Suyog Gajanan Aundhkar vs The State Of Maharashtra And Ors
2021 Latest Caselaw 9791 Bom

Sherla V.


                                                               15_wp.1835.2021(J).doc


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CRIMINAL APPELLATE SIDE

                     CRIMINAL WRIT PETITION NO.1835 OF 2021

            Shri Suyog Gajanan Aundhkar
            aged about 30 years, Occ.:Agriculturist                 ... Petitioner
            r/at Kasegaon, Tal.:Walwa, District: Sangli
                       Vs.
            1) State of Maharashtra
            through the Additional Chief Secretary
            Home Department, Mantralaya, Mumbai

            2) The Divisional Commissioner, Pune Region,
            Pune.

            3) Sub-Division Officer, Walwa, Islampur
                                                               ... Respondents
            Division.

            4) Sub-Divisional Police Officer,
            Islampur Division, Islampur, Sangli

            5) Assistant Police Inspector
            Kasegoan Police Station
            Tal.Walwa, Dist. Sangli



            Mr.Ujjwal Agandsurve ib Mr.A.S. Gaikwad for the Petitioner

            Mr.K.V. Saste, APP, for Respondent - State


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

            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.

15_wp.1835.2021(J).doc

2. It is the case of the petitioner that on 15 th March, 2019, the

Sub-Inspector of Police, Islampur Police station, Islampur

forwarded a proposal to the Police Inspector, Crime Branch,

Sangli/ Special Executive Magistrate and requested to take action

against the petitioner by invoking the provisions of section 110 of

the Code of Criminal Procedure.

3. On 21st August, 2019, the proceedings under section 56(1)

(a) of the Maharashtra Police Act, 1951 was initiated against the

petitioner. Thereafter, the petitioner responded to the notice dated

2nd November, 2019 issued to him. Thereafter, on 25 th December,

2020, the Sub-Divisional Magistrate, Walwa Region, Islampur

passed the order and externed the petitioner from the Revenue

boundaries of Satara, Solapur and Kolhapur districts. Being

aggrieved by the said order, the present petitioner filed appeal

before the Divisional Commissioner (Revenue), Pune Division,

Pune. The said appeal was partly allowed thereby modifying the

order passed by the Sub-Divisional Magistrate, Islampur, who

externed the petitioner from Sangli district and not to enter in the

Cities of Satara, Solapur and Kolhapur for one year.

15_wp.1835.2021(J).doc

4. Being aggrieved by both the aforesaid orders, this Writ

Petition is filed.

5. Learned Counsel appearing for the petitioner submitted that

the show-cause notice does not mention about the in-camera

statements of witnesses recorded by the concerned authority.

Though five offences are mentioned in the show-cause notice

while passing the impugned orders, reliance is placed on six

offences. The action initiated by the respondents is malafide and,

therefore, the petition deserves to be allowed.

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

Respondent - State and its officials relying upon the reasons

recorded by both the authorities and also reply filed by the

respondents before the said authorities submitted that the petition

may be dismissed.

7. We have carefully perused the order passed by the Sub-

Divisional Magistrate, Islampur. By the said order, the petitioner

has been externed for 2 years from the revenue boundaries of

Sangli district and from Satara, Solapur and Kolhapur cities. We

have carefully perused the reasons assigned by the said authority

15_wp.1835.2021(J).doc

and we find that there are no cogent reasons assigned by the

authority as to why the petitioner should not enter into Satara,

Solapur and Kolhapur cities. No doubt, the authority by giving

convincing and cogent reasons, can extern the proposed externee

from the adjoining districts, however, in the facts of the present

case, no cogent and convincing reasons are given as to why the

petitioner should not be allowed to enter into Satara, Solapur and

Kolhapur cities. The appellate authority has curtailed the period of

externment from 2 years to one year, however, did not give cogent

reasons except for mentioning that in view of the availability of

transport facility, the petitioner may visit Satara, Solapur and

Kolhapur cities and may indulge into the alleged illegal activities.

In the show-cause notice issued to the petitioner, there is no

mention about the recording of statements of witnesses in camera.

It is true that it is not necessary to mention all details in the show-

cause notice. However, a gist of the general allegations needs to

be mentioned in the show-cause notice so as to enable the

proposed externee to reply to the said notice.

8. On a careful perusal of the reasons assigned by the Sub-

Divisional Magistrate, Islampur, it is stated that the witnesses are

15_wp.1835.2021(J).doc

not coming forward to depose against the petitioner due to fear to

their person or property. There is no reference to the statement of

any particular witness. Since the respondent authorities have

invoked the provisions of section 56(1)(a) of the Maharashtra

Police Act, it was necessary for them to record a satisfactory

finding that the movements or acts of the petitioner were causing

or calculated to cause alarm, danger or harm to the person or

property by recording in camera statement of the witnesses. The

mandate of the said provision is that while passing the externment

order, the concerned authority has to arrive at a subjective

satisfaction or opinion that witnesses are not willing to come

forward to give evidence in public against such person by reason

of apprehension on their part as regards the safety of their person

or property. Neither the first authority nor the appellate authority

has made an endeavour to give such finding. As already

observed, there is no reference to the in-camera recording of the

statements of "A" or "B" witnesses.

9. It appears that three offences are registered against the

petitioner within two days.

15_wp.1835.2021(J).doc

10. Keeping in view the discussion in foregoing paragraphs, we

are of the opinion that the respondents utterly failed to adhere to

the mandate of section 56(1)(a) of the Maharashtra Police Act. As

rightly submitted by the learned Counsel appearing for the

petitioner that the show-cause notice mentions that five offences

are registered against the petitioner, however, in the impugned

order, there is a mention of six offences. Upon careful perusal of

the reasons given by both the authorities, we do not find that the

offences registered against the petitioner which are mentioned in

the show-cause notice and the impugned order have a live link

with the externment proceedings initiated against the petitioner.

Therefore, we are of the opinion that the petition deserves to be

allowed.

11. In that view of the matter, petition is allowed in terms of

prayer clause (b) which reads as under:

"(b) This Hon'ble Court be pleased to issue writ of Certiorari and Writ in the nature of Certiorari and/or Writ in nature of Certiorari and thereby call the relevant record and the proceeding from the office of Respondent No.2 Commissioner Pune in the of Impugned Order dated 31/03/2021 passed in Appeal being No.E.A. 11 of 2021 arising out the Impugned order dated 24/12/2020 passed by Respondent No.3 and after going through its legality, validity and propriety quash and set aside the Impugned Order dated

15_wp.1835.2021(J).doc

31/03/2021 passed by the Respondent No.2 Commissioner, Pune."

12. Rule made absolute to the above extent. Writ Petition

stands disposed of.

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



              Digitally signed by
              VISHWANATH
VISHWANATH    SATYANARAYANA
SATYANARAYANA SHERLA
SHERLA
              Date: 2021.07.27
              13:54:35 +0530