Rahul @ Bala Digambar Sonwane vs The State Of Maharashtra And ...
2017 Latest Caselaw 8661 Bom

                                       (1)                           Cri. WP 1452 .17

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD


            CRIMINAL WRIT PETITION NO. 1452 OF 2017


      Rahul @ Bala Digambar Sonwane,
      Age: 28 years, Occupation- Contractor,
      R/o. Shanti Complex, Shani Nagar,
      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 : 06.11.2017 PRONOUNCED ON : 14.11.2017 ...

(2) Cri. WP 1452 .17

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

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

the parties the matter is 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

seeking exception to the order of his externment passed by the

respondent no.2 Sub-Divisional Magistrate, Bhusawal by invoking his

powers under Section 56 (1) (b) of the Maharashtra Police Act, 1951

(hereinafter referred to as the Act), from Jalgaon and Dhule districts by

the order dated 17.07.2017, which has been altered in appeal preferred

by him under Section 60 of the Act by respondent no.4 Divisional

Commissioner, Nashik by his order dated 22.09.2017 restricting the

externment only to the extent of Jalgaon district.

3. We have heard the learned Advocate for the petitioner as well

as the learned A.P.P. and perused the record and proceedings.

4. According to the learned Advocate for the petitioner, the

impugned orders have been passed vindictively without any ground much

less sufficient to justify the externment. According to him, the fact that

out of four criminal cases referred to under the impugned orders, the

(3) Cri. WP 1452 .17

petitioner has already been acquitted in two of them but the respondent

nos. 2 and 4 have completely ignored this fact. There is no discussion

justifying the inference drawn by the respondent nos. 2 and 4 as to the

activities of the petitioner much less to demonstrate that those are

sufficient to show that he is engaged or about to be engaged in the

commission of some offence, or witnesses are not coming forward to give

evidence due to fear. In the absence of such ground the impugned

orders could not have been passed. The learned Advocate also pointed

out that the notice served on the petitioner under Section 59 does not

refer to recording of any statement of witnesses in camera albeit the

impugned orders refer to such fact. In the absence of any reference to

the recording of statements of witnesses in view of 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, the impugned orders and not legal and sustainable.

5. The learned A.P.P. supported the impugned orders and

submitted that after following due process and giving suitable

opportunity to the petitioner the impugned orders have been passed and

the respondent nos. 2 and 4 have formed an opinion based on the

criminal record and therefore, the impugned orders are legal and proper.

(4) Cri. WP 1452 .17

6. Since the impugned orders have been passed in purported

exercise of the powers vesting in the respondent no. 2 under Section 56

(1) (b) of the Act, the impugned orders need to be examined by

ascertaining whether all the necessary ingredients which can legally form

basis for exercising the powers were available before the respondent nos.

2 and 4. Needless to state that those powers can be exercised when

there is reasonable ground for believing that the person is engaged or is

about to be engaged in commission of an offence punishable under

Chapter XII, XVI, or XVII of the Indian Penal Code or in abetment of such

offence and in the opinion of such officers, witnesses are not willing to

come forward to give evidence due to apprehension.

7. It is necessary to observe at the outset that a bare perusal of

the impugned orders would reveal that the respondent nos. 2 and 4 are

oblivious of the powers which they can exercise under situation (a) of

Sub-Section (1) of Section 56 and situation (b) under Sub-Section (1) of

that Section. The impugned orders clearly show that they have

considered both these grounds to justify the externment, albeit all the

while, right from the notice issued under Section 59 and while passing

the impugned orders they have referred to only Rule 56 (1) (b).

(5) Cri. WP 1452 .17

Grounds (a) and (b) read as under:

"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 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, (bb).......................

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

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

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

(6) Cri. WP 1452 .17

8. It is apparent that the powers under rule (a) can be invoked

when the movements and acts of the person are causing alarm or harm

to any person or property where as under clause (b) as is observed

above the person must have engaged or about to be engaged in

commission of some offence punishable under the three Chapters of the

Indian Penal Code and the witnesses are not coming forward due to

apprehension. Ignoring such distinction between those clauses,the

respondent nos. 2 and 4 have apparently referred to the ingredients of

both these clauses intermittently. Obviously, they could not have done

so legally and on this ground alone the impugned orders are liable to be

inferred with.

9. As has been observed in the case of Pandharinath (supra),

the powers conferred upon the authorities under Section 56 make a

serious inroad on personal liberty of a citizen. Therefore, the powers

which seek to create an exception to such constitutional right need to be

exercised with utmost care and caution and based on some objective and

concrete material. In view of such principle, it is utmost necessary for

respondent no.2 to have intimated the petitioner in the notice under

Section 59 that statement of the witnesses had to be recorded in-camera

due to fear, though, there was no obligation to disclose the names of the

(7) Cri. WP 1452 .17

witnesses. However, the notice dated 09.05.2017 does not refer to this

fact and therefore it goes to the root of the powers exercised under

Section 56 (1) (b).

10. Again, the notice under Section 59 alleges that the petitioner

has been roaming on Bullet Motor Cycle causing terror and alarm to the

public. He threatens them, beats them and even snatches gold

ornaments and money from people. It has also been mentioned that

taking advantage of the fact that he belongs to a Scheduled Caste, he

has been threatening people of prosecuting them falsely under the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989. Lastly, it has been mentioned that four criminal cases are pending

against him. However, apart from the fact that there is no reference to

any statement of any person having been recorded in-camera, even the

record and proceedings does not show that such statements were

recorded. On the contrary, the papers contain statements of couple of

witnesses by name Mohit Rajendra Chousariya and Abhijeet Dilip Marathe

recorded by the respondent no. 3-Sub Divisional Police Officer specifically

mentioning that, though, criminal cases are pending against the

petitioner there is no danger to person or property of anybody from him.

In fact if such statements were recorded during the inquiry by the

(8) Cri. WP 1452 .17

respondent no. 3-Police Officer, it was expected that respondent nos. 2

and 4 should have at least cursorily referred to these statements which

are in favour of the petitioner. There is absolutely no reference with

orders as to why statements of these two persons should be ignored

particularly when no such similar statements are forth coming against

the petitioner of anybody. In our view, this is yet another circumstance

which clinchingly demonstrate non-application of mind while passing the

impugned orders.

11. For all these reasons, we have no hesitation in concluding

that the impugned orders indeed suffer from gross illegality.

12. We therefore, allow the writ petition. 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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