Bombay High Court
Shri. Sanjay @Gudeshwar Kashinath Raut vs The State Of Maharashtra Through ... on 18 September, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:10977
-1- 20.WP.523.2024.Judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 523 OF 2024
PETITIONER : Shri Sanjay @ Gudeshwar Kashinath
Raut, Aged about 47 Years, Occ.
Agriculturist, R/o. Virli (Khu.), Post
Itan, Tah. Lakhandur, Dist. Bhandara.
//VERSUS//
RESPONDENTS : 1. State of Maharashtra, through
Secretary, Ministry of Home Affairs
Mantralaya, Mumbai.
2. The Divisional Commissioner, Nagpur
Division, Nagpur, Old Secretariat
Building, Civil Lines, Nagpur.
3. Sub-Divisional Magistrate, Sub
Division Sakoli, Distt. Bhandara.
4. Sub-Divisional Police Officer, Sub
Division, Pauni, Distt. Bhandara.
5. Police Station Officer, Police Station,
Lakhandur, Dist. Bhandara.
**************************************************************
Mr. Bhojraj S. Dhandale, Advocate for the Petitioner.
Ms. S.V. Kolhe, APP for the Respondents.
**************************************************************
CORAM : G. A. SANAP, J.
DATED : 18th SEPTEMBER, 2024.
ORAL JUDGMENT
-2- 20.WP.523.2024.Judgment.odt
. Rule. Rule made returnable forthwith. The petition is
heard finally by the consent of the learned advocates for the parties.
02] In this petition, challenge is to the order passed by
respondent No.2 - Divisional Commissioner dated 22nd April,
2024, whereby respondent No.2 confirmed the order of
respondent No.3 - Sub-Divisional Magistrate dated 16 th January,
2024. Respondent No.3, vide order dated 16th January, 2024, has
ordered the externment of the petitioner out of Bhandara District
w.e.f. 18th January, 2024 for a period of 18 months.
03] Respondent No.3, for the purpose of passing an order,
has placed reliance upon the following offences. All the offences
set out in the chart below:
Sr. Police Crime No. Charge-sheet No. Case status
No. Station & Section
1. Lakhandur 21/2016 & Charge-sheet No.46/2016 dt. Convicted
Section 15.09.2016
376, 450, Case No.28/2016 dt.
506 of IPC 19.09.2016
2. Lakhandur 239/2023 Under
& Section Investigation
354 & 452
of IPC
PROHIBITORY ACTION
-3- 20.WP.523.2024.Judgment.odt
Sr. Police Istegasha No. & Case No. Order
No. Station Section
1. Lakhandur 01/2016 & Section 08/2016 dt. Final Bond Date
110(e)(g) Cr.PC 03.05.2016 18.06.2017
04] The principal challenge to the impugned order is on
the ground that the conviction and sentence has been suspended.
Similarly, it is contended that the second crime registered against
him is false and frivolous. It is further contended that the
conviction was in the year 2019 and, as such, it was stale for the
purpose of invocation of Section 57 of the Maharashtra Police Act,
1951 (for short, "the Act of 1951") against him. The petitioner has
further contended that the proper inquiry was not conducted. The
reasonable opportunity of meeting the material was not offered to
him by respondent No.3.
05] I have heard Mr. Bhojraj S. Dhandale, learned advocate
for the petitioner, and Ms. S.V. Kolhe, learned APP for the
respondents/State. Perused the record and proceedings.
06] Learned advocate for the petitioner took me through
the record and proceedings and submitted that the initial notice
issued by respondent No.3 dated 4th December, 2023 is vague. It is
-4- 20.WP.523.2024.Judgment.odt
pointed out that the notice does not specify that the action
intended to be initiated against him was under Section 57 of the
Act of 1951. The notice does not even reflect the satisfaction for
the initiation of the proceeding. It is pointed out that the subjective
satisfaction in terms of Clause (c) of Section 57(1) of the Act of
1951 was not even whispered in this notice. It is submitted that,
therefore, the opportunity to deal with the proposed action
effectively was not offered, and therefore, the entire proceeding has
been vitiated. Learned advocate further submitted that the order of
externment for a period of 18 months has been passed without
recording the reasons. The order, therefore, suffers from the virus
of excessiveness. The crimes have been registered at Lakhandur
Police Station. Whereas, the order of externment is out of the
entire Bhandara District. It is submitted that respondent No.3 was
under an obligation to record the reasons for passing such an order
having serious consequence.
07] Learned APP, relying upon a decision of the Full
Bench of this Court in the case of Sumit S/o. Ramkrishna
Maraskolhe Vs. Deputy Commissioner of Police, Zone-1, Nagpur
and Another [2019(2) Mh.L.J. (Cri.) 14], submitted that it is not
necessary that all the facts must be set out in the notice in detail. It
-5- 20.WP.523.2024.Judgment.odt
is pointed out that even general averments to put the externee to
sufficient notice of the proposed externment are sufficient
compliance of the provision. The notice should only contain as
much of material allegations stated in general terms as would be
necessary for constituting a sufficient notice contemplated under
Section 59 of the Act of 1951. Learned APP submitted that the
sufficient opportunity has been offered to the petitioner to meet
the action proposed against him. Learned APP further submitted
that the petitioner has not disputed his conviction and sentence. It
is further pointed out that the second offence committed in the
year 2023 is under Chapter XVI and XVII of the Indian Penal
Code, 1860. Learned APP submitted that the subjective
satisfaction recorded by respondent No.3 is on the basis of the
cogent and concrete material placed on record.
08] I have gone through the record and proceedings. It is
undisputed that the order of externment has serious consequences
as far as the externee and his family are concerned. The person
ordered to be externed from a particular area has to live separately
from his family. In this process, the family is bound to get affected
in more than one ways. They are bound to lose their source of
livelihood. Similarly, the order of externment makes a direct inroad
-6- 20.WP.523.2024.Judgment.odt
on the fundamental right of movement guaranteed under the
Constitution of India. The fundamental right of movement cannot
be curtailed without following the due process of law. The
curtailment of the fundamental right must be strictly in accordance
with the provisions of the law. The compliance of the provisions
has to be ensured in letter and spirit, when and wherever the
externment is required. The Full Bench of this Court in the case of
Sumit S/o. Ramkrishna Maraskolhe Vs. Deputy Commissioner of
Police, Zone-1, Nagpur and Another (supra) has held that even a
general statement of the basic averments would suffice the
compliance of Section 59 of the Act of 1951. It is held that the
notice must indicate, in short, the allegations in general terms so as
to put the externee to the notice of the proposed externment on
the grounds stated therein.
09] In this case, the inquiry was conducted by the Sub-
Divisional Officer, Pauni. He submitted his inquiry report to
respondent No.3. Respondent No.3 is the Competent Authority.
On receipt of the inquiry report, respondent No.3 was required to
consider the entire material, and on consideration of the entire
material, was required to form a concrete opinion. Respondent
No.3 was not only required to form a concrete opinion and
-7- 20.WP.523.2024.Judgment.odt
satisfaction but also required to specifically record her satisfaction
in the notice issued to the petitioner. In this case, the notice issued
to the petitioner is dated 4th December, 2023. This notice is the
foundation of the action. The ultimate result of the proceeding
depends upon this notice, which is the foundation of the action.
The issuance of show cause notice could be said to be a mere
formality. The order of externment precedes the notice. The notice
must be such to offer a full and meaningful opportunity to the
externee to meet all the contentions, and more particularly, the
subjective satisfaction, if any, reflected in the notice for the
initiation of the proceeding for curtailment of his fundamental
right. Respondent No.3 was required to form a subjective
satisfaction in terms of the mandatory requirements of Section 57
of the Act of 1951. The action could not be initiated just for the
sake of action. Respondent No.3 was required to record the reasons
to believe that the petitioner was likely to engage himself in the
commission of the offence similar to that for which he was
convicted. The notice issued must not only set out the offences or
materials relied upon but also the reasons to believe that he is likely
again to engage himself in the commission of such an offence.
Unless and until such satisfaction and the reasonable belief has
been recorded in the notice, it could not be said that such a notice
-8- 20.WP.523.2024.Judgment.odt
would offer a reasonable opportunity to the said person to meet the
proposed proceeding in an effective and meaningful manner.
10] In my view, this proceeding can be decided on the basis
of the contents of the notice dated 4 th December, 2023. Perusal of
this notice would show that respondent No.3 did not record her
satisfaction or the reasonable belief on the basis of the material. On
the contrary, the satisfaction recorded in two lines would indicate
that it was nothing but an assumed action under Section 56 of the
Act of 1951. The Officer, passing the order under Section 57 of the
Act of 1951, must rely on the ingredients of the said section. It is
noticed that while passing the externment orders under Sections
55, 56 and 57 of the Act of 1951, the Officers are carrying the
wrong impression that the requirements of all three sections are
identical. The Officers are not understanding the real purport of
the provisions. The action initiated under Section 57 of the Act of
1951 is separate and distinct from an action under Section 56. The
ingredients of both the sections are totally different. It is seen that,
in the notice, all the ingredients of Section 56 have been stated for
the purpose of recording the satisfaction for initiation of the
proceeding. The subjective satisfaction and the reasonable belief,
required to be formed, has nowhere been stated in the notice.
-9- 20.WP.523.2024.Judgment.odt
Therefore, in my view, on this ground alone, this action cannot be
sustained.
11] It is further seen that respondent No.3 has not
recorded the reasons for the externment of the petitioner out of the
entire Bhandara District and that too for a period of 18 months. As
stated above, the order of externment curtails the fundamental
right of the person guaranteed under the Constitution of India.
The fundamental right cannot be curtailed without following the
due process of law. The two crimes, which have been relied upon,
were registered at Lakhandur Police Station. The externment is out
of the entire Bhandara District. In this backdrop, respondent No.3
was required to record the reasons warranting his externment out
of the entire Bhandara District. Similarly, the reasons for his
externment for 18 months have also not been recorded. The order,
which has been passed without recording the reasons, indicates the
non-application of mind. The subjective satisfaction arrived at on
any count without application of mind cannot be sustained.
12] In the facts and circumstances, I am of the view that
the notice lacks even the basic requirements of Section 57 of the
Act of 1951. It could not be said, on perusal of this notice, that the
-10- 20.WP.523.2024.Judgment.odt
allegations are even general in nature. As such, the orders are liable
to be set aside.
13] Accordingly, the writ petition is allowed.
i] The order dated 16th January, 2024, passed by
respondent No.3, externing the petitioner out of the entire
Bhandara District for a period of 18 months, and the order dated
22nd April, 2024, passed by respondent No.2, confirming the said
order of externment, are quashed and set aside.
ii] Rule is made absolute in the aforesaid terms. The
petition stands disposed of.
(G. A. SANAP, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 01/10/2024 19:49:14
