Yogesh Prabhakar Chaudhari vs The State Of Maharashtra And ...
2021 Latest Caselaw 15029 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO. 460 OF 2021

   Yogesh Prabhakar Chaudhari
   Age : 40 years, Occu.: Agriculturist,
   R/o Near Kalpana Talkies, Taloda,
   Taluka : Taloda, District Nandurbar.
   Presently residing at
   Bunglow No.72, Girvihar Society,
   Nandurbar, District Nandurbar.                           ... Petitioner

           Versus

   1. The State of Maharashtra
      Through Secretary,
      Home Department, Mantralaya,
      Mumbai -32

   2. The Divisional Commissioner,
      Nashik Division,
      Nashik.

   3. The Sub Divisional Magistrate,
      Taloda Division, Taloda,
      Taluk: Taloda, District : Nandurbar.                  ... Respondents

                                             ....

   Mr. P.S. Shendurnikar, Advocate for the Petitioner
   Mr. Rajendra V. Dasalkar, APP for Respondents / State

                                         ....

                               CORAM : V. K. JADHAV AND
                                       SHRIKANT D. KULKARNI, JJ.

                               Reserved on          : 14.09.2021
                               Pronounced on : 14.10.2021



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JUDGMENT (PER : SHRIKANT D. KULKARNI, J.):-

1. Rule. Rule made returnable forthwith. With the consent

of learned counsel for both the sides, heard finally at admission

stage.

2. Feeling aggrieved by the impugned judgment and order

dated 08.03.2021 passed by the learned Divisional

Commissioner, Nashik Division, Nashik, dismissing externment

appeal no.1 of 2021, thereby confirming the order of

externment passed by the Sub Divisional Magistrate, Taloda

Region, Taloda the petitioner has preferred this petition by

invoking the writ jurisdiction under articles 226 and 227 of the

Constitution of India.

FACTUAL MATRIX

3. According to the petitioner, he is a social worker and

resident of Taloda, District Nandurbar. He is also President of

one Manumata Bahuuddeshiya Shikshan Sanstha, Taloda and

his wife is the President of the Taloda Municipal Council.

On 30.01.2020, the externment proposal was submitted by the

Police Inspector, Taloda Police Station. The Sub Divisional

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Magistrate, Taloda issued notice dated 03.06.2020 and called

upon the petitioner as to why he should not be externed from

Taloda Region in view of externment proposal submitted by the

Police Inspector, Taloda. The petitioner appeared before the

Sub Divisional Magistrate, Taloda on 03.09.2020 and filed his

say/reply and resisted the proposal for externment.

4. On 01.01.2021, the Sub Divisional Magistrate Taloda

Region was pleased to allow the externment proposal no. 02 of

2020 and externed the petitioner from Taloda Taluka for a

period of one year by exercising power vested with him under

Section 56(1)(a)(b) of the Maharashtra Police Act, 1951.

5. Feeling dissatisfied by the impugned order of externment

passed by the Sub Divisional Magistrate, Taloda, the petitioner

preferred externment appeal no. 1 of 2021 before the Divisional

Commissioner, Nashik Division, Nashik under Section 60 of the

Maharashtra Police Act, 1951. The Divisional Commissioner,

Nashik Division, Nashik after hearing both sides was pleased to

dismiss the externment appeal no. 1 of 2021 filed by the

petitioner vide judgment and order dated 08.03.2021.

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6. In the above background, the petitioner has invoked

extraordinary jurisdiction under articles 226 and 227 of the

Constitution of India and assailed the impugned judgment and

order passed in externment appeal no.1 of 2021 by the

Divisional Commissioner, Nashik Division, Nashik and order of

externment passed by the Sub Divisional Magistrate, Taloda on

various grounds.

7. Heard Mr. P.S. Shendurnikar, learned counsel for the

petitioner and Mr. Rajendra V. Dasalkar, learned APP for

respondents / State.

8. Mr. Shendurnikar, learned counsel for the petitioner

vehemently submitted that the impugned judgment and order

dated 08.03.2021 passed by the appellate authority dismissing

the appeal of the petitioner in flagrant violation of the principles

of natural justice. The appellate authority has not taken into

consideration that externment proposals which were submitted

earlier by the police authority were turned down by the Sub

Divisional Magistrate, Taloda and those orders have attained

finality in absence of any challenge to the same. He submitted

that the appellate authority has failed to appreciate the fact that

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the basic externment proposal initiated against the present

petitioner in the year 1919 and 1920 i.e. Crime Register (C.R.)

no. 121 of 2019, Crime Register (C.R.) no. 15 of 2020 and

Chapter Case no. 21 of 2019. The very notice issued to the

petitioner on 03.06.2020 also confines itself to the above said

crime. As such, there was no occasion for the appellate authority

to allow the externment proposal and dismissed the petitioner's

externment appeal by relying upon thirteen (13) offences

registered against the petitioner from the years 1996 to 2010

without even putting the petitioner to the notice of the same.

The appellate authority has essentially travelled beyond its

jurisdiction without even verifying the externment proposal and

notice issued against the petitioner when there was not a live

link between the offences committed way back from the year

1996 to 2010. He submitted that the petitioner is acquitted from

thirteen (13) criminal cases by the competent Courts. He invited

our attention to the copies of judgments produced by him

alongwith criminal application no. 1540 of 20121. He submitted

that the petitioner has been acquitted from those criminal cases,

and as such, those criminal cases cannot be taken into

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consideration, and thus appellate the authority has committed

an error in considering those criminal cases.

9. Mr. Shendurnikar submitted that the petitioner is a

politician and social worker. He has made complaints against

the police officers as a whistle-blower. Due to which, the

petitioner is facing this externment proceedings. He submitted

that the appellate authority has committed an error in

appreciating in-camera statements. The petitioner is not

involved in the alleged money lending business or illegal

transport of sand. He submitted that impugned orders passed

by the appellate authority and the competent authority

respectively, are bad in law and liable to the quashed and set

aside.

10. Mr. Shendurnikar, learned counsel for the petitioner has

placed his reliance on following stock of citations in support of

his argument.

(i) Isac Santan Fernandes Vs. K.P. Raghuvanshi, Dy.

Commissioner of Police and another reported in 1987 (3) Bom. C.R. 323.

(ii) Namdeo Zipa Desale Vs. M.V. Chitale, Dy.

Commisioner of Police, Kalyan and another reported in 1987 (3) C.R. 370.

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(iii) Ganu Vs. M.V. Chitale and another reported in 1988 Cr. LJ. 1547.

(iv) Kaka Shankar Patil Vs. K.P. Raghuvanshi and others reported in 1989 Cr.L.J. 1254.

(v) Iqbal Munaf sayyed Vs. Assistant Commissioner of Police and others reported in 2013 (3) Bom. C.R. 714.

(vi) Sanjay Ramkrishnaji Mandade Vs. State of Maharashtra reported in 2015 ALL M.R. (Cri.) 3088.

(vii) Bhagwat Dadasaheb Landge Vs. State of Maharashtra and others reported in MANU/MH/1356/2020.

(viii)Parag Vs. State of Maharashtra reported in MANU/MH/0363/2021.

(ix) Aniuddin Shamsuddin Solanki Vs. The Superintendent of Police, Yavatmal reported in MNU/MH/1305/2020.

(x) Dharamdas Shamlal Agrawal Vs. The Police Commissioner and another reported in AIR 1989 SC 1282.

(xi) Nikki @ Kawa Suresh Khare Vs. Commissioner of Police, Nagpur reported in 2018 (4) MH. LJ (Cri) 474.

(xii) Shri Rambhai @ Ramio Khimchand Vs. The State of Gujrat and another reported in 1991 Cri. L.J. 3159.

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(xiii)Sayyad Nzim Sayyad Salar Vs.Divisional Commissioner, Amravati reported in MANU/MH/0776/2021.

(xiv) Imran Mohammed Hanif Khan Vs. State of Maharashtra reported in AIROLINE 2021 BOM 1060.

11. Per contra, Mr. Rajendra V. Dasalkar, learned APP for the

respondents / State supported the impugned order passed in

externment appeal no. 1 of 2021 by the Divisional

Commissioner, Nashik Division, Nashik and externment order

passed on externment proposal no. 02 of 2020 by the Sub

Divisional Magistrate, Taloda. He submitted that the authorities

have taken into consideration the material placed before them

on the basis of subjective satisfaction and after application of

mind they have passed the impugned orders. The impugned

orders cannot be said to be defective in the eye of law. The

petitioner is involved in criminal activities. He has also been

involved in illegal money lending business and illegal

transportation of sand. The appellate authority has considered

the grounds raised by the petitioner in externment appeal and

passed the reasoned order in view of provisions of the

Maharashtra Police Act, 1951

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12. Mr. Dasalkar, submitted that both the authorities have

considered the material placed before them as well as in-camera

statements of the witnesses and after subjective satisfaction,

arrived at the conclusion that it is necessary to extern the

petitioner. He submitted that the authority have even

empowered to direct removal of a person from the expansive

area so as to make implementation of the order of externment

much effective, easier and convenient.

13. Mr. Dasalkar, learned APP submitted that the principle of

judicial review of administrative action is very much narrow. He

submitted that the impugned orders passed by the authorities

cannot be said to be illegal, irrational and suffers from any

procedural defect. There is no need to upset the impugned

orders passed by the authorities. He submitted that there is no

merit in the petition and the same is liable to be dismissed.

14. We have gone through the impugned order dated

08.03.201 passed in externment appeal no.1 of 2021 by the

Divisional Commissioner, Nashik Division, Nashik under Section

60 of the Maharashtra Police Act, 1951 and the impugned order

of externment dated 01.01.2021 passed on externment proposal

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no. 2 of 2020 by the Sub Divisional Magistrate, Taloda under

Section 56 (1)(a)(b) of the Maharashtra Police Act, 1951. We

have perused the papers made available by the learned APP as

well as the copies of judgments of competent Courts.

15. On going through the record and proceedings, it is

evident that basic externment proposal initiated against the

petitioner confines to the crimes registered against the

petitioner in the years 2019 and 2020 i.e. C.R. No.121 of 2019,

C.R. No.15 of 2020 and Chapter Case No.21 of 2019. It is

pointed out by Mr. Shendurnikar, learned counsel for the

petitioner that the appellate authority has even considered past

criminal record of the petitioner right from the years 1996 to

2010 and thereby travelled beyond the scope. The appellate

authority cannot look into the previous cases registered against

the petitioner in a span from the years 1996 to 2010 when

earlier proposals for externment of the petitioner came to be

turn down by the Sub Divisional Magistrate, Taloda. Certainly,

the appellate authority cannot use that material against the

petitioner while deciding the appeal and that too without giving

an opportunity to the petitioner to offer his

remarks/explanation about the same.

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16. The petitioner has placed on record the copies of

judgment and orders passed by the concerned Courts in respect

of twelve (12) cases, thereby acquitting the present petitioner.

The details of which are as under:

"(1) Crime Register (C.R.) No. 105/1996 (Special Case No.42/2006 / Old Special Case No. 10/1997).

(2) Crime Register (C.R.) No. 142/1996 (Regular Criminal Case (R.C.c. ) No.1/1997)

(3) Crime Register (C.R.) No. 21/1998 (Summary Trial Case (S.T.C.) No.432/1998

(4) Crime Register (C.R.) No. 58/1998 (Criminal Appeal No.17/2005)

(5) Crime Register (C.R.) No. 27/1999 (Sessions Case No. 68/1999)

(6) Crime Register (C.R.) No. 2/2003 (Regular Criminal Case (R.C.C.) No. 42/2003)

(7) Crime Register (C.R.) No. 35/2000 (Regular Criminal Case (R.C.C.) No.2/2001)

(8) Crime Register (C.R.) No. 99/2003 (Sessions Case No.28/2004) (9) Crime Register (C.R.) No.89/2006 (Regular Criminal Case (R.C.C. No.134/2006) (10) Crime Register (C.R.) No. 90/2006 (Regular Criminal Case No.135/2006)

(11) Crime Register (C.R.) No. 36/2010 (Sessions Case No.45/2010)

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(12) Criminal Appeal No. 11/2006 Yogesh Prabhakar Chaudhari Vs. State of Maharashtra."

17. On going through the impugned judgment passed by the

appellate authority, it is noticed by us that the appellate

authority has taken into consideration the above said twelve

criminal cases while deciding the externment appeal. As pointed

out earlier, the petitioner came to be acquitted from those

criminal cases.

18. The important legal question poses whether the

appellate authority can consider extraneous material while

deciding the externment appeal without giving an opportunity

to the petitioner to explain about those criminal cases. It is

evident from the record that externment proposal was moved on

the basis of following three criminal cases.

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19. The externment authority after taking into consideration

the material placed before him and on subjective satisfaction

was pleased to extern the petitioner for a period of one year

from Taloda Taluka. The externment authority while passing the

order under Section 56(1)(a)(b) of the Maharashtra Police Act,

1951, has considered above said two criminal cases and one

chapter case registered against the applicant at Taloda Police

Station. The above three criminal cases is a foundation for the

externment proposal initiated against the petitioner. On the

above said material, the externment authority seems to have

passed the externment order against the petitioner.

20. The appellate authority while considering the appeal,

has considered the above referred twelve criminal cases

registered against the petitioner at Taloda Police Station from

the year 1996 to 2010, wherein the petitioner has been

acquitted by the competent Courts. It is further evident from the

order passed by the appellate authority that the appellate

authority has even considered ten chapter cases registered

against the petitioner at Taloda Police Station from the year

1996 to 2006. It is pointed out by Mr. Shendurnikar, learned

counsel for the petitioner that the appellate authority has passed

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the impugned order based on extraneous material without

giving an opportunity of being heard to the petitioner to show

cause or explain. Mr. Shendurnikar has placed his reliance on

the Division Bench Judgment of this Court in case of Namdeo

Zipa Desale Vs. M.V. Chitale, Dy Commisioner of Police, Kalyan

and another (supra), wherein the Division Bench of this Court

has held that, "order under Section 56 of the Bombay Police Act,

1951 ( now Maharashtra Police Act, 1951) based on extraneous

material would be invalid as the externee had no opportunity to

show cause or explain".

21. The same view is taken by the Division Bench of this

Court in following cases:

(i) Ganu Vs. M.V. Chitale and another (supra).

(ii) Kaka Shankar Patil Vs. K.P. Raghuvanshi and others (supra).

(iii) Iqbal Munaf sayyed Vs. Assistant Commissioner of Police and others (supra).

(iv) Sanjay Ramkrishnaji Mandade Vs. State of Maharashtra (supra).

(v) Bhagwat Dadasaheb Landge Vs. State of Maharashtra and others (supra).

(vi) Parag Vs. State of Maharashtra (supra).

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(vii) Aniuddin Shamsuddin Solanki Vs. The Superintendent of Police, Yavatmal (supra).

22. Having regard to the legal position made clear by the

Division Bench of this court, if the externing authority/appellate

authority relied upon extraneous and additional material for

passing order of externment, which has no foundation in the

externment notice and no opportunity is givrn to the externee to

show cause or explain about that extraneous material, the order

based on that material would be invalid. The appellate authority

seems to have considered the above referred extraneous

material without giving any opportunity to show cause or

explain to the petitioner and passed the impugned order.

Certainly, the impugned order is bad in law. The appellate

authority has travelled beyond its jurisdiction by considering the

extraneous material. It reflects non-application of mind. It also

violates the principles of natural justice. It cannot be said that

the appellate authority has applied its mind for subjective

satisfaction on the basis of material placed before him.

23. In case of Nikki @ Kawa Suresh Khare Vs. Commissioner

of Police, Nagpur (supra), the Division Bench of this Court has

held that, "if extraneous material has gone into said decision

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making process, then, it cannot be said that decision making

process is based on germane grounds and on consideration of

such extraneous material subjective satisfaction itself would

stand vitiated, for taking into consideration grounds which are

not proximately connected or some extraneous material, which

cannot form basis of subjective satisfaction". The Division Bench

held that, "subjective satisfaction reached by detaining authority

is vitiated on account of non-application of mind".

24. The facts of the case in hand and the facts of the above

referred case are practically identical and similar. The impugned

order passed by the appellate authority is liable to be vitiated by

taking the same view as taken by the Division Bench of this

Court in case of Nikki @ Kawa Suresh Khare Vs. Commissioner

of Police, Nagpur (supra).

25. Mr. Dasalkar, learned APP for the State vehemently

submitted that the appellate authority has considered the

material placed before him and after subjective satisfaction,

passed the impugned order. Mr. Daslakar submitted that in view

of full Bench judgment of this Court in case of Sumit S/o

Ramkrishna Maraskolhe Vs. Deputy Commissioner of Police,

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Nagpur and another reported in 2019 All MR (Cri.) 1961 (Full

Bench), the impugned order cannot be said to be defective in

the eye of law. The Full Bench of this Court has settled the legal

position. The Full Bench of this court has observed that, "it is

not necessary to state in the show-cause notice the details or the

particulars of in-camera statements recorded by the externing

authority and only the general nature of material allegations is

all that is necessary to be said in the show-cause notice. In other

words, it is sufficient compliance with the requirement of law if

the show cause notice refers in general terms to the material

allegations against the proposed externee and when the action

is under Section 56(1)(b) of the Act, 1951 it is also generally

says that the witnesses are not coming forward to give evidence

in public against the proposed externee due to fear, alarm,

danger or harm to the person or property, as the case may be."

The petitioner has not challenged the impugned order of

appellate authority on the ground of defect in the show cause

notice on account of details. The decision of Full Bench (supra)

does not extend any help to the case of State authority.

26. Mr. Dasalkar further submitted that the order of

externment is administrative action and scope for judicial

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interference in matters of administrative decision is very much

narrow and the Court will be slow in interfering in such matters

relating to administrative functions unless decision suffers from

illegality, irrationality and procedural impropriety. He has placed

his reliance in case of State of NCT of Delhi vs. Sanjeev @ Bitto

reported in 2005 DGLS (SC) 320.

27. There cannot be debate that the Court will be slow to

interfere in the administrative functions unless decision is

tainted by any vulnerability like illegality, irrationality and

procedural impropriety. In case of externment order, it is not

the sufficiency of material but the existence of material which is

sine qua non as held by the Hon'ble Supreme Court in case of

State of NCT of Delhi vs. Sanjeev @ Bitto (supra).

28. As discussed herein before, the impugned order passed

by the appellate authority going beyond his jurisdiction by

taking into consideration the extraneous material without giving

an opportunity to show cause or explain to the petitioner must

be held invalid. The procedural propriety requires that before

considering extraneous material by the appellate authority, an

opportunity to show cause or explain about that material to be

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relied upon ought to be given. If it is not given, it violates the

principles of natural justice. The same thing is happened in this

case.

29. Having regard to the above reasons and discussion and

in view of the legal position made clear by the Division Bench of

this Court in above referred cases by taking the same view, the

impugned order passed by the appellate authority in externment

appeal is liable to be quashed and set aside.

30. Therefore, we proceed to pass the following order:

ORDER

(i) The criminal writ petition stands allowed.

(ii) The impugned judgment and order of externment passed

by the externing authority dated 01.01.2021 in externment case

passed by the Sub Divisional Magistrate, Taloda Region, Taloda

in externment proposal no. 02 of 2020 and impugned order

dated 08.03.2021 passed by the Divisional Commissioner,

Nashik Division Nashik in externment appeal no.1 of 2021

confirming the externment are hereby quashed and set aside.

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(iii) Rule is made absolute in above terms.

(iv) Criminal writ petition stands disposed of, accordingly.

    [ SHRIKANT D. KULKARNI ]                            [ V. K. JADHAV ]
            JUDGE                                             JUDGE


   S.P. Rane




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