Shaikh Mukhtyar S/O. Mustafa ... vs State Of Maharashtra Thr. The ...
2017 Latest Caselaw 3060 Bom

                                              1                                                              criwp101.17


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR.

                       CRIMINAL WRIT PETITION NO. 101 OF 2017

Shaikh Mukhtyar s/o Mustafa Shaikh,
aged about 50 years, Occupation
Journalist, R/o Telangkhedi Masjid,
Ramnagar, Nagpur.                                                      ... PETITIONER

                                                  VERSUS

1. State of Maharashtra, through the
     Principal Secretary, Department
     of Home, Mantralaya, Mumbai-32.

2. The Commissioner of Police, 
     Nagpur City, Civil Lines, Nagpur-01.

3. The Deputy Commissioner of Police,
     Zone No.2, Nagpur City, Nagpur.

4. The Assistant Commissioner of 
     Police, Sitabuldi Division, Civil
     Lines, Ravi Nagar, Nagpur.

5. The Police Inspector,
     Police Station, Ambazari, Nagpur.                                 ... RESPONDENTS

                                     ....
Shri A.K. Waghmare, Advocate for the petitioner.
Shri M.K. Pathan, Additional Public Prosecutor for the respondents.
                                     ....

                                                                     CORAM :  PRASANNA B. VARALE AND
                                                                                          M.G. GIRATKAR, JJ.

DATED : 12TH JUNE, 2017.

ORAL JUDGMENT : (Per Prasanna B. Varale, J.)

Rule. Rule made returnable forthwith. The petition is heard

finally with the consent of the learned Counsel for the parties. Shri M.K.

Pathan, learned Additional Public Prosecutor waives notice on behalf of the

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respondents.

2. By way of present petition, the petitioner challenges the order

dated 21st January, 2017 passed by the respondent No.3 (hereinafter referred

to as the externing authority) thereby externing the petitioner from the limits

of City of Nagpur for the period of one year.

3. Shri Waghmare, the learned Counsel for the petitioner

vehemently submits that the order against the petitioner is an abuse of

process of law and unsustainable as it suffers from non application of mind.

It is submitted by the learned Counsel for the petitioner that the respondent/

authorities are carrying vindictive approach against the petitioner. He

further submits that there is absolutely no material available with the

respondent/authorities against the petitioner to extern him and only on the

basis of stale offences, the order impugned is passed. The learned Counsel

also submits that the so called offences registered against the petitioner are

the minor offences. On 11.04.2016, on the basis of the very material, an order

of externment was passed against the petitioner. The petitioner was required

to approach this Court challenging the said order. Shri Waghmare, the

learned Counsel then submits that in Writ Petition No. 317 of 2016 in

challenge to the order dated 11.04.2016, this Court was pleased to set aside

the order dated 11.04.2016. He submits that though this Court directed the

respondent/authorities to take into consideration the material available on

record and pass fresh order within stipulated period, the authorities on the

stale material passed the order externing the petition. Thus, without

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considering the order of this Court, dated 26th September, 2016, the

authorities passed the mechanical order. The learned Counsel also submits

that there is no specific material against the petitioner to show that the

activities of the petitioner are causing alarm or danger and only on

assumption and presumption and on misreading of the material, the

impugned order is passed. Shri Waghmare, the learned Counsel for the

petitioner also places reliance on the judgments of this Court in support of

his submission namely in the cases of Khairunisa Mohamed Suleman

Sayyed (Smt.) .v. Sub-Divisional Magistrate, Miraj and another (reported in

1987(1) Bom CR, 427) and Kashinath @ Kashya Sitaram Keluskar .v. The

Deputy Commissioner of Police and others (reported in 2000 ALL MR (Cri),

801).

4. Per contra, Shri Pathan, the learned APP for the respondents

submits that a notice was issued to the petitioner before passing the order of

externment. An opportunity of hearing thus was granted to the petitioner.

He further submits that while passing the order impugned in the petition

dated 21st January, 2017, not only the order of this Court is considered by the

authorities, but a specific reference is also given in the externment order.

Thus, the submission of the petitioner that the order is unsustainable on the

ground of non application of mind is contrary to the record. Shri Pathan, the

learned APP then submits that the order impugned against the petitioner

specifically refers to the statements of the witnesses who came forward and

by disclosing their identity, they stated in respect of the activities of the

petitioner. Shri Pathan, the learned APP further submits that the petitioner

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was given an opportunity to cross-examine the witnesses. He then submits

that on considering the reply of the petitioner to the notice of externment

and on considering the other material in the form of the statements of the

witnesses, the authorities arrived at the subjective satisfaction calling for an

action of externment and by exercising the powers under Section 56A of the

Maharashtra Police Act, the externing authority passed the order. Shri

Pathan, the learned APP further submits that in the earlier proceedings

initiated against the petitioner for his externment, the witnesses were not

coming forward to state/depose against the petitioner as they were

apprehending; whereas subsequently, the witnesses boldly stated against the

petitioner. He also submits that there is neither error in appreciating the

material nor any error in decision making by the authorities i.e. externing

authority. As such, by exercising the powers vest with the authority, the

order is passed and the ultimate order as it does not suffer from any illegality

or perversity, is clearly sustainable.

5. Shri Pathan, the learned APP made available the material for our

perusal. The submission of the learned Counsel for the petition is of non

application of mind by the authority. The learned APP places heavy reliance

on the order of this Court dated 26th September, 2016. Perusal of the order of

this Court dated 26th September, 206 shows that while issuing show cause

notice against the petitioner, a reference was made to five offences registered

against the petitioner at Ambazari Police Station. Out of these offences, three

offences were pertaining to the years 2001, 2002 and one offence is

pertaining to the year 2014 and one offence is pertaining to the year 2015. It

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was also one of the grounds in the earlier petition that there was a vague

reference in the notice that the witnesses were not willing to come forward

against the petitioner that though the order was passed against the

petitioner, relying on the statements of the witnesses, there was no reference

in the show cause notice on the aspect of recording of these statements i.e.

secret statements. This Court finding that the externment order was based

on stale offences and vague material, observed that the order is

unsustainable as it is passed without due application of mind.

6. Perusal of the order of this Court further shows that intervention

application was filed before this Court and it was submitted that though

these persons lodged report against the petitioner, the externing authority

failed to record the statements of those witnesses. This Court thus while

setting aside the order dated 11.04.2016, directed the respondent No.3 to take

into consideration the material available on record and pass the order afresh.

Accordingly, notice was issued to the petitioner on 14th January, 2017. The

notice refers to the offences registered against the petitioner in the years

2014 and 2015. There is also reference to preventive action initiated against

the petitioner in the year 2015. Though the notice refers to the statements of

the witnesses, the record submitted by the learned APP for our perusal shows

that the notice was duly served on the petitioner. The petitioner submitted

his reply to the notice and sought permission to cross-examine the witnesses.

The proceeding sheet shows that the petitioner was permitted to cross-

examine the witnesses on 21st January, 2017 on the scheduled time i.e. at

03:00 p.m. The material then shows that all the witnesses are the ladies

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residing in the area namely Telangkhedi Masjid area which falls under the

jurisdiction of Ambazari Police Station. These witnesses state that the

petitioner picks up the quarrel with the residents of the locality. The

petitioner by consuming liquor abuses the ladies in the locality and makes

obscene and indecent gestures. It is also stated that if the complaint is made

against the petitioner, the petitioner filed false complaint either by himself or

at the instance of his family members. The petitioner threats the residents

and always indulged in the act of abuses, assault and threats. It is also stated

that the petitioner is indulged in the act of character assassination of the

ladies in the locality and the members of the locality apprehend danger to

their lives and property. It is also stated that because of the activities of the

petitioner even the visitors or the relatives who visit to the members of the

locality are apprehensive. It is also stated that the petitioner abused the

lady members and if any one opposes him, he starts calling the lady

members as prostitutes and ease out on the street. It is stated that because of

the act of the petitioner, there is an apprehension of some untoward incident

may take place in the locality. Thus the statements of the witnesses clearly

show that the activities of the petitioner are causing alarm and danger.

7. Though Shri Waghmare, the learned Counsel for the petitioner

makes an attempt to submit that for passing order against the petitioner, the

authorities relied on the stale offences. Perusal of the material shows that the

reference is made to the offences registered against the petitioner of recent

past namely the offence registered in the years 2014 and 15 and a non

cognizable case of the year 2016. A reference is also made to a preventive

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action against the petitioner in the year 2015. Thus, on perusal of the

material, we are unable to accept the submission of the learned Counsel for

the petitioner that the order passed against the petitioner suffers from non

application of mind. We are also unable to accept the submission of the

learned Counsel for the petitioner that the authorities failed to consider the

order passed by this Court dated 26th September, 2016 and passed

mechanical order. On the contrary, we are of the opinion that the order

impugned clearly refers to the order of this Court and this Court in the said

order referred to the application filed seeking intervention and in the

impugned order there is reference to the statements of the witnesses. Thus,

this material which was available on record was taken into consideration by

the externing authority. The learned Counsel for the petitioner submits that

the petitioner is an editor and publisher of the weekly news paper and is not

a criminal. On perusal of the material placed on record by the petitioner i.e.

"Annexure-N" (certificate of registration issued by the Registrar of

Newspapers for India), we find that the petitioner is a publisher of weekly

Hindi newspaper by name "Laite Times". The petitioner has placed on

record photocopies of news paper. On perusal of one of such news items, we

find that the choice of words by the petitioner is certainly unacceptable.

Least to say these words in the caption are indecent words. The learned

Counsel for the petitioner submits that those persons against the petitioner

have used such words may initiate an action against the petitioner.

8. In our opinion, those who are approaching the Court on the

ground that they are deprived of their liberty, neither can be permitted nor

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can be licensed to exercise the freedom of expression prejudicial to the other

citizens. Be that as it may, we are of the opinion that the action be initiated

by the authorities exercising the powers of Section 56A of the Maharashtra

Police Act is a preventive action. Considering the need of the hour and if the

material shows that the authorities exercised the powers on application of

mind and considering the material and arriving at the subjective satisfaction

then such order is clearly sustainable. Though the learned Counsel for the

petitioner places reliance on the certain judgments referred to above,

considering the material, in our opinion, these judgments are of no help to

the petitioner. On the contrary, the learned APP is justified in relying on the

judgment of this Court in the case of Shri Mohammed Ali Fakruddin Sayyad

.v. The Assistant Commissioner of Police and others (reported in 2014 All

MR (Cri), 2876). It would be useful to the observations of this Court in the

said judgment as under -

"7. Before adverting to appreciate the submissions advanced by learned Counsel for the petitioner and learned APP for the State, it is necessary to consider the scope and powers of Writ Court to interfere with the orders passed by the statutory authority as that of respondent Nos.1 and 2. The Apex Court in the case of Lt. Governor, NCT and ors. Vs. Ved Prakash @ Vedu reported in 2006 All MR (Cri.) 2645 (S.C.) has broadly considered the scope and powers of Writ Court against the statutory authority, the Apex Court has observed as under :

"When the validity of an order is questioned, what would be seen is the material on which the satisfaction of the authority is based. The satisfaction of the authority although primarily subjective, should be based on objectivity. But Sufficiency of material as such may not be gone into by the writ court unless it is found that in passing the impugned order the authority has failed to take into consideration the relevant facts or had based its

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decision on irrelevant factors not germane therefor. Mere possibility of another view may not be a ground for interference. It is not a case where malice was alleged against the third Appellant. The High Court and Apex court would undoubtedly jealously guard the fundamental rights of a citizen. While exercising the jurisdiction vested in them invariably, the courts would make all attempts to uphold the human right of the proceedee. The fundamental right under Article 2 of the Constitution undoubtedly must be safeguarded. But while interpreting the provisions of a statute like the present one and in view of the precedents operating in the field, the court may examine the records itself so as to satisfy its conscience not only for the purpose that the procedural safeguards available to the proceedee have been provided but also for the purpose that the witnesses have disclosed their apprehension about deposing in court truthfully and fearfully because of the activities of the proceedee. Once such a satisfaction is arrived at, the superior court will normally not interfere with an order of externment. The court, in any event, would not direct the authorities to either disclose the names of the witnesses or the number of cases where such witnesses were examined for the simple reason that they may lead to causing of further harm to them. In a given case, the number of prosecution witnesses may not be many and the proceedee as an accused in the said case is expected to know who were the witnesses who had been examined on behalf of the prosecution and, thus, the purpose of maintaining the secrecy as regards identity of such persons may be defeated. The court must remind itself that the law is not mere logic but is required to be applied on the basis of its experience.""

8. Considering all the aforesaid aspects, we find no error in the

order impugned in the petition. The petition being meritless deserves to be

dismissed and the same is accordingly dismissed.

Rule is accordingly discharged.

                JUDGE                                                                   JUDGE 
      
*rrg.