Bombay High Court
Akshay @ Nana Machindra Nagre vs The State Of Maharashtra And ... on 7 April, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.190 OF 2021
Akshay @ Nana s/o Machindra Nagre,
Age : 30 years, Occu.: Agriculture,
R/o.: Hanga, Taluka : Parner,
District : Ahmednagar .... PETITIONER
VERSUS
1. The State of Maharashtra
Through Principal Secretary,
Home Department, Mantralaya,
Mumbai
2. The Divisional Commissioner Nashik,
Divisional Commissioner Offce,
Nashik
3. Sub-Divisional Magistrate,
Shrigonda-Parner, Taluka Parner,
District Ahmednagar
4. Deputy Superintendent of Police,
Taluka Parner, District Ahmednagar
5. Police Inspector,
Supa Police Station, Taluka Parner,
District : Ahmednagar ... RESPONDENTS
.....
Advocate for Petitioner : Mr. Shaikh Ashraf Patel h/f Mr. A. P. Avhad
APP for Respondents-State : Mr. S. J. Salgare
....
CORAM : V. K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
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RESERVED ON : 28/03/2022
PRONOUNCED ON : 07/04/2022
....
JUDGMENT : (Per : Sandipkumar C. More, J.) :
1. Rule. Rule made returnable forthwith. By consent, heard
fnally at admission stage.
2. Under this writ petition, the petitioner is seeking quashing of
order dated 07/09/2020 in Externment Case No. 2 of 2019 passed
by Sub-Divisional Magistrate, Parner i.e. present respondent no.3
and also order dated 08/12/2020 in the Externment Appeal No. 80
of 2020 passed by the Divisional Commissioner, Nashik i.e.
respondent no.2. Under the order dated 07/09/2020 respondent
no.3 has externed the petitioner from entire Ahmednagar and Pune
Districts for a period of six months. Further, under order dated
08/12/2020 passed by respondent no.2 the earlier order has been
confrmed. It is to be noted here that even though the externment
period mentioned in the aforesaid orders is now over but the
petitioner has sought quashing of these orders merely because the
externment order is yet not executed. We have already noted in our
order dated 21/02/2022 about submission made by the learned
APP, whereby it was submitted that there is no question of expiry of
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externment period mentioned in the order since it is yet not
executed. Be that as it may, we have to consider legality of the
impugned orders any how.
3. Background facts are as under :
According to the petitioner, he is a law abiding citizen of India
and agriculturist by profession. However, he was served with show
cause notice dated 23/09/2019, whereby he was informed to remain
present before respondent no.3 on 30/09/2019 and to explain as to
why he should not be externed from Ahmednagar District and
adjacent district for a period of two years as per Section 56(1)(a)(b) of
the Maharashtra Police Act, 1951 (hereinafter referred to as "the
Act"). The petitioner then fled his detailed reply, but under the
order dated 07/09/2020 in the Externment Case No. 2 of 2020 the
petitioner has been externed from Ahmednagar and Pune Districts
for a period of six months. The petitioner also fled an Externment
Appeal No. 80 of 2020 before the present respondent no.2 as per
Section 60 of the Act. However, respondent no.2 was pleased to
dismiss the aforesaid appeal of the petitioner on 08/12/2020 and
thereby confrmed the earlier order of externment dated
07/09/2020.
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4. Learned counsel for the petitioner submits that both the
impugned orders passed by the authorities below, are erroneous and
contrary to the provisions of law. He further submits that the
authorities below have considered stale crimes against the petitioner
for his externment and that too without considering that fact that
the same were registered against the petitioner on account of
political rivalry. Learned counsel for the petitioner further submits
that the impugned orders are excessive in nature and without
application of mind. He further submits that there is no live link
present in this matter. As such, he prayed for quashing of the
impugned orders.
5. On the contrary, the learned APP by fling an affdavit in reply
strongly opposed the submissions made on behalf of the petitioner
and supported the impugned orders being passed in appropriate
manner. The learned APP submits that both the authorities below
have properly considered the material on record and rightly come to
the conclusion that since the petitioner is involved in the serious
crimes and his presence in the area is dangerous to public at large,
he needs to be externed. As such, he prayed for rejection of the
present criminal writ petition.
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6. We have carefully gone through the entire material on record
and also submissions made on behalf of rival parties. It is
signifcant to note that under the order dated 07/09/2020 though
respondent no.3 has externed the petitioner from Ahmednagar and
Pune Districts for a period of six months, but he has also ordered
that the petitioner should not enter into these districts till further
order. However, the said situation is thereafter clarifed by
respondent no.3 under letter dated 21/02/2022 issued to the
learned APP, whereby it is made clear that the period of externment
was only for six months and there was no bar for the petitioner to
enter Ahmednagar and Pune Districts thereafter.
7. Admittedly, a person can be exterened from the area where it is
found that his movements or acts are causing alarm, danger or
harm to person or property under section 56(1)(a)(b). We would like
to reproduce Section 56(1)(a)(b) of the Act herein below :
"56. Removal of persons about to commit
offence :
(1) Whenever it shall appear in Greater
Bombay and other areas for which a
Commissioner has been appointed under
section 7 to the Commissioner and in
other area or areas to which the State
Government may, by notifcation in the
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Offcial Gazette, extend the provisions of
this section, to the District Magistrate, or
the Sub-Divisional Magistrate [* * *]
empowered by the State Government in
that behalf-
(a) that the movements or acts of any
person are causing or calculated to cause
alarm, danger or harm to person or
property or
(b) that there are reasonable grounds
for believing that such person is engaged
or is about to be engaged in the
commission of an offence involving force
or violence or an offence punishable
under Chapters XII, XVI or XVII of the
Indian Penal Code, or in the abetment
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"
Though the power of externment under the aforesaid section is
given to the authorities below, but the authorities are under
obligation to see that the order of such externment should not be an
empty formality, excessive in nature and without application of
mind. The petitioner has been externed on the basis of four crimes
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registered against him in Supa Police Station as mentioned in the
impugned order as below :
Sr. Police Station Crime No. Under Section Remark
No.
1. Supa, Tq. I-126 of 143, 147, 148, 149, Subjudice
Parner, District 2016 324, 323, 504, 506,
Ahmednagar 427, 452 of IPC and
under Section 4/25 of
Arms Act
2. Supa, Tq. I-127 of 307, 143, 147, 148, 323 Subjudice
Parner, District 2016 of IPC, under Section
Ahmednagar 4/25 of the Arms Act
and under Section 3(1)
(10) of Scheduled
Castes and Scheduled
Tribes (Prevention of
Atrocities) Act
3. Supa, Tq. I-37 of Subjudice
Parner, District 2018
Ahmednagar
4 Supa, Tq. Non- 323, 504 and 506 of Subjudice
Parner, District cognizable IPC
Ahmednagar case
However, out of the aforesaid crimes, the crime at serial No.4 is
in fact non-cognizable offence. Moreover, it appears that the trials of
the remaining crimes are pending before the court for adjudication.
Those crimes appear to be committed in the period from 2016 to
2018. As such, it appears that from 2018 till passing of the
impugned order dated 07/09/2020 there is no fresh crime registered
against the petitioner. Therefore, it prima facie appears that the
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authorities below have considered the crimes up to 2018 for the
externment of the petitioner, which took place in the year 2020. It is
to be noted here that this court in various earlier cases has observed
that the externment order is not sustainable if it is passed on the
basis of stale crimes.
8. Further, though respondent no.3 in the order dated
07/09/2020 has observed that nobody is coming forward to lodge
complaint against the petitioner openly due to his deterrent
behaviour, but there are no confdential statements of witnesses on
record. Further respondent no.3 has not referred any such
confdential statements in his order but still respondent no.2 while
dismissing the appeal of the petitioner, has mentioned about
existence of the statements of confdential witnesses. As such, there
is clear non-application of mind is appearing on the part of
respondent no.2 while confrming the order dated 07/09/2020
passed by respondent no.3. Moreover, three crimes appear to be
registered in the period from 2016 to 2018, are considered for the
externment of the petitioner in the year 2020. As such, there
appears no live link between the last crime committed by the
petitioner and his externment order dated 07/09/2020. Moreover, it
is extremely important to note that all the crimes considered for
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externment of the petitioner, have been registered in Supa Police
Station, Taluka Parner, District Ahmednagar but without paying
attention to this aspect, the authorities below have externed the
petitioner from so much larger area covering the limits of entire
Ahmednagar and Pune Districts As such, the order of externment is
defnitely an excessive order. This court as well as the Hontble
Supreme Court in many cases, have already observed that when the
criminal activities of a person are restricted to certain smaller area,
then he can not be externed from larger area than that wherein
there are no criminal activities of the said person.
9. The learned counsel for the petitioner has also relied upon the
judgment of this court (Coram : S. S. Shinde & V. K. Jadhav, JJ.) in
Criminal Writ Petition No. 541 of 2018, wherein it is mentioned as
follows :
"12. We have given careful consideration to the
submissions advanced by learned counsel
appearing for the petitioner and learned APP
appearing for the Respondents-State. We have
also carefully perused the reasons assigned by
the authorities in the impugned orders. It
appears that though the petitioner examined
the witnesses in support of his contentions in
the written statement, nevertheless there is no
discussion about the contentions of the
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witnesses. Though the authorities have
mentioned in the impugned orders that they
have seen the statements of the witnesses,
nevertheless it was necessary at least to
discuss in brief about what the witnesses have
stated. The valuable remedy of appeal is
available to the externee and once the appeal
is fled, the appellate authority is obliged to
consider the case of the externee on the facts
as well as on law. To brand a person habitual
criminal, it is necessary to fnd out his past
record. In the present case, both the
authorities have not considered the fact that,
the petitioner is not convicted in any of the
criminal cases registered against him. It
appears that, in pending criminal cases, he is
enlarged on bail by the trial court and also the
High Court respectively. There is no material
brought on record by the respondent that
liberty granted in favour of the petitioner has
been misused by him. All this contentions
raised by the petitioner ought to have been
considered by both the authorities, and to that
effect at least there should have been
discussion in the order passed by the
appellate authority. Learned counsel
appearing for the petitioner is right in placing
reliance on the ratio laid down in the cases of
Hanuman Rajaram Mhatre, Praful Bhausaheb
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Yadav and Akas Madhukar Patil (Rajput)
(supra)".
10. In the light of aforesaid observations and as per the discussion
mentioned above, we fnd that both the impugned orders are passed
without proper application of mind. There is complete absence of
live link and also the aspect of subjective satisfaction is missing.
Further, the impugned orders are excessive in nature without there
being any criminal activity of the present petitioner except the area
under the jurisdiction of Supa Police Station. Hence, considering all
these factors, we proceed to pass following order.
ORDER
I) Criminal writ petition is hereby allowed in terms
of prayer clause "B and C".
II) Rule made absolute in above terms.
III) Criminal writ petition is accordingly disposed of.
(SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)
vsm/-
