Bombay High Court

Abasaheb Balasaheb Warkhade vs The State Of Maharashtra And ... on 22 November, 2017

Bench: S.S. Shinde

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


             CRIMINAL WRIT PETITION NO.1211 OF 2017


 Abasaheb Balasaheb Warkhade,
 Age-38 years, Occu:Agri.,
 R/o-Shetewadi, Deolali Pravara,
 Tq-Rahuri, Dist-Ahmednagar
                                 ...PETITIONER 
        VERSUS             

 1) The State of Maharashtra,

 2) Sub-Divisional Police Officer,
    Shrirampur Division, Shrirampur,
    Tq-Shrirampur, Dist-Ahmednagar,

 3) Sub-Divisional Magistrate,
    Shrirampur Division, Shrirampur,
    Tq. & Dist-Ahmednagar,

 4) Divisional Commissioner,
    Nashik Division, Nashik,
    Dist-Nashik.   
                                 ...RESPONDENTS

                      ...
    Mr. Satej S. Jadhav Advocate for Petitioner.
    Mr. D.R. Kale, A.P.P. for Respondent Nos.
    1 to 4.      
                      ...

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

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DATE OF RESERVING JUDGMENT : 20TH NOVEMBER, 2017

DATE OF PRONOUNCING JUDGMENT: 22ND NOVEMBER, 2017

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

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. The background facts for filing the

present Petition as disclosed in the memo of the

Petition, in brief, are as under:

. It is the case of the Petitioner that on

19th September, 2016 the Petitioner he received

the show-cause notice under Section 59 of the

Bombay Police Act, 1951 (for short "the Act of

1951"). In all 4 offences alleged to have been

registered against the Petitioner and that has

been made basis for proposed externment. It is

submitted that the Petitioner filed reply, and

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submitted that out of four offences, he has been

acquitted in one offence i.e. offence at Sr. No.3

and offence at Sr. No.4 is only a chapter case. On

30th November, 2016 Respondent No.3 passed an

order thereby externing the Petitioner from

Ahmednagar District for two years. Aggrieved by

the said Judgment and order passed by Respondent

No.3, the Petitioner filed appeal before

Respondent No.4 - Divisional Commissioner, Nashik

Division, Nashik. By order dated 28th April, 2017

Respondent No.4, partly allowed the appeal and

modified the order passed by Respondent No.3 and

externed the Petitioner only from Rahuri Taluka

instead of Ahmednagar District. It is the case of

the Petitioner that Respondents failed to consider

that out of the four crimes mentioned in the

notice, the Petitioner was acquitted in one crime

while another crime is merely a preventive action

and is not a registered crime, and therefore the

order externing the Petitioner from Rahuri Taluka

needs to be quashed and and set aside.

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3. Learned counsel appearing for the

Petitioner submitted that the notice issued to the

Petitioner under Section 59 of the Act of 1951,

not even in brief gives the circumstance for which

he is proposed to be externed and only four crimes

registered against the Petitioner at Rahuri police

station are mentioned. It is submitted that

despite being apprised by the Petitioner that from

the offence mentioned at sr. No.3 of the notice

already he has been acquitted, the Sub Divisional

Magistrate, Shrirampur has gone ahead and

considered the same for the purpose of externing

the Petitioner from Ahmednagar District, which by

itself is excessive. It is submitted that nowhere

on record there is any allegation or material to

show that the Petitioner has caused any hindrance

in the course of investigation. There is no

allegation as to how and whether the Petitioner

has tried to influence or threaten any witnesses,

at any point of time thereby causing discord

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between society and law.

4. Learned counsel further submitted that

neither the notice nor the order narrate the

circumstances under which the Petitioner is

harmful for the health and texture of society, and

how witnesses are under terror and are not coming

forward to depose against the Petitioner. It is

further submitted that, it is nowhere brought on

record, as to when and how the witnesses were

examined, and what instances such witnesses have

stated regarding the incidents caused by the

Petitioner. There are no in-camera statements. It

is submitted that one crime mentioned against the

Petitioner is of the year 2010, while the other

two crimes are of the year 2015, and therefore

there appears to be no consistency or continuance

in the criminal conduct of the Petitioner. It is

further submitted that the Petitioner is already

before the Court of law in remaining two crimes

and peacefully attending all the dates, wherein he

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is charge-sheeted just before the initiation of

externment proceedings. It is submitted that it is

settled law that very fundamental right of the

Petitioner of free movement is infringed upon by

way of curving his civil right on the basis of

unwarranted consideration. It is submitted that in

the show cause notice there is no reference that

in-camera statements of the witnesses were

recorded. Lastly, learned counsel submitted that

the order passed by Respondent No.4 is liable to

be quashed and set aside and therefore he prayed

that the Writ Petition deserves to be allowed.

5. On the other hand, learned A.P.P.

appearing for the Respondent - State relying upon

the reasons assigned by Respondent nos.3 and 4 in

the impugned orders submits that the appellate

authority, after adhering to the procedure

prescribed under the provisions of Section 56 [1]

[a] [b] of the Act of 1951, has rightly externed

the petitioner from the boundaries of Rahuri

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Taluka in Ahmednagar District.

6. We have carefully considered submissions

of learned counsel appearing for the Petitioner,

and the learned APP appearing for the Respondents.

With their able assistance we have carefully

perused the grounds taken in the Petition,

annexures thereto, and original record of the case

maintained by the office of the Respondents. Upon

careful perusal of the contents of the show-cause

notice sent by the Sub Divisional Magistrate,

Shrirampur Division, Shrirampur to the Petitioner,

it appears that in the said notice as many as four

offences have been mentioned. All the offences

have been registered at Rahuri police station of

Ahmednagar District. In the said notice, it is

not mentioned that the witnesses are not willing

to come forward to give evidence in public against

the Petitioner by reason of apprehension on their

part as regards the safety of their person or

property.

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7. The Petitioner has filed reply to the

said notice stating therein that before initiating

an externment proceedings, the Petitioner is

already acquitted from the offence mentioned at

Sr. No.3. The Petitioner has further stated that

the offence at Sr. No.4 is only a chapter case and

in the offences at Sr. Nos.1 and 2 recently

charge-sheets have been filed and are pending for

trial.

8. We have carefully perused the proposal

submitted by Respondent No.2 to Respondent No.3.

In the said proposal four offences are shown

registered at Rahuri Police Station, against the

Petitioner.

9. Respondent No.3 -Sub Divisional

Magistrate, Shrirampur has passed the order 30th

November, 2016. Upon careful perusal of the

contents of the said order, there is reference of

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Section 56 [1] [a] [b] of the Act of 1951, and

also to the proposal submitted by Respondent No.2

- Sub Divisional Police Officer, Shrirampur, with

recommendation for externing the Petitioner from

six Districts, i.e. Ahmednagar, Nashik, Solapur,

Pune, Beed and Aurangabad. In spite of specific

reply by the Petitioner that he has been acquitted

from the offence mentioned at Sr. No.3 and the

offence mentioned at Sr. No.4 is only a chapter

recently charge-sheets have been filed and are

pending for trial, Respondent No.3 without

adverting to the said contention of the

Petitioner, proceeded to consider the proposal

submitted by Respondent No.2 on the basis that

four offences have been registered against the

Petitioner and those are under an investigation.

It is mentioned in the said order that the

witnesses are not willing to come forward to

depose or to give complaint against the Petitioner

due to his fear. Respondent No.3 - Sub Divisional

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Magistrate, Shrirampur, passed an order externing

the Petitioner from the boundaries of Ahmednagar

District for the period of two years. Against the

said order passed by Respondent No.3, the

Petitioner has filed appeal before Respondent No.4

- Divisional Commissioner, Nashik Division,

Nashik. The Divisional Commissioner, modified the

order passed by the Sub Divisional Magistrate and

externed the Petitioner from Rahuri Taluka of

Ahmednagar District, for the period of two years.

10. Upon careful perusal of contents of the

show-cause notice, it is nowhere mentioned that,

the witnesses are not willing to come forward to

give evidence in public against the Petitioner by

reason of apprehension on their part as regards

the safety of their person or property. It is true

that it is not expected from the authority that

the names of such witnesses or date of such

incident or other material particulars should be

mentioned in the show cause notice. However, the

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Supreme Court in the case of Pandharinath Shridhar

Rangnekar Vs. Dy. Commissioner of Police, State of

Maharashtra1, held that, proposed externee is

entitled, before an order of externment is passed

under Section 56, to know the material allegations

against him and general nature of those

allegations.

11. At this juncture, it would be apt to make

reference to the provisions of Section 56(1)(a)(b)

of the Act of 1951, which reads thus:

56.Removal of persons about to commit offence

(1) ........

(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

1 AIR 1973 SC 630

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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, 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

[Underlines are added]

12. Upon careful perusal of the aforesaid

provisions, 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 as provided in clause

(a). The order of externment can also be passed

against a person if there are reasonable grounds

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for believing that such a person is engaged or is

about to be engaged in the commission of an

offence involving force or violence as provided in

clause (b). 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, or Chapter

XVI, or Chapter XVII of the Indian Penal Code. But

in addition to the above, the concerned Officer,

who is dealing externment proceedings, should be

of the opinion that the 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.

13. Keeping in view the above legal position,

it was incumbent upon Respondent No.4, who dealt

with an externment proceedings, to arrive at the

opinion that the witnesses are not willing to come

forward to give evidence in public against such

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person by reason of apprehension on their part as

regards the safety of their person or property.

14. Upon careful perusal of the show-cause

notice, it appears that there is no reference of

recording in-camera statements of the witnesses.

The Division Bench of the Bombay High Court [at

Principal seat] in the case of Yeshwant Damodar

Patil Vs. Hemant Karkare, Dy. Commissioner of

Police & another2 had occasion to consider the

scope of provisions of Section 56 [1] [a] and [b]

of the Bombay Police Act. Para 3 of the said

Judgment reads as under:

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 2 1989 (3) Bom.C.R. 240

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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 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

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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.