Bombay High Court
Akash Laxman Reel vs The State Of Maharashtra And Others on 5 December, 2023
2023:BHC-AUG:25348
WP-1267-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1267 OF 2023
Akash Laxman Reel
Age-26, Occ- Safai Karmchari,
R/o Nagar, Raver,
Tq. Raver and Dist. Jalgaon ...Petitioner
Versus
1. The State of Maharashtra
2. Divisional Commissioner of
Police, Nashik, Commissioner
Office, Jail Road, Nashik
Tal and Dist. Nashik
3. Sub Divisional Police Officer,
Sub Division Office, Faizpur,
Tal Raver & Dist. Jalgaon.
4. Sub Divisional Magistrate,
Sub Division Office, Faizpur,
Tal Raver & Dist. Jalgaon.
5. The Police Inspector of Raver
Police Station, Tq. Raver,
Dist. Jalgaon. ...Respondents
***
Mr. N. R. Shaikh, Advocate for Petitioner.
Mr. N. B. Patil, APP for Respondents.
***
CORAM : R.M. JOSHI, J.
RESERVED ON : DECEMBER 01, 2023
PRONOUNCED ON : DECEMBER 05, 2023
JUDGMENT
1. Rule. Rule made returnable forthwith. With
consent, heard finally.
2. This Petition takes exception to the order of
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externment of Petitioner in Externment Case No. 03/2023
which order is modified in Externment Appeal No.
48/2023 vide order dated 12.07.2023.
issued externment order under Section 56(1)(a)(b) of
the Bombay Police Act, 1951 (for short 'said Act') on
23.03.2023 whereby the Petitioner is externed from
Districts Jalgaon, Buldhana, Dhule, Nashik and
Aurangabad in the State of Maharashtra and from
Districts Khargon and Burhanpur in State of Madhya
Pradesh and 100 kms radius from Raver City. Petitioner
takes exception to the said order by preferring Appeal
under Section 60 of the said Act by filing Appeal No.
48/2023 before the Divisional Commissioner of Police,
Nashik. The said appeal came to be partly allowed,
whereby order of externment is maintained to the extent
of Raver City for period of two years.
4. It is the case of the Petitioner that
externment proposal was forwarded on the basis of five
criminal cases i.e., Crime No. 06/2021 for offence
under Section 399 of IPC, Crime No. 331/2022 under
Section 188 IPC, Crime No. 368/2022 under Sections 384,
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385, 342, 102-B, 323, 506 IPC and Crime No. 97/2017 of
Bombay Prohibition Act. It is also claimed therein that
NC complaint bearing no. 600/2022 for the offence under
Section 504, 506, 510 of IPC and three preventive
actions were taken against him. Petitioner replied
notice. According to him, order of externment is passed
on surmises and conjectures and the same is not tenable
in the eyes of law. He claims that in Crime Nos.
97/2017 and 331/2022 he is already acquitted and hence,
in any case, the said crimes could not become basis for
passing order of externment. It is claimed that the
only alleged serious offence pending against Petitioner
is Crime No. 368/2022 under Section 384 of IPC, which
is registered against him by his neighbour who is
running illegal gambling den. It is claimed by the
Petitioner that the order of externment is harsh and
excessive and without recording reasons for extending
the same for two years.
5. Learned Counsel for the Petitioner submitted
that except for one crime i.e., Crime No. 368/2023
registered with Raver Police Station, there is no other
offence which could be considered for the purpose of
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externment of the Petitioner. It is submitted that
except for the Raver Police Station, there is no
offence registered against him in any other police
station and as such, the order of externment from five
districts in State of Maharashtra and two districts in
State of Madhya Pradesh is not justified. It is also
submitted that the alleged confidential statements of
witnesses were not provided to the Petitioner in order
to enable him to meet the same. According to him, in
notice under Section 56(1)(a) of the said Act there is
no allegation about any confidential statements being
recorded. In order to support his submissions he placed
on the judgments of this Court in case of Paramjitsingh
@ Jentil Sardar Vs. State of Maharashtra and Ors, 2023
ALL MR(Cri) 1284 and Sheikh Munnu Sheikh Salim Vs.
Divisional Commissioner, Amravati Division and Ors,
2023(1) Bom C.R. (Cri) 815.
6. Learned APP opposed the Petition by contending
that it is within the jurisdiction of the concerned
authority to initiate externment proceedings under
Section 56 of the said Act and as such, there is no
jurisdictional error committed by the said authority.
WP-1267-2023.odt
By filing affidavit-in-reply it is pointed out that the
crimes mentioned in the notice are sufficient in order
to invoke the said provisions. It is submitted that the
confidential statements recorded of the witnesses
indicate that there is terror of present Petitioner and
hence, the order of externment for two years is
justified.
7. In order to appreciate the submissions made
across the bar and before considering factual matrix of
the present case, it would be relevant to take into
consideration the scope of judicial interference in the
matters of administrative decision such as the decision
in the present case of externment of the Petitioner in
exercise of powers Section 56(1) of the said Act. In
case of Deepak Laxman Dongre Vs. State of Maharashtra
and Others, AIR 2022 SC 1241 the Hon'ble the Apex Court
has laid down guidelines for deciding Petitions
challenging order of externment passed by competent
authority. It is held that for invoking the said
provisions there must be objective material on record
on the basis of which competent authority must record
its subjective satisfaction. It is further observed
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that in a given case even if multiple offences have
been registered against an individual that by itself is
not sufficient to pass an order of externment.
Moreover, there must be satisfying material on record
to indicate the reasonable apprehension of the
witnesses of their safety and for that reason they are
not coming forward to give statement against the
externee.
8. In case of State of NCT of Delhi Vs. Sanjeev @
Bitto, 2005, DGLS (SC) 320, it is held that the Courts
will be slow in interfering in the matters relating to
administrative functions unless decision is tainted by
any vulnerability like illegality, irrationality and
procedural impropriety. Keeping in mind the guidelines
laid down by the Hon'ble Apex Court, impugned orders
are considered in the facts and circumstances of the
case.
9. There is no dispute about the fact that there
were four offences registered against Petitioner at
Police Station, Raver. Though in the order of
externment it is observed that Crime Nos. 331 of 2022
and 97 of 2017 are subjudice, however undeniably the
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Petitioner was already acquitted in those crimes. Thus,
only two offences being Crime Nos. 06/2021 and 368/2022
remains for consideration for the purpose of
justification of order of externment. Crime No. 06/2021
is for offence under Section 399 of IPC wherein
involvement of the Petitioner is sought in the crime on
the basis of statement of co-accused. Undisputedly,
Petitioner was not accosted at the spot. Thus, the only
offence which could have been taken into consideration
by the competent authority for the purpose of taking
decision in respect of exterment of the Petitioner is
offence being Crime No. 368/2022.
10. Perusal of the impugned order shows that
statements were recorded of the witnesses who claims
fear in their mind of the petitioner and therefore,
they are not wiling to come forward to record their
statement. In this regard, it is pertinent to note that
one statement pertains to the incident dated 09.12.2022
in respect of incident occurred in a public procession
taken out at Raver. The witness claims that the
Petitioner came and manhandled and abused him. If such
incident has occurred in a procession attended by
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people at large, there has to be police
bandobast/permission for such procession and presence
of the police is not excluded. There is no
corroborating statement recorded in order to ascertain
correctness of the incident mentioned by the witness.
Apart from this, statement of another witness speaks
about the Petitioner while drunk has threatened him. As
rightly argued on behalf of Petitioner, this statement
by no stretch of imagination would be sufficient to
hold that out of fear and terror of the Petitioner the
witnesses are not coming forward to record their
statements.
11. Perusal of order dated 23.03.2023 externing
the Petitioner shows that in order to protect the life
and property of the people in Taluka Raver, the order
is essential, however, in the operative part, the
Petitioner is externed from five districts of State of
Maharashtra and two districts of State of Madhya
Pradesh or 100 radius air kms distance from Raver. In
order to pass said order there is absolutely no
explanation is given. The order passed by concerned
authority indicates pre-meditation and bias.
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12. The Appellate Authority though has interfered
into the order passed by competent authority and
maintained the order of externment to the extent of tq.
Raver, the said order of externment is for the maximum
period of two years. The Appellate Authority while
passing impugned order has observed that competent
authority while externing the Petitioner for the period
of two years from number of districts has not recorded
reasons, however, for the purpose of upholding the
period of externment of two years even from Tq. Raver,
no reason is recorded by the Appellate Authority.
13. Hon'ble Apex Court in case of Deepak (cited
supra) has held that for the purpose of externment of
any individual for the maximum period of two years, the
reasons must be recorded. The order passed by the
Appellate Authority even for the externment of the
Petitioner for period of two years sans any reasoning.
Hence, even the said order is not sustainable.
14. In the light of above discussion, orders
impugned cannot sustain. The Petition, therefore,
deserves to be allowed. Resultantly, order dated
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23.03.2023 passed by Sub-Divisional Magistrate, Faijpur
Division, Faijpur in Externment Case No. 03/2023 and
order dated 12.07.2023 passed by Divisional
Commissioner, Nashik Division, Nashik in Externment
Appeal No. 48/2023 are hereby quashed and set aside.
15. Petition stands allowed in terms of prayer
clause 'a'. Rule made absolute in above terms.
(R.M. JOSHI, J.)
Malani
Signed by: Umesh Shriniwas Malani
Designation: PA To Honourable Judge
Date: 05/12/2023 18:35:20
