Pradeep S/O. Bhausaheb Ghuge vs The State Of Maharashtra And ...
2017 Latest Caselaw 5182 Bom

                                                            878.17WP.odt
                                     1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO.878 OF 2017 


          Pradeep S/o Bhausaheb Ghuge 
          Age : 33 years, Occ : Agri., 
          R/o Malunje, Tq. Sangamner, 
          Dist. Ahmednagar.                       PETITIONER 


                     VERSUS 


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

          2.       The Divisional Commissioner,  
                   Nashik Division, Nashik.  

          3.       The Sub-Divisional Police Officer, 
                   Sangamner, Sub Division, 
                   Dist. Ahmedangar. 

          4.       The Sub-Divisional Magistrate,  
                   Sangamner Sangamner, 
                   Dist. Ahmedangar. 

          5.       The Police Inspector, 
                   Taluka Police Station, 
                   Sangamner, Tq. Sangamner, 
                   Dist. Ahmednagar. 

          6.       The Police Inspector, 
                   Taluka Police Station, 
                   Parner, Tq. Parner, 
                   Dist. Ahmednagar. 
                                               RESPONDENTS 




::: Uploaded on - 31/07/2017             ::: Downloaded on - 08/08/2017 01:54:57 :::
                                                                    878.17WP.odt
                                           2


                               ...
          Mr.K.N. Shermale, Advocate for the Petitioner 
          Mr.K.D. Munde, APP for Respondent/State. 
                               ...

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

Reserved on : 13.07.2017 Pronounced on : 28.07.2017

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

Rule made returnable forthwith, and

heard finally with the consent of 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 the petitioner is resident of village

Malunje, Tq. Sangamner, Dist. Ahmednagar and

is doing agricultural work for livelihood of

his family. Respondent No.3 forwarded the

878.17WP.odt

proposal to the Respondent No.4 for

externment of the petitioner from three

districts i.e. Ahmednagar, Nashik and Pune

districts. Thereafter on 17th January, 2017,

the respondent no.4 issued notice to the

petitioner in view of the provisions of

Section 56(1)(a)(b) of the Bombay Police Act,

1951 calling explanation from the petitioner

why he should not be externed from the

abovesaid three districts. It is the case of

the petitioner that, on 25th January, 2017,

the petitioner submitted his reply to the

notice issued by respondent No.4 and

contended that, the offences have been

registered against the petitioner due to the

political reasons.

3. It is further the case of the

petitioner that, after hearing both the sides

and perusal of the documents placed on

record, respondent No.4 - Sub-Divisional

878.17WP.odt

Magistrate on 31st January, 2017 allowed the

externment proceedings and ordered to extern

the petitioner from three districts i.e.

Ahmednagar, Nashik and Pune. It is the case

of the petitioner that, the petitioner being

aggrieved and dissatisfied with the said

order, filed Externment Appeal No.14/2017

before the Divisional Commissioner, Nashik

Division, Nashik on 20th February, 2017. The

Divisional Commissioner, Nashik Division,

Nashik after hearing the parties has passed

the order on 13th April, 2017 thereby

modifying the order dated 31st January, 2017

and thereafter externing the petitioner from

only Ahmednagar district for one year. Hence

this Criminal Writ Petition.

4. The learned counsel appearing for

the petitioner submitted that, the respondent

no.2 has passed the impugned order in casual

manner and without considering the documents

878.17WP.odt

placed on record, and has erroneously come to

the conclusion that, the petitioner is

required to be externed from Ahmednagar

district. It is submitted that, respondent

no.4 has not given the satisfactory reasons

in the order of externment, as to why the

petitioner needs to be externed from the

three districts. In fact the offences are

registered against the petitioner within the

jurisdiction of Sangamner City Police

Station, and Parner Police Station.

Therefore, the impugned order passed by

respondent no.4 is against the principles of

natural justice and excessive, hence it

deserves to be quashed and set aside. The

learned counsel submitted that, the

respondent no.4 has not considered that, the

offences registered against the petitioner

are due to the political reasons and to take

the revenge against the petitioner, hence the

order passed by respondent no.4 is against

878.17WP.odt

the provisions of the law. In support of his

aforesaid contentions, he pressed into

service the exposition of law in the cases of

Sanket Balkurshna Jadhav V/s State of

Maharashtra and others1, Nisar @ Nigro Bashir

Ahmed Khan V/s Dy. Commissioner of Police,

Zone-VI, Mumbai and other2, Ravindra @ Ravi

S/o Harisingh Jadhav V/s State of Maharashtra

and another3 and Pappu @ Akhilesh Shivshankar

Mishra V/s The State of Maharashtra and

another (Criminal Writ Petition No.23 of 2016

along with connected matters, decided on

21.12.2016). Therefore, he submits that the

Petition may be allowed.

5. On the other hand, the learned APP

appearing for the respondent - State relying

upon the reasons assigned by respondent nos.2

and 4 in the impugned orders submits that the

authorities, after adhering to the procedure 1 2013(4) Mh.L.J. (Cri.) 655 2 2013 All MR (Cri) 122 3 2016(1) Mh.L.J. (Cri.) 192

878.17WP.odt

prescribed under the provisions of section 56

[1] [a] [b] of the Act of 1951, have rightly

externed the petitioner from the boundaries

of the Ahmednagar District.

6. We have carefully considered submissions

of the learned counsel appearing for the

petitioner, and the learned APP appearing for

the respondent - State. With their able

assistance carefully perused the grounds

taken in the petition, annexures thereto, and

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 Magistrate,

Sangamner, to the petitioner, it appears that

in the said notice as many as 5 offences have

been mentioned and status of those offences

is shown either pending for investigation or

trial. All the offences have been registered

at Sangamner and Parner Talukas of Ahmednagar

878.17WP.odt

district. 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 the

offences which have been shown at sr. nos.1

and 2 are lodged due to the political

rivalry. The offence at sr. no.3 is lodged

due to previous enmity, since earlier the

petitioner has lodged the complaint against

the family members of the complainant. It is

stated in the said reply that, the offences

registered at sr. nos. 4 and 5, which are in

respect of theft of sand, have not been

committed by him. He is successful bidder and

in auction he has purchased the said quantity

of sand, which is subject matter of offences

878.17WP.odt

mentioned at sr. nos.4 and 5. He submits

that, the aforesaid offences are either under

investigation or pending for trial.

7. We have carefully perused the

proposal submitted by respondent no.3 to

respondent no.4. In the said proposal three

offences are shown registered at Sangamner

Taluka Police Station, against the

petitioner. So also it is shown that, two

offences are registered at Parner Police

Station.

8. The respondent no.4 has passed the

order on 31st 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 respondent no.3, with

recommendation for externing the petitioner

from the three Districts. In spite of

878.17WP.odt

specific reply by the petitioner that the

offences which have been registered against

the petitioner are under investigation by the

Police or under trial, respondent no.4

without adverting to the said contention of

the petitioner, proceeded to consider the

proposal submitted by respondent no.3 on the

basis that five offences have been registered

against the petitioner and those are under an

investigation. 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.

Upon careful perusal of contents of

the show-cause notice, it is nowhere

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. It is

878.17WP.odt

true that it is not expected from the

authority that the names of such witnesses or

date of such incident or other 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

Maharashtra4, 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.

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

4 AIR 1973 SC 630

878.17WP.odt

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

[Underlines are added]

10. Upon careful perusal of the

878.17WP.odt

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

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

878.17WP.odt

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 respondent

no.4, 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.

11. It also appears that, 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 Yeshwant

Damodar Patil Vs. Hemant Karkar, Dy.

Commissioner of Police & another5 had

5 1989 (3) Bom.C.R. 240

878.17WP.odt

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 provided in clause (a). The order of externment can also be passed against a person if

878.17WP.odt

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

878.17WP.odt

safety of their person or property.

[Underlines added]

12. It appears that, the authorities

have not made discussion in the impugned

orders showing 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 2011 and

2012.

13. Upon careful perusal of the offences

registered against the petitioner, it is

abundantly clear that all offences have been

registered at Sangamner and Parner Talukas,

District Ahmednagar. Upon careful perusal of

the discussion in the impugned order of

respondent no.4, there are no specific

reasons assigned for externment of the

878.17WP.odt

petitioner from Nashik and Pune Districts.

14. Though the Appellate Authority i.e.

respondent no.2 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

respondent no.3 while initiating the proposal

for externment of the petitioner from three

Districts.

15. In that view of the matter, we are

of the considered view that, the impugned

orders passed by respondent nos.2 and 4

cannot legally sustain, hence both the orders

are quashed and set aside. Rule is made

absolute on above terms. The petition stands

878.17WP.odt

disposed of accordingly. No order as to

costs.

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