Sandip @ Sandy Premnath Bamne vs The State Of Maharashtra And ...
2022 Latest Caselaw 5 Bom

                                        1                 crwp 1107.2021.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

             CRIMINAL WRIT PETITION NO.1107 OF 2021

             Sandip @ Sandy Premnath Bamne,
             age 32 years, Occ. Business,
             R/o Sai Corner, Parbhani,
             Tq. & District Parbhani        ...Petitioner...

             Versus

     1.      The State of Maharashtra

     2.      The Superintendent of Police,
             Parbhani, District Parbhani.

     3.  The Divisional Commissioner,
         Aurangabad Division,
         Aurangabad.                      ..Respondents..
                               ...
           Advocate for Applicant : Mr. S.S. Jadhav
              APP for Respondents : Mr. K S Patil
                               ...
     CORAM : V.K. JADHAV & SANDIPKUMAR C. MORE, JJ.

...

Reserved on : December 21, 2021 Decided on : January 03, 2022 ...

ORDER :- ( Per V. K. Jadhav, J.)

1. Heard fnally with the consent of parties at

admission stage.

2. By way of this criminal writ petition, the petitioner

is taking exception to the judgment and order dated

30.8.2021 passed by the learned Divisional

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Commissioner, Aurangabad in externment proceeding

O.No.2021/MAG/EXT./CR arising out of the judgment

and order passed by the Sub Divisional Magistrate,

Parbhani, District Parbhani dated 15.2.2021 in

externment proceeding no.4 of 2020.

3. On 16.9.2020 the police station, Nanalpeth,

Parbhani has submitted the proposal for externment of

the petitioner to the Sub-Divisional Magistrate, Sub

Division, Parbhani, District Parbhani. In consequence

of that, the Sub-Divisional Magistrate, Parbhani has

issued a show cause notice to the petitioner dated

2.1.2021 under section 59 of the Maharashtra Police

Act, 1959 calling upon him to show cause as to why

pursuant to the aforesaid proposal, he should not be

externed under section 56 (1) (a) (b) of the Maharashtra

Police Act. In terms of the proposal submitted by the

Nanalpeth Police Station, Parbhani, the show cause

notice as aforesaid has been issued to the petitioner by

referring four crimes registered against him. In

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response to the said notice, the petitioner has appeared

before the authority and submitted his say.

4. By order dated 15.2.2021, after giving an

opportunity of being heard to both the sides, the Sub-

Divisional Magistrate, Parbhani Sub Division, District

Parbhani has rejected the proposal of the externment.

5. Being aggrieved by the said order dated 15.2.2021

passed by the Sub Divisional Magistrate, Sub Division

Parbhani, District Parbhani, the police station

Nanalpeth has preferred an appeal under section 60 of

the Maharashtra Police Act before the Divisional

Commissioner, at Aurangabad. After hearing both the

sides, the learned Divisional Commissioner, Aurangabad

by the impugned order dated 30.8.2021 allowed the

appeal and thereby externed the petitioner for a period

of one year from the date of judgment from Parbhani

Taluka. Hence, this writ petition.

6. Learned counsel for the petitioner submits that so

far as the crimes/cases at serial numbers 1 and 2 as

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referred in the externment order i.e. crime no.182 of

2010 and crime no.2 of 2015 are not only stale

prosecution but also attained the fnality. Learned

counsel submits that, in crime no.182 of 2010 summary

report was fled, whereas in crime no.2 of 2015 criminal

Court has passed the judgment and order of acquittal.

Learned counsel submits that so far as the cases at

serial numbers 3 and 4 which are of the year 2019 and

2020 are concerned, those cases are pending the trial

and material against the petitioner in those cases is

extremely scanty. Learned counsel submits that though

the learned Divisional Commissioner, Aurangabad has

observed in the impugned judgment and order that

acquittal on account of the hostility of the witnesses

cannot be used in favour of the externee in the

externment proceedings, however, the learned Divisional

Commissioner has failed to consider the other grounds

of rejection of the proposal.

7. Learned counsel for the petitioner submits that

while rejecting the proposal of externment, the Sub-

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Divisional Magistrate, Parbhani, has arrived at a

subjective satisfaction and also taken into consideration

the statutory requirements necessary for the purpose of

externment in terms of the provisions of section 56 (1)(a)

(b) of the Maharashtra Police Act. On the other hand,

the Divisional Commissioner, Aurangabad has taken an

objective overview and theoretical approach while

considering the appeal.

8. Learned counsel for the petitioner submits that

the petitioner is only 32 years of age and recently

married. There is no history of continuous movements

or acts of the petitioner causing or calculated to cause

alarm, danger or harm to a person or a property and

there are no reasonable grounds for believing that the

petitioner is continuously engaged in the commission of

an offence involving the force or violence. Learned

counsel for the petitioner submits that writ petition

deserves to be allowed by quashing and setting aside the

impugned order passed by the learned Divisional

Commissioner, Aurangabad.

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9. Learned APP has supported the impugned order

passed by the Divisional Commissioner, Aurangabad.

Learned APP submits that the Divisional Commissioner

has taken into consideration the entire material and on

the basis of the subjective satisfaction and after

application of the mind passed the impugned order.

Learned APP submits that the learned Divisional

Commissioner has rightly observed that, if the petitioner

is acquitted in connection with the case at serial no.2

for the sole reason that the complainant and informant

in that case have turned hostile and, as such, said order

of acquittal is not helpful for the petitioner. Learned

APP submits that, there are two in-camera statements

of the witnesses, who have not come forward to lodge

the complaint against the petitioner due to his terror in

the society. Learned APP submits that the Divisional

Commissioner has rightly observed about the movement

of the petitioner causing alarm, danger to the person or

the property and further the petitioner is engaged in the

commission of offence involving the force or violence.

On the other hand, the learned APP submits that the

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Sub-Divisional Magistrate, Sub-Division, Parbhani has

not considered the same. The learned APP submits that

the petitioner is facing trial for serious offences like

murder and so also the other cases showing his

involvement in the commission of an offence of force and

violence and an offence punishable under Chapter XII,

XVI and XVII of the IPC. The learned APP submits that

there is no substance in this criminal writ petition and

the writ petition is liable to be dismissed.

10. We have also heard the learned counsel appearing

for the petitioner and the learned APP for the

respondent State. With their able assistance, we have

perused the pleadings in the petition, annexures

thereto. We have also perused the original record made

available by the learned APP.

11. Upon careful reading of the entire pleadings and

perusal of the original record, show cause notice and

also the impugned order and the case history, we are of

the considered opinion that there is no substance in

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this writ petition and the same is thus liable to be

dismissed.

12. So far as the crime at serial no.1 bearing crime

no.182 of 2010 is concerned, though, it has been

submitted by the petitioner in his say before the Sub-

Divisional Magistrate, Sub-Division, Parbhani that the

police has submitted the 'B' summary report, however,

in the entire record, we do not fnd any order of the

Magistrate accepting said 'B' Summary. Even, assuming

that 'B' summary has been submitted, however, as per

the allegations made in the FIR of Crime no.182 of 2010,

it appears that on 14.10.2010 at about 17.30 hours,

present petitioner has demanded certain subscription to

the complainant and on his refusal not only extended

beating to him with the help of iron rod, but also

snatched his golden chain and cash amount worth

Rs.31,300/-.

We have perused the judgment and order passed

in Sessions Trial No.84 of 2015 which is in connection

with the crime no.2 of 2015, referred in serial no.2. The

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incident allegedly taken place on 2.1.2015. The

complainant in the said case when noticed at about

11.45 p.m. to 12.00 midnight, the accused persons

including the petitioner watching through the windows

of their house and when the complainant objected the

same, the complainant and his son were subjected

ruthlessly beating with the help of iron rod, wooden log,

fst and kick blows. Accused persons including the

petitioner came to be tried by the Sessions Court for the

offence punishable under sections 307, 326, 324, 143,

147, 148, 149, of IPC and Section 135 of the

Maharashtra Police Act. The learned Additional Sessions

Judge-3, Parbhani by judgment and order dated

7.2.2019 has acquitted all the accused persons with the

observations in one paragraph that neither the

informant Ashok Tapke (PW-1) nor injured Gajendra

Tapke (PW-2) have supported the prosecution. The

learned Additional Sessions Judge, Parbhani has

observed that the accused and informant resides in the

same lane and this must be the reason for the witnesses

to refrain from stating anything against the accused.

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We agree with the observations made by the learned

Divisional Commissioner, Aurangabad that the

petitioner cannot be permitted to take advantage of the

said acquittal especially which has followed the

witnesses turning hostile.

. So far as the crime at serial no.3 is concerned

bearing crime no.152 of 2019, the same has been

registered in Kotwali Police Station for the offence

punishable under sections 302, 341, 323, 324, 143, 147,

148, 149 of IPC. On perusal of the FIR, it appears that

name of the petitioner is mentioned in the FIR with the

specifc allegations that he was the Member of an

unlawful assembly and in prosecution of the common

unlawful object of the said assembly, deceased Amol

was assaulted due to the dispute about displaying the

banner. Deceased Amol was beaten with the help of

bricks, iron rod, Jamiya (big knife) sticks, etc. Said case

is pending before the Sessions Trial/Court.

13. The case at serial no.4 bearing crime no.349 of

2020 is for the offence punishable under section 452,

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143, 147, 148, 149, 324, 323, 504 of IPC registered at

Nanalpeth Police Station, Parbhani. We are unable to

understand as to how the Sub-Divisional Magistrate,

Parbhani has made the observations that the petitioner

has not committed any serious offence after 2019.

14. In addition to this, there are two in-camera

statements. Incident of the frst in-camera statements

allegedly occurred some one and half months back

before externment proceedings. The complainant was

proceeding on motorcycle. He was obstructed. he was

made aware that said area belongs to the petitioner, who

is popularly known as Sandy. It has been alleged that

at that time, the petitioner has removed and snatched

an amount of Rs.5,00/- from his pocket on the point of

Gupti. He threatened to kill if the incident is reported to

the police.

So far as second in-camera statement is

concerned, wherein the complainant was proceeding on

foot, however, at that time some 4-5 persons were

consuming beer in the open space. Thus, the

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complainant was obstructed by them and further

informed that this area belongs to the petitioner, who is

popularly known as Sandy. Further, understanding was

also given to him that the petitioner has recently

committed the murder. He was extended beating. The

petitioner has snatched cash amount of Rs.1100/- from

him on the point of knife.

15. On perusal of the impugned order, we fnd that the

learned Divisional Commissioner, Aurangabad has

applied the mind to the material placed on record. The

impugned order discloses that subjective satisfaction

has been reached by considering the material available

on record. The order of externment need not necessarily

refer to the details of the materials, however, it appears

that the learned Divisional Commissioner, Aurangabad

has rightly considered the need for and extent of the

externment to be ordered. The learned Divisional

Commissioner, Aurangabad has very reasonably

externed the petitioner for a period of one year from

Parbhani Taluka only.

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16. In view of the same, we fnd no substance in this

criminal writ petition. Hence, following order.

ORDER

i. Criminal writ petition is hereby dismissed.

ii. The impugned judgment and order dated 30.8.2021 passed by the Divisional Commissioner, Aurangabad in Externment Proceeding No. 2021/MAG/Ext./CR [O.No.2021/SaPra/Kaksha-1/Poll-1/Haddapar /CR-20] thereby externing the petitioner from Parbhani Taluka stands confrmed.

iii. Criminal writ petition is accordingly disposed off.

( SANDIPKUMAR C. MORE, J. ) ( V.K. JADHAV, J. ) ...

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