Sunny Mansur Shaikh vs The Divisional Commissioner ...
2021 Latest Caselaw 11209 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL WRIT PETITION NO.1566 OF 2021

Mr. Sunny Mansur Shaikh
Age 25 years, Occ: Worker,
Permanently R/at: Patilwada,
Sarafbazar, Nashik.
Presently residing at: Walunj Mahanagar,
Police Station Talukar Gangapur,
Dist. Aurangabad Opposite. M.I.D.C. road,
More Chowk.                                            ...PETITIONER

         Versus

1.       The Divisional Commissioner/
         Appellate Authority, Nashik Division,
         Nashik.

2.       The Dy. Commissioner of Police,
         Zone-I, Nashik City, Nashik.

3.       The State of Maharashtra             ...RESPONDENTS
                                  ...
Mr. Prashant D. Patil for Petitioner.
Mr. J.P. Yagnik, APP for State.
                                  ...
                          CORAM : S. S. SHINDE &
                                      N. J. JAMADAR, JJ.

RESERVED ON : 12th AUGUST, 2021.

PRONOUNCED ON: 18th AUGUST, 2021.

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

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

consent of learned counsel appearing for the parties.

2. This petition is filed with following substantive prayer:-

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(a) This Hon'ble Court be pleased to quash and set aside the Order dated 01/02/2021 passed by Divisional Commissioner, Nashik Division, Nashik in Externment Appeal No. 91/2020 and Externment Order No. Circle/ Zone-

1/ Externment / 56 / 5173/2020 dated 16/10/2020 passed by Dy.

Commissioner of Police, Zone-1, Nashik City;

3. It is the case of the petitioner that on 6 th July, 2020, the

Assistant Police Commissioner, Nashik City issued notice under

Section 56(1)(a)(b) of the Maharashtra Police Act for initiating the

externment proceeding to extern the petitioner for 2 years from the

revenue boundaries of Nashik district. On 10th July, 2020, the

petitioner filed reply to the said notice. On 1 st October, 2020, the

Respondent No. 2 issued show cause notice to extern the petitioner

for 2 years from the revenue boundaries of Nashik district. On 14 th

October, 2020, the Petitioner filed reply to the said show cause

notice. Thereafter, On 16th October, 2020, Respondent No. 2 by

order, externed the Petitioner under Section 56(1)(a)(b) of the

Maharashtra Police Act for a period of two years from the revenue

boundaries of Nashik district. In the month of October, 2020, the

petitioner filed appeal before Respondent No. 1- The Divisional

Commissioner, Nashik. On 1st February, 2021, the appellate

authority dismissed the appeal filed by the petitioner. Hence, this

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petition.

4. Learned counsel for the petitioner submits that after 18 th

May, 2019, not a single offence has been registered against the

petitioner and the show cause notice was issued on 6 th July, 2020

i.e. after lapse of more than one year, hence, there is no live link

between the offences registered and the proceedings initiated for

externment. At the relevant time, it is pointed out to the Respondent

No. 1 that in respect of C.R. No. 52/2018 registered with the

Gangarpur Police Station, the Criminal Case No. 707/2019 was

registered and the trial of the same has been concluded on

15/10/2020 wherein the petitioner has been acquitted, however,

the same has not been considered and in the judgment passed by

the said authority it was shown that the said offence is still

pending. This clearly shows the non application of mind on the part

of respondent-authorities in passing the impugned orders. It is

submitted that it was shown that the petitioner and his friends are

threatening the public and there is no one coming forward to give

complaint against them. However, neither the names of the friends

of the petitioner were mentioned nor the action has been taken

against them.

It is further submitted that in-camera statements of two

witnesses are not reliable as general statements are made in the

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said in-camera statements and no particulars of date and time of

offence has been mentioned. Therefore, it is clear that the said

statements are created by the respondent-authorities only with an

intention to extern the petitioner. It is submitted that the alleged

offences have been registered against the petitioner within the

vicinity of Nashik city only, however, the respondents have externed

the petitioner from the area of entire Nashik district for a period of

two years which is unjust, unreasonable, excessive and harsh.

5. On the other hand, Mr. Yagnik, the learned APP

appearing for Respondents relying upon the original record and the

reasons assigned by the respondents in the impugned judgment

submits that the petitioner has been rightly externed from the

revenue boundaries of Nashik district. In-camera statements of two

witnesses would unequivocally demonstrate that the alleged

activities of the petitioner are causing danger to the public order. It

is submitted that as many as five offences are mentioned in the

impugned order and in addition to the said offences, the authorities

have considered the statements of two witnesses recorded in-

camera.

Bhagyawant Punde





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6. We have given careful consideration to the submissions

of learned counsel for the petitioner and the learned APP appearing

for respondents. With their able assistance, we have perused the

pleadings and grounds in the petition, annexures thereto and the

original record in relation to the externment proceedings submitted

by the concerned authorities. Admittedly, the petitioner was

acquitted by the order dated 15th October, 2020 passed by the Chief

Judicial Magistrate in Regular Criminal Case No. 707/2019 arising

out of C.R. No. 52/2018 registered with Sarkarwada Police Station.

The order passed by the Deputy Commissioner of Police, Zone-I,

Nashik City, was on 16th October, 2020 and the petitioner came to

be acquitted from the aforesaid crime on 15 th October, 2020. The

petitioner incorporated specific ground in the appeal memo before

the appellate authority i.e. Divisional Commissioner, Nashik.

However, from the perusal of the order passed by both the

respondent-authorities, it is clear that they have relied upon the

said crime while passing the impugned orders. It shows non

application of mind on the part of respondent-authorities.

7. We have carefully perused the statements of witness (A)

and (B). So far as, witness (A) is concerned, he stated that he was

cracking joke, at that time the petitioner went near him and asked

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him that why the said witnesses have started laughing after seeing

the petitioner. Witness (B) stated that his way was obstructed by

keeping Activa motorcycle in horizontal direction and without any

reason the petitioner abused the witness (B). The aforesaid version

of two witnesses not even remotely indicate that the said alleged

activities of the petitioner posed danger to the public order. The said

statements of aforesaid witness were recorded in-camera on 10 th

June, 2020. However, the impugned order of externing the

petitioner from the revenue boundaries of Nashik district has been

passed on 16th October, 2020. There is no explanation offered by the

respondent-authorities for delay in passing the impugned order

from the date of recording statements of witnesses in-camera. From

the perusal of the impugned orders, the authorities failed to

demonstrate the live link between the offences registered against the

petitioner and initiation of externment proceedings. The

respondents have invoked Section 56(1)(a)(b) of the Maharashtra

Police Act. One of the requirement of the said section is that the

externing authority has to arrive at subjective satisfaction that the

witnesses are unwilling to come forward in public to give evidence

against the the petitioner by reason of apprehension to safety of

their part, persona and property.

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8. In the light of discussion in foregoing paragraphs, we are

of the opinion that, because of externing the petitioner from revenue

boundaries of Nashik district, by the impugned order, the

fundamental right of the petitioner to reside at the place of his

choice or move from one place to another has been curtailed and

taken away for the period mentioned in the said order. Therefore,

this is a fit case wherein interference under writ jurisdiction is

warranted. Hence, we are of the considered view that the impugned

order passed by the externing authority, thereby externing the

petitioner from the revenue boundaries of Nashik district, cannot

legally sustained and same deserves to be quashed and set aside.

Hence, the following order.

ORDER

1. The writ petition is allowed.

2. The order dated 01/02/2021 passed Divisional Commissioner, Nashik, Division Nashik, in Externment Appeal No. 91/2020 and Externment Order No. Circle/Zone-1/Externment/56/5173/2020 dated 16/10/2020 passed by Deputy Commissioner of Police, Zone-I, Nashik City, are quashed and set aside.

3. Rule is made absolute to above extent.

Bhagyawant Punde





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     4.              The writ petition stands disposed of.

5. Parties to act upon an authenticated copy of this order.

    ( N. J. JAMADAR, J.)                               (S. S. SHINDE, J.)




Bhagyawant Punde