Satish S/O. Bhimrao Dolse vs The Superintendent Of Police, ...
2017 Latest Caselaw 8704 Bom

                                         (1)                             crwp1216.17

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

               CRIMINAL WRIT PETITION NO. 1216 OF 2017


Satish S/o Bhimrao Dolse                          ..      Petitioner
Age : 30 years, Occ : Service, 
R/o Vara, Man Deulgaon, 
Tq. Badnapur, Dist. Jalna. 

                                       Versus


1)    The Superintendent of Police                ..      Respondents
      Jalna, Dist. Jalna.

2)    The Sub-Divisional Magistrate, 
      Jalna, Dist. jalna. 

3)    The Divisional Commissioner, 
      Aurangabad Division, 
      Aurangabad. 

Mr. P.P. More, Advocate for the petitioner.
Mr. M.M. Nerlikar, A.P.P. for respondents/State.


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

RESERVED ON : 10th November, 2017 PRONOUNCED ON :15th November, 2017

JUDGMENT [PER : S.S. SHINDE,J.] :-

1. Rule. Rule made returnable forthwith and heard

finally with the consent of the parties.

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2. This petition takes an exception to the impugned

order dated 2nd August, 2016 passed by Respondent No.2 -

Sub-Divisional Magistrate, Jalna vide Proceeding

No.2016/MAG/CR-01 as well as the order dated 18th

November, 2016 passed by the respondent no.3 in Appeal

No.2015/SR/Pol-1/Externment/CR-21.

3. The background facts for filing the present

Petition, as disclosed, in the memo in brief as under :

It is the case of the petitioner that, the

office of Respondent No.2 has issued show-cause notice

dated 27th January, 2016 under Section 59 of the

Maharashtra Police Act, 1951, in order to extern the

petitioner from the limits of Jalna district for a period

of two years under the pretext that, the petitioner has

indulged into various criminal activities. It is the case

of the petitioner that, the petitioner filed a detailed

reply to the said show-cause notice on 11th February,

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2016 and contended that, the crimes which are shown in

the notice are investigated and the petitioner has been

released on bail. It is the case of the petitioner that,

the concerned officer has filed a report on 17th March,

2016 to Respondent No.2 and accordingly recommended that,

the petitioner be externed from Jalna district.

Thereafter, respondent no.2 issued a notice to the

petitioner on 21st March, 2016 intimating that, the

petitioner is to remain present on the date of hearing

and also to submit a reply along with documents, if any,

which he wants to rely and also the witnesses if any.

Accordingly, the petitioner appeared and filed his reply

on 18th April, 2016 to the said notice. It is the case of

the petitioner that, the petitioner filed reply on 18th

April, 2016. Thereafter no further date is given and

directly the impugned order came to be passed on 2nd

August, 2016, by which the petitioner is externed from

the boundaries of Jalna district for a period of two

years. Thereafter, the petitioner preferred an appeal

before Respondent No.3 and Respondent No.3 has rejected

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the said appeal on 18th November, 2016. Hence this

Criminal Writ Petition.

4. The learned counsel appearing for the petitioner

submits that, since the order passed by respondent No.2

is taking recourse to the provisions of section 56(1)(a)

(b) of the Maharashtra Police Act [for short "the said

Act"]; there is no compliance of mandate of section 56

(1)(b) of the Act, in as much as, though there is

reference to the statement of witnesses recorded in

camera, respondent No.2 did not 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 or property. He further submits that when the

Sub-Divisional Magistrate is empowered to deal with the

proceedings under the provisions of Section 56(1)(a)(b)

of the Act, said Officer is supposed to apply his mind to

the material before him and in particular the statements

of witnesses, so as to form opinion that the witnesses

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are not willing to come forward to give evidence against

the proposed externee in public by reason of apprehension

on their part as regards the safety of their person or

property. He submits that, the externment proceedings

are initiated out of political vendatta when there was

elections of Zilla Parishad. Therefore, the learned

Counsel appearing for the petitioner, relying upon

grounds taken in the petition and annexures thereto,

submits that the petition deserves to be allowed.

5. On the other hand, the learned APP appearing for

the respondents relying upon the reasons assigned by the

Respondent Nos. 2 and 3 in the impugned orders, submits

that, the authorities, after adhering to the procedure

prescribed under the provisions of Section 56(1)(a)(b) of

the said act, have rightly externed the petitioner from

the boundaries of Jalna district.

6. We have given careful consideration to the

submissions of learned Counsel appearing for the

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petitioner and learned APP appearing for the respondents.

With their able assistance we have carefully perused the

grounds taken in the petition and annexures thereto, the

reasons assigned by respondent Nos.2 and 3 in the

impugned orders and also relevant provisions. At the

outset, it would be apt to reproduce herein below the

provisions of section 56(1)(a)(b) of the said Act, which

reads as under :-

Removal of persons about to commit offence "56. .

(1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under Sec. 7 to the Commissioner and in other area or areas to which 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 Chapters XII, XVI, or XVII of the Indian Penal Code (XLV of 1860), 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

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their person or property, or x x x x x"

7. The Division Bench of this Court in the case of

Yashwant Damodar Patil Vs. Hemant Karkare, Deputy

Commissioner of Police, Thane & Anr., 1989 Mh.L.J.1111,

had occasion to consider the scope of section 56 (1)(a)

(b) of the said Act. Para 3 from the said judgment reads

as under :-

"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 analyze 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. That 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 under Chapter XII, of Chapter XVI, or Chapter XVII of

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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."

8. Upon reading para 3 from the said judgment, it

is abundantly clear that the order of externment can be

passed against a person if there are reasonable grounds

believing that such person is engaged or about to be

engaged in commission of offence involving force or

violence under Chapter XII or Chapter XVI or Chapter XVII

of the Indian Penal Code. This is so provided in the

later 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.

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9. Admittedly, in the notice which was issued by

respondent No.2 i.e. Sub-Divisional Magistrate, Jalna,

there is no mention about the general nature of material

allegations against the petitioner, that the witnesses

are not willing to come forward to give evidence against

him in public by reason of apprehension on their part as

regards safety of their person or property. It is true

that it is not necessary for the concerned authority to

mention the names of such witnesses or time of the

incident or any other material particulars.

Nevertheless, in view of ratio laid down by the Supreme

Court in the case of Pandharinath Shridhar Rangnekar Vs.

Dy. Commissioner of Police, State of Maharashtra, AIR

1973 SC 630, the proposed externee is entitled to know

the general nature of the material allegations against

him. Therefore, the contention of learned APP appearing

for the State that the notice makes mention that in-

camera statements of the witnesses have been recorded and

they are not willing to come forward to give evidence in

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public against the petitioner by reason of apprehension

on their part as regards the safety of their person or

property, and said compliance is sufficient, would run

contrary to the legislative intent as reflected under the

provisions of Section 56(1)(b) of the said Act. The

Designated officer who exercises powers under section 56

of the Act is the Officer, who ultimately passes the

order of an externment under the said Act. Said officer

has to form his 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 not a

mechanical process. He has to apply his mind and then

pass the appropriate order. If the order of an externment

is passed against a person, his fundamental right to move

from one place to another or the right to reside at a

particular place of his choice, gets curtailed.

Therefore, the legislative intent while enacting

provisions of Section 156(1)(b) of the Act is crystal

clear that the concerned officer who is ultimate

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authority to pass the order of the externment, shall form

his opinion by applying his mind to facts of the case and

material placed before him, and after verifying the

statements of the witnesses, shall form his opinion that

the witnesses are not willing to come forward against the

proposed externee to depose in public by reason of

apprehension on their part as regards the safety of their

person or property. As already observed, said compliance

is not an empty formality and the said officer is bound

to strictly adhere to the provisions of section 56 (1)(b)

of the said Act.

10. Upon carefully considering the reasons assigned

by respondent Nos.2 and 3, an externment of the

petitioner from Jalna District, there are no specific

reasons are assigned. It is not necessary for us to

elaborate the reasons. Suffice it to say that the orders

passed by respondent Nos.2 and 3 are not legally

sustainable.

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11. In that view of the matter, petition succeeds,

the Criminal Writ Petition is allowed in terms of prayer

clause (C). Rule made absolute in above terms. The

Petition is disposed of accordingly.

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

sga/-