocate for the Petitioner 
          Mr.V.M.Kagne, APP for Respondent Nos.1 to 4 - 
          State.  
                                ...
                          CORAM:  S.S.SHINDE & 
                                  S.M.GAVHANE,JJ.      

Reserved on : 17.07.2017 Pronounced on : 25.07.2017

462.2016 Cri.WP.odt

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

1. Heard.

2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. The background facts for filing the

present Petition as disclosed in the memo in

brief as under:

It is the case of the petitioner

that the petitioner came to be elected as

Upa-Sarpanch of Grampanchayat, Indapur. The

petitioner is also the Chairman of village

Level Credit Co-operative Society, namely

Indapur Vividh Karyakary Sevak Sahakari

Society Ltd., and the petitioner was desirous

of contesting the elections of Agriculture

Produce Market Committee, Washi. On 3rd

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September, 2015, respondent no.4 - Sub

Divisional Police Officer, Bhoom issued show-

cause notice to the petitioner. On 25th

September, 2015, the petitioner filed his

reply to the said notice. Thereafter, the Sub

Divisional Police Officer, Bhoom, submitted

proposal to the Sub Divisional Magistrate,

Kallamb, with recommendation to extern the

petitioner from five Districts.

4. It is further the case of the

petitioner that on 19th October, 2015, show

cause notice came to be issued by respondent

no.3 Sub Divisional Magistrate, Kallamb, in

pursuance of the report submitted by

respondent no.4-Sub Divisional Police

Officer, proposing the externment of the

petitioner. The petitioner filed reply to the

said show cause notice on 8th February, 2016,

and reiterated his stand, and opposed the

proposed externment of the petitioner.

462.2016 Cri.WP.odt

It is further the case of the

petitioner that, on 24th February, 2016,

respondent no.3 Sub Divisional Magistrate,

Kallamb, without giving personal hearing to

the petitioner and in violation of the

principles of natural justice, has passed the

order under Section 56 [1] [a] [b] of the

Maharashtra Police Act, 1951, [for short 'Act

of 1951'] externing the petitioner from

Osmanabad, Beed and Solapur Districts for two

years.

5. Being aggrieved by the said order,

on 29th February, 2016, the petitioner

preferred an Appeal under Section 60 of the

Maharashtra Police Act before respondent no.2

- Divisional Commissioner, Aurangabad.

Respondent no.2 - Divisional Commissioner,

vide order dated 19th March, 2016, partly

confirmed the order dated 24th February, 2016

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and maintained the said order to the extent

of externing the petitioner from Osmanabad

District only. Hence this Criminal Writ

Petition.

6. 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

no mention 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. He

submits that while passing the impugned

order, the respondent authorities have placed

reliance on as many as 12 offences without

taking into consideration the fact that the

petitioner stood acquitted from 6 cases, even

prior to issuance of the show cause notice.

He submits that an initiation of the

proceedings of externment is out of political

462.2016 Cri.WP.odt

vendetta and to deprive the petitioner from

enjoying the political status which he has

acquired in his career as politician. He

further submits that the order passed by

respondent no.3 is excessive inasmuch as

though the offences registered against the

petitioner are at Washi Police Station,

District Osmanabad, the petitioner was

externed from the boundaries of Osmanabad,

Beed and Solapur Districts. In support of his

aforesaid contentions, he pressed into sevice

exposition of law in the cases of Bilal Gulam

Rasul Patel v. Divisional Magistrate, Thane

and others1, Salauddin s/o. Akramuddin v.

State of Maharashtra & Ors.2, Rajendra

Karbhari Kale v. The State of Maharashtra &

Ors.3 and Kanifnath Radhakishan Popalghat v.

The State of Maharashtra & Ors.4 Therefore,

he submits that the Petition may be allowed.

1 2014 ALL.M.R. [Cri.] 2161 2 2014 ALL.M.R. [Cri.] 993 3 2017 ALL M.R. [Cri.] 824 4 2017 ALL.M.R. [Cri.] 795

462.2016 Cri.WP.odt

7. On the other hand, the learned APP

appearing for the respondent - State relying

upon the averments in the affidavit-in-reply

and the reasons assigned by respondent nos.2

and 3 in the impugned judgments and orders

submits that the authorities, after adhering

to the procedure prescribed under the

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

of 1951, have rightly externed the petitioner

from the boundaries of the Osmanabad

District.

8. We have heard the learned counsel

appearing for the petitioner, and the learned

APP appearing for the respondent - State at

length. With their able assistance carefully

perused the grounds taken in the petition,

annexures thereto, reply filed by the

respondents, and original record of the case

maintained by the office of the respondents.

Upon careful perusal of the contents of the

462.2016 Cri.WP.odt

show-cause notice sent by the Sub Divisional

Police Officer, Bhoom, to the petitioner, it

appears that in the said notice as many as 12

offences have been mentioned and status of

those offences at serial nos.2 to 4 and 6 to

10 is shown pending for investigation or

trial, and so far serial no.5 is concerned,

it is mentioned that the petitioner is

acquitted from the said offence. All the

offences have been registered at Washi Police

Station, Taluka Bhoom, District Osmanabad. In

the said notice, it is not 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.

The petitioner has given reply to

the said notice stating therein that he

stands acquitted from 6 offences, which are

462.2016 Cri.WP.odt

mentioned at serial nos.1, 2, 3, 4, 5 and 7

of the offences in the show cause notice. It

is also stated that there were 10 offences

registered against him and only 4 offences

are pending, and in remaining 6 he stands

acquitted. We have carefully perused the

proposal submitted by respondent no.4 to

respondent no.3 on 7th October, 2015. In the

said proposal also 12 offences registered at

Washi Police Station against the petitioner

are shown and in two cases at serial nos.2

and 5 it is mentioned that the petitioner is

acquitted from the said offences and

remaining are yet pending. It is stated in

the said proposal that in-camera statement of

the witnesses have been recorded and their

signatures are taken. There is also reference

to the contents of the said statement in the

said proposal. There is also reference that

the petitioner filed reply to the show-cause

notice issued by respondent no.4, and it was

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recommended that the petitioner should be

externed from the boundaries of Beed, Latur,

Solapur and Ahmednagar.

9. The respondent no.3 passed the order

in the month of February, 2016. 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 respondent no.4 with

recommendation for externing the petitioner

from the four Districts. In spite of specific

reply by the petitioner that before

initiating an externment proceedings, he has

been acquitted from 6 offences which are

mentioned in the show cause notice,

respondent no.3 without adverting to the said

contention of the petitioner, proceeded to

consider the proposal submitted by respondent

no.4 on the basis that out of 12 offences,

the petitioner is acquitted only from 2

462.2016 Cri.WP.odt

offences and other offences are pending. It

shows complete non-application of mind to the

facts of the case by respondent no.3. 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. It is mentioned

that the Police Inspector of Police Station

Washi has recorded in-camera statements of

such witnesses and those are kept in sealed

envelope.

In the first place in the show cause

notice there is no mention 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

462.2016 Cri.WP.odt

material particulars should be mentioned in

the show cause notice. However, the Supreme

Court in the case of Pandharinath Shridhar

Rangnekar Vs. Dy.Commissioner of Police,

State of Maharashtra5, 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.

10. 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

5 AIR 1973 SC 630

462.2016 Cri.WP.odt

(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

[Underlines are added]

11. 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

462.2016 Cri.WP.odt

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

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.

462.2016 Cri.WP.odt

Keeping in view the above legal

position, it was incumbent upon respondent

no.3, 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 safety of their person or

property. It appears that in the present case

the Police Inspector appears to have been

recorded in-camera statements of the

witnesses.

12. It is true that there is reference

of recording in-camera statements of the

witnesses by respondent No. 3 in the impugned

order, however, as already discussed there is

no reference of recording in camera

statements of the witnesses in the show cause

notice. The Division Bench of the Bombay High

Court [at Principal seat] in the case of

462.2016 Cri.WP.odt

Yeshwant Damodar Patil Vs.Hemant Karkare, Dy.

Commissioner of Police & another6 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 movements or acts are causing or calculated to cause alarm, danger or harm to person or property. That is what is 6 1989 (3) Bom.C.R. 240

462.2016 Cri.WP.odt

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

462.2016 Cri.WP.odt

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 appears that there is no live

link and proximity in between the initiation

of externment proceedings by respondent nos.3

and 4, and the offences registered against

the petitioner. It appears that some of the

offences were registered in the year 1999,

2001, 2003, 2008, 2009 and 2010, etc. As

already observed, the authorities have also

not considered that the petitioner stood

acquitted from 6 offences by the Competent

Court even prior to the issuance of the show

cause notice.

14. Upon careful perusal of the offences

registered against the petitioner, it is

abundantly clear that all offences have been

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registered at Washi Police Station, Taluka

Bhoom, District Osmanabad. Upon careful

perusal of the discussion in the impugned

judgment of respondent no.3, there are no

specific reasons assigned for the externment

of the petitioner from Osmanabad, Beed and

Solapur Districts.

15. Though the Appellate Authority i.e.

respondent no.2 has restricted the

implementation and operation of the order of

externment passed by respondent no.3 from the

boundaries of Osmanabad District,

nevertheless the Appellate Authority did not

consider the procedural irregularities and

illegalities committed by respondent no.3

while passing the impugned order, and also by

respondent no.4 while initiating the proposal

for externment of the petitioner from 5

Districts.

462.2016 Cri.WP.odt

16. In that view of the matter, we are

of the considered view that, the impugned

orders passed by respondent nos.2 and 3

cannot legally sustain, hence those orders

are quashed and set aside. Rule is made

absolute on above terms. The petition stands

disposed of accordingly. No order as to

costs.

17. In view of disposal of Criminal Writ

Petition No.462/2016, Criminal Application

No.1930/2016 does not survive, hence same

stands disposed of.

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