Bombay High Court
Rohan Randhir Kanjar vs The State Of Maharashtra Thr. Sub ... on 4 February, 2025
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2025:BHC-NAG:1061-DB
1 wp757.2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.757/2024
Rohan Randhir Kanjar,
aged about 26 Yrs., Occ. Labour,
R/o Jalnagar Ward, Chandrapur. ... Petitioner
- Versus -
1. State of Maharashtra,
through Sub-Divisional
Magistrate, Chandrapur.
2. PSO PS Ramnagar,
Chandrapur. ... Respondents
-----------------
Mr. M.N. Ali, Advocate for the petitioner.
Mr. A.B. Badar, A.P.P. for respondent Nos.1 and 2.
----------------
CORAM: NITIN W. SAMBRE & MRS.VRUSHALI V. JOSHI, JJ.
DATE OF RESERVING THE JUDGMENT: 20.1.2025.
DATE OF PRONOUNCING THE JUDGMENT: 4.2.2025.
JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)
Rule. Rule made returnable forthwith. Heard finally
with the consent of learned Advocates for the parties.
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2. The petitioner is challenging the order of externment
dated 29.7.2024 passed by respondent No.1/Sub-Divisional
Magistrate, Chandrapur externing him from Chandrapur District
for a period of one year.
3. The learned Advocate for the petitioner took us
through the record and invited our attention to the contents of
the show cause notice issued by respondent No.1/Sub-Divisional
Magistrate dated 13.5.2024 and submitted that in the said notice
there is no whisper about recording of in-camera statements by
respondent No.1 so as to arrive at the subjective satisfaction that
due to apprehension of fear in the minds of witnesses they are not
coming forward in public to depose against the petitioner. He
submits that on the said ground alone, the entire proceedings
initiated by respondent No.2 stands vitiated.
4. Another ground raised by the petitioner is that the
offences which are considered by the authority since 2018 to
2023 are stale offences along with prohibitory action dated
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23.6.2023 by respondent No.1 while passing the externment
order dated 29.7.2024. There is a delay in passing the order and
there is no live link between the last offence and the order of
externment passed by respondent No.1. Therefore, the
externment order is passed on the basis of stale material and no
subjective satisfaction has been arrived at by the authority.
5. The learned Advocate for the petitioner has stated
that on the above grounds, the entire proceedings initiated by
respondent No.2 stands vitiated. Inasmuch as the requirement of
provisions of Section 56(1) of the Maharashtra Police Act is
concerned, it contemplates that the competent authority, who has
initiated the externment proceedings, shall make a reference
about the in-camera statements recorded and the gist of the
version stated by these witnesses in the show cause notice. The
learned Advocate for the petitioner has submitted that in the first
place, neither there is a reference of recording of in-camera
statements in the show cause notice nor there is a detailed
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reference or the gist of the allegations stated by the said witnesses
in the show cause notice issued by respondent No.1.
6. Learned A.P.P. relying upon the original record and
also notice issued by the Sub-Divisional Police Officer,
Chandrapur submits that there was a reference in the notice dated
8.11.2023 that the Sub-Divisional Police Officer has issued a
show cause notice under Section 59 of the Maharashtra Police Act
to the petitioner by mentioning all the details in respect of
a crime chart and confidential statements. Hence on 29.1.2024
the petitioner appeared before the Sub-Divisional Police Officer
through his Advocate and submitted his say and he was also given
an opportunity of hearing and after considering all the material
including a crime chart, confidential statements and one
preventive action taken against the petitioner, the authority came
to the conclusion that due to acts of the petitioner the people are
feeling insecure and there is a threat to their life and property.
Therefore, respondent No.1 has rightly passed the order externing
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the petitioner. Hence he submitted that the petition is devoid of
any merit and the same be dismissed.
7. We have gone through the submissions of the learned
Advocate for the petitioner and the learned A.P.P. appearing for
respondent Nos.1 and 2. With their able assistance, we have
perused the grounds taken in the petition and the reasons
assigned by respondent No.1 while passing the impugned order of
externment.
8. On perusal of the contents of show cause notice
which was issued by respondent No.1 to the petitioner on
13.5.2024, there is no mention of in-camera statements of
witnesses recorded by respondent No.1. The contention of the
learned A.P.P. for respondent Nos.1 and 2 is that in the notice
issued by the Sub-Divisional Police Officer, Chandrapur there is a
reference to such in-camera statements but surprisingly the notice
dated 8.11.2023 is not placed on record. Learned A.P.P. has not
taken pain to place it on record. In notice dated 13.5.2024, which
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is on record, there is no whisper about recording of the statements
of witnesses. Since the mandate of provisions of Section 56(2) of
the Maharashtra Police Act contemplates that there has to be a
specific reference of such in-camera statements in show cause
notice issued to an externee so as to enable him to file his reply to
put-forth his contentions to such a notice. Even upon careful
perusal of discussion in the impugned order passed by respondent
No.1, we find that there is only a passing reference about
recording of in-camera statements by the Sub-Divisional Police
Officer.
9. The Hon'ble Apex Court in case of Pandharinath
Shridhar V/s. Deputy Commissioner of Police reported in AIR
1973 SC 630 has observed that it is necessary to make a reference
of in-camera statements and gist of such statements so as enable
the proposed externee to reply to the show cause notice. The
issue raised in this petition is covered by the authoritative
pronouncement in the case of Yashwant Damodar Patil V/s.
Hemant Karkare, Deputy Commissioner of Police, Thane and
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another reported in 1989 Mh.L.J. 1111. In Yashwant Damodar
Patil (supra) the following observations are made in para Nos.3
and 11:-
"3. Section 56(1) of the Bombay Police Act visualises
three situations in which the order of externment could
be passed by the designated officer. We will, however,
ignore, for the purpose of the disposal of this petition,
the third type of situation and only analyse the two
situations which are covered by clauses (a) and (b) of
section 56 (1) of the Act. An order of externment can be
passed against a person whose movement or acts are
causing or calculated to cause alarm, danger or harm to
person or property. That is what is provided in clause (a).
The order of externment can also be passed against a
person if there are reasonable grounds for believing that
such a person is engaged or is about to be engaged in the
commission of an offence involving force or violence. It
is so provided in the first part of clause (b) of section
56(1) of the Act. An order of externment can also be
passed against a person if that person is engaged or about
to be engaged in the commission of an offence
punishable under Chapter XII, or Chapter XVI, or
Chapter XVII of the Indian Penal Code. This is so
provided in the latter part of clause (b) of section 56(1)
of the Act. But it is not enough that these conditions
alone are satisfied. In addition to this, the designated
officer should be of the opinion that 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.
11. Before parting with this judgment, it would not be
inappropriate to mention a couple of facts which we
have noticed while dealing with orders of externment
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passed by the authorities in this part of Maharashtra and
especially by the authorities in Thane District. While
giving notice under section 59 of the Act, the clear
distinction between clause (a) and the first part of clause
(b) of section 56(1) is not always borne in mind. Vague
words mentioning that the petitioner is involved in the
activities causing alarm or danger and also in acts of
violence, etc., are freely used. Though the law does not
require the authorities under the Bombay Police Act to
give the details of the activities of the proposed externee,
it is still necessary, as required by section 59 of the Act,
to give to the proposed externee information about the
general nature of the material allegation against him.
What the general nature of the material allegation
against proposed externee has been explained by the
Supreme Court in Pandharinath Shridhar Vs. Deputy
Commissioner of Police, AIR 1973 SC 630. Some of the
orders of externment have been set aside on the ground
that the allegations against the proposed externee
mentioned in the notices are too vague to enable the
proposed externee to represent against the proposed
orders of externment. It may also be noted that very
often the period during which the prejudicial activities of
the proposed externee are committed is also not
mentioned. In our opinion, this is absolutely necessary
because without the notice of the period with reference
to which action is proposed to be taken, the proposed
externee obviously cannot defend himself properly."
10. In the light of the discussion hereinabove, admittedly
there is no specific reference about recording of in-camera
statements of witnesses by respondent No.1 in the show cause
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notice dated 13.5.2024 and also there is only a passing reference
in the impugned order passed by respondent No.1 about
recording of in-camera statements by the Sub-Divisional Police
Officer.
11. The next ground is that there is a delay in passing the
externment order and there is no live link between the order
passed and the last offence considered while passing the
externment order. In this case, offences since 2018 up to 2023
are considered while passing the externment order. The last
offence was registered in the year 2023. The prohibitory action
was taken on 23.6.2023. Thereafter no offence is registered
against the petitioner. The externment order is passed on
29.7.2024. In view of above factual position, respondent No.1
was required to consider all the material while affirming
subjective satisfaction. Four crimes which were committed in
2018 and 2023 would not be available for consideration against
the petitioner for warranting externment. The crimes committed
against the human body alone are not sufficient to order
10 wp757.2024
externment. There are ways and means to restrict the conduct
and behaviour of a person. Unless and until such resources are
exhausted by all such ways and means, the order of externment, in
our view, would be the last resort which can be invoked. The
show cause notice was issued on 13.5.2024 and the order is
passed on 29.7.2024. The first show cause notice, as per the reply
of the learned A.P.P., was issued on 8.11.2023. There is a delay of
almost 8 months from the date of first notice dated 8.11.2023,
which is not placed on record. Therefore, we are of the view that
based on the stale material, the subjective satisfaction is arrived at
by the authority stands vitiated. This fact would, therefore,
indicate that there was no live link and since the material is found
to be stale, the live link would automatically gets disconnected.
Time taken from the date of recording of statements till the
passing of order would cause dent to the live link thereby not
warranting externment of the petitioner, on the basis of subjective
satisfaction arrived at by respondent No.1.
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12. On perusal of the statements of confidential witnesses
it is seen that the statements are recorded on 25.8.2023 and
verified on 22.2.2024. The limitation though starts from the date
of recording of statements, it is also seen that they are recorded
recently, therefore, there is a delay.
13. Admittedly, there is no reference about recording of
in-camera statements of witnesses by respondent No.1 in show
cause notice dated 13.5.2024 and there is only a passing reference
in the impugned order passed by respondent No.1 about
recording of in-camera statements by the Sub-Divisional Police
Officer. Hence it is clear that the stale offences are considered
while passing the externment order. In the result, writ petition
succeeds. Rule is made absolute in terms of prayer clause (1).
(MRS.VRUSHALI V. JOSHI, J.) (NITIN W. SAMBRE, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PA To Honourable Judge
Date: 04/02/2025 15:47:51
