Bombay High Court
Kishor Rambhaoji Narad vs The State Of Maharashtra Thr. ... on 13 October, 2017
Bench: Anoop V. Mohta
Order wp862.17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.862 OF 2017
Kishor Rambhaoji Narad,
Aged about 46 years, Occ.Agrilst.,
r/o. Shegaon, Tq. Warora,
District Chandrapur. ... PETITIONER
// VERSUS //
1. The State of Maharashtra,
Ministry of Home,
Through its Secretary,
Mantralaya, Mumbai-32.
2. Sub-Divisional Magistrate,
Warora, Distt. Chandrapur. ... RESPONDENTS
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Mr.S.V.Sirpurkar, Advocate for the Petitioner.
Mr.S.M.Ukey, A.P.P. for the Respondents.
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CORAM : ANOOP V. MOHTA &
M.G.GIRATKAR, JJ.
DATE : 13.10.2017.
Order wp862.17
ORAL JUDGMENT (Per M.G.Giratkar, J) :
1. Rule. Rule is made returnable forthwith. Heard finally
with the consent of the learned Counsel for the respective parties.
2. By way of present petition, the petitioner challenges the
externment order passed by respondent no2 externing the petitioner
from the local limits of Chandrapur district. It is submitted that the
petitioner is active in politics. He was Sarpanch of village Shegaon
from the year 2010 to 2015. Proposal for externment of petitioner
was submitted on 30.3.2016. He received show cause notice
u/s.56(1)(b) of the Maharashtra Police Act, dt.20.9.2016. It is
submitted that when the petitioner was Sarpanch, Gram Panchayat,
Shegaon had passed a resolution against the Police Sub-Inspector
Dange of Police Station, Shegaon for his transfer and holding of
departmental enquiry against him. Therefore, the petitioner is falsely
involved in the proceedings of externment.
3. It is submitted that the petitioner is already acquitted in
three criminal cases, which were pending against him. Learned Sub-
Divisional Magistrate has not taken into account these cases.
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4. Proposal for exterment of petitioner was submitted on
30.3.2016. Show cause notice was issued on 20.9.2016 and the order
of externment is passed on 31.7.2017. Hence, there is abnormal
delay in passing the impugned order of externment, which vitiates
the order passed against the petitioner. There is a delay of more than
ten months. Offences against the petitioner have been shown to be
registered in between the years 2002 to 2013, except the offence
which is of the year 2016. The said offence is in respect of the
Maharashtra Prohibition Act. Hence, stale offences should not have
been considered by respondent no.2 to extern the petitioner. As per
Section 56 of the Maharashtra Police Act, the offences committed
under Chapters XII, XVI or XVII of the Indian Penal Code may be
taken into consideration for externment. Six offences are shown to
be registered against the petitioner. However, in three offences, he
has been acquitted by the Competent Court. Offence punishable
under the Maharashtra Prohibition Act cannot be considered while
passing the order of externment.
5. It is submitted that respondent no.2 has not applied his
mind while passing the impugned order. He has not supplied
statements of both the witnesses. They are not witnesses in any of the
offences pending against the petitioner. The statements are
Order wp862.17
stereotype in nature. The grounds raised in the reply to the show
cause notice are not considered by respondent no.2. At last, it is
submitted that there is delay of near about one year in passing the
impugned order. Hence, the impugned order is liable to be quashed
and set aside.
6. Respondent no.2 has filed an affidavit and submitted that
the petitioner is involved in the crime. Respondent no.2 has recorded
in-camera statements and has come to the conclusion that
externment of petitioner is necessary to prevent any danger to person
and property.
7. Heard Mr.S.V.Sirpurkar, learned Counsel for the
petitioner. He has pointed out resolution passed by Gram Panchayat,
Shegaon and has submitted that the petitioner was Sarpanch of the
said village. Resolution was passed against PSI Dange for initiating
departmental enquiry against him due to his trouble to the villagers
and other citizens. Hence, the impugned order is passed in
revengeful manner.
8. Mr.Sirpurkar, learned Counsel has pointed out the show
cause notice and has submitted that the show cause notice is
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dt.20.9.2016. The impugned order is passed on 31.7.2017. There is
inordinate delay. Out of six offences, the petitioner is acquitted of
three offences/crimes, but those are not taken into consideration.
9. Mr.Sirpurkar, learned Counsel has pointed out the
Judgment of this Court in Criminal Writ Petition No.652 of 2017
(Gajanan Kashinath Kamble .vs State and Ors.), dt.24.8.2017. The
learned Counsel also pointed out the decisions reported in [1991(1)
Mh.L.J. 833], Dilip Laxman Kokare vs. S.M.Ambedkar and another;
2013 ALL MR (Cri) 4357, Prashant s/o. Shashikant Mandal .vs. State
of Maharashtra and another; 2014 ALL MR (Cri) 1706, Sudhakar s/o.
Mahadeorao Khelkar .vs. The State of Maharashtra and Others and
2013 ALL MR (Cri) 175, Sudhir Raviraj Choudhary .vs. The State of
Maharashtra. At last, it is submitted that, in view of the above cited
Judgments, the impugned order is liable to be quashed and set aside.
10. Perused the show cause notice. It is dt.20.9.2016. Six
offences/crimes are shown to be registered against the petitioner.
Sr.No.6 is in respect of Crime No.11 of 2016 for the offence
punishable under Section 65(e) of the Bombay Prohibition Act. All
other offences are in respect of offences punishable under the Indian
Penal Code. Reply to the show cause notice shows that the petitioner
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is acquitted in Crime No.56 of 2002 (Sr.No.1) and Crime No.52 of
2003 (Sr.No.3). Other three cases are pending and likely to be
disposed of. It is submitted that the petitioner is not convicted in any
crime. He was a Sarpanch of village Shegaon (Bh) from 2010 to
2015. On perusal of the order dt.31.7.2017, it appears that all the six
offences/crimes are taken into consideration. Last offence is of the
year 2016, which is an offence punishable under Section 65(e) of the
Bombay Prohibition Act. Respondent no.2 has not taken into
consideration the aspect of acquittal of petitioner in Crime No.56 of
2002 and 52 of 2003. Offence punishable under Section 65(e) of the
Bombay Prohibition Act is also taken into consideration. As per
Section 56 of the Maharashtra Police Act, offences under Chapters
XII, XVI or XVII of the Indian Penal Code are to be taken into
consideration; whereas respondent no.2 has taken into consideration
offence punishable u/s.65(e) of the Bombay Prohibition Act.
Therefore, it is clear that respondent no.2 has not applied his mind
properly and has come to the wrong conclusion.
11. The petitioner was Sarpanch of village Shegaon (Bh) for
the period from 2010 to 2015. Gram Panchayat Shegaon (Bh) has
passed a resolution against Police Inspector Mr.Dhange about his
trouble to the villagers and nearby villagers. Resolution was passed
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requesting the Authorities to initiate departmental inquiry against PSI
Dange. That may be the reason for implicating the petitioner in the
proceedings of externment. It is clear from the documents that he is a
respectable person of the village. He was Sarpanch of village for
about five years i.e. from 2010 to 2015. Therefore, it cannot be said
that his presence is danger to any person and property. Hence, the
impugned order is liable to be quashed and set aside.
12. There is inordinate delay in passing the impugned order.
Show cause notice is dt.20.9.2016 and the impugned order came to
be passed on 31.7.2017. In Writ Petition No.652 of 2017, this Court
has taken into consideration delay of 1½ years in passing the
exterment order and on that ground, the externment order was
quashed and set aside. In the case of Dilip Laxman Kokare .vs.
S.M.Ambedkar and another, delay of about 1½ years in passing the
exterment order was taken into consideration to quash the order.
13. Learned Additional Government Pleader has raised an
objection that the delay was on the part of externee and therefore,
externment proceedings could not be completed. In the case of Dilip
Kokare vs. S.M.Ambedkar and another, this Court (Principal Seat)
has held that "Police Authorities vaguely stating that externment
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proceedings could not be completed due to delay on part of externee
and his counsel, such an explanation cannot be availed of by the
externing Authority. Therefore, order of exterment is quashed in
view of abnormal delay"
14. In the case of Prashant Mandal vs. State of Mahrashtra it
is observed that "the externment procedings was quashed on the
ground of delay of 18 months". In the present case also, there is
delay of near about one year. Hence, the impugned order of
externment is liable to be quashed and set aside. In the case of
Sudhakar s/o. Mahadeorao Khelkar vs. The State of Maharashtra and
Others, this Court has observed that " the impugned order passed
after seven months of issuance of show cause notice. Same show that
the impugned order has no nexus with object to be achieved.
Nothing is placed on record by the respondents to show that in the
meantime the petitioner had been indulging in illegal activities.
Irrelevant material considered by the Authorities to order
externment...... " Therefore, externment order came to be quashed.
In the present case, there is inordinate delay of about one year.
Therefore, the impugned externment order is liable to be quashed
and set aside.
Order wp862.17
15. Respondent no.2 has not applied his mind properly and
mechanically passed the impugned order. He has not taken into
consideration the aspect of acquittal of petitioner in three
offences/crimes. Only two offences/crime under the Indian Penal
Code are pending against the petitioner. All those are of the years
2011 and 2013. Therefore, it is clear that stale offences/crimes are
taken into consideration. Offence punishable under Section 65(e) of
the Act vide Crime No.11 of 2016 is wrongly taken into
consideration. Therefore, it is clear that respondent no.2 has not
applied it's mind properly. In the case of Sudhir Raviraj Choudhary
vs. State of Maharashtra, this Court (Principal Seat) has observed
that "order of externment shows that there is complete absence of
such subjective satisfaction of the fact that the witnesses are
unwilling 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 and property. Therefore, the impugned order is
illegal and deserved to be quashed and set aside".
16. In the present case, stale offences are taken into
consideration. None of the witnesses in respect of the said offences
have stated against the petitioner. The petitioner is well respectable
person of the village He was Sarpanch of village Shegaon (Bu.) for
Order wp862.17
about five years from 2010 to 2015. The documents filed on record
show that Gram Panchayat, Shegaon (Bu.) has passed a resolution
against PSI Dange for initiating departmental enquiry against him
and that may be the reason for externment of the petitioner.
17. In view of the above observations, the impugned order of
exterment dt.31.7.2017 is liable to be quashed and set aside. Hence
we pass the following order.
// ORDER //
The impugned order dt.31.7.2017 is hereby quashed and
set aside. The petition is allowed in terms of prayer clause (i) of the
petition. No order as to costs.
(M.G.GIRATKAR, J) (ANOOP V. MOHTA, J)
jaiswal
