Rajat S/O Dilip Marwade vs State Of Mah. Sub Divisional ...
2022 Latest Caselaw 8096 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH, NAGPUR.

             CRIMINAL WRIT PETITION NO.365 OF 2022

             Rajat Dilip Marwade
             Aged about 22 years,
             Occupation R/o Khamari/Buti ,Tah. Bhandara,
             Presently residing at Manora,Taluka Tiroda
             Dist.Gondia.
                                                 .... PETITIONER

                                 // VERSUS //

1.          State of Maharashtra
            Through Sub-Divisional Magistrate, Bhandara.

2.            Superintendent of Police,Bhandara

3.           Police Station, Kardha,
             through Police Station Officer
                                     ....RESPONDENT

_____________________________________________________ Mr.Vikrant Vishwarupe adv. h/f Mr.R.R.Vyas, Adv. for the petitioner.

Mr. A.R.Chutke, A.P.P. for the respondent.

____________________________________________________

CORAM : MANISH PITALE AND G.A.SANAP, JJ DATE : 20.08.2022.

ORAL JUDGMENT (Per: Manish Pitale,J)

1. Heard. Rule. Rule made returnable forthwith. Heard finally

by consent of the learned counsel appearing for the parties.

2. By this writ petition, the petitioner has challenged

externment order dated 05.05.2022, issued by the respondent No.1, 907-WP 365-22.odt

whereby the petitioner is directed to be externed for a period of six

months.

3. On 13/06/2022, this Court issued notice, pursuant to

which, the respondents entered appearance and filed their reply.

4. Mr. Vikrant Vishwarupe, learned counsel appearing for the

petitioner, submitted that the impugned order is unsustainable on the

face of it because, it is based on completely erroneous exercise of power

under Section 56(1)(a) of the Maharashtra Police Act, 1951 (hereinafter

referred to as the 'said Act'). It is submitted that the order is in the teeth

of settled law, which requires the order to disclose some application of

mind, while issuing the order of externment, which is an extraordinary

measure, as it interferes with the fundamental right of the individual of

'freedom of movement'. It is submitted that such an order of

extraordinary measure has to be supported by semblance of reasons,

which are missing in the present case. He further submitted that in the

present case, the respondent No.1 has relied upon three offences

registered against the petitioner, the last one being Crime No.146 of

2020, registered on 29.06.2020, for the offences punishable under

Sections 376 and 188 read with section 34 of the Indian Penal Code. It

is pointed out that after obtaining the report from the concerned 907-WP 365-22.odt

Authority, the respondent No.1 issued notice on 22.10.2021 to the

petitioner and he appeared and placed his case before the respondent

No.1 on 28.10.2020. Thereafter, after about seven months, the

respondent No.1 passed the impugned order dated 05.05.2022, thereby

indicating absence of live link. The learned counsel for the petitioner

placed reliance upon the judgment of Hon'ble Supreme Court in the

case of Deepak Vs. State of Maharashtaa, reported in 2022 SCC online

SC 99 and judgment of this Court in the case of Dhiraj Jaysing Dhane v

State of Maharashtra, reported in 2016 on line SCC OnLine Bom

12895.

5. On the other hand, Mr.Damle, learned APP appearing for

the respondents, submitted that the reasons for issuance of the

impugned order are specifically enumerated and the respondent No.1

has also relied upon section 56(1)(a) of the said Act, recording

subjective satisfaction on the basis of the material placed before the said

Authority. It is submitted that the respondent No.1 is not expected to

write a reasoned order while directing externment and the said position

of law has been clarified by Hon'ble Supreme Court in the landmark

judgment in Pandharinath Vs. State of Maharashtra, reported in AIR

1973 SC 630. It is further submitted that the question of delay is not

even raised in the petition and therefore, the petitioner is not justified 907-WP 365-22.odt

in orally making submissions in that regard. It is submitted that perusal

of the impugned order would show that necessary material was taken

into consideration and on the basis of appropriate reasons, the

petitioner has been externed for a period of six months.

6. We have heard the learned counsel for the rival parties and

we have perused the material placed on record. We are not with the

learned APP on the question as to whether the aspect of delay can be

considered in the present case or not. The learned counsel for the

petitioner has made submissions on the said aspect of the matter, by

referring to the facts recorded in the impugned order itself and

therefore, this Court is certainly entitled to consider the said aspect of

the matter.

7. But, before considering the said aspect, we would refer to

the judgment upon which learned APP has placed reliance, i.e.

Pandharinath Vs. State of Maharashtra (supra), particularly paragraph

14 thereof, wherein it is recorded that, neither the Externing Authority,

nor is the Government considering an appeal on the question of order

issued under section 56 of the said Act, are expected to write reasoned

orders in the nature of a judgment. There can be no quarrel with the

said proposition but, it cannot be said that under the said recognized 907-WP 365-22.odt

position of law, the concerned Authority, respondent No.1 in the

present case, has a license to issue orders under section 56 of the said

Act, without application of mind or without even a semblance of

reasoning.

8. In this context the learned counsel appearing for the

petitioner is justified in relying upon recent judgment of Hon'ble

Supreme Court in the case of Deepak Vs. State of Maharashtra (supra).

While considering the nature of externment order and the scope of

jurisdiction of the Competent Authority while exercising the power

under Section 56 of the said Act, it has been held as follows:

"10. There cannot be any manner of doubt that an order of externment is an extraordinary measure. The effect of the order of externment is of depriving a citizen of his fundamental right of free movement throughout the territory of India. In practical terms, such an order prevents the person even from staying in his own house along with his family members during the period for which this order is in subsistence. In a given case, such order may deprive the person of his livelihood. It thus follows that recourse should be taken to Section 56 very sparingly keeping in mind that it is an extraordinary measure. For invoking clause (a) of sub-section (1) of Section 56, there must be objective material on record on the basis of which the competent authority must record its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to persons or property. For passing an order under clause (b), there must be objective material on the basis of which the competent authority must record subjective satisfaction that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission 907-WP 365-22.odt

of an offence involving force or violence or offences punishable under Chapter XII, XVI or XVII of the IPC.

Offences under Chapter XII are relating to Coin and Government Stamps. Offences under Chapter XVI are offences affecting the human body and offences under Chapter XVII are offences relating to the property. In a given case, even if multiple offences have been registered which are referred in clause (b) of sub-section (1) of Section 56 against an individual, that by itself is not sufficient to pass an order of externment under clause (b) of sub-section (1) of Section 56. Moreover, when clause (b) is sought to be invoked, on the basis of material on record, the competent authority must be satisfied that witnesses are not willing to come forward to give evidence against the person proposed to be externed by reason of apprehension on their part as regards their safety or their property. The recording of such subjective satisfaction by the competent authority is sine qua non for passing a valid order of externment under clause (b).

13. Considering the nature of the power under Section 56, the competent authority is not expected to write a judgment containing elaborate reasons. However, the competent authority must record its subjective satisfaction of the existence of one of the grounds in sub-section (1) of Section 56 on the basis of objective material placed before it. Though the competent authority is not required to record reasons on par with a judicial order, when challenged, the competent authority must be in a position to show the application of mind. The Court while testing the order of externment cannot go into the question of sufficiency of material based on which the subjective satisfaction has been recorded. However, the Court can always consider whether there existed any material on the basis of which a subjective satisfaction could have been recorded. The Court can interfere when either there is no material or the relevant material has not been considered. The Court cannot interfere because there is a possibility of another view being taken. As in the case of any other administrative order, the judicial review is permissible on the grounds of mala fide, unreasonableness or arbitrariness."

907-WP 365-22.odt

9. In the above quoted paragraph 13 of the said judgment, the

Hon'ble Supreme Court has clearly held that although the Competent

Authority is not expected to record reasons at par with a judicial order,

such an Authority ought to be in a position to show application of

mind, when such an order is challenged.

10. Therefore, we proceed to consider the contention raised on

behalf of the petitioner that a perusal of the impugned order would

show absence of application of mind.

11. A perusal of the impugned order shows that the respondent

No.1 has referred to report dated 29.07.2021, submitted by the Sub-

Divisional Police Officer, (SDPO). Thereafter, reference is made to

three offences registered against the petitioner between 17.04.2018 to

29.06.2020. Thereafter, the respondent No.1 has referred to the issues

that have arisen as a consequence of the report of the SDPO and it is

recorded that upon notice being issued on 22.10.2021, the petitioner

was heard on 28.10.2021. Thereafter, the respondent No.1 has simply

recorded that considering the conduct of the petitioner, it is found that

power under Section 56(1)(a) of the said Act, is liable to be invoked and

accordingly, the petitioner has been externed for a period of six months.

907-WP 365-22.odt

12. We are of the opinion that the impugned order appears to

have been passed in a mechanical manner, without cogent analysis of

the material to show application of mind, before reaching the

conclusion that the movement of the petitioner deserves to be

restricted, as it is causing or are calculated to cause alarm, danger or

harm to person or property. On this ground itself the impugned order

deserves to be quashed.

13. In addition, we find that there is substance in the

contention raised on behalf of the petitioner, that in the present case

there has been inordinate delay on the part of the respondents in

passing the impugned externment order. The material on record shows

that while report was received from SDPO as far back as on 29.07.2021,

notice was issued after about three months to the petitioner on

22.10.2021 and he was heard on 28.10.2021. Thereafter, for a period of

about seven months, no action was taken by the respondent No.1 and it

was only on 05.05.2022, that the impugned order was passed. The

order itself does not indicate as to what took about seven months for the

respondent No.1 to pass the impugned externment order, after having

heard the petitioner as far back as on 28.10.2021. In this regard, the

learned counsel for the petitioner is justified in relying upon the

judgment of this Court in the case of Dhiraj Jaysing Dhane Vs. State of 907-WP 365-22.odt

Maharashtra (supra), wherein this Court set aside the externment order

on the ground that while show cause notice was issued to the petitioner

therein on 17.09.2014, the externment order was belatedly passed on

05.02.2016. We find the facts in the present case to be similar to the

said case decided by this Court. It was categorically held therein that the

delay in issuance of the order of externment had snapped the live link

between the need for passing such an order and the alleged activities for

which the order was passed.

14. Therefore, on this ground also, the petition deserves to

succeed. We are also of the opinion that in the present case, reference is

made to three offences registered against the petitioner, the last of which

is dated 29.06.2020, which took place almost two years prior to

issuance of the impugned order of externment. On this ground also, the

impugned order is found to be unsustainable .

15. In view of the above, the writ petition is allowed and the

impugned order dated 05.05.2022, externing the petitioner is quashed

and set aside.

16. Rule is made absolute in the above terms.

Signed By:KAVITA PRAVIN
TAYADE
                                      (G.A.SANAP, J)                              (MANISH PITALE, J)
P. A.         Kavita
Signing Date:24.08.2022 10:56