Aslam S/O. Shabbir Shaikh @ Bunty ... vs The State Of Maharashtra
2017 Latest Caselaw 5083 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


              CRIMINAL WRIT PETITION NO.857 OF 2017

 Aslam s/o Shabbir Shaikh
 @ Bunty Jahagirdar,
 Age-45 years. Occu:Agriculture,
 R/o-Madina Masjid Road,
 Ward No.6, Subedhar Wasti,
 Shrirampur, Tq-Shrirampur,
 Dist-Ahmednagar.
                                 ...PETITIONER 
        VERSUS             

 1) The State of Maharashtra,
    Through the Secretary of
    Home Ministry, Mantralaya,
    Mumbai,

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

 3) The Sub-Divisional Police Officer,
    Shrirampur, Dist-Ahmednagar,

 4) The Inspector of Police,
    Shrirampur City Police Station,
    Shrirampur, Dist-Ahmednagar,

 5) The Sub-Divisional Magistrate,
    Shrirampur Division, Shrirampur,
    Dist-Ahmednagar,

 6) The Divisional Commissioner,
    Nasik Division, Nasik.   
                                 ...RESPONDENTS




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                      ...
    Miss.P.S. Talekar Advocate i/b. Talekar
    and Associates for Petitioner.
    Mr.V.M. Kagne, A.P.P. for Respondent Nos.
    1 to 6.       
                      ...

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

DATE OF RESERVING JUDGMENT : 20TH JULY, 2017.

DATE OF PRONOUNCING JUDGMENT: 27TH JULY, 2017.

JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. The background facts for filing the

present Petition as disclosed in the Memo of the

Petition, in brief, are as under:

. It is the case of the Petitioner that on

1st September, 2016 he received the show cause

notice under Section 59 of the Bombay Police Act,

1951 (for short "the Act of 1951"). In all 15

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offences alleged to have been registered against

the Petitioner and that has been made basis for

proposed externment. On 17th March, 2017, the

Petitioner filed his reply to the show cause

notice and submitted that out of 15 offences, he

has been already acquitted in 11 offences, in 2

offences the charge sheet is not yet filed and

in 2 offences the trial is yet to commence. On

25th April, 2017, Respondent No.5 passed an order

thereby externing the Petitioner from Ahmednagar,

Pune and two Talukas of Aurangabad District for

two years. On 14th June, 2017, the Petitioner

filed appeal against the order of Respondent No.5

- the Sub-Divisional Magistrate, Shrirampur

Division, Shrirampur to Respondent No.6- the

Divisional Commissioner, Nasik Division, Nasik.

The appeal was dismissed and the externment order

is confirmed. It is the case of the Petitioner

that admittedly he had no criminal antecedents in

Aurangabad District and as such the order

externing the Petitioner from Aurangabad is

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excessive and thus needs to be quashed and set

aside.

3. Learned counsel appearing for the

Petitioner, referring to the written notes of

arguments, submits that though the offences

currently pending against the Petitioner are only

registered either in Shrirampur Police Station or

Deccan Police Station, Pune, the Petitioner has

been externed from Ahmednagar District, Pune

District and Gangapur and Vaijapur Talukas of

Aurangabad District. It is submitted that out of

the offences, the proximate link can be drawn at

best to the offences being 126 and 130 of 2016

registered at Shrirampur Police Station on 8th

May, 2016. The said offences are filed against

200-300 persons and relate to rioting whereas on

the date of commission of offence, the Petitioner

was attending a wedding ceremony of a relative at

Aurangabad, which is also mentioned in the order

granting anticipatory bail passed by the

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Additional Sessions Judge, Shrirampur on 27th May,

2016. It is submitted that the externment order is

excessive in nature in as much as it externs the

Petitioner from two Districts and two Talukas of

third District, totaling an area of about 35,000

sq. km. with full knowledge that the proximate

offences pending prosecution against the

Petitioner are all registered only in Shrirampur

city police station.

. Learned counsel submitted that the order

of externment if extend to areas beyond which the

offence is filed, must be accompanied by necessary

justification, in absence of which the entire

order of externment is liable to be quashed. In

support of the said submission, learned counsel

placed reliance upon the ratio laid down in the

case of Pandharinath Shridhar Rangnekr vs. Dy.

Commissioner of Police, the State of Maharashtra1,

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

1 A.I.R. 1973 S.C. 630

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Commissioner of Police and another2, Nisar @ Nigro

Bashir Ahmed Khan vs. Dy. Commissioner of Police

and others3. The learned counsel, in support of her

submissions, also placed reliance upon the ratio

laid down in the case of Sachin s/o Kantilal

Nirpagare vs. State of Maharashtra and others

(Criminal Writ Petition No.1492 of 2015) decided

by the Bombay High Court, Bench at Aurangabad, on

7th January, 2016, in the case of Santosh

Dattatraya Naik vs. the Divisional Commissioner

and others (Criminal Writ Petition No.1034 of

2016) decided by the Bombay High Court, Bench at

Aurangabad on 7th February, 2017, and in the case

of Bapu alias Suhas Sopan Davange vs. the

Divisional Commissioner and others (Criminal Writ

Petition No.1035 of 2016) decided by the Bombay

High Court, Bench at Aurangabad on 19th December,

2016.

. Learned counsel submitted that there is

2 1988 Mh.L.J. 1034 3 2013, All M.R.(Cri.) 122

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no reason mentioned in the order to extern the

Petitioner from the entire District of Ahmednagar,

Pune and two Talukas of Aurangabad District other

than a passing reference to the fact that the said

area is contiguous. It is submitted that this

Court in the matter of Balu Shivling Dombe vs. the

Divisional Magistrate Pandharpur and another4, more

particularly in Paragraph 11 thereof, has made an

observation that the entire State of Maharashtra

is contiguous in nature and this in itself does

not count as a reasonable justification of

externment beyond place of offence.

. The learned counsel further submitted

that once the externment order is found to be

excessive or passed without application of mind or

relying on irrelevant material, the Court is only

empowered to quash the said order, it cannot

modify the order or quash it in part. In support

of her said submission, learned counsel placed

4 1969 Mh. L.J. 387

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reliance upon the ratio laid down in the case of

Yasinkhan Masumkhan Multani vs. the State of

Maharashtra and others, 20145.

. The learned counsel submitted that the

pending offences against the Petitioner as on the

date of show-cause notice are : 3057 of 2006 in

Manmad Police Station, 168 of 2012 and 09 of 2012

in Deccan Police Station, 126 of 2016 in

Shrirampur police station, 130 of 2016 in

Shrirampur police station. It is submitted that

externment is a remedy to be used to maintain

peace and security in an area, and as it makes

serious inroads in the personal liberty and is a

type of preventive detention, it must be used very

sparingly and only on strict compliance of

procedure as mentioned in Section 56 and 59 of the

Act of 1951. It is submitted that the first two

pending offences were ten and four years old

respectively, and in any case not at all proximate

5 2015 All M.R. (Cri) 1467

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to the filing of the FIR. The said offences cannot

be relied upon in issuing order of externment. It

is further submitted that only such offences

wherein there is any proximate connection to show

a threat to the witnesses or to disturb the peace

and security of an area, are to be considered and

not stale or remote offences. In support of her

aforesaid submissions, learned counsel placed

reliance upon the ratio laid down in the case of

Hanuman Rajaram Mhatre vs. the State of

Maharashtra6, Sayeed Firoz Sayeed Noor vs. State of

Maharashtra7.

. Learned counsel further submitted that in

the present case, though preliminary enquiry was

conducted, the show-cause notice has enlisted 15

offences, out of which in 11 offences the

Petitioner was already acquitted, whereas no

mention was made of the allegation regarding

pressurizing of witnesses. The impugned show-cause 6 2013 All M.R.(Cri) 1646

7 2016(1) Bom.C.R.(Cri.)270

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notice is cryptic without assigning the material

allegations against the Petitioner. It is

submitted that the material allegations against

the proposed externee shall be necessarily

mentioned in the show-cause notice. In support of

said submission, learned counsel placed reliance

upon the ratio laid down in the following cases:

Yashwant Damodar Patil vs. Hemand Karkare, Deputy

Commissioner of Police, Thane and another8, Bilal

Gulam Rasul Patel vs. Divisional Magistrate 9,

Iqbaluddin Ziauddin Pirzade vs. State of

Maharashtra and others10. In support of other

submissions made across the Bar, learned counsel

also placed reliance upon the ratio laid down in

the case of Imran Abdul Wahid Hasmi vs. The Dy.

Commissioner of Police and others (Criminal Writ

Petition No.1784 of 2015) decided on 21st June,

2016, by the Bombay High Court at Principal Seat,

in the case of Santosh Dattatraya Naik vs. the

8 1989 Mh.L.J. 1111 9 2014 All M.R.(Cri) 2161 10 2015(2) Bom.C.R.(Cri.) 464

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Divisional Commissioner, Nashik (Criminal Writ

Petition No.1034 of 2016) decided by the Bombay

High Court, Bench at Aurangabad on 7th February

2017, and in the case of Bapu alias Suhas Sopan

Devange vs. the Divisional Commissioner, Nashik

(Criminal Writ Petition No.1035 of 2016) decided

on 19th December, 2016, by the Bombay High Court

Bench at Aurangabad.

. At the cost of repetition, learned

counsel submitted that despite the detailed reply

filed by the Petitioner and submissions made

before the authority, the authority while passing

the externment order has relied upon certain

offences as pending against the Petitioner,

whereas the same were prosecuted and the

Petitioner was acquitted in 11 out of 15 offences

mentioned in the show-cause notice, as on the date

of show-cause notice itself. Therefore, the

counsel submits that the Petition may be allowed.

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4. On the other hand, learned A.P.P.

appearing for the Respondent - State relying upon

the averments in the affidavit-in-reply and the

reasons assigned by Respondent Nos.5 and 6 in the

impugned orders, submits that the authorities,

after adhering to the procedure prescribed under

the provisions of Section 56(1)(a)(b) of the Act

of 1951, have rightly externed the Petitioner from

the boundaries of Ahmednagar District, Pune

District and two Talukas i.e. Gangapur and

Vaijapur of Aurangabad District.

5. We have heard learned counsel appearing

for the Petitioner, and learned A.P.P. appearing

for the Respondent - State at length. With their

able assistance we have 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 show-cause notice issued by the Sub

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Divisional Police Officer, Shrirampur Division,

Shrirampur to the Petitioner, it appears that in

the said notice as many as 15 offences have been

and 11 to 14 have been registered at Shrirampur

City Police Station, the offence at Serial No.7

has been registered with Bhiwandi Police Station,

the offence at Serial No.8 has been registered

with Manmad Police Station, the offence at Serial

No.10 has been registered with Newasa Police

Station and offence at Serial No.15 has been

registered with Deccan Police Station, Pune. 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.

6. The Petitioner has given reply to the

said notice stating therein that he stands

acquitted from 11 offences, which are mentioned at

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Serial Nos.1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, of

the offences in the show cause notice. It is also

stated that there were 15 offences registered

against him and only 4 offences are pending, and

in remaining 11 offences he stands acquitted. We

have carefully perused the proposal submitted by

Respondent No.3 to Respondent No.5 on 31st August,

2016. In the said proposal also 11 offences

registered at Shrirampur City Police Station, and

one offence each registered at Bhiwandi Taluka

Police Station, Mandmad Police Station, Newasa

Police Station and Deccan Police Station, Pune

against the Petitioner are shown. In the said

proposal, it is stated that out of the said 15

offences registered against the Petitioner, 5

offences are pending in the Court and in 2

offences investigation is being carried out. 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

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the said proposal. There is also reference that

the Petitioner filed reply to the show-cause

notice issued by Respondent No.3, and it was

recommended that the Petitioner should be externed

from the boundaries of Ahmednagar District, Pune

District and two talukas i.e. Gangapur and

Vaijapur of Aurangabad District.

7. Respondent No.5 passed the order on 25th

April, 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 Respondent No.3 with

recommendation for externing the Petitioner from

two Districts and two Talukas of one District.

Inspite of specific reply by the Petitioner that

before initiating an externment proceedings, he

has been acquitted from 11 offences which are

mentioned in the show cause notice, Respondent

No.5 without adverting to the said contention of

the Petitioner, proceeded to consider the proposal

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submitted by Respondent No.3 on the basis that out

of 15 offences, the Petitioner is acquitted only

from 6 offences and other offences are pending. It

shows complete non-application of mind to the

facts of the case by Respondent No.5. 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, Shrirampur has recorded in-camera

statements of such witnesses and those are kept in

sealed envelope.

8. 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

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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 Maharashtra,

supra held that, proposed externee is entitled,

before an order of externment is passed under

Section 56 of the Act of 1951, to know the

material allegations against him and general

nature of those allegations.

9. 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

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(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]

10. Considering the aforesaid provisions

carefully, 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 sub-

clause (a) of Section 56(1) of the Act of 1951.

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) of Section 56(1) of the Act of 1951. An

order of externment can also be passed against a

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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

an 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.

11. Keeping in view the above legal position,

it was incumbent upon Respondent No.5, 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

Petitioner 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 recorded in-camera

statements of the witnesses.

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12. Though 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 Yashwant Damodar Patil Vs. Hemant Karkare, Dy.

Commissioner of Police & another, supra had

occasion to consider the scope of provisions of

Section 56 [1] [a] and [b] of the Bombay Police

Act, 1951. 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

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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 appears that there is no live link and

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proximity in between the initiation of externment

proceedings by Respondent Nos.4 and 5, and the

offences registered against the Petitioner. It

appears that some of the offences were registered

in the year 1995, 1997, 1998, 2000, 2002, 2006

and 2009, etc. As already observed, the

authorities have also not considered that the

Petitioner stood acquitted from 11 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 11 offences have been

registered at Shrirampur City Police Station,

Shrirampur, District Osmanabad, one offence at

Bhiwandi Taluka Police Station, Dist-Thane, one

offence at Newasa, Dist-Ahmednagar and one offence

at Deccan Police Station, Pune. As already

observed out of 15 offences mentioned in the show-

cause notice, from 11 offences the Petitioner is

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acquitted by the competent Court, including the

the offences registered at Bhiwandi Taluka police

station and Newasa police station.

15. The Appellate Authority i.e. Respondent

No.6 has confirmed the order of externment passed

by Respondent No.5 externing the Petitioner from

the boundaries of Ahmednagar District, Pune

District and two Talukas of Aurangabad District

i.e. Gangapur and Vaijapur. The Appellate

Authority did not consider the procedural

irregularities and illegalities committed by

Respondent No.5 while passing the impugned order,

and also by Respondent No.3 while initiating and

dealing the proposal for externment of the

Petitioner from two Districts and two Talukas of

third District.

16. In that view of the matter, we are of the

considered view that, the impugned orders passed

by Respondent nos.5 and 6 cannot legally sustain.

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Hence impugned orders are quashed and set aside.

Rule made absolute in terms of Prayer Clause "C)".

. The Writ Petition stands disposed of

accordingly. No order as to costs.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/JUL17