Shubham S/O Sudhakar Kodwate Thr. ... vs State Of Mah. Thr. Divisional ...
2022 Latest Caselaw 12707 Bom

                                     1                             10 CRIWP515.22 (J).odt


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


            CRIMINAL WRIT PETITION NO. 515 OF 2022


PETITIONER                 : Shubham S/o Sudhakar Kodwate (Driver),
                             Aged 26 years, Occu. Driver,
                             R/o Plot No. 285, Near Hanuman Mandir
                             and Shridhar Kirana Stores, Parsodi,
                             Gopal Nagar, Nagpur-22
                             through his mother Jyoti W/o Sudhakar Kodwate,
                             Cell No. 9325659802 (at present externee)

                                           VERSUS

RESPONDENTS                 : 1] State of Maharashtra,
                                 Through Divisional Commissioner,
                                 Nagpur Division, Nagpur.

                              2] Deputy Commissioner of Police,
                                 Zone-1, Nagpur City, Nagpur.

                              3] Assistant Commissioner of Police,
                                 Sonegaon Division, Nagpur City,
                                 Nagpur.

----------------------------------------------------------------------------------------------
          Mr. L. B. Thawkar, Advocate for the petitioner.
          Mr. H. D. Dubey, A.P.P. for the Respondent nos.1 to 3.
----------------------------------------------------------------------------------------------

                    CORAM : G. A. SANAP, J.
          Date of Reserving the Judgment    : November 22, 2022.
          Date of Pronouncement of Judgment : December 07, 2022


JUDGMENT

2 10 CRIWP515.22 (J).odt

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

consent of the learned advocates for the parties.

2. In this writ petition, the petitioner has challenged the

order of his externment dated 24.02.2022 passed by respondent no.2 -

Dy. Commissioner of Police, Zone-I, Nagpur City, Nagpur as well as

the order dated 16.06.2022 passed by respondent no.1 - Divisional

Commissioner, Nagpur Division, Nagpur, whereby the respondent

no.1 confirmed the order of externment in appeal.

3. The respondent no.2, by invoking the provisions of

Section 56 Sub-section (1), clauses (a)&(b) of the Maharashtra Police

Act, 1951 (hereinafter referred to as "the Act of 1951" for short),

ordered externment of the petitioner and directed him to remove

himself outside the limits of Nagpur District for a period of two years.

In order to arrive at subjective satisfaction to warrant the order of

externment against the petitioner, the respondent no.2 relied upon five

crimes registered against the petitioner at Pratap Nagar police station,

Nagpur. The details of the crimes are as under :

                              3                    10 CRIWP515.22 (J).odt


Sr. Police        Crime No. Date             Sections       Case status
    Station

1. Pratap Nagar 238/2021 14.07.2021 452, 294, 506, 323, Under 509 IPC Investigation.

2. Pratap Nagar 193/2019 17.05.2019 323,325,504,34 IPC Court pending

3. Pratap Nagar 273/2019 30.06.2019 4/25 of Arms Act Court Pending r/w 135 of Mah.

Police Act

4. Pratap Nagar 871/2016 14.11.2016 279, 337, 323, 134, Court Pending 177 IPC

5. Pratap Nagar 204/2015 08.06.2015 324, 504, 34 IPC Court Pending

4. Besides above crimes, the respondent no.2 placed heavy

reliance upon the confidential in-camera statements of two witnesses

namely 'A' and 'B'. On the basis of the crimes and the confidential in-

camera statements of the witnesses, the respondent no.2 recorded a

satisfaction that the activities of the petitioner are fully covered under

the provisions of Section 56(1)(a)(b) of the Act of 1951 and as such

warranting his externment.

5. The petitioner preferred statutory appeal against the order

of his externment dated 24.02.2022 before the respondent no.1. The

respondent no.1 found that subjective satisfaction for the externment

of the petitioner was arrived at on the basis of the objective material 4 10 CRIWP515.22 (J).odt

placed on record. His appeal came to be rejected. The petitioner is,

therefore, before this Court.

6. I have heard Mr. L. B. Thawkar, learned advocate for the

petitioner and Mr. H. D. Dubey, learned Additional Public Prosecutor

for the respondent nos.1 to 3. Perused the record and proceedings.

7. In this writ petition, the petitioner has raised multiple

grounds of challenge to the impugned orders. The learned advocate

for the petitioner submitted that there is no material on record to

record the satisfaction that the witnesses are not coming forward to

depose against the petitioner. Learned advocate by drawing my

attention to the show cause notice dated 24.11.2021, issued by the

respondent no.3 - Assistant Commissioner of Police, Sonegaon

Division, Nagpur City, Nagpur, submitted that at the initial stage of

the enquiry, there was no material to issue said show cause notice by

the respondent no.3. Learned advocate submitted that said show cause

notice is silent about the confidential statements of the witnesses as

well as on the point that the witnesses are not coming forward to

depose against the petitioner. Learned advocate submitted that in the 5 10 CRIWP515.22 (J).odt

impugned order, it is stated that the statements of the confidential

witnesses were duly verified by the superior officer. Learned advocate

submitted that this fact was not mentioned in the notice issued by

respondent no.2 dated 20.01.2021. Learned advocate further

submitted that in all the crimes the petitioner has been released on bail.

The respondent no.2 did not consider the bail orders to arrive at

subjective satisfaction. Learned advocate pointed out that the bail

orders were neither mentioned in the show cause notice nor in the

impugned orders.

8. Learned advocate for the petitioner further submitted that

as per the crime chart, the first crime was of the year 2015, second

crime was of the year 2016; two crimes were registered in the year 2019

and latest crime relied upon was registered on 14.07.2021. Learned

advocate submitted that the stale crimes from 2015 to 2019 have been

made basis to record subjective satisfaction and as such the entire

proceeding has been vitiated. Learned advocate submitted that in the

month of August-2021, in a chapter proceeding initiated against the

petitioner, he had furnished the bond for good behaviour. A reference 6 10 CRIWP515.22 (J).odt

of this fact has been made in the show cause notice as well as in the

order of externment. Learned advocate pointed out that on

30.08.2021, he executed the bond for good behaviour. The last crime,

according to the learned advocate, was registered on 14.07.2021. It is

submitted that after execution of this bond of good behaviour on

30.08.2021 for a period of six months, no crime was registered against

the petitioner. Learned advocate relying upon that material submitted

that there is no live link between the crimes relied upon to record

subjective satisfaction. Learned advocate submitted that the order of

externment is a result of unreasonable and arbitrary approach adopted

by the respondent no.2. Learned advocate further submitted that all

the offences were admittedly registered at Pratap Nagar Police Station,

whereas the petitioner is externed from the entire Nagpur district. It is

submitted that no reasons have been recorded in that respect.

Similarly, the subjective satisfaction recorded to warrant externment of

the petitioner for a period of two years is not supported by any

objective material. Learned advocate therefore, submitted that the

order of externment deserves to be quashed and set aside.

7 10 CRIWP515.22 (J).odt

9. In support of his submission, learned advocate for the

petitioner placed heavy reliance on the decision in the case of Deepak

S/o Laxman Dongre .vs. State of Maharashtra and others , reported in

2022 All M.R. (Cri.) 761 (S.C.). It is held in this case that the

subjective satisfaction arrived at on the basis of stale offences cannot be

said to be just and reasonable. It is held that in order to warrant

externment and thereby to make an inroad on fundamental rights of

free movement of a citizen, the ingredients of Section 56 (1), clauses

(a) and (b) of the Act of 1951 must be strictly established on the basis

of the objective material.

10. Learned Additional Public Prosecutor for the respondents

submitted that on the basis of continuous involvement of the applicant

in similar nature of crimes from 2015 to 2021, a live link has been

established. Learned APP submitted that continuity of commission of

crimes by the petitioner till issuance of the show cause notice proves

beyond doubt that his movement and acts are causing calculated

danger or harm to the persons or property. Learned APP submitted

that the in-camera statements of the confidential witnesses are 8 10 CRIWP515.22 (J).odt

sufficient to form an opinion that the witnesses are not willing to come

forward to give statement against the petitioner by the reason of

apprehension on their part with regard to the safety of their person or

property. Learned APP submitted that in the notice issued by

respondent no.2 the entire material relied on against the petitioner for

passing the order of externment was specifically mentioned. The

petitioner had filed a reply. Learned APP submitted that the

statements of the confidential witnesses were duly verified by the

superior officer and therefore, an apprehension of manipulation of

those statements is baseless. Learned APP further submitted that

elaborate discussion on the bail orders granted in favour of the

petitioner in all the crimes was not necessary considering the nature of

proceedings initiated against him. Learned APP, in short, supported

the order of externment passed by the respondent no.2 and

confirmation of the said order by the Appellate Authority, namely

respondent no.1.

11. In order to appreciate and deal with the rival submissions,

I have gone through the record and proceedings. In this case, relying 9 10 CRIWP515.22 (J).odt

upon the provisions of Section 56 of the Act of 1951, the externment

order is passed. Section 56 reads thus :

"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 notification in the Official 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 Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer witnesses 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, or, (bb) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Antisocial and other Dangerous Activities Act, 1980, or (2) in any manner prejudicial to the maintenance of supplies of commodities essential of the community as defined in the Explanation to sub-sect ion (1) of Sec. 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 , or

(c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or other wise as he 10 10 CRIWP515.22 (J).odt

thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm [or such prejudicial act] or the outbreak or spread of such disease or [notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the Officer or not and whether contiguous or not), by such route, and within such time as the officer may specify and not to enter or return to the said area or areas specified (hereinafter referred to as "the specified area or areas") from which he was directed to remove himself]."

12. In this case, the provisions of Section 56(1), clauses (a)

and (b) have been invoked. The ground under clause (a) indicate that

movements or acts of any person must be causing or calculated to cause

alarm, danger or harm to person or property. The ground under clause

(b) indicate that to invoke the same, there must be reasonable ground

for believing that the person sought to be externed is engaged or about

to engage in the commission of an offence involving force or violence

or offence punishable under Chapters XII, XVI, XVII of the Indian

Penal Code or abetment of any such offence. The second part of clause

(b), which has to be read with the first part, clearly stipulates that the

Competent Authority empowered to pass an order should form an

opinion that the witnesses are not willing to come forward to give 11 10 CRIWP515.22 (J).odt

evidence in public against such person only because of an

apprehension on their part as regards safety of their person or property.

The conjoint reading of clauses (a) and (b) would indicate that in

arriving at a subjective satisfaction as to the grounds, there must be

objective material on record before the authority.

13. In Deepak Laxman Dongre's case (supra), relied upon by

the learned advocate for the petitioner, the Hon'ble Supreme Court has

considered the decision in the case of Pandharinath Shridhar

Rangnekar .vs. Dy.Commissioner of Police, State of Maharashtra,

reported in (1973) 1 SCC 372. On consideration of this decision, it is

held that the reasons which necessitate or justify passing of an

extraordinary order of externment arise out of extraordinary

circumstances. It is held that therefore, the strict compliance of Section

59 of the Act of 1951 is required to be made. It is further held that the

order of externment deprive the citizen of his fundamental right of free

movement throughout the territory of India. The order of externment

in fact prevents the person even from staying in his own house along

with his family members during subsistence of the externment order.

12 10 CRIWP515.22 (J).odt

It is, therefore, held that the subjective satisfaction must be arrived at

on the basis of the objective material.

14. In order to consider the applicability of the proposition to

the facts of the case on hand, it would be necessary to go through the

show cause notice, the material relied upon in the show cause notice,

which ultimately converged into the order of externment thereby

recording subjective satisfaction on the basis of the said material.

15. The four crimes relied upon, in my view, has to be termed

as stale crimes. The first crime was registered on 08.06.2015. The

second crime was registered on 14.11.2016. The third crime was

registered on 30.06.2019 and 4th was registered on 17.05.2019. In all

these crimes, the petitioner has been released on bail. The respondent

no.2, as can be seen from the show cause notice as well as from the

order of externment, has not at all considered the bail orders granted in

favour of the petitioner. The offences, as can be seen from the crime

chart, were mostly bailable offences. The State has not moved any

application for cancellation of bail on the ground of breach of 13 10 CRIWP515.22 (J).odt

conditions of bail order or on the ground that the petitioner has

threatened the witnesses mentioned in the charge-sheet. The last crime

registered on 14.07.2021, on the date of the notice, was under

investigation. In this crime also the petitioner has been released on

bail. In my view, the respondent no.2 was under an obligation to take

into consideration the bail orders and particularly the reasons recorded

to grant bail to the petitioner and the conditions imposed at the time of

bail. It is seen on a perusal of the record that despite considering the

criminal antecedents of the petitioner, he was found entitled by the

learned jurisdictional Courts to get bail. The respondent no.2 was,

therefore, required to take into consideration the bail orders and

particularly the reasons for granting the bail. In my view, it was

necessary to fortify the subjective satisfaction. The respondent no.2

was required to give a thought to the bail orders and particularity the

reasons which weighed the jurisdictional Court to grant bail to the

applicant. In my view, failure to take into consideration the bail orders

would certainly cause dent to the subjective satisfaction arrived at by

the respondent no.2. The Appellate Authority has also not taken this

fact into consideration.

14 10 CRIWP515.22 (J).odt

16. Learned APP pointed out that the in-camera statements of

confidential witnesses were recorded on 22.10.2021. It is to be noted

that the show cause notice was issued on 24.11.2021. Perusal of this

notice would show that there is no mention of recording of in-camera

statements of the witnesses. It is further seen on a perusal of second

show cause notice as well as the externment order that the first witness

has deposed about the alleged acts committed by the petitioner in the

month of May-2021. The second confidential witness has stated that

the alleged act was committed by the petitioner in the first week of

June-2021. Perusal of the statements of the witnesses would indicate

that those statements are vague as far as specific date of commission of

the crime is concerned. It is further seen that the two incidents

narrated by the two confidential witnesses occurred prior to

14.07.2021. The last crime relied upon by the respondent no.2 was

registered on 14.07.2021. I have perused the statements from the

record. The statements were verified by the superior officer, however,

most shocking fact found on going trough the verification is that below

the signature, the signatory has not mentioned the date. Respondent 15 10 CRIWP515.22 (J).odt

no.2 has failed to mention in the show cause notice as well as in the

externment order that the statements were duly verified by the superior

officer. The respondent no.2 ought to have taken note of the fact that

the date was not mentioned below the signature by the officer, who

had verified the statements. In my view, it was necessary because the

statements were recorded in the enquiry conducted to decide the fate

of the petitioner. The officer should have made efforts to see that there

remains no doubt about the action initiated by them. In my view, on

this ground also, the impugned orders cannot be sustained.

17. Perusal of the impugned order would show that after

registration of the recent relied upon crime on 14.07.2021, admittedly

in the chapter proceedings initiated under Section 110, clauses (e) and

(g) of the Cr.P.C., the petitioner was directed to furnish bond in the

sum of Rs.15,000/- for a period of Six months. The petitioner

undisputedly submitted the bond on 30.08.2021 in a sum of

Rs.15,000/- for good behaviour for a period of six months. It is not the

case of the respondent no.2 that despite furnishing bond on

30.08.2021, the petitioner committed any act or an offence as 16 10 CRIWP515.22 (J).odt

contemplated under Section 56 sub-section 1, clauses (a) and (b) of the

Act of 1951. During the course of the externment proceeding, from

30.08.2021 for a period of six months, there was no grievance that the

petitioner committed breach of the terms and conditions of the bond

of good behaviour furnished by him. It is to be noted that on the date

of show cause notice dated 20.01.2022 and the order of externment

dated 24.02.2022, the bond period was not over. In view of this

factual position, the respondent no.2 was required to consider this

objective material while forming subjective satisfaction. It is not stated

in the order dated 24.02.2022 that despite furnishing the bond of

good behaviour, the petitioner either committed breach of the

conditions of the bond or committed an identical offence. In my view,

while arriving at subjective satisfaction, the good behaviour of the

petitioner consistent with the bond for good behaviour ought to have

been taken into consideration. Failure to consider the same, in my

view, would certainly cause dent to the subjective satisfaction.

18. In the light of the above, the issue of stale material having

been relied upon to pass the order of externment needs consideration.

17 10 CRIWP515.22 (J).odt

In my view, four crimes which were committed prior to 2019 would

not be available against the petitioner for warranting externment. At

the most the crimes committed could be said to be the crimes against

human body. But in my view that alone is not sufficient to order

externment. There are ways and means to arrest the conduct and

behaviour of a person. Unless and until the recourse is taken to all

such ways and means, the order of externment, which in my view,

should be the last resort, which can be invoked.

19. The petitioner not only submitted the bond on

30.08.2021 of good behaviour, but also did not indulge in commission

of any offence till the date of the order. The show cause notice is dated

20.01.2022. The order of externment was passed after one month

from the said show cause notice. The first show cause notice was

issued by respondent no.3 on 24.11.2021. It is seen that from the date

of initiation of the proceedings till passing of the order, almost four

months had rolled by. I am, therefore, of the view that based on the

stale material the subjective satisfaction has been arrived at. This fact

would, therefore, indicate that there was no live link. Since the 18 10 CRIWP515.22 (J).odt

material is found to be stale, the live link would automatically get

disconnected. The time taken from initiation of the proceeding till

passing of the order would indicate that it would cause dent to the live

link to warrant externment on the basis of the subjective satisfaction

arrived at by the respondent no.2.

20. It is to be noted that considering the serious apprehension

placed on record on the basis of the material, one can say that the acts

of the petitioner were found to be of the nature and kind stipulated

under Section 56(1)(a)(b) of the Act of 1951. In my view, in this

backdrop, respondent nos.2 and 3 would have invoked the provisions

of Section 151 of the Code of Criminal Procedure in its application to

the State of Maharashtra. Section 151 of the Cr.P.C. provides that the

arrest of a person can be made to prevent a person from committing

cognizable offence. If a police officer apprehends a design of a person

to commit any cognizable offence, can arrest him without order from

the Magistrate, if it appears to such officer that the commission of the

offence cannot be otherwise prevented. He can be detained in custody

for a total period of thirty days from the date of arrest of such a person 19 10 CRIWP515.22 (J).odt

as per the order of the JMFC. In this case, considering the

apprehension sought to be placed on record and invocation of Section

56(1) Clauses (a) and (b) of the Act of 1951, the respondent no.2

ought to have taken recourse to this remedy. If he had taken recourse

to this remedy, then he would have been justified in passing the order

on the basis of the said material. It is to be noted that the remedy

provided under Section 151 of the Cr.P.C. is a speedy remedy. The

police officer is required to form an opinion that the person is likely to

commit a congizable offence and that said person cannot be prevented

from committing the said offence unless and until he is arrested and

detained as provided under Section 151 of the Cr.P.C. The Judicial

Magistrate, who is an independent authority, would definitely make

objective analysis of the material on record before granting the prayer

for detention of the concerned person. It is to be noted that after

taking recourse to the remedy provided under Section 151 of the

Cr.P.C. and after completion of the detention period, if the said person

comes out and commits an offence then, in my view, it would be a

strong circumstance justifying externment.

21. As per the provisions of Section 56 of the Act of 1951, the 20 10 CRIWP515.22 (J).odt

maximum period of externment is two years. In this case, the

respondent no.2 has ordered externment of the petitioner from the

entire Nagpur district for a period of two years. It is to be noted that

the externment order apart from making inroad on the fundamental

right of the movement makes the said person leave separate from his

family members. Similarly, the said order can deprive the said person

of his livelihood. In order to justify the externment for maximum

period of two years, the authority is required to consider the objective

material to record the subjective satisfaction on this point. The order

passed by the respondent no.2 is silent on this point. No reasons have

been recorded by the respondent no.2 to warrant externment of the

petitioner for a period of two years from entire Nagpur district. All the

offences relied upon were committed within the jurisdiction of Pratap

Nagar Police Station, Nagpur. In view of this fact, the respondent no.2

was expected to record the reasons to warrant externment of the

petitioner outside Nagpur district. The order passed by the respondent

no.2 and confirmed by the respondent no.1, therefore, suffers from

virus of excessiveness. The law laid down on the point in the cases of

Shaikh Mukhtyar S/o Mustafa Shaikh .vs. State of Maharashtra and 21 10 CRIWP515.22 (J).odt

others, reported in 2017 All M.R. (Cri.) 268 ; and Bhagwat Dadasaheb

Landge and another .vs. State of Maharashtra and others , reported in

2020 (5) Mh.L.J. (Cri.) 546, would equally apply in this case. In my

view, this would be one of the factors, which would weigh in favour of

the petitioner. This would also reflect upon non-application of mind

to the material on record to arrive at subjective satisfaction. In my

view, therefore, the externment order passed by the respondent no.2

and the order passed by the Appellate Authority confirming the

externment order, cannot be sustained. The orders deserve to be set

aside.

22. Accordingly, the writ petition is allowed.

The order dated 24.02.2022 passed by respondent no.2

externing the petitioner from Nagpur district for a period of two years

and the order dated 16.06.2022 passed by the respondent no.1

confirming the said order of externment, are quashed and set aside.

Rule is made absolute. The petition stands disposed of.

( G. A. SANAP, J. ) Diwale

Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:08.12.2022 18:42