Ravi S/O. Raju Bhalerao vs The State Of Maharashtra And ...
2017 Latest Caselaw 2343 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

           CRIMINAL WRIT PETITION NO. 531 OF 2017

 Ravi S/o Raju Bhalerao,
 Age: 33 years, occ. Business,
 R/o : Newasa Phata, Tq. Newasa,
 Dist.:Ahmednagar.                                     ...PETITIONER

          versus

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

 2.       The Sub-Divisional Magistrate,
          Nagar Division, Ahmednagar,
          Tq. & Dist. Ahmednagar.

 3.       The Divisional Commissioner,
          Nashik Division, Nasik.                 ...RESPONDENTS

                               .....
 Mr. Narayan B. Narwade, Advocate for petitioner
 Mr. K.D. Munde, APP for respondents
                                ....

                               CORAM : S.S. SHINDE, AND
                                       K.K. SONAWANE, JJ.

DATED : 5th MAY, 2017

JUDGMENT : [ Per: S.S. Shinde, J.]

1. Rule. Rule made returnable forthwith. Heard finally, with

consent of the parties.

2. At the outset, we constrained to observe that, in spite of

sufficient time granted to the respondents, the original record

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pertains to the case of the petitioner in relation to the

externment was not made available for perusal, we express

displeasure and direct respondent No. 1, to cause enquiry of

respondents Nos. 2 and submit report to this Court within two

months from today.

3. Learned counsel appearing for the petitioner raised two

grounds; firstly, the alleged activities of the petitioner are

confined to the Newasa town and even the offences are

registered at Newasa Police Station, and therefore, there was no

reason for respondent No. 2 to extern the petitioner from the

entire Ahmednagar District. In support of the said contention, he

placed reliance on the reported judgment of the Bombay High

Court at Principal Seat in the case of Sanket Balkurshna

Jadhav Vs.State of Maharashtra and another1 and in

particular para 10 thereof.

4. Secondly, he submits that the mandate of the provisions of

Section 156 (1) (a) (b) of the Maharashtra Police Act is not

adhered to by respondent No. 2, inasmuch as, neither in the

show cause notice nor in the impugned order passed by

respondent No. 2, there is a reference of recording in-camera

statements of the witnesses by him so as to arrive at subjective

satisfaction that witnesses are not willing to come forward to give

1 2013 All MR (Cri.) 3834

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evidence in public against such person by reason of apprehension

on their part as regards the safety of their person and property.

He submits that in absence of such exercise by respondent No.2

to record in-camera statements of the witnesses and refer the

same in the show cause notice and also discuss about their

versions in the impugned judgment so as to form 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 and property. In

absence of such exercise an order of externment cannot legally

sustain. In support of aforesaid contention, he placed reliance on

the exposition of law in the case of Yeshwant Damodar Patil

Vs. Hemant Karkar, Dy. Commissioner of Police and

another2 and in particular paras 3 and 9. He, therefore, submits

that petition deserves to be allowed.

5. On the other hand, learned APP relying upon the contents

of the show cause notice and the reasons assigned by respondent

Nos. 2 and 3 in the impugned decisions submits that the alleged

movements and acts of the petitioner were causing alarm,

danger and harm to person of the citizens at Newasa and

adjoining area of Newasa Taluka, as same is evident from the

number of offences registered against the petitioner, therefore,

the respondent No. 2 was constrained to initiate an externment 2 1989 (3) Bom.C.R. 240

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proceeding against the petitioner. He submits that since the

offences registered against the petitioner would be covered under

Chapter XII, XVI and XVII of the Indian Penal Code, the authority

thought it fit to initiate proceedings of the externment of the

petitioner. Therefore, the order passed by respondent No. 2,

which is confirmed by respondent No. 3 needs no interference

under extra ordinary writ jurisdiction.

6. We have given thoughtful consideration to the submission

of learned counsel appearing for the parties, perused the

pleadings in the petition and grounds taken therein, contents of

the show cause notice and also the reasons assigned by

respondent Nos.2 and 3 in the impugned judgments and we are

of the opinion that petition deserves to be allowed for the

reasons stated hereinbelow.

7. Firstly, there is no discussion in the impugned judgments of

respondent Nos.2 and 3 that, there is live link between initiation

of an externment proceeding against the petitioner and the

offences i.e. Crime Nos. 19 of 2011, 212 of 2011, 126 of 2013

registered against him in Newasa Police Station, District

Ahmednagar.

 8.       Secondly,        if   the   alleged   movements        or    acts     of   the

 petitioner, as stated in show cause notice and also                             in the



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discussion of respondent Nos. 2 and 3 in their judgments, are

carefully perused, those are confined to the Newasa town and

adjoining villages in said Taluka.

9. Thirdly, there is no reference either in the show cause

notice or in the impugned judgment of respondent No. 2, that

before initiating externment proceeding against petitioner, as a

matter of fact, respondent No. 2 recorded in-camera statements

of the persons residing at Newasa or nearby Newasa town so as

to reach at subjective satisfaction and 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 and property. In the case of Yeshwant

(Supra), while considering the scope and purport of section

56(1) (a) (b) of the Maharashtra Police Act, in paras 3 and 9 of

the judgment it is held thus:

"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

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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.

9. We have already, after examining the provisions of section 56(i) of the Bombay Police Act, held that in every case of acts involved on the part of the proposed externee, where an order of externment in proposed to be passed, it is necessary that the officer concerned must be satisfied that witnesses are not willing to come forward to give evidence against him. Notice of such satisfaction must also necessarily be given to the proposed externee under section 59 of the Bombay Police Act. In the present case, though notice of the fact that witnesses are not coming forward to give evidence against the proposed externee has been given in so far as the ground mentioned in the first part of Clause (b) of section 56(i) is concerned, no such notice has been given is so far as the ground mentioned in the second part of section 56(i)(b) in concerned. In other words,

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when the authority proceeded to give notice to the proposed externee on the ground that he is engaged in, the commission of offences punishable under Chapter XVI of the Indian Penal Code, he failed to mention also that the witnesses are not coming forward to give evidence against him." (underlines added)

10. We have made pointed query to the learned APP, whether

there is reference in the show cause notice or in the impugned

judgment of respondent No. 2, about recording of in-camera

statements of witnesses, he fairly conceded that, neither in the

show cause notice nor in the impugned judgment of respondent

No. 2 there is reference of recording of in-camera statements of

the witnesses by respondent No.2.

11. In that view of the matter, in our considered view, the

impugned orders passed by the respondents No.2 and 3 cannot

legally sustain and consequently needs to be set aside.

Accordingly writ petition is allowed in terms of prayer clause "B".

Rule is made absolute accordingly. No order as to costs.

12. List the matter for compliance of directions contained in

paragraph no. 1 of this order.

                           Sd/-                                    Sd/-

         [ K. K. SONAWANE, J.]                     [ S.S. SHINDE, J.]

 MTK