Bhushan S/O Chandu Pohokar vs The Divisional Commissioner ...
2023 Latest Caselaw 5746 Bom

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

               CRIMINAL WRIT PETITION NO.250 OF 2023

            Bhushan S/o. Chandu Pohokar,
            Aged about 22 Yrs., Occ.: Labour,
            R/o. Mahatma Phule Nagar,
            Amravati, Tq. and Dist. Amravati                                .... PETITIONER

                                       // V E R S U S //

 1          The Divisional Commissioner,
            Amravati Division, Amravati

 2.         Deputy Commissioner of Police,
            Zone-1, Amravati

 3.         Police Station Officer,
            Police Station Gadge Nagar,
            Amravati.                                                   ... RESPONDENTS

  --------------------------------------------------------------------------------------------------
                   Mr. S. B. Gandhe, Advocate for the petitioner
                   Ms M. H. Deshmukh, Advocate for respondents
 --------------------------------------------------------------------------------------------------
                             CORAM : G. A. SANAP, J.

DATE : 19/06/2023

ORAL JUDGMENT :

 1                 Heard.


 2                 Rule. Rule made returnable forthwith. Heard

finally with the consent of learned Advocates for the parties.

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3 In this writ petition, the petitioner has prayed for

quashing the order of externment passed by the respondent

No.2- Deputy Commissioner of Police, Zone-1, Amravati

dated 13.05.2022 and the order in appeal dated 04.11.2022

passed by the respondent No.1-Divisional Commissioner,

Amravati District Amravati. The respondent No.2 initiated

the proceedings for externment of the petitioner from

Amravati District by invoking the provisions of Section 56(1)

(a) & (b) of the Maharashtra Police Act, 1951 (hereinafter

referred to as "the Act of 1951"). The respondent No.2 to

record his subjective satisfaction, relied upon the following

crimes. The said crimes are set out hereinbelow in tabulated

form:

Sr. Police Station Crime Sections Dated Case status No. No.

1. Gadge Nagar 551/2016 341,323 IPC 20/07/2016 Pending in Court

2. Gadge Nagar 341/2017 354(A), 354(D) 27/05/2017 Pending in IPC R/w. S. 8, 12 of POCSO Court

3. Gadge Nagar 07/2018 143, 144, 146, 03/01/2018 Pending in 336, 427, 504 Court of IPC

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4. Gadge Nagar 68/2019 324, 394, 427, 20/01/2019 Pending in 506, 34 of IPC Court

5. Gadge Nagar 886/2019 324 of IPC 25/09/2019 Pending in Court

6. Gadge Nagar 32/2020 324, 34 IPC 08/01/2020 Pending in Court

7. Gadge Nagar 923/2020 324, 504 IPC 19/10/2020 Pending in Court

8. Gadge Nagar 1138/2020 4/25 Arms Act 16/12/2020 Pending in R/w. S. 143 of Court MPA R/w. S.

130(1), 128 of MV Act

9. Gadge Nagar 2345/2021 4/25 Arms Act 27/07/2021 Under police investigation

10. Gadge Nagar 267/2022 452, 504, 506, 04/03/2022 Under police 34 of IPC investigation

PREVENTIVE ACTIONS

Sr. No. Police Station Iste. No. Section Dated

1. Gadge Nagar 15/2019 110(E)(G) of 07/03/2019 Cr.PC

2. Gadge Nagar 391/2019 107, 116 (3) 16/12/2020 of Cr.PC

3. Gadge Nagar 40/2021 110(E)(G) of 11/05/2021 Cr.PC

4 The respondent No.2 conducted necessary

inquiry. He issued a notice to the petitioner on 09.05.2022 to

show cause as to why he should not be externed from the

Amravati District. The respondent No.2, based on the material

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collected, passed the order of externment on 13.05.2022. The

petitioner challenged the said order by filing an appeal before

the respondent No.1. The respondent No.1 vide order dated

04.11.2022, though found certain deficiencies in the order of

externment, dismissed the appeal and confirmed the said

order.

5 I have heard Mr. S. B. Gandhe learned Advocate

for the petitioner and Ms M. H. Deshmukh, learned

Additional Public Prosecutor for the respondents/State.

Perused the record and proceedings.

6 Learned Advocate for the petitioner submitted that

orders passed by the respondent Nos. 1 and 2 cannot be

sustained at all as out of the ten crimes the petitioner was

acquitted by learned trial Court in crimes at Sr Nos.1, 2, 4 and

6. Learned Advocate further submitted that in this case the

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crimes at Sr. Nos. 9 and 10 could not have been taken into

consideration, inasmuch as the said crimes, on the date of the

notice and the order of externment, were under investigation.

Learned Advocate further submitted that the crimes at Sr. Nos.

8 and 9 are for the offences under the Arms Act and under the

Act of 1951 and the crimes at Sr. No. 3, 5 and 7 are for the

offences under the Indian Penal Code. Learned Advocate

submitted that these stale crimes were taken into consideration

to record the subjective satisfaction. Learned Advocate

submitted that these crimes could not have been considered

for recording the subjective satisfaction. There was no live

link between those crimes as well as the externment

proceeding initiated in the year 2022. Learned Advocate

further submitted that the statements were not properly

verified to place reliance on the same. Learned Advocate

further submitted that in the show cause notice dated

09.05.2022 the substance of statement of the witnesses, was

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not stated. The petitioner, therefore, did not get an

opportunity to deal with the show cause notice properly.

Learned Advocate submitted that the petitioner had replied

the notice vide reply notice dated 13.05.2022. Learned

Advocate further submitted that three chapter cases, wherein

the petitioner has executed bonds were taken into

consideration. Learned Advocate submitted that there is no

mention in the orders that the petitioner has committed the

breach of the conditions of the bond for good behaviour

executed by him. Learned Advocate submitted that, therefore,

the live link sought to be established on the basis of remaining

four crimes was completely snapped. Learned Advocate

further submitted that the order of externment from the entire

Amravati District and that too for a period of two years was

excessive. Learned Advocate pointed out that no reasons have

been recorded in the order for warranting the externment of

the petitioner from entire Amravati District and that too for a

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period of two years. Learned Advocate submitted that there

was no objective material to arrive at subjective satisfaction

sought to be asserted by the respondent Nos. 1 and 2 for

passing the externment order. Learned Advocate submitted

that the respondent No.1, the appellate authority, has not dealt

with the aspect of subjective satisfaction arrived at on the basis

of the crimes in which the petitioner was acquitted. Learned

Advocate submitted that the appellate authority apart from

making a mention of this fact in the order was required to

consider the same appropriately. On all these grounds the

learned Advocate submitted that the order of externment

passed by the respondent No.2 and confirmed in appeal by

respondent No.1 deserves to be quashed and set aside.

7 Learned Additional Public Prosecutor for the

respondents submitted that the continuous indulgence in the

commission of serious crimes till the issuance of show cause

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notice weighed with the respondent No. 2 to record the

satisfaction that the movements and acts likely to cause danger

or harm to the person or property. Learned APP on the basis

of the statements of the confidential witnesses submitted that

same are sufficient to form an opinion that the people from

locality are not willing to come forward to give a statement

against the petitioner by reason of apprehension in their mind

with regard to the safety of their person or property. Learned

APP submitted that the crimes registered against the petitioner

under the Indian Penal Code were serious in nature and as

such, sufficient for his externment. Learned APP further

submitted that the statements of the confidential witnesses

were duly verified. Learned APP submitted that even if it is

assumed that the few crimes in which the petitioner was

acquitted were taken into consideration, the same could not be

the basis to discard the remaining crimes. Learned APP

submitted that remaining crimes registered against the

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petitioner and relied upon by the respondents are sufficient to

justify the order.

8 In order to appreciate the rival submissions I have

gone through the record and proceedings and also the

provisions of Section 56(1)(a) & (b) of the Act of 1951. The

record of externment proceeding has been placed on record. I

have gone through the same. The externment order was passed

by relying upon the provisions of Section 56 of the Act of

1951. It would be necessary to reproduce the said section.

Section 56 reads thus:

" 56. Removal of person 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

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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 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 other wise 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

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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].

(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 chance 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."

9 It is not out of place to mention that against the

petitioner, the externment order came to be passed by relying

upon clauses (a) and (b) of Section 56 sub-section (1) of the

Act of 1951. The ground under clause (a) provides that the

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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), requires that on the basis of the

material it must be established that there are reasonable

grounds for believing that person sought to be externed 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

abetment of any such offence. The second part of clause (b),

which is required to be read with first part, clearly provides

that the competent authority empowered to pass an order

should form an opinion that the witnesses are not willing to

come forward to give 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, therefore, show that in arriving at subjective

satisfaction as to the grounds, there must be objective material

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on record before the authority and the same must be

considered in accordance with law.

10 Before proceeding to the merits of the arguments,

at this stage, it would be necessary to consider the law laid

down by the Hon'ble Apex Court in the case of Deepak s/o

Laxman Dongre .vs. State of Maharashtra and others 1. In this

case the Hon'ble Supreme Court has considered the decision

in the case of Pandharinath Shridhar Rangnekar .vs. Dy.

Commissioner of Police, State of Maharashtra 2. 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, strict compliance of Section 59 of the Act of

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

externment deprives the citizen of his fundamental right of

free movement throughout the territory of India. The order of 1 2022 ALL.M.R.(Cri.)761(S.C.) 2 (1973) 1 SCC 372

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externment in fact prevents the person even from staying in

his own house along with his family members during

subsistence of the externment order. It is, therefore, held that

the subjective satisfaction must be arrived at on the basis of the

objective material.

11 In order to consider applicability of the proposition

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

through the show cause notice and 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.

12 The important point in this petition is with regard

to the consideration of the crimes in which the petitioner was

acquitted to record the subjective satisfaction. In the notice,

the crimes in which he was acquitted were relied upon. The

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petitioner gave reply notice dated 13.05.2022 to this notice.

In reply notice, he has categorically stated about the crimes in

which he was acquitted. In reply notice, he provided the

particulars of those crimes. The respondent No.2 despite

having knowledge of this fact, on the basis of reply notice,

relied upon those crimes in the externment order to record his

subjective satisfaction. It is further seen that this fact was

specifically pleaded in the appeal memo, before the respondent

No.1. The respondent No.1, though, took note of this fact has

not deliberated upon it in the order. In my view, this is very

vital circumstance in favour of the applicant. In order to justify

the reliance on these crimes, the learned APP submitted that

the respondent No.2 had no reason to know that he was

acquitted in those crimes. In my view, this submission is self-

contradictory to the subjective satisfaction, recorded in the

externment order. This submission would indicate that the

respondent No.2 was not supposed to make an inquiry

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whether the cases are pending or the cases have been disposed

of. It is to be noted that in some of the crimes, the petitioner

was released on bail. The respondent No.2 was, therefore,

required to make a thorough inquiry and that too by perusing

the bail orders in those matters, to come to a definite

conclusion that the activities of the petitioner are in all respect

covered by Section 56(1)(b). The reliance upon the crimes in

which the petitioner was acquitted would indicate that the

inquiry was flawed. It needs to be emphasized that the

subjective satisfaction for passing such an order must be

arrived at on the basis of the objective material. In the present

case, the material, which could not have been taken into

consideration at all, has been stated to be objective material to

arrive at subjective satisfaction. On this ground also the

satisfaction recorded is substantially dented.

13 The next important aspect is with regard to the

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reliance on the statement of the confidential witnesses. The

main grievance of the petitioner is that the substance of the

statement of the confidential witnesses was not set out in the

show cause notice and therefore, the opportunity to effectively

deal with the same was denied to him. In order to satisfy

myself about this aspect I have gone through the statements of

the confidential witnesses and the notice issued by the

respondent No.2. Perusal of the notice would show that the

substance of these statements was not even briefly set out in

the notice. It is seen that those confidential witnesses were

called by Assistant Commissioner of Police on 17.03.2022 for

verification of the statements. The notice dated 15.03.2022 to

that effect is on record. The sealed envelope containing the

statements of the witnesses was opened in the Court at the

time of argument. I have perused those statements. Perusal of

the statements would show that the statements were not

properly verified. It is seen that the substance of the

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verification was written by Senior Police Inspector and verified

by Assistant Commissioner of Police and Deputy

Commissioner of Police. There is no date mentioned below

the signature of Senior Police Inspector and Deputy

Commissioner of Police. The verification of the statements

does not show that either the respondent No.3 or respondent

No. 2 visited the area and verified the correctness of the

statements by making enquiry with the people in that area.

Further perusal of the statements would show that on each

statement there is endorsement 'verified' by the Assistant

Commissioner of police. There is no proper date below this

endorsement. It has not been stated either in the notice or in

the externment order that the respondent No. 2 personally

called the witnesses and verified those statements. In my view,

this exercise cannot be done in a mechanical manner. The

statements of the confidential witnesses in the given set of

facts, in my view, are the most important material to

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substantiate the subjective satisfaction. On this ground also the

satisfaction is flawed.

14 After excluding four crimes in which he was

acquitted, only six crimes at Sr. No. 3, 5, 7, 8, 9 and 10 were

available for being considered by the respondent No.2 to form

an opinion to proceed further against the petitioner under

Section 56 of the Act of 1951. It is to be noted that these

crimes are also stale crimes. The crimes at Sr. No. 9 a nd 10 are

under police investigation. The same could not have been

taken into consideration at all. The crimes at Sr. Nos. 8 and 9

have been registered under the Arms Act and under the Act of

1951. The show cause notice is dated 09.05.2022. The

crimes at Serial Nos. 3, 5, 7 and 8 were registered in the year

2018, 2019 and 2020 respectively. It is, therefore, apparent

that the respondent No.2 took into consideration crimes,

which were registered two years prior to the issuance of notice.

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These crimes apart from being stale crimes for this purpose,

would also not be sufficient to establish the live link for passing

the impugned order. The live link in this case was, therefore,

completely snapped. In my view, therefore, based on these

crimes alone, the order of externment was not at all justified.

15 Perusal of the show cause notice as well as the

order passed by the respondent No.2 would indicate that three

chapter cases under Section 110, 107 and 116 of the Code of

Criminal Procedure, 1971 were initiated against him. At the

conclusion of such proceeding, the party concerned is called

upon by the Executive Magistrate to execute a bond for good

behaviour. The duration of such a bond is normally for a

period of six months. The show cause notice as well as the

order of externment is silent with regard to the execution of

bond for good behavior. The show cause notice as well as the

order is silent on the point whether there was breach of the

undertaking and conditions of the bond executed in those

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proceedings. The bond is executed in the proceeding, which is

of preventive nature. This aspect has not been considered and

appropriately dealt with by respondent Nos.1 and 2.

16 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 ought to 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, the

police officer can arrest him without order from the

Magistrate. It further provides that if it appears to such officer

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that the commission of the offence cannot be otherwise

prevented, the said person can be detained in custody for a

total period of thirty days form the date of arrest of such

person as per the order of the Magistrate. 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 cognizable 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

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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 his

externment.

17 As per the provisions of Section 56 of the Act of

1951, the maximum period of externment is two years. In this

case, the respondent No.2 has ordered externment of the

petitioner from the entire Amravati District for a period of two

years. It is to be noted that this order passed by the respondent

No.2 and confirmed by the respondent No.1 suffers from the

virus of excessiveness. The order of externment apart from

making inroads on the personal liberty guaranteed under the

Constitution of India, makes the said person live separate from

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his family members. Similarly, the externment order can

deprive the said person of his livelihood. In the given case,

depending upon the financial position of the person, it can

make the dependents of the said person to starve. Therefore, in

order to justify the externment for a maximum period of two

years, the Authority is required to consider the objective

material to record subjective satisfaction on all points. In this

case, I am constrained to observe that the order passed by the

respondent No.2 is woefully silent on all these points. The

respondent No.2 has not recorded the reasons to order the

externment of the petitioner for a period of two years and that

too from the entire Amravati District. It is seen on perusal of

the notice and order that all the crimes committed by the

petitioner were within the jurisdiction of Police Stations in

Amravati City. In view of this fact, the respondent No.2 was

expected to record the reasons to warrant externment of the

petitioner outside Amravati District.

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18 In my considered opinion, therefore, the order

passed by the respondent No.2 and confirmed by the

respondent No.1 suffers from the 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 Others 3 and

Bhagwat Dadasaheb Landge and Another Vs. State of

Maharashtra and Others 4, would, therefore, equally apply in

this case. It is to be noted that the excessive nature of the order

on both the counts is one of the factors, which would weigh in

favour of the petitioner. The order of externment, making a

direct inroads on the fundamental right of movement, must,

therefore, pass all the legal tests. In this case, the order passed

by the respondent No.2 and confirmed by the respondent

No.1 do not pass the said test. It is to be noted that the

respondent No.1 despite being confronted with the factual

position vis-a-vis the acquittal of the petitioner in four crimes,

confirmed the said order. Perusal of the order of the 3 2017 ALL.M.R. (cri.)268 4 2020 (5) Mh.L.J. (Cri.)546

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respondent No.1 would show that the respondent No.1 has

recorded factual submissions, but failed to sufficiently deal

with the same. Therefore, in my view, this order is not

sustainable.

19 Accordingly, the writ petition is allowed.

20 The order dated 13.05.2022 passed by the

respondent No.2-Deputy Commissioner of Police, Zone-1

Amravati City externing the petitioner from Amravati District

for a period of two years and the order dated 04.11.2022

passed by the respondent No.2-Divisional Commissioner of

Amravati confirming the said order of externment are quashed

and set aside.

21 Rule is made absolute in above terms. The writ

petition stands disposed of.

( G. A. SANAP, J.) Namrata