Akash Madhukar Patil (Rajput) vs The State Of Maharashtra And ...
2017 Latest Caselaw 8660 Bom

                                       (1)                           Cri. WP 1451.17

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD


            CRIMINAL WRIT PETITION NO. 1451 OF 2017


      Akash Madhukar Patil (Rajput),
      Age: 20 years, Occupation- Service as Driver,
      R/o. Datta Nagar, Wanjola Road,
      Bhusawal,Tq. Bhusawal,
      Dist. Jalgaon.                               ...             PETITIONER

                      Versus

      1] The State of Maharashtra,
      Home Department,
      Mantralaya, Mumbai -32.

      2] The Sub-Divisional Magistrate,
      Bhusawal, Division Bhusawal,
      Dist. Jalgaon.

      3] Sub-Divisional Police Officer,
      Bhusawal Division,
      Bhusawal, Dist. Jalgaon.

      4] The Divisional Commissioner,
      Nashik Division, Nashik.                  ...             RESPONDENTS
                                   -----
Mr. B. S. Deshmukh, Advocate for the Petitioner.
Mrs. P.V. Diggikar, APP for Respondent / State.
                                   -----

                                   CORAM :   S. S. SHINDE &
                                             MANGESH S. PATIL, JJ.

RESERVED ON : 01.11.2017 PRONOUNCED ON : 14.11.2017 ...

                                            (2)                          Cri. WP 1451.17

JUDGMENT: (Per Mangesh S. Patil, J.)

.              Rule. Rule is made returnable forthwith. With the consent of

the parties heard finally.

2. In this petition under Article 226 of the Constitution of India

read with Section 482 of the Code of Criminal Procedure the petitioner is

impugning the order passed by the Sub-Divisional Magistrate, Bhusawal

dated 20.01.2017 passed under Section 56 (1) (b) of the Maharashtra

Police Act, 1951 (hereinafter referred to as the Act), thereby externing

him from Jalgaon and Dhule districts and also being aggrieved by

dismissal of his Externment Appeal No. 19 of 2017 by the Divisional

Commissioner-respondent No.4 on 28.04.2017, confirming the

externment to the extent of Jalgaon district.

3. The Police Inspector, Bazarpeth Police Station, Bhusawal

submitted the externment proposal against the petitioner through the

Superintendent of Police on 29.07.2016 before the respondent No.2 Sub-

Divisional Magistrate, Bhusawal on the ground that he is engaged or is

about to engage in commission of offences involving force or violence.

The respondent No.3 who is the Sub-Divisional Police Officer, Bhusawal

was authorised under Section 59 of the Act by the order dated

(3) Cri. WP 1451.17

04.08.2016 to conduct an inquiry and to submit a report in respect of

such proposal. Accordingly, he submitted the report on 03.09.2016 with

his recommendation. Respondent No.2 in pursuance of Section 59 (1)

informed the petitioner general nature of allegations by the notice dated

05.08.2016. The petitioner submitted his written statement and after

conducting necessary inquiry, the respondent No.2 by the impugned

order directed the petitioner to be externed out of Jalgaon and Dhule

districts for a period of two years under the provisions of Section 56 (1)

(b) with certain conditions.

4. The ground for passing the externment orders under Section

56 (1) (b) of the Act is as under :

There are reasonable grounds for believing that the person is

engaged or is about to be engaged in the commission of an offence

punishable under Chapter XII, XVI or XVII of the Indian Penal Code or in

the abetment of such offence and in the opinion of such officer witnesses

are not willing to come forward to give evidence due to apprehension.

5. In arriving at such conclusion, following circumstances are

referred to by the respondent No.2 to justify his inference.

           (i)          Crime Register No. 148 of 2014 for the offence




                                          (4)                            Cri. WP 1451.17

punishable under Section 324 of the Indian Penal Code

of Bazarpeth Police Station, Bhusawal is pending.

(ii) Crime Register No. 268 of 2014 for the offence

punishable under Section 307, 323 r/w 34 of the Indian

Penal Code of Bazarpeth Police Station, Bhusawal is

pending.

(iii) Crime Register No. 138 of 2015 for the offence

punishable under Section 326, 352, 504 r/w 34 of the

Indian Penal Code of Bazarpeth Police Station,

Bhusawal is pending.

In addition, it is was found that the in-camera statements of couple

of witnesses were recorded as they were not willing to come forward in

public. In the light of such material and grounds, by the impugned order

the respondent No. 2 directed the petitioner to be externed from the two

districts i.e. Jalgaon and Dhule for a period of two years.

6. The petitioner's appeal under Section 60 of the Act preferred

before the respondent No.4-Divisional Commissioner has been allowed

vis a vis the order directing externment from Dhule District but has been

maintained to the extent of Jalgaon district. Hence this writ petition.

(5) Cri. WP 1451.17

7. We have heard the learned Advocate for the petitioner.

According to him, there are no justifiable grounds even to maintain the

impugned order externing the petitioner from Jalgaon district. The

impugned order has been passed without any substance. There is no

discussion of any objective material for drawing inference that the

petitioner's liberty is dangerous to the safety of any person or property.

There is also no material to show that he is engaged or about to be

engaged in the commission of some offences. The case arising out of

Crime No. 138 of 2015 has already been decided by the learned Judicial

Magistrate First Class, Bhusawal and the petitioner has been acquitted on

26.05.2017. Thus, according to him, the impugned orders are not

sustainable in law and have been passed just to deprive the petitioner of

an opportunity of participating in Municipal Elections. Even in the notice

under Section 59 of the Act there is not even a cursory reference to the

material being relied upon by the authorities while passing the impugned

orders. The learned Advocate has also placed reliance upon the

decisions of the Division Benches of this Court in the case of Yashwant

Damodar Patil Vs. Hemant Karkare, Dy. Commissioner of Police,

Thane and Anr; 1989 Mh.L.J. 1111, and Rajendra Karbhari Kale

Vs. State of Maharashtra and Ors; 2017(1) Mh.L.J 479 and also

(6) Cri. WP 1451.17

upon the decision of the Supreme Court in the case of Pandharinath

Shridhar Rangnekar V/s. Dy. Commissioner of Police, The State of

Maharashtra; (1973) 1 SCC 372.

8. The learned A.P.P. submitted that the impugned orders have

been passed on the objective material available before the respondent

Nos.2 and 4 and the petition does not have any merit.

9. Before going to the facts, it would be apposite to refer to the

legal pronouncements which have culled down the scope and ambit of

powers conferred on the authorities under Section 56 of the Act. But

before that let us examine the legal provision. Section 56 reads thus:

"56. Removal of persons about to commit offence - (1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf -

(a) that the movements or 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

(7) Cri. WP 1451.17

person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter 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, (bb).......................

(c) ..........

to remove himself outside such area or areas in the State of Maharashtra....

(2) ............."

After going through these provisions, it is apparent that the whole

purpose of empowering District Magistrate of Sub-Divisional Magistrate

to exercise the powers under Section 56 is to enable them to maintain

peace / order by driving out the person whose movements in the area

are likely to cause or calculated to cause harm to any person or property.

Needless to state that being a drastic provision which seeks to create an

embargo on the life and personal liberty of a person guaranteed under

the Constitution of India by Article 21, it is expected that the authorities

who are to exercise powers under Section 56 of the Act are conscience

and conscious that there has to be some strong and objective material

(8) Cri. WP 1451.17

which would justify any order passed under Section 56. Any lapse in this

respect would result in curtailment of personal liberty of citizen and will

have to be struck down.

10. In the case of Yashwant Damodar Patil Vs. Hemant

Karkare (supra), this Court has considered the scope of provisions of

Section 56 (1) (a) & (b) of the Act. Paragraph no. 3 of the judgment

reads thus:

"3. Section 56 (1) 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 (1) 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. This 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 (1) 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

(9) Cri. WP 1451.17

under Chapter XII, or Chapter XVI, or Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause (b) of Section 56 (1) 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."

It is clear that the designated officer has to record an opinion when

the witnesses are not willing to come forward to give evidence in public

because of the apprehension as regards their safety because of the

person to be externed. The designated officer necessarily has to record

such opinion based on some objective material.

11. In the case of Pandharinath Shridhar Rangnekar V/s.

Dy. Commissioner of Police (supra), the Supreme Court had an

opportunity to examine the scope of Section 56 and the powers of

authority in passing externment orders. It has been observed inter alia

that although Section 56 makes a serious inroad on personal liberty but

such restraint has to be suffered in the general interest of the society.

However, care must be taken to ensure that the terms of Section 56 and

( 10 ) Cri. WP 1451.17

59 are strictly complied with. It has also been laid down that the

externee is entitled before an order of externment is passed to know the

material allegations against him and the general nature of those

allegations. He need not be informed all specified particulars since the

full and complete disclosure is likely to frustrate the very purpose of the

externment . Lastly, it has been laid down that it is primarily for the

externing authority to decide how best an externment order can be made

effective so as to substantiate its real purpose. He should consider for

how much period out of statutory limit of two years and from which

territories he has to be externed, after consideration of all the material

and data and there can be no general formulation. Any excessive order

can be struck down.

12. Bearing in mind the legal proposition discussed herein-above

and law, one will have to examine as to whether while passing the

impugned orders the respondent nos. 2 and 4 have formed an opinion

with some objective material and have taken into consideration all the

necessary pre-conditions for passing orders.

13. At the outset, it is necessary to observe that in both the

impugned orders, passed by respondent nos. 2 and 4 respectively, they

( 11 ) Cri. WP 1451.17

have invoked specifically the ground contained in clause (b) of Sub-

Section (1) of Section 56, however, while passing the order the wording

used at places demonstrates that perhaps in addition to clause (b) they

were also considering the material under clause (a) of Sub-Section (1) of

Section 56. They have specifically mentioned at places that the

movements or acts of the petitioner are likely to cause alarm to person

or property which wording clearly demonstrates such inference. This

clearly indicates that the respondents while passing the impugned orders

have clearly lost sight of the distinction between the two grounds (a) and

(b) of Sub-Section (1) of Section 56.

14. Perusal of the notice dated 05.08.2016 issued under Section

59 of the Act reveals that it was informed to the petitioner that from the

kind of offences registered against him, it was apparent that he did not

have any work and was criminal by nature, obstructing peace of the

village by threatening people and because of his terror nobody was

coming forward to openly give statement. He was habituated of

committing such offences and in spite of registration of offences, there

was no change in his behaviour. Ex facie, there is absolutely no

reference about statements of any witnesses having been recorded in-

camera to justify such inference.        It is true that the very purpose of




                                       ( 12 )                         Cri. WP 1451.17

taking such preventive action would be frustrated, if the names of the

witnesses or persons are not disclosed and it is also therefore not

expected that in this notice under Section 59 no such disclosure should

have been made. However, as is observed above and as is laid down in

the case of Pandharinath (supra) at least a general reference should

have been made informing the petitioner that some persons have been

entertaining such apprehension about his behaviour and their statements

have been recorded in camera. For want of such reference, it cannot be

said that the petitioner was extended an opportunity to meet such

ground. Simultaneously, it also cannot be said that respondent nos. 2

and 4 have applied their mind before drawing the opinion justifying their

inference.

15. On the contrary, a perusal of the record and proceedings

reveals that in fact the respondent no. 3 recorded statements of couple

of witnesses which read that, though, these witnesses were aware about

pending criminal cases against the petitioner, there was no danger or

harm to the person or property of anybody from the petitioner. The

impugned orders apparently ignore both these statements and this

circumstance can easily be resorted, to draw an inference that the

impugned orders have been passed without application of mind. The

( 13 ) Cri. WP 1451.17

witnesses whose statements are favourable to the petitioner have been

overlooked and the statement of nobody has been recorded even in-

camera who is entertaining any apprehension from the petitioner.

16. We therefore have no hesitation in concluding that both the

impugned orders suffer from grave illegality and have been passed

without understanding seriousness of exercising the powers under

Section 56 of the Act. Merely because few criminal cases are pending

against the petitioner out of which, in one of the cases he has already

been acquitted and which cases have been filed almost two years prior to

initiation of the externment proceedings, could be no sufficient ground

per se to extern the petitioner.

17. We allow the petition. Both the impugned orders are

quashed and set aside. The Rule is made absolute.

      [MANGESH S. PATIL, J.]                                 [S. S. SHINDE , J.]




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