Bombay High Court

Sachin @ Sambhaji Nanasaheb Chaugule vs The State Of Maharashtra And Others on 11 December, 2023

Author: R.G. Avachat

Bench: R.G. Avachat

2023:BHC-AUG:27345-DB
                                                                    Cri.W.P.No.1540/2023
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                        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                      BENCH AT AURANGABAD


                            CRIMINAL WRIT PETITION NO.1540 OF 2023



                 Sachin @ Sambhaji Nanasaheb Chaugule
                 Age 43 years, Occu. Automobile Battery
                 Dealer, R/o Asasne Vasti, Shirdi Sakuri
                 Shiv Road, At Shirdi, Tq. Rahata,
                 District Ahmednagar                     ... PETITIONER

                        VERSUS

                 1)     The State of Maharashtra
                        through the Principal Secretary,
                        Home Department,
                        Mantralaya, Bombay - 32
                        (Copy to be served on Public
                        Prosecutor, High Court of
                        Bombay, Bench at Aurangabad)

                 2)     The Sub-Divisional Police Officer (SDPO),
                        Shirdi Division, Shirdi,
                        Tq. Rahata, Dist. Ahmednagar.

                 3)     Sub-Divisional Magistrate,
                        Shirdi, At Shirdi, Tq. Rahata,
                        Dist. Ahmednagar

                 4)     The Hon'ble Minister for Revenue &
                        Dairy, Mantralaya, Bombay - 32     ... RESPONDENTS

                                                  .......
                 Mr. V.R. Dhorde, Advocate with
                 Mr. S.P. Nimbalkar, Advocate for petitioner
                 Mr. A.R. Kale, A.P.P. for respondents - State
                                                  .......


                                     CORAM :      R.G. AVACHAT AND
                                                  SANJAY A. DESHMUKH, JJ.

                                     DATE     :   11th DECEMBER, 2023
                                                   Cri.W.P.No.1540/2023
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ORAL JUDGMENT (PER SANJAY A. DESHMUKH, J.) :

This Writ Petition is directed against the show-cause-

notice dated 15/7/2023, issued by learned Sub-Divisional

Magistrate, Shirdi Sub-Division, District Ahmednagar under Section

56(1)(A)(B) of the Maharashtra Police Act, for taking necessary

action for externment of the petitioner for a period of two years from

Ahmednagar, Nasik, Aurangabad and Pune districts.

2. Learned counsel for the petitioner pointed out that,

earlier a similar show-cause-notice dated 15/7/2022 was issued to

the petitioner, in which three crimes bearing (1) N.C. No.376/2016

for offence punishable under Section 427 of the Indian Penal Code,

1860 (for short IPC) (2) C.R. No.59/2017 for the offence punishable

under Sections 143, 147, 341, 427 read with 34 of the IPC, and

Section 7 of the Criminal Law Amendment Act and (3) Chapter

Case No.53/2017 under Section 110(a), (g) of the Code of Criminal

Procedure, 1973 (for short Cr.P.C.) were considered and lastly it

was held that the petitioner cannot be externed. The learned

counsel further pointed out the impugned show-cause-notice dated

15/7/2023, in which those three crimes as well as two more Crimes

bearing (1) C.R. No.234/2018 for the offence punishable under

Sections 143, 145, 147, 148, 149 of the IPC and Section 37(1)(3) of

the Maharashtra Police Act and (2) C.R. No.398/2023 for the

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offence punishable under Sections 353, 323, 143, 147, 149 of the

IPC are considered. From the cases arising out of C.R.

Nos.173/2018, 160/2018, 176/2018 and 234/2018 the petitioner is

acquitted. Learned counsel for the petitioner pointed out that, C.R.

No.398/2023, which is registered about the incident dated

26/8/2022, the alleged crime is registered after four months, which

is relied upon while issuing a show-cause-notice. Learned counsel

further pointed out statements of secret witnesses who are referred

it in the show-cause-notice at Pages 51 and 52 of the Paper Book

that they have not specifically stated the date and time as to when

the petitioner threatened them. Lastly the learned counsel for the

petitioner submitted that the action of issuing of notice by the

respondent No.2 is malicious, illegal and unsustainable. He,

therefore, prayed to quash the impugned show-cause-notice. In

support of his contentions, he is relying upon the following

authorities :-

(1) Dnyaneshwar s/o Sopan Gite Vs. State of Maharashtra 2020 All M.R. (Cri) 3353, in which it is held that there must be material to justify the application of Section 56 of the Act.

(2) Asif Gulam Rasool Patel Vs. R.B. Gavit & anr.

2000 All M.R. 942, in which law is laid down by this Court that if there is no material to establish proximity in the commission of earlier crime and issuance of notice under Section 59 of the Maharashtra Police Act, 1950, it has to be quashed.

3. Learned A.P.P. for the State strongly opposed the

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application and pointed out the affidavit-in-reply and the grounds

that equally efficacious remedy of appeal to the Divisional

Commissioner under Section 60 of the Maharashtra Police Act is

available. He submitted that, the question of law and order was on

anvil, hence the legal action of issuing the show-cause-notice is

taken. The notice contains all the reasons with supportive material.

He submitted to dismiss the Writ Petition.

4. Perused the impugned notice and the documents relied

upon by the both sides.

5. Section 56 of the Maharashtra Police Act reads as

under :

"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

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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 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 to the community as defined in the Explanation to sub-section (1) of Section 3 of the Prevention of Blackmarketing 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 otherwise as he 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 area or areas specified (hereinafter referred to as "the specified area or

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areas") from which he was directed to remove himself.

(2) An officer directing any person under sub-

section (1) to remove himself from any specified area or areas in the State may further direct such person that during the period the order made against him is in force, as and when he resides in any other areas in the State, he shall report his place of residence to the officer in-charge of the nearest police station once in every month, even if there be no change in his address. The said officer may also direct that, during the said period, as and when he goes away from the State, he shall, within ten days from the date of his departure from the State send a report in writing to the said officer, either by post or otherwise, of the date of his departure, and as and when he comes back to the State he shall, within ten days, from the date of his arrival in the State, report the date of his arrival to the officer in-charge of the police station nearest to the place where he may be staying."

6. Sub-clause (b) of Section 56 of the Act requires that

there must be reasonable grounds for believing that prospective

defence 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 etc. of the IPC.

7. In this case, the earlier notice is compared with the

impugned notice, then it reveals that, those three crimes were also

considered while issuing the impugned notice. Admittedly, the

petitioner is acquitted from Crime Nos.160/2018, 176/2018 and

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234/2018 of Shirdi Police Station. The last crime which is relied

upon by the respondent No.2 was registered about the incident

which had taken place on 26/8/2022, of which the crime was

registered in the year 2023. Thus, the notice does not establish

proximity of crimes with the proposed detention action According to

that crime, it is alleged that, the petitioner along with his colleague

went to the gate of Saibaba temple and entered into the queue of

the persons standing for Darshan forcefully and obstruction was

caused to the public.

8. The statements of confidential witnesses are vague in

nature and not specific as to when the petitioner had threatened

them. On such insufficient material against this petitioner, the

respondent No.2 arrived at a conclusion to issue the show-cause-

notice for action of externment. Those allegations are not

establishing the essential ingredients of Section 56(b) of the

Maharashtra Police Act.

9. Considering the ratio laid down in the case of

Dnyaneshwar Gite (supra), the Writ Petition is maintainable against

impugned notice even though equally efficacious remedy is

available under Section 60 of the Maharashtra Police Act.

Therefore, the arguments of learned A.P.P. is not acceptable in this