Bombay High Court
Lalla @ Radhesham Sahebrao Dinde vs The Divisional Commissioner ... on 8 September, 2021
Bench: V.M. Deshpande, Amit B. Borkar
Judgment 1 wp432.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 432/2021
Lalla @ Radhesham Sahebrao Dinde,
Aged 25 years, Occ. Private
R/o. New Pusad, Tq. Pusad,
Dist. Yavatmal
.... PETITIONER
// VERSUS //
1] The Divisional Commissioner,
Amravati Division, Amravati
2] The Sub-Divisional Magistrate,
Pusad, Tq. Pusad & Dist. Yavatmal
3] The Police Station, Pusad
through its Police Inspector,
Pusad, Tq. Pusad, District Yavatmal
.... RESPONDENT(S)
*******************************************************************
Shri R.D. Dhande, Advocate for the petitioner
Shri S.S. Doifode, APP for the respondents/State
*******************************************************************
CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.
SEPTEMBER 08, 2021
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JUDGMENT : (PER:- AMIT B. BORKAR, J.)
1] RULE. Rule made returnable forthwith.
2] By this petition under Articles 226 and 227 of the
Constitution of India, the petitioner - externee calls in question the
legality and validity of the order dated 14/01/2021 passed by the Sub-
Divisional Magistrate, Pusad in Case No. 16/2019 and the order passed
by the Divisional Commissioner, Amravati dated 06/05/2021 passed in
Appeal No. 13/2021 thereby externing the petitioner for period of one
year from the limits of Yavatmal District in exercise of power under
Section 56(1)(b) of the Maharashtra Police Act (for short "the said Act").
3] The Sub-Divisional Magistrate on 27/12/2019 issued show
cause notice calling upon the petitioner to show cause as to why action
under Section 56(1)(b) of the said Act should not be initiated against the
petitioner. The Sub-Divisional Magistrate took into consideration five
cases registered against the petitioner, details of which are as under :-
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Sr. Police Station Crime No. Section Status
No.
1 Pusad City 214 of 2015 323, 324, 294, Pending
336, 337, 143,
147, 148, 149,
506 of IPC r/w
3, 4/25 of the
Arms Act and
3(1)(11) of the
SC ST Act.
2 Pusad City 215 of 2015 324, 504, 506 Acquitted
and 34 of the
IPC
3 Pusad City 61 of 2016 143, 147, 149, Acquitted
323, 506 of the
IPC r/w 184 of
MVA and
Section 135 of
MPA
4 Pusad City 384 of 2016 143, 147, 148, Acquitted
149, 323 and
324 of the IPC
5 Bittergaon 75 of 2019 143, 147, 148, Pending
324, 504 and
506 of the IPC
4] According to the Sub-Divisional Magistrate, the movements
and acts of the petitioner are causing alarm, danger and harm to the
person and the property and hence he passed order dated 14/01/2021
externing the petitioner for period of one year. The Sub-Divisional
Magistrate has recorded subjective satisfaction that there are reasonable
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grounds to believe that the petitioner is engaged in commission of
offence involving force and violence falling within Chapters XII, XVI and
XVII of the Indian Penal Code. The petitioner, being aggrieved by the
order dated 14/01/2021, filed Appeal No. 13/2021 before the Divisional
Commissioner, Amravati Division, Amravati. The Divisional
Commissioner, after hearing the petitioner, confirmed the order passed
by the Sub-Divisional Magistrate holding that the petitioner is engaged
in criminal cases, violating peace and creating threats to the public.
5] The petitioner has therefore challenged the order dated
06/05/2021 by way of filing the present petition. This Court on
18/06/2021 issued notices to the respondents. The respondent no. 2, in
pursuance of the notice issued by this Court, has filed reply sworn by
Sawan Kumar, SDM, Pusad.
6] We have heard learned advocate for the petitioner and
learned APP for the respondents / State.
7] Learned advocate for the petitioner raised several
contentions challenging the impugned order but we are inclined to quash
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the order of externment only on the ground of gross and unexplained
delay on the part of the Externing Authority in passing the final order
under Section 56(1)(b) of the said Act. The petitioner has raised ground
(b) contending delay in passing the impugned order by the Externing
Authority. It is submitted that the show cause notice issued by the Sub-
Divisional Magistrate is dated 27/12/2019 but the impugned order was
passed on 14/01/2021 i.e. after more than a year from the said notice. It is
submitted that the fact that the respondent no. 2 took more than a year
to decide the matter after issuance of the show cause notice demonstrates
that the order directing externment of the petitioner has no nexus with
the object to be achieved by the order of externment. The respondent
no. 2 has submitted explanation to the delay in passing the order of
externment. The respondent no. 2, in para no. 5 of its reply, has
explained the delay in passing the order of externment stating that the
matter was posted for order in the month of January, 2020 and since
March, 2020 there is pandemic situation in the entire State of
Maharashtra and the respondent no. 2 being the Nodal Officer was busy
in discharging the duties cast under the Disaster Management Act and
therefore the delay in passing the order is not sufficient to vitiate the
proceedings or set aside the order.
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8] We have carefully considered the impugned orders passed by
the Externing Authority and the Appellate Authority and the reply filed
by the respondent no. 2. It is well settled that mere delay in passing the
order of externment is by itself not a ground to vitiate the proceedings of
externment if the Externing Authority sufficiently explains the delay in
passing the order of externment. The absence of explanation in passing
the order of externment vitiates the externment proceedings. In the facts
of the present case, it is undisputed that the Externing Authority had
posted the matter for passing of the order in January, 2020 but the final
order is passed only on 14/01/2021 i.e. after period of more than one
year. In the facts of the present case, we do not find that the explanation
provided by the respondent no. 2 is sufficient to explain the delay caused
in passing the order of externment. The situation of the pandemic arose
only in the month of March, 2020. Taking into consideration the nature
of proceedings of externment affecting the liberty of the externee, it was
expected from the Externing Authority to pass appropriate orders as
expeditiously as possible. We are therefore satisfied that the explanation
provided in the reply by the Externing Authority for the delay in passing
the order of externment has not been explained properly. Therefore, the
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externment proceedings against the petitioner snaps the live link between
the object of externing the petitioner and the nefarious activities
complained of.
9] Hence, the following order:-
The order dated 14/01/2021 passed by the Sub-Divisional
Magistrate, Pusad in Case No. 16/2019 and the order dated
06/05/2021 passed by the Divisional Commissioner,
Amravati in Appeal No. 13/2021 are quashed and set aside.
Rule is made absolute in the above terms. Pending
application(s), if any, stand(s) disposed of.
(JUDGE) (JUDGE)
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