Bombay High Court
Keshav Rama Muddewad vs The State Of Maharashtra And ... on 22 November, 2021
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
580-21 Cri.Wp
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 580 OF 2021
Keshav S/o Rama Muddewad
Age : 43 years, Occu.: Agri & Business,
R/o Samtanagar Bhokar, Tq. Bhokar,
District Nanded.
At present
R/o: Varvanti Village,
Tq. & Dist. Osmanabad. ... Petitioner
Versus
1. The State of Maharashtra
Through it's Principal Secretary,
Home Department,
Maharashtra State, Mantralaya,
Mumbai-32.
2. The Divisional Commissioner,
Aurangabad.
3. The Sub-Divisional Magistrate,
Bhokar, Tq. Bhokar, Dist. Nanded
4. The Sub-Divisional Police Officer,
Bhokar, Tq. Bhokar, Dist. Nanded. ... Respondents
....
Mr. Rajendra Deshmukh, Senior Counsel a/w Mr. Vishal A.
Chavan, Advocate i/b Mr. Devang R. Deshmukh, Advocate for
the Petitioner
Mr. Mahendra M. Nerlikar, APP for State / Respondent Nos. 1 to 5.
....
CORAM : V. K. JADHAV AND
SHRIKANT D. KULKARNI, JJ.
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Reserved on : 04.10.2021
Pronounced on : 22.11.2021
JUDGMENT (PER : SHRIKANT D. KULKARNI, J.):-
1. Rule. Rule made returnable forthwith and heard finally
with the consent of the learned counsel appearing for the
parties.
2. The present criminal writ petition is directed against the
order of externment passed by the Sub Divisional Magistrate,
Bhokar dated 10.02.2021, thereby externing the petitioner for
two years from the Nanded District which was confirmed in
Externment appeal by the Divisional Commissioner, Aurangabad
vide order dated 28.04.2021.
FACTUAL MATRIX
3. The petitioner is a social worker and elected member of
Municipal Council, Bhokar. On 15.01.2021, the Sub Divisional
Magistrate / respondent no.3 issued show-cause notice to the
petitioner under Section 56(1)(b) of the Maharashtra Police Act,
1951, thereby proposing his externment from Nanded, Yevatmal
and Parbhani Districts and directed him to appear on
02.02.2021. In response to the notice, the petitioner appeared
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before respondent no.3 / Sub Divisional Magistrate, Bhokar
through his advocate on 02.02.2021 and sought time to file his
reply / explanation. Respondent No.3 / Sub Divisional
Magistrate, Bhokar was pleased to grant time to file his reply till
09.02.2021. The petitioner being a social worker has filed
various complaints against two ex-presidents of Municipal
Council, Bhokar with various authorities, but no action was
taken by the Chief Executive Officer of Municipal Council,
Bhokar. The petitioner went on hunger strike since 03.02.2021
before the Sub Divisional Office, Bhokar. According to the
petitioner, his rival has lodged false complaint under Sections
3(1)(r)(u)(z) of SC and ST (Prevention of Atrocities) Act, 1989
and FIR no. 44/2021 came to be registered against the
petitioner on the very date i.e. on 06.02.2021.
4. The petitioner came to be arrested on 09.02.2021
in connection with crime no. 44/2021 at the hands of police
officials of Bhokar Police Station. As a result of it, on
09.02.2021, which was the date for filing reply / explanation
before the Sub Divisional magistrate, Bhokar with regard to the
show-cause notice, it was not possible for him to appear before
the Sub Divisional Magistrate, Bhokar and file reply. As such,
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he has engaged his advocate to attend the date and appear
before the Sub Divisional magistrate Bhokar, i.e. respondent
no.3 and sought time to file reply.
5. Accordingly, on 09.02.2021 about 1.00 p.m., the
advocate for the petitioner appeared before the Sub Divisional
Magistrate / respondent no.3 and informed that the petitioner
has been arrested in a false case under the SC and ST
(Prevention of Atrocities) Act and as such, unable to file reply /
explanation. The Sub Divisional Magistrate / respondent no.3
without giving an opportunity of being heard, rejected the
application moved by the advocate for the petitioner and
reserved the matter for passing order on very next day i.e. on
10.02.2021. On 10.02.2021, respondent no.3 / Sub Divisional
magistrate, Bhokar without hearing the petitioner or his
advocate, passed the externment order thereby externing the
petitioner from entire Nanded District for a period of two years.
6. The petitioner has challenged the order of externment
passed by respondent no.3 / Sub Divisional magistrate, Bhokar
before the Divisional Commissioner at Aurangabad by preferring
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an externment appeal. The externment appeal preferred by the
petitioner came to be dismissed under order dated 28.04.2021.
7. Feeling aggrieved by the externment order passed by
respondent no.3 / Sub Divisional Magistrate and confirmed by
respondent no. 2 / Divisional Commissioner at Aurangabad, the
petitioner by invoking the extraordinary jurisdiction of this
Court under Articles 226 and 227 of the Constitution of India
has challenged both the orders on various grounds.
8. Heard Mr. Rajendra Deshmukh, learned Senior Counsel
a/w Mr. Vishal A. Chavan, learned counsel i/b Mr. Devang
Deshmukh, learned for the petitioner and Mr. Mahendra M.
Nerlikar, learned APP for the respondents / State.
9. Mr. Rajendra Deshmukh, learned Senior Counsel
vehemently submitted that the impugned order passed by
respondent no.3 / Sub Divisional Magistrate, Bhokar dated
10.02.2021 is violative of principles of natural justice. The
Divisional Commissioner, Aurangabad / respondent no.2 has not
considered this aspect while deciding the appeal. Mr.
Deshmukh, learned senior counsel submitted that respondent
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no.3 / Sub Divisional Magistrate, Bhokar has passed the order
on 10.02.2021 externing the petitioner from Nanded District for
a period of two years without his say and without giving an
opportunity of being heard to the petitioner or his advocate.
Thus, the impugned order of externment passed by the Sub
Divisional Magistrate, Bhokar is liable to be quashed and set
aside. He further submitted that it is a classic example of
excessive order passed by the authority. He submitted that
show-cause notice dated 15.01.2021 is proposed for the
externment of the petitioner from three districts viz. Nanded,
Yevatmal and Parbhani. The impugned order dated 10.02.2021,
thereby externing the petitioner from entire Nanded District for
a period of two years without there being any reason and on
this ground, the impugned order is liable to be quashed and set
aside. He submitted that the petitioner is a social worker and
elected member of the Municipal Council, Bhokar, he has been
falsely implicated in this externment case at the instance of rival
political parties in the background of change of his political
party.
10. Mr. Deshmukh, learned senior counsel invited our
attention to the show cause notice dated 13.07.2020 issued by
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respondent no.4 / Sub Divisional Police Officer, Bhokar. Against
that issuance of show-cause notice dated 13.07.2020, the
petitioner had filed writ petition no.783/2020 before this Court
Bench at Aurangabad and challenged the legality of the said
notice as well as proposed action of police department of not
accepting his reply, nor permitting him to argue the matter. The
Division Bench of this Court under order dated 04.08.2020 has
permitted the petitioner to appear before the concerned
authority alongwith his advocate on 13.08.2020 at 11.00 a.m.
and permitted to file his written explanation to show-cause
notice dated 13.07.2020 and respondents authorities were
directed to follow the procedure and pass appropriate order
after conducting a hearing.
11. Respondent no.4 / Sub Divisional Police Officer,
Bhokar, instead of obeying the order of this Court passed in writ
petition no.783/2020, again issued a new show-cause notice
dated 05.08.2020 to the petitioner and same was served on
08.08.2020 directing him to appear and file his reply on
10.08.2020. The petitioner has filed his reply on 08.08.2020
and asked clarification to the Sub Divisional Police Officer,
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Bhokar / respondent no.4 as to whether he has to submit reply
to the notice dated 13.07.2020 as per the order passed by the
Division Bench of this Court by order dated 04.08.2020 or he
has to submit reply to fresh notice dated 05.08.2020. He
submitted that instead of clarifying the position, respondent
no.4 / Sub Divisional Police Officer, Bhokar issued fresh show-
cause notice dated 16.10.2020 under Section 57(A) of the
Maharashtra Police Act and directed the petitioner to appear
and submit his reply on 30.10.2020. On 30.10.2020, the
petitioner has appeared and filed his explanation through his
advocate, but again no order or action has been taken on the
said notice dated 16.10.2020.
12. In this background, Mr. Deshmukh, learned senior
counsel submitted that the action of externment initiated
against the petitioner is politically motivated. The petitioner is
a businessman and having shops at Bhokar and he is an income
tax prayer. The respondents authorities have not followed the
procedure laid down under the Maharashtra Police Act as well
as the law laid down by the Apex Court and this Court. He
urged that the impugned orders are liable to be quashed and set
aside.
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13. Mr. Deshmukh, learned Senior counsel has placed his
reliance on following citations in support of his argument.
(i) Umar Mohammed Malbari Vs. K.P. Gaikwad and
another reported in 1988 (2) Bom. C.R. 724.
(ii) Bapu @ Suhas Sopan Davange Vs. Divisional
Commissioner and others reported in 2017(1)
Mh.L.J. (Cri.) 259.
(iii) Abasaheb Balasaheb Warkhade Vs. State of
Maharashtra and others reported in 2018 (3)
Mh.L.J. (Cri.) 528.
14. Per contra, Mr. Mahendra M. Nerlikar, learned APP for
the respondents / State supported the impugned orders passed
by the authorities. Learned APP submitted that the order of
externment has been passed by the authority mainly on the
grounds that there are offences against the petitioner involving
force or violence which falls under chapters XVI and XVII of the
Indian Penal Code and the witnesses are not coming forward to
give their statements in public against the petitioner in view of
their apprehension as regards the safety. In-camera statement
of witnesses recorded by the Police Inspector of Bhokar Police
Station were duly verified by the Sub Divisional Police Officer,
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Bhokar during the inquiry. The petitioner is involved in several
crimes since the year 1999. His graph of criminal activities is
increasing day-by-day and in his account near about 20
cognizable and non-cognizable offences are registered. There
was no improvement in the conduct of the petitioner in spite of
taking action against him under Section 110 of the Code of
Criminal Procedure. As such, the police authority constrained to
take action under Section 56 of the Maharashtra Police Act, and
accordingly submitted the proposal for externment of the
petitioner. After taking into consideration the nature of the
offences committed by the petitioner, the respondent authority,
after having subjective satisfaction, externed the petitioner from
Nanded District for a period of two years.
15. Mr. Nerlikar, learned APP submitted that the principles
of natural justice are followed and ample opportunity was given
to the petitioner to submit his reply, but he has failed to file his
reply. The order of externment came to be passed by the
authority passed on sound reasoning. No one has exerted
political pressure on the authorities. In the past, externment
proposal was submitted against the petitioner, but it was
dropped due to technical defects and filed fresh proposal. There
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is no legal defect as such. Learned APP submitted that it is not a
case of excessive order.
16. Mr. Nerlikar, learned APP for the respondents / State
has pressed into service the following citations in support of his
argument.
(i) Sumit S/o Ramkrishna Maraskolhe Vs. Deputy
Commisioner of Police, Nagpur and another
reported in 2019 ALL MR (Cri) 1961 (Full
Bench).
(ii) Sirajkhan Vs. State of Maharashtra and others
reported in 1999( 2) Mh. L.J. 598.
17. It would be convenient to have a glance on the dates and
events.
Sr. Dates Particulars
No.
1 19.09.2020 Proposal forwarded by Superintendent of
Police, Nanded.
2 23.09.2020 Proposal received by SDM office.
3 28.09.2020 SPDO, Bhokar was appointed as inquiry
officer.
4 16.10.2020 SDPO issued notice to petitioner.
5 30.10.2020 Reply of petitioner.
6 02.11.2020 Report of SDPO.
7 06.01.2021 Queries raised by SDM.
8 13.01.2021 Again report submitted by SDPO to SDM.
9 13.01.2021 Report received by SDM.
10 15.01.2021 Notice by SDM to petitioner.
11 20.01.2021 Notice received by petitioner.
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12 02.02.2021 Appeared through Advocate
requested for time.
13 09.02.201 Application filed for time.
14. 09.02.2021 Application rejected.
15. 10.2.2021 Order of Externment passed by the Authority
18. We have considered the submissions of both the
sides.
19. It is the principal contention of the petitioner that the
Sub Divisional Magistrate, Bhokar / respondent no.3 has denied
the opportunity of being heard to the petitioner and not given
any time to file reply / say. The Sub Divisional Magistrate,
Bhokar has passed the impugned order of externment against
the petitioner from entire Nanded District for a period of two
years in complete violation of principles of natural justice. This
being main point of argument, obviously needs to be dealt with
at the first instance.
20. It is evident from the pleadings of the petitioner
and the affidavit-in-reply filed by the Sub Divisional Magistrate,
Bhokar / respondent no.3 that the Sub Divisional Magistrate,
Bhokar / respondent no.3 has issued show-cause notice dated
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15.01.2021 to the petitioner under Section 56(1)(b) of the
Maharashtra Police Act thereby proposing his externment from
Nanded, Yevatmal and Parbhani Districts and directed him to
appear on 02.02.2021 and file his explanation. In response, the
petitioner through his advocate appeared before the Sub
Divisional Magistrate, Bhokar on 02.02.2021 and sough time to
file reply / say. The Sub Divisional Magistrate, Bhokar /
respondent no.3 was pleased to grant time to file reply till
09.02.2021.
21. Further, it is evident that since 03.02.2021, the
petitioner was on hunger strike. In the meanwhile, one crime
no.44/2021 under Atrocities Act came to be registered against
the petitioner on 06.02.2021 and he came to be arrested on
09.02.2021 in the morning. As such, the petitioner could not
remain present on 09.02.2021 before the Sub Divisional
Magistrate, Bhokar. He has engaged an advocate to attend date
and requested to seek time to file reply. Accordingly, the
advocate for the petitioner appeared before the Sub Divisional
Magistrate, Bhokar on 09.02.2021 about 1.00 p.m. and
submitted an application for adjournment by giving reasons.
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The Sub Divisional Magistrate, Bhokar / respondent no.3
rejected the adjournment application and fixed the matter on
very next day i.e. on 10.02.2021 for orders. The Sub Divisional
Magistrate, Bhokar / respondent no.3 was pleased to pass the
impugned order of externment against the petitioner from entire
Nanded District for a period of two years without say and
hearing the petitioner or his advocate.
22. Respondent no.3 / Sub Divisional Magistrate, Bhokar by
way of his affidavit-in-reply also admitted the above factual
scenario.
23. It is, therefore, clear that the impugned order of
externment came to be passed against the petitioner without
giving reasonable opportunity for filing say or hearing. It is
clear violation of principles of natural justice. It was improper
on the part of Sub Divisional Magistrate, Bhokar to reject the
adjournment application when it was pointed out to him that
the petitioner came to be arrested in Atrocities case, and as
such, unable to file say. There were compelling reasons for the
petitioner to seek adjournment in the externment proceedings.
He was arrested, and as such, unable to appear before the Sub
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Divisional Magistrate as well as to give in detail instructions to
his advocate to file detailed reply. The externment proceedings
was fixed on 09.02.2021 for filing reply and on 09.02.2021, the
application for adjournment moved on behalf of the petitioner
came to be rejected. The proceedings were closed for orders and
on the very next day i.e. on 10.02.2021 the externment order
came to be passed against the petitioner.
24. A person who is likely to be affected by a decision has a
right to be heard. The rule of Audi Alteram Partem needs to be
followed. The Audi Alteram Partem rule ensures that no one
should be condemned unheard. It is the first principle of
civilised jurisprudence that a person against whom any action is
sought to be taken, or whose right or interest is being affected,
should be given a reasonable opportunity to defend himself. We
follow the same principle in our system of administrations of
justice.
25. The Sub Divisional Magistrate, Bhokar / respondent no.3
seems to have acted hurriedly in the externment proceedings
initiated against the petitioner. There was no difficulty for the
Sub Divisional Magistrate, Bhokar / respondent no.3 to extend
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reasonable opportunity and grant time to the petitioner to
defend himself. The petitioner was behind the bars after his
arrest, and as such, unable to defend himself before the Sub
Divisional Magistrate, Bhokar on the date fixed. The Sub
Divisional Magistrate, Bhokar ought to have considered this
genuine difficulty of the petitioner and ought to have granted
reasonable time so that the petitioner may appear and defend
himself. The right of the petitioner to be heard is denied. The
Sub Divisional Magistrate, Bhokar / respondent no.3 seems to
have decided the externment proceedings in a bias way and
passed the impugned order of externment against the petitioner
with no opportunity of being heard was extended to him.
26. We found merit in the submissions of Mr. Deshmukh,
learned senior counsel appearing for the petitioner that the
impugned order of externment is violative of the principles of
natural justice. The authority has denied the right of hearing to
the petitioner and secondly the authority which decided the
externment proceedings was not free from bias. Certainly, the
impugned order of externment passed against the petitioner by
the Sub Divisional Magistrate, Bhokar and confirmed by the
appellate authority in the externment appeal suffers from defect
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of violation of principles of natural justice. The impugned order
does not pass the test of Nemo judex in re sua i.e. the authority
decided the matter should be free from bias.
27. In State of Orissa Vs. Binapanidevii reported in AIR
1967 SC 1269, it is observed by the Hon'ble Supreme Court
that, "a decision which contravenes the rule of natural justice is
a nullity and a person affected is entitled to have such decision
set aside". In Sirsi Municipalties case reported in AIR 1973
SC 855, the Hon'ble Supreme Court observed that, "violation of
rule of natural justice in exercise of quasi judicial statutory
power results in an illegality void decision".
28. Having regard to the above reasons, it is very much clear
that the impugned order of externment suffers from defect of
violation of principles of natural justice. Certainly, the impugned
order of externment as well as confirmation thereof by the
appellate authority need to be quashed and set aside.
29. There is no need to go into the other aspects of the
matter raised by the learned senior counsel. Resultantly, no
need to refer the citations relied upon by both the sides, when it
is a clear case of violation of principles of natural justice at the
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hands of externing authority. The criminal writ petition needs
to be allowed. Hence, we proceed to pass the following order:-
ORDER
(i) The criminal writ petition is hereby allowed.
(ii) The impugned order of externment dated
10.02.2021 and the impugned order passed by the
appellate authority dated 28.04.2021 are hereby
quashed and set aside.
(iii) The authority is at liberty to initiate fresh
externment proceedings against the petitioner as
permissible under the law.
(iv) Rule is made absolute accordingly.
(v) The Criminal Writ Petition is disposed of.
[ SHRIKANT D. KULKARNI ] [ V. K. JADHAV ]
JUDGE JUDGE
S.P. Rane
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