Bombay High Court
Ankush S/O Gyansingh Varma vs The Sub-Divisional Police ... on 18 January, 2021
Bench: S.B. Shukre, Avinash G. Gharote
Judgment 1 Cri.W.P.591.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 591 OF 2020
Ankush S/o Gyansingh Varma,
Aged about 32 years, Occu. - Business,
R/o. Kannamwar Ward, Ballarshah,
District - Chandrapur.
.... PETITIONER
// VERSUS //
1) The Sub-Divisional Police Officer,
Rajura, District - Chandrapur.
2) The Sub-Divisional Magistrate,
Ballarpur, District - Chandrapur
.... RESPONDENTS
______________________________________________________________
Shri R. M. Daga, counsel for the petitioner.
Shri S. M. Ghodeswar, Addl.P.P. for the respondents.
______________________________________________________________
CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
DATED : 18th January, 2021.
ORAL JUDGMENT : (Per : SUNIL B. SHUKRE, J.)
1. Heard. Rule. Rule made returnable forthwith.
2. Heard finally by consent of the learned counsel appearing
for the parties.
Judgment 2 Cri.W.P.591.2020.odt
3. The petitioner has been externed by the order passed on
26.10.2020 by the respondent No.2 from six districts of Chandrapur,
Gondia, Gadchiroli, Bhandara, Wardha and Nagpur.
4. The impugned order has been criticized by learned counsel
for the petitioner on various grounds. He submits that out of 17
offences which have been registered against the petitioner from the
year 2006 to 2019, only 4 offences were registered in 2012-2013, 2016
and 2019 were under the provisions of Indian Penal Code covered
under Section 56(1)(b) of the Maharashtra Police Act and rest of the
offences were under the provisions of Maharashtra Prohibition Act and,
therefore, these offences could not be said to have provided a
reasonable ground for believing that the petitioner was engaged or
about to be engaged in the commission of these offences inasmuch as,
the last of the offences registered under the provisions of Indian Penal
Code was of June 2019 about 16 months prior to issuance of the show
cause notice dated 23.10.2020. He also submits that the impugned
order is excessive.
5. Learned Addl.P.P. submits that the crime record of the
petitioner is pretty long and it has to be considered as a whole. He
submits that considering the crime record of the petitioner, one would
find that the impugned order has been correctly passed. He also
Judgment 3 Cri.W.P.591.2020.odt
submits that there are statements of confidential witnesses to support
the conclusions made by respondent No.2 in the matter.
6. On going through the impugned order, we find that there is
great substance in the argument of learned counsel for the petitioner
and no merit in the submissions of learned Addl.P.P. for the State.
7. The impugned order shows that in all 17 crimes registered
against the petitioner from the year 2006 to 2019 have been
considered. But, out of these 17 crimes, only 4 related to those which
involved offences punishable under the relevant provisions of the
Indian Penal Code in terms of Section 56(1)(b) and rest of the
offences, having been registered under the provision of Maharashtra
Prohibition Act were absolutely irrelevant for the purposes of Section
56(1)(b). Section 56(1)(b) requires that there should be reasonable
grounds for believing that the proposed externee is engaged or is about
to engage in the commission of an offence involving force or violence
or an offence punishable under Chapters 12, 16 and 17 of the Indian
Penal Code or in the abetment of any of these offences. In addition to
these requirement, there is one more requirement which is about the
formation of an opinion by the officer that the witnesses are not wiling
to come forward to give evidence in public against such person by
reason of apprehension on their part as regards the safety of their
Judgment 4 Cri.W.P.591.2020.odt
person or property. So, there must be a reasonable relation between
the consistent criminal behavior and the object sought to be achieved
that is the assurance to be given to the members of public or witnesses
about safety of their person or property.
8. Now, if we consider the relevant crimes involving various
sections of Indian Penal Code, which have been considered relevant for
the purpose of passing of an order under Section 56(1)(b), we would
find that at the most only one out of these 4 crimes, which could be
taken up for consideration, if it is to be considered at all, for the reason
that rest of the 3 crimes were of the years 2012, 2013 and 2016
respectively, having not even a remote connection with the object
sought to be achieved in the present matter. Now, if 2019 offence is to
be considered, we would find that even this offence having been
registered on 14.06.2019, about 16 months prior to issuance of the
show cause notice, has lost its relevancy from the view point of
achieving the object of an externment order under Section 56(1)(b) of
the Maharashtra Police Act. The object is, as stated earlier, to instill in
the witnesses a sense of security as regards their property or person.
This sense of security can be created if immediate action after the
commission of the offence is taken. But, if no such promptitude shown
and during the interregnum, no criminal offence has been committed
Judgment 5 Cri.W.P.591.2020.odt
by the proposed externee, the passage of time would result in gradual
dissipation of fear of members of public thereby showing that there is
no need for giving any more assurance to them. This is the reason why
this Court has consistently taken a view that there must be a proximate
relation between the offences committed and the object sought to be
achieved by the externment order. Such proximate relation in the
present case is absent so far as concerned the pressing into service of
Section 56(1)(b) of Maharashtra Police Act by respondent No.2 against
the petitioner. Thus, on this count, we find that the impugned order is
not sustainable in law.
9. The impugned order has also been passed under Section
56(1)(a) of Maharashtra Police Act. The requirement of this provision
of law is the subjective satisfaction of the Authority that movements or
acts of any person are causing or calculated to cause alarm, danger or
harm to person or property. In the present case, the only material
which has been considered is sourced from the Indian Penal Code
offences committed way back in the years 2012, 2013, 2016 and also in
the year 2019. We have already found that none of these offences bears
any reasonable and proximate relation with the object sought to be
achieved by externing the petitioner. After June 2019, no criminal
activity of the petitioner has been noticed except for the one stated
about by confidential witnesses. We have gone through the record of
Judgment 6 Cri.W.P.591.2020.odt
this case and we find that there are two confidential witnesses, both of
whom are stating about only one incident which had taken place about
four months prior to issuance of the show cause notice. Both of these
witnesses refer to an incident of the same date and they have nothing
to say about the criminality or criminal tendencies of the petitioner
consistently over a period of time. Therefore, just one stray incident,
even if it is assumed to be true, could not be so relevant a ground as to
form an objective criteria for any authority to reach the subjective
satisfaction in terms of Section 56(1)(a) of the Maharashtra Police Act.
Thus, we find that the impugned order must go.
10. In the result, the petition is allowed. The impugned order
is hereby quashed and set aside.
Rule accordingly.
(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE J.)
Kirtak
