Sadashiv Prabhakar Gondkar vs The State Of Maharashtra And ...
2017 Latest Caselaw 7060 Bom

                                                            Cri.W.P.1032/2017
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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                  CRIMINAL WRIT PETITION NO. 1032 OF 2017

Sadashiv Prabhakar Gondkar,
Age 32 years, Occu. Business,
R/at : Shivaji Nagar, Mahla road,
Hotel Sai Prabha, Shirdi,
Taluka Rahata, Dist. Ahmednagar                    .. The Petitioner

        Versus

1.      The State of Maharashtra,
        through its Principal Secretary,
        Home Department,
        Mantralaya, Mumbai

2.      The Divisional Commissioner,
        Nasik Division, Nasik

3.      The Sub-Divisional Officer,
        Shirdi Division, Shirdi,
        District Ahmednagar

4.      The Deputy Superintendent
        of Police, Shirdi Division,
        Shirdi

5.      The Police Inspector,
        Shirdi Police Station,
        Shirdi

6.      The Police Inspector,
        Kopargaon Police Station,
        Kopargaon                                  ..The Respondents


Ms Pradnya S. Talekar, i/b Talekar and Associates for petitioner
Mr K.N. Lokhande, A.P.P. for respondents


                                 CORAM : S.S. SHINDE AND
                                         A.M. DHAVALE, JJ


                                 DATE OF RESERVING
                                 THE JUDGMENT : 01.09.2017

                                 DATE OF PRONOUNCING
                                 THE JUDGMENT : 13.09.2017




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                                                                    Cri.W.P.1032/2017
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JUDGMENT (Per A.M. Dhavale, J.)

1. Rule. Rule returnable forthwith. With the consent of parties,

petition is taken up for final disposal at admission stage.

2. The petitioner appeals for invoking the powers of this Court

under Articles 226, 227 of Constitution and Section 482 of Cr.P.C. for

quashing the order of Sub Divisional Magistrate, Shirdi in externment

proposal No.1/2016 dated 23.5.2016 confirmed by Divisional

Commissioner, Nasik in Externment Appeal no.25 of 2017 dated

13.6.2017, whereby the petitioner is externed from eight talukas from

three districts, namely Ahmednagar, Aurangabad and Nasik. The

proceeding was initiated by Sub Divisional Magistrate, Shirdi by

issuing notice to show cause under Section 59 of the Bombay Police

Act dated 26.11.2015. It was preceded by preliminary enquiry by Sub

Divisional Police Officer, Shirdi by issuing show-cause notice dated

18.3.2014. It was preceded by preliminary enquiry held by Sub

Divisional Police Officer, Shrirampur, in-charge Shirdi by issuing show-

cause notice dated 30.9.2012, earlier enquiry by Sub Divisional

Magistrate by issuing show-cause notice dated 17.12.2012 and

2.5.2013.

3. The Sub Divisional Police Officer, Shirdi had held fresh

preliminary enquiry by issuing show-cause notice dated 26.11.2015,

which was replied by the petitioner on 15.1.2016. Thereafter,

proposal was moved to the Sub Divisional Magistrate on 8.1.2016. The

Sub Divisional Magistrate as a competent authority issued casual

Cri.W.P.1032/2017

notices dated 15.1.2016, 29.1.2016, 15.2.2016 and March 2016.

These notices indicate that there was proposal from Sub Divisional

Police Officer, Kopargaon to him for externing the petitioner from

Ahmednagar, Aurangabad, Pune and Naik districts for two years.

There were four cases pending against him as follows :

Sr.No. Police Station C.R.No. Offences under Sec. 1 Shirdi 1156/2011 324, 323, 141, 143, 147, 148, 504, 506 of I.P.C.

2         Shirdi               1196/2011       399, 402 of I.P.C.
3         Shirdi               121/2013        37(1)(3) read with Sec.135 of
                                               Maharashtra Police Act
4         Kopargaon            1198/2015       353, 379, 323, 504, 506 r/w 34
          City                                 of I.P.C.

4. The petitioner was thereafter called upon to show-cause and

was given intimation that if would not show cause, proceedings will

proceed against him in his absence. The petitioner submitted reply on

10.3.2016. According to him, he is having his own house and

immovable property at Shirdi. His family is residing at Shirdi and he is

running hotel business. The cases filed against him were filed out of

political enmity and malice. All offences are bailable. The Police have

pressurised the informants to lodge complaints against him. He has

never interfered with the government work and has always helped the

government Officers. There is no cause to take action of externment

against him.

4-A. The Police had submitted before the competent authority

one letter dated 8.3.2016 showing a case of theft of sand, use

of weapons and criminal intimidations and forcibly taking away

Cri.W.P.1032/2017

the vehicle from the custody of police officials by the petitioner and

his accomplice. The Police also submitted copies of F.I.R. The Sub-

Divisional Magistrate, after considering the material before him

passed the impugned order dated 23.5.2016 under Section 56 (I) (a)

and 56 (1) (b) of the Maharashtra Police Act, whereby the petitioner

was externed from Kopargaon, Sangamner and Rahata (from

Ahmednagar district), Yeola, Niphad and Sinnar (from Nasik district)

and Vaijapur (from Aurangabad district). On the same day, he was

given intimation to leave the externed area. This order was

challenged by way of appeal under Section 60 of the Maharashtra

Police Act, 1951 and the Divisional Commissioner, by order dated

13.6.2017 confirmed the same. Hence, this petition.

5. Heard learned Advocate Ms Pradnya Talekar for the petitioner

and learned Assistant Public Prosecutor Mr Lokhande for the State.

The orders are challenged on following grounds :

(I)     Excessive jurisdiction;

(II)    No reference to in camera statements and satisfaction of the

competent authority in the notice;

(III) Vague contents in the notice and in camera statements.

6. Learned Counsel for the petitioner relied on fifteen judgments,

which will be discussed in due course.

Cri.W.P.1032/2017

7. Learned A.P.P. supported the orders stating that the petitioner

has taken crime as a profession. He was using weapons and was

indulging in theft of sand. He was assaulting public servants and has

committed breach of prohibitory orders issued by the Collector. He

has created atmosphere of terror and there was disturbance to the

public order. Persons in the vicinity were scared of the petitioner and

were not ready to lodge complaints against him. The government

servants were unable to carry out their work. There are four cases

pending against him. One of them ( dated 15.10.2015 ) is recent one.

Hence, no interference is called for.

8. After carefully considering the documents on record and the

citations and the arguments advanced, we agree with the submissions

made by learned Advocate for the petitioner on following points :

(I) Excessive Jurisdiction : The four criminal cases were recorded

against the petitioner, three at Shirdi and one at Kopargaon. There is

neither justifiable material nor justifiable reason given in the order to

extern the petitioner from eight talukas. The reason given is that

those are adjacent taluka places. We are unable to accept this

contention. The petitioner is also externed from Yeola, Niphad and

Sinnar talukas, which are far away from Kopargaon. There are no

criminal activities of the petitioner in other talukas. Easy accessibility

to the place of incident at Shirdi and Kopargaon has not been spelt out

by disclosing the distances and the time required to approach these

places. It is a clear case of excessive jurisdiction.

Cri.W.P.1032/2017

(i) The exerternment should be from the localities where the

externee had criminal activities. If the externment is from localities

where there are no such activities it is case of excessive jurisdiction

which is required to be struck down.

The place from where the person is externed should be

disclosed in notice and should not be different.

Ms Talekar has rightly placed reliance on following rulings :

(1) Bilal Gulam Rasul Patel V. Divisional Magistrate, (2014) ALL MR (Cri.) 2161

(2) Santosh Dattatray Naik V. Divisional Commissioner and ors., (Cri.W.P.No.1034 of 2016 dated 7.2.2017)

(3) Bapu alias Suhas Sopan Davange Vs. Divisional Commissioner and ors., (Cri.W.P.No.1035 of 2016 dated 19.12.2016)

(4) Ashraf Vs. State of Maharashtra and ors., 2015 ALL MR (Cri.)

(5) Yasinkhan Masumkhan Multani Vs. State of Maharashtra, 2014 SCC Online Bom. 2013

(6) Hanuman Rajaram Mhatre Vs. State of Maharashtra, 2013 ALL MR (Cri) 1646

(7) Sachin s/o Kantilal Nirpagare Vs. State of Maharashtra (Cri.W.P.1492 of 2015)

(8) Sayeed Firoz Sayeed Noor Vs. State of Maharashtra, 2016 ALL MR (Cri) 3410

Cri.W.P.1032/2017

(9) Balu Shivling Dombe Vs. Divisional Magistrate, 1969 Mh.L.J. 387

(10) Nisar alias Nigro Bashir Ahmed Khan Vs. Dy. Commissioner of Police and ors., 2013 ALL MR (Cri) 122

(ii ) The court invoking writ of certiorari has no power to correct the order of excessive jurisdiction.

In Umar Mohamed Malbari Vs. K.P. Gaikawad Dy. Commissioner,

1988 Mh.L.J. 1034, it is held that once it is found that the order is

excessive of the jurisdiction, the Court has no power to correct the

same and it is required to be quashed in its entirety.

(II) No Effective notice : Section 56 (1)(a) and 56 (1) (b) of the

Maharashtra Police Act authorises the government to empower Sub

Divisional Magistrate to take action of externment. This power cannot

be delegated by Sub Divisional Officer and to Sub Divisional Police

Officer. When Sub-Divisional Police Officer makes a proposal by

holding preliminary enquiry, it is for the Sub-Divisional Magistrate to

get himself satisfied about the necessity to hold enquiry to find out

whether there are reasonable grounds for believing that the petitioner

was engaged or about to be engaged in commission of offences

punishable under Chapters XII, XVI and XVII of Indian Penal Code or

was causing danger or harm to person or property.

Cri.W.P.1032/2017

Besides, it is condition precedent that the competent authority

should be satisfied that the witnesses were not willing to come forward to

give evidence in public against such person by reason as regards safety

are essential ingredients of Section 56 (1) (a) and 56 (1) (b ) and those

are fulfilled then only the competent authority namely Sub Divisional

Magistrate can proceed to issue notice specifically disclosing his

satisfaction on this point and the material on the basis of which he has

been satisfied. The competent authority has to get himself satisfied

about the truth of the in camera statements made by the persons as well

as the truth in the apprehension expressed by them. In present case, it

appears that Sub-Divisional Magistrate has assumed that he can rely

upon the show-cause notice issued and the enquiry held by Sub-

Divisional Police Officer. Therefore, the notice issued by him is very

casual. It does not show the essential satisfaction as required under

Section 56 (1) (a) and 56 (1) (b) of the Maharashtra Police Act. There is

not even a whisper that he was satisfied that the witnesses were not

willing to come forward to give a statement against the petitioner due

to fear. There are statements to that effect in the notice issued by Sub-

Divisional Police Officer which is of no avail. Sub-Divisional Police Officer

had recorded three in camera statements, which were not referred to by

the competent authority in his notice. The details of in-camera

statements should be communicated, Bilal Patel (supra) Bapu Dawange

(supra). On perusal of the statements, we find that those statements

were not even seen by the competent authority. The competent

authority has not referred to the in camera statements and about his

satisfaction that the witnesses were not ready and willing to come

forward. Reliance is rightly placed by Ms Talekar on following rulings :

Cri.W.P.1032/2017

(2) Santosh Dattatray Naik V. Divisional Commissioner and ors., (Cri.W.P.No.1034 of 2016 dated 7.2.2017)

(3) Bapu alias Suhas Sopan Davange Vs. Divisional Commissioner and ors., (Cri.W.P.No.1035 of 2016 dated 19.12.2016)

(4) Imran Abdul Wahid Hasmi Vs. Dy. Commissioner of Police, (Cri.W.P.1784 of 2015)

(5) Sohan s/o Vijay Lalbegi Vs. State of Maharashtra (Cri.W.P.538 of

2014)

(6) Iqbaluddin Ziauddin Pirzase Vs. State of Maharashtra, 2015 (2)

Bom. C.R. (Cri.) 464

The competent authority has not taken into consideration that

out of four cases, two were of 2011 and one of 2013 which is under

Section 37 (1) (3) read with Sec.135 of Maharashtra Police Act. There

was only one serious case about use of criminal force against public

Officers to obstruct them from his activities of excavation and theft of

sand and seizing dumper from them.

(III) Non application of mind : The competent authority has to apply

its mind to form independent opinion about the fulfillment of essential

ingredients of Section 56 (1) and to record his subjective satisfaction

to that effect. In this regard, he should consider whether there was

live nexus between the offences alleged and the apprehension

expressed at the hands of the proposed externee in near future. We

find that the notice does not show such application of mind. In this

regard, Ms. Talekar has rightly relied on following rulings :

Cri.W.P.1032/2017

(i) There should be live nexus between the offence happened and the events apprehended for taking action.

Syeed Firoz Sayeed Noor Vs. State of Maharashtra, 2016 ALL MR (Cri.) 3410

(ii) Mere mention of similar activities is not sufficient. There should be material to justify it.

Syeed Firoz Sayeed Noor Vs. State of Maharashtra, 2016 ALL MR (Cri.) 3410

(iii) For invoking section 56(i) any alarm or harm should be to public and not to one and two individuals.

Sohan s/o Vijay Lalbegi Vs. State of Maharashtra (Cri.W.P.538 of

2014)

Balu Shivling Dombe Vs. Divisional Magistrate, 1969 Mh.L.J. 387

Ms. Talekar also relied on following rulings which have no direct bearing on the subject :

(i) The in-camera statements cannot be identical. Those should disclose the incidents of violence.

Bapu alias Suhas Sopan Davange Vs. Divisional Commissioner and ors., (Cri.W.P.No.1035 of 2016 dated 19.12.2016)

Balu Shivling Dombe Vs. Divisional Magistrate, 1969 Mh.L.J. 387

(ii) The acquittal of proposed externee from some of the cases should be considered failing which there is no application of mind.

Cri.W.P.1032/2017

Iqbaluddin Ziauddin Pirzase Vs. State of Maharashtra, 2015 (2)

Bom. C.R. (Cri.) 464

(iii) The externment should be from places in consonance with the places shown in the notice.

Bilal Gulam Rasul Patel V. Divisional Magistrate, (2014) ALL MR (Cri.) 2161

9. In view of above defects, the impugned order of externment and

confirmation of the same by the Divisional Commissioner in the

appeal is not sustainable.

10. We find that the last case shows serious allegations against the

applicant and on merits perhaps his externment could have been

justified, but that is not sufficient. The competent authority has to

follow the proper procedure, as prescribed under Sections 56 to 60 of

the Maharashtra Police Act and as explained by various Supreme

Court and Bombay High Court rulings. It is invariably found that the

lack of ability of the executive Officers to follow the proper procedure

for taking appropriate action against such persons results into failure

of all efforts. Even in deserving cases, the person cannot be externed

on account of procedural infirmities left behind. We feel that it is

necessary to learned Prosecutors to guide such officers, either by

holding workshops or by circulating detailed procedure along with

relevant rulings to the concerned officers so that such mistakes will

not be repeated in future.

Cri.W.P.1032/2017

11. With these observations, we allow the present application and

quash the externment order passed by Sub Divisional Magistrate,

Shirdi in externment proposal No.1/2016 dated 23.5.2016, confirmed

by Divisional Commissioner, Nasik in Externment Appeal no.25 of

2017 dated 13.6.2017.

12. Rule is made absolute in above terms. There shall be no orders

as to costs.

       ( A.M. DHAVALE, J.)                  ( S.S. SHINDE, J.)




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