Bombay High Court
Hanmant Kallappa Sangshetti vs The Sub Divisional Police Officer ... on 13 September, 2017
Bench: R.M. Savant
(1) wp-3508.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3508 OF 2017
Hanmant Kallappa Sangshetti : Petitioner.
Versus
The Sub Divisional Police Officer
Sangli City, Sangli and anr. : Respondents.
Mr. U R Mankapure for the Petitioner.
Mr. K V Saste, Addl. PP for the Respondents/state.
CORAM : R. M. SAVANT &
SANDEEP K. SHINDE, JJ.
DATE : 13th September 2017
ORAL JUDGMENT : (Per R M Savant, J)
1 Rule, considering the challenge raised made returnable forthwith
and heard.
2 The writ jurisdiction of this Court is invoked against the show
cause notice dated 27/02/2017 issued to the Petitioner by the Sub Divisional
Police Officer, City Division, Sangli. By the said show cause notice the
Petitioner is asked to show cause as to why he should not be externed from
four Districts namely Sangli, Satara, Kolhapur and Solapur for a period of two
years. The said show cause notice is founded on the three FIRs registered with
Vishrambaug Police Station, Sangli and the criminal cases arising therefrom.
In so far as first case is concerned, the same is CR No.164/2013 registered with
the Vishrambaug Police Station for the offences punishable under Sections 376,
lgc 1 of 7
(1) wp-3508.17
323 and 506 of the Indian Penal Code and Sections 32(b) and 33(1) of the
Money Lending Act. In so far as the second case is concerned, the same is CR
No.165/2013 registered with the Vishrambaug Police Station for the offences
punishable under Section 384 and 506 of the Indian Penal Code and Sections
32(b), 33(c) and 34 of the Money Lending Act. In so far as the said two cases
are concerned, it is mentioned that the said cases are subjudice before the
concerned Court. In so far as the third case is concerned, the same is CR
No.38/2016 registered with the Vishrambaug Police Station for the offences
punishable under Sections 354, 504 and 506 of the Indian Penal Code. In the
said case the Petitioner has been convicted with one year rigorous
imprisonment and fine of Rs.10,000/- as also two months rigorous
imprisonment and fine of Rs.2000/- for the offences punishable under Sections
506 and 504 of the Indian Penal Code. In so far as the said case is concerned,
the Petitioner has filed an Appeal against his conviction which Appeal is
pending before the Sessions Court, Sangli and the Petitioner is on bail pending
the Appeal. Relying on the aforesaid cases the externing authority has invoked
Section 59(1) of the Maharashtra Police Act for externing the Petitioner.
3 At this stage, it is required to be noted that a show cause notice
came to be issued to the Petitioner on 19/03/2014 on an earlier occasion. The
said show cause notice was founded on the first two cases which have been
adverted to herein above as also one non-congnizable offence which has been
lgc 2 of 7
(1) wp-3508.17
shown in the said show cause notice and a chapter case bearing No.467/2013
initiated under Section 107 of the Criminal Procedure Code. The said show
cause notice was issued under Section 56(1)(a) of the Mumbai Police Act. The
said show cause notice after going through the gamut of the process was
dropped by the externing authority by order dated 24/04/2014. In the said
order the externing authority had reached the subjective satisfaction that the
conduct of the Petitioner could not be said to be danger to the life and property
of the residents of the area.
4 It is thereafter that the instant show cause notice came to be
issued to the Petitioner and as indicated above the said show cause notice was
founded on the first two cases which was the foundation of the earlier show
cause notice dated 19/03/2014. It is required to be noted that in so far as first
two cases are concerned, though the Petitioner has been acquitted in the year
2015-2016 and on 02/05/2016 respectively, in the impugned show cause
notice it is stated that the said cases are subjudiced. As indicated above, it is
the impugned show cause notice dated 27/02/2017 which is taken exception
to by way of the above Writ Petition.
5 The learned counsel for the Petitioner Shri Mankapure would
justify the challenge to the show cause notice by way of the above Writ Petition
having regard to the background facts as above. It was the submission of the
lgc 3 of 7
(1) wp-3508.17
learned counsel for the Petitioner that the instant show cause notice suffers
from non-application of mind inasmuch as the show cause notice proceeds on
the basis that the first two cases are subjudice whereas in fact the Petitioner
has already been acquitted from the said cases in the year 2015 and 2016
respectively. The learned counsel for the Petitioner would further buttress the
said submission by contending that the instant show cause notice has been
issued mechanically without having regard to the fact that in the earlier
proceedings, a finding has been recorded that the activities or conduct of the
Petitioner are not danger to the life and property of the residents. The learned
counsel would therefore submit that the instant case is a case where this Court
would exercise its jurisdiction under Article 226 of the Constitution of India to
interdict with the show cause notice.
6 Per contra, the learned Additional Public Prosecutor Shri Saste
would support the show cause notice and would question the maintainability
of the Petition on the ground that after the proceedings are concluded before
the externing authority, the Petitioner has a remedy by way of an Appeal. The
learned Additional Public Prosecutor would seek to rely upon a judgment of
the Apex Court reported in (2004) 3 SCC 440 in the matter of Special
Director and another v/s Mohd. Ghulam Ghouse and another.
7 We have heard the learned counsel for the parties and we have
lgc 4 of 7
(1) wp-3508.17
considered the rival contentions. The question that arises for consideration is
whether the interdiction of this Court in its writ jurisdiction is warranted in the
matter of issuance of the show cause notice. It is well settled by the judgments
of the Apex Court that the proceedings at the show cause notice stage need not
be interfered with and such a challenge is to be dealt with a degree of
circumspection. However, the Apex Court though after exercising the said
caution has held that the proceedings can be interfered with at the show cause
notice stage if the High Court is satisfied that the show cause notice was totally
untenable and nonest in the eyes of law for absolute want of jurisdiction of the
authority to even investigate into the facts.
8 Having regard to the said test laid down by the Apex Court that
the facts in the instant case would have to revisited. As indicated above, the
earlier show cause notice dated 19/03/2014 culminated in the order dated
24/04/2014 passed by the externing authority whereby the said show cause
notice was dropped. As indicated above, the said show cause notice was
founded on the same two cases on which the instant show cause notice is
founded. The externing authority in the earlier round has dropped the show
cause notice on the ground that the activities or conduct of the Petitioner were
not such as to cause danger to the life and property of the legal residents.
9 The instant show cause notice has therefore been issued by the
lgc 5 of 7
(1) wp-3508.17
externing authority oblivious of the said finding recorded in the earlier round.
Hence we find merit in the contention of the learned counsel for the Petitioner
that the instant show cause notice suffers from non-application of mind. It is
also required to be noted that the instant show cause notice proceeds on the
premise that the said first two cases are subjudice before the concerned Court
when the Petitioner was long back acquitted in the year 2015-2016. Hence the
very foundation on which the instant show cause notice based is shaky.
10 Hence what remains is the third case in which case the Petitioner
has been convicted and against which conviction the Petitioner has filed an
Appeal and he is presently released on bail pending the Appeal. Be it noted
that the said case is between the Petitioner and his neighbour. We do not deem
it appropriate to further delve into the factual aspects of the said case lest it
affects the parties in the Appeal. It is also required to be noted that the FIRs
have been lodged against the Petitioner at only one police station i.e. the
Vishrambaug Police Station, Sangli whereas the Petitioner is sought to be
externed from 3 districts other than Sangli. Hence the aforesaid facts further
compound the matter in respect of the non-application of mind. In our view,
therefore, the instant case is a case where the writ jurisdiction of this Court is
required to be exercised having regard to the conspectus of fact as above the
instant show cause notice is untenable and can be said to be nonest and has
been issued when there is hardly a case for externing the Petitioner under
lgc 6 of 7
(1) wp-3508.17
Section 59(1) of the Maharashtra Police Act. Hence the instant case is a case
which can be said to be an exception to the exercise of powers to interdict with
a show cause notice.
11 In that view of the matter the above Writ Petition would have to
be allowed and is accordingly allowed in terms of prayer clause (a). Rule is
accordingly made absolute to the aforesaid terms. The above Writ Petition is
accordingly disposed of.
[SANDEEP K. SHINDE, J] [R.M.SAVANT, J]
lgc 7 of 7
