Shailesh Chaganrao Pawar vs The State Of Maharashtra And Ors
2021 Latest Caselaw 9790 Bom

Sherla V.


                                                          32_wp.2460.2021(J).doc


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CRIMINAL APPELLATE SIDE

                     CRIMINAL WRIT PETITION NO.2460 OF 2021

            Shailesh Chaganrao Pawar
            age: 31 years, Occ.: Business
                                                               ... Petitioner
            r/at. C.11/16, Sambhajinagar,
            Dhankawadi, Pune
                       Vs.
            1. State of Maharashtra

            2. Divisional Commissioner, Pune
            Council Hall, Camp, Pune.

            3. Deputy Commissioner of Police
            Zone - 2, Pune
                                                           ... Respondents
            4. Assistant Commissioner of Police
            Swargate Division, Pune, Maharashtra

            5. Senior Police Inspector
            Sahakarnagar Police Station,
            638, Kamble Path
            Pune, Maharashtra



            Mr.Abhishek R. Avachat for the Petitioner

            Mr.V.B. Konde-Deshmukh, APP for Respondent - State


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

                         JUDGMENT RESERVED ON: JULY 23, 2021
                      JUDGMENT PRONOUNCED ON: JULY 27, 2021




                                        Page 1 of 8
                                                        32_wp.2460.2021(J).doc


JUDGMENT (PER S.S. SHINDE, J.):

1. Rule. Rule made returnable forthwith with the consent of the

learned Counsel appearing for the parties and heard finally.

2. The petition is filed seeking the following substantive relief:

"b. The order, dated 22/06/2021, of The Divisional Commissioner,Pune passed in Externment Appeal (No- 140/2020) and also the order, dated 06/11/2020, of the Deputy commissioner of police, zone 2, Pune, passed in Externment case (order no.18/2020) may kindly be quashed and set-aside;"

3. It is the case of the petitioner that on 5.8.2020, the Assistant

Commissioner of Police, Swargate Division, Pune issued a show-

cause notice under section 56 of the Maharashtra Police Act, 1951

proposing the externment of the petitioner for a period of two years

from the jurisdiction of Pune Commissionerate, Pimpri-Chinchwad

Commissionerate, Pune city and the entire district. The enquiry

was conducted by the Assistant Commissioner of Police, Swargate

Division, Pune. He submitted a report to the Deputy

Commissioner of Police, Zone 2, Pune. On 6.11.2021, the Deputy

Commissioner of Police, Pune ordered externment of the petitioner

for a period of 2 years from the jurisdiction of Pune

32_wp.2460.2021(J).doc

Commissionerate, Pimpri-Chinchwad Commissionerate, Pune city

and the entire district.

4. Being aggrieved by the said order, the petitioner filed an

appeal before the Divisional Commissioner, Pune (Revenue),

Pune Division, Pune. The said appellate authority partly allowed

the appeal by order dated 22 nd June, 2021 thereby curtailing the

period of externment from two years to one year. Being aggrieved

by both the orders, this petition is filed.

5. Learned Counsel appearing for the petitioner submits that,

there is no discussion in the impugned order showing a live link

between the offences registered against the petitioner, which are

mentioned in the impugned order and initiation of the externment

proceedings against the petitioner. It is submitted that out of

seven offences, the petitioner has been acquitted from four

offences and only three offences were remaining by the time the

externment proceedings were concluded by the first authority. It is

submitted that in the offence registered as C.R. No.169 of 2012 at

Rajgad police station, the petitioner has been acquitted. The

learned Counsel invited our attention to the alleged in-camera

statements recorded by the concerned authorities and submitted

32_wp.2460.2021(J).doc

that there are no material particulars of the said incidents, as

alleged in the statements, as to the date and time they had taken

place. It is submitted that the concerned authorities failed to

establish a live link between the offences pending against the

petitioner wherein investigation/trial is pending and it has any

nexus with the initiation of externment proceedings against the

petitioner. Therefore, the learned Counsel appearing for the

petitioner submits that the petition deserves to be allowed.

6. On the other hand, the learned APP appearing for the

Respondent - State relying upon the reasons recorded in the

impugned orders and relevant documents submitted that the

alleged activities of the petitioner caused danger to the life and

property of citizens residing in the vicinity and ultimately gave rise

for initiation of externment proceedings against the petitioner. It is

submitted that the concerned authority has recorded in-camera

statements of the witnesses wherein it is alleged that due to terror

created by the petitioner, the witnesses are not coming forward to

depose against him due to fear to their person and property.

7. We have given due consideration to the rival submissions.

With the able assistance of the learned Counsel appearing for the

32_wp.2460.2021(J).doc

petitioner and the learned APP, we have carefully perused the

reasons assigned by both the authorities. It appears that in -

camera statements of two witnesses were recorded by the

concerned authority. We have seen the contents of the said

statements. The gist of the said statements has been reproduced

in the petition. It is mentioned that witness 'A' has stated that the

petitioner is a goon. He roams within the jurisdiction of

Sahakarnagar and neighbouring police stations. He owns two

paan shops and does not allow other paan shops to conduct the

said business. He threatens other paan shop owners. The

petitioner possesses dangerous weapons and as a result, the

people in the vicinity are not coming forward to depose against the

petitioner. One or two incidents have been stated in the

statements.

8. Witness 'B' in his statement has stated that on 17.7.2020, at

about 7pm, one of his friends came to meet him at home. They

were standing on the road infront of the house. The petitioner

alongwith his friend, went to the place of the incident on motor

bike. The petitioner suddenly began abusing the said witness and

his friend and asked them to leave the said place as he wanted to

32_wp.2460.2021(J).doc

carry out some of his work there. They refused to leave the said

place and the petitioner abused them.

9. Upon careful perusal of the allegations in both the

statements, at the most, it can be said that it would create law and

order problem and by no stretch of imagination, it can be inferred

that the said alleged acts of the petitioner had impact upon public

order.

10. It appears that by the time proceedings were concluded by

the authorities in Crime No.321 of 2008 registered with

Sahakarnagar police station for the offences punishable under

sections 324, 506 read with 34 of the Indian Penal Code, there

was settlement and the petitioner came to be acquitted from the

said offences. However, both the authorities have not considered

the said acquittal and relied upon the pending three offences

including the aforesaid offence. There is no detailed discussion in

the order passed by the first authority that the alleged activities of

the petitioner caused or calculated to cause alarm, danger or harm

to the person or property and due to fear, the witnesses are not

coming forward to depose against him.

32_wp.2460.2021(J).doc

11. In the light of the discussion in the foregoing paragraphs, we

are of the opinion that the subjective satisfaction arrived at by the

respondent - authorities is vitiated. There was no proper

application of mind inasmuch as two offences were pending and

the authority relied upon the third offence which has resulted in the

acquittal of the petitioner. Secondly, no live link is established

between pending old and stale offenes and the instant

proceedings. Thirdly, no cogent reasons are given why the

externment of the petitioner was warranted from larger area.

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

of the opinion that there was no proper application of mind by the

externing authority and subjective satisfaction arrived at by the

authorities stood vitiated and consequently, the petitioner is

entitled to the benefit of the same. It is not necessary for us to

elaborate the reasons once we have arrived at a conclusion that

there was no proper application of mind by the externing authority.

13. In that view of the matter, for the reasons and discussion in

the foregoing paragraphs, the petition is allowed. Rule made

absolute in terms of prayer clause (b) reproduced above.

32_wp.2460.2021(J).doc

14. Writ Petition stands disposed of accordingly.

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




              Digitally signed by
              VISHWANATH
VISHWANATH    SATYANARAYANA
SATYANARAYANA SHERLA
SHERLA
              Date: 2021.07.27
              13:54:24 +0530