Prabhakar @ Bablu Ashok Polkam vs The State Of Maharashtra And Ors
2021 Latest Caselaw 10291 Bom

                                                      CRIWP1774-2021.DOC
                                                                          Santosh

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION
                     WRIT PETITION NO. 1774 OF 2021

     Prabhakar @ Bablu Ashok Polkam
     Age : 48 years, Occu. Service,
     R/at : 119, Darga V Asahat, Khadki,
     Pune.                                                     ...Petitioner

                    Versus
1. State of Maharashtra
   Through Khadki Police Station
2. Divisional Commissioner, Pune Region,
   Pune.
3. The Commissioner of Police, Pune.
                                                          ...Respondents


Mr. Rahul S. Kadam, i/b Mr. Akshay R. Kapadia, for the
     Petitioner.
Mr. Deepak Thakre, PP a/w Mr. S. R. Shinde, APP for the
     State/Respondents.


                                        CORAM: S. S. SHINDE &
                                               N. J. JAMADAR, JJ.

RESERVED ON: 24th JUNE, 2021.

PRONOUNCED ON: 4th AUGUST, 2021.

JUDGMENT:- PER : N. J. JAMADAR, J.

1. Rule. Rule made returnable forthwith and, with the

consent of the Counsels for the parties, heard fnally.

2. The challenge in this petition is to an order dated 1 st April,

2021, passed by the Divisional Commissioner, Pune, in Appeal

No.EA-19 of 2021, under Section 60 of the Maharashtra Police

Act, 1951, ("the Act, 1951"), whereby the appeal preferred by the

CRIWP1774-2021.DOC

petitioner came to be dismissed by confrming the order of

externment dated 5th January, 2021, passed by the Deputy

Commissioner of Police, Zone-IV, Pune city, under Section 56(1)

(a) (b) of the Act, 1951.

3. Shorn of unnecessary details the background facts leading

to this petition can be stated as under:

(a) In view of the criminal antecedents of the petitioner,

he was externed by an order dated 22nd August, 2014, for the

period of two years. Yet, it did not deter the petitioner from

again indulging in the offences punishable under Chapter XVI

and XVII of the Indian Penal Code, 1860 ("the Penal Code") and,

therefore, in the month of August- 2020 an externment

proceeding was again initiated against the petitioner at the

instance of Khadki police. A show cause notice was issued on

4th September, 2020; the petitioner gave a reply thereto on 12 th

October, 2020.

(b) After providing an effective opportunity of hearing

and considering the material arrayed against the petitioner,

including the cases registered against the petitioner since last

externment and the statements of witnesses recorded in-

camera, who were not willing to give evidence against the

petitioner in public on account of fear of reprisal, the Deputy

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Commissioner of Police was persuaded to record a subjective

satisfaction that in order to prevent the petitioner from acting in

a manner which would cause alarm, danger or harm to the

person or property and commission of offences involving force or

violence or the offences punishable under Chapter XVI and XVII

of the Penal Code, the petitioner was required to be externed

from the limits of Pune City Police Commissionerate area,

Pimpri Chinchwad Commisionerate area and Pune District for

two years. Thus, the petitioner was externed by order dated 5 th

January, 2021.

(c) The petitioner assailed the aforesaid externment

order in an appeal before the Divisional Commissioner. By the

impugned order, the Divisional Commissioner dismissed the

appeal holding, inter alia, that no fault can be found with the

subjective satisfaction arrived at by the appropriate authority.

(d) Being further aggrieved and dissatisfed, the

petitioner has invoked the writ jurisdiction of this Court,

principally on the ground that the subjective satisfaction arrived

at by the appropriate authority is vitiated by consideration of

irrelevant material and non-application of mind. The order of

externment is, therefore, unsustainable.

CRIWP1774-2021.DOC

4. We have heard Mr. Kadam, the learned Counsel for the

petitioner and Mr. Thakre, the learned PP for the State. With the

assistance of the learned Counsels, we have perused the

material on record including the original record made available

by the learned Public Prosecutor.

5. The material which weighed with the appropriate authority

in passing the externment order can be classifed in two parts.

One, the cases registered against the petitioner, which indicated

the propensity of the petitioner to cause alarm, danger or harm

to persons or property and engage in the commission of offences

affecting human body and property. Two, the prejudicial acts

and conduct of the petitioner as borne out by the statements of

witnesses, recorded in-camera, who were not willing to come

forward to give evidence in public against the petitioner on

account of the rein of terror created by the petitioner.

6. The appropriate authority took into account the following

cases registered against the petitioner:

Sr.     Police             CR No. and Sections     Court Case No.          Present
No.    Station                                                             Status
1.    Khadki       3068/15,   Section      142   of SCC 30/2016           Pending.
                   Mumbai Police Act.
2.    Khadki       44/19, Sections 324, 323, 504 RCC 370/2019             Pending.
                   of IPC.
3.    Khadki       80/19, Section 447 of IPC and SCC 1482/2019 Pending.
                   Section 3 of the Maharashtra
                   Prevention of Defacement of
                   Property Act, 1995.




                                                            CRIWP1774-2021.DOC

7. Confdential statement of two witnesses, referred to and

relied upon by the appropriate authority, refect a particular

modus operendi of the petitioner. Witnesses 'A' and 'B' alleged

that the petitioner gave threat to them of reporting their alleged

illegal activities and extorted money for not reporting them to

the concerned authorities.

8. In the context of the aforesaid material, Mr. Kadam, the

learned Counsel for the petitioner, submitted that neither of the

aforesaid sets of material furnishes a sustainable ground for

action under Section 56(1)(a)(b) of the Act, 1951. It was

strenuously urged that the offence punishable under Section

142 of the Act, 1951 (Sr. No.1, in the table extracted above) could

not have been taken into account at all. In respect of SCC

No.1482 of 2019 (Sr.No.3) for the offence punishable under

Sections 447 (though one of the offences against property under

Chapter XVII of the Penal Code), Mr. Kadam urged that the

circumstances in which the said offence was allegedly

committed could not have been lost sight of. Inviting the

attention of the Court to the narration of facts in respect of CR

No.80 of 2019, Mr. Kadam submitted with a degree of

vehemence that the petitioner was arraigned therein for the

reason that some persons unauthorisedly displayed fex posters

CRIWP1774-2021.DOC

wishing birthday to the petitioner on the hoarding erected by

Sign Post India Private Limited and thereby committed criminal

trespass and defaced the public property.

9. Mr. Kadam would further urge that, in effect, the action

was initiated against the petitioner on the basis of CR No.44 of

2019 (Sr.No.2), for the offences punishable under Sections 323,

324 and 504 of the Penal Code. It was submitted that, having

regard to the narration of facts, in the said FIR, which

unmistakably indicate that the said offence arose out of a

personal dispute, invocation of the provisions which impinge

upon the cherished personal liberty of the petitioner was totally

uncalled for.

10. As regards the confdential statements of the witnesses,

Mr. Kadam made an endeavour to demonstrate that the

statements of witnesses, as indicated in the show cause notice

dated 4th September, 2020, were bald and bereft of material

particulars. In the absence of the day, date and time of the

alleged occurrences, those statements could not have been

taken into account to arrive at the satisfaction that the acts of

the petitioner had caused alarm or danger to persons.

11. To bolster up this submission, Mr. Kadam placed a strong

reliance on a Division Bench judgment of this Court in the case

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of Abdul Kadir Razzque Beg vs. Sub-Divisional Magistrate Nasik

and others1, wherein it was enunciated that while setting out

the charges against the person concerned against whom action

was proposed under Section 56 of the Act, 1951, it was essential

that the time, date and the place of the nature of incident etc.

should be circumscribed within such reasonable limits that it

would be possible for the person concerned to adequately meet

those charges.

12. The controversy sought to be raised by Mr. Kadam is

settled by a decision of the Supreme Court in the case of

Pandharinath Shridhar Rangnekar vs. Dy. Commr. Of Police,

The State of Maharashtra2, wherein the nature and extent of

disclosure which ought to be made so as to facilitate the

proposed externee to show cause thereagainst was

illuminatingly postulated. The observations of the Supreme

Court in paragraph 9 are instructive and thus extracted below:

"9. These provisions show that the reasons which necessitate or justify the passing of an externment order arise out of extraordinary circumstances. An order of externment can be passed under clause (a) or (b) of Section 56, and only if, the authority concerned is satisfed that witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety of their person or property. A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding. If

11991 Mh.L.J. 474.

2(1973) 1 SCC 372.

CRIWP1774-2021.DOC the show-cause notice were to furnish to the proposed externee concrete data like specifc dates of incidents or the names of persons involved in those incidents, it would be easy enough to fx the identity of those who out of fear of injury to their person or property are unwilling to depose in public. There is a brand of lawless element in society which is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence. And legal evidence is impossible to obtain, because out of fear of reprisals witnesses are unwilling to depose in public. That explains why Section 59 of the Act imposes but a limited obligation on that authorities to inform the proposed externee, "of the general nature of the material allegations against him." That obligation fxes the limits of the co-relative right of the proposed externee. He is entitled, before an order of externment is passed under Section 56, to know the material allegations against him and the general nature of those allegations. He is not entitled to be informed of specifc particulars relating to the material allegations."

(emphasis supplied)

13. The Supreme Court has postulated in clear and explicit

terms that Section 59 of the Act imposes the limited obligation

on the authority to inform the proposed externee, "of the general

nature of the material allegations against him." He is not

entitled to be informed of specifc particulars relating to the

material allegations lest the very purpose of protecting the

identity of the persons would be frustrated. In the backdrop of

this legal position, we are not persuaded to agree with the

submission on behalf of the petitioner that the absence of

specifc particulars as to the day, date and time of the incidents

in the gist of the statements of witnesses, recorded in-camera,

renders the order passed by the appropriate authority legally

unsustainable.

CRIWP1774-2021.DOC

14. This leads us to the pivotal question, whether the cases

registered against the petitioner bring the acts and conduct of

the petitioner within the tentacles of Section 56(1)(a) and (b) of

the Act, 1951. The learned Public Prosecutor could not join the

issue that the offence punishable under Section 142 of the Act

(Serial no.1) could not have been taken into account. As is

evident, the said offence was registered against the petitioner for

contravention of the externment order passed against him on

22nd August, 2014. The third case, arising out of CR No.80 of

2019, for the offences punishable under Section 447 and Section

3 of the Maharashtra Prevention of Defacement of Property Act,

1995 also appears to have arisen in the peculiar facts. It hardly

refects upon a conduct which has the propensity to cause

alarm or danger. This leaves RCC No.370 of 2019, arising out of

CR No.44/2019 as the only thread to which the impugned

action hangs in balance.

15. We have perused the narration of facts in respect of the

said case. It transpires that the said incident which occured on

15th January, 2019 was a sequel to the occurrence dated 13 th

January, 2019, wherein the petitioner had reported the conduct

of the brother of the frst informant (in CR No.44 of 2019) to the

police. Thus on 15th January, 2019 the said frst informant went

CRIWP1774-2021.DOC

to the house of the petitioner to inquire with the petitioner

about the incident the day before and an altercation ensued,

wherein the petitioner allegedly assaulted the frst informant by

means of a blade. The sequence of events and the nature of

occurrence speak in volumes. In the least, the incident

occurred as the frst informant approached the petitioner to

remonstrate the lodging of the report against his brother the day

before. The aforesaid nature of the occurrence hardly brings the

acts and conduct of the petitioner within the ambit of the

prejudicial activity which Section 56 of the Act, 1951 envisages

to prohibit.

16. It would be contextually relevant to note that the

statements of confdential witnesses, even if taken at par, do not

refect upon the propensity of the petitioner to engage in bodily

offences or the offences against the property. What those

statements reveal is the tendency of the petitioner to question

the alleged unlawful activities in the course of lawful avocations.

From the perusal of the impugned order and the material on

record we gather an impression that the authorities have found

the petitioner to be an inconvenient person to deal with. Resort

to the provisions which infringe the personal property is,

however, not the justifable response thereto.

CRIWP1774-2021.DOC

17. Lastly, it is interesting to note that the assertions in the

show cause notice that the complaints have been lodged against

the petitioner at Khadak police station by various persons from

18th January, 2019 to 3rd July, 2020 that the petitioner allegedly

threatened them, work out the retribution of the claim of the

sponsoring authority that the persons are not willing to come

forward to make complaints against the petitioner and give

evidence in public.

18. The conspectus of aforesaid consideration is that the

subjective satisfaction arrived at by the appropriate authority to

extern the petitioner is vitiated by consideration of irrelevant

material and thus deserves to be interfered with in exercise of

judicial review. Constitutionally guaranteed personal liberty

and freedom of movement could not have been curtailed on the

basis of such material. Externment order is therefore liable to

be quashed and set aside. Resultantly, the petition deserves to

be allowed.

19. Hence, the following order:

: ORDER :

       (i)     The petition stands allowed.

       (ii)    The      impugned    order passed     by    the      Divisional

Commissioner, dated 1st April, 2021, in Appeal

CRIWP1774-2021.DOC

No.EA-19 of 2021 and the externment order, dated

5th January, 2021, passed by the Deputy

Commissioner of Police, Zone-IV, Mumbai, stand

quashed and set aside.

(iii) It is clarifed that the observations made hereinabove

are for the limited purpose of determination of the

legality and validity of the impugned order and they

may not be construed as expression of opinion on

the merits of the cases registered against the

petitioner, and the competent Court seized with

those cases shall decide the same on their own

merits uninfuenced by the aforesaid observations.

Rule made absolute in aforesaid terms.

       [N. J. JAMADAR, J.]                  [S. S. SHINDE, J.]