Bombay High Court
Santosh @ Raju Vishwanath Zalte vs The State Of Maharashtra And Others on 31 January, 2025
2025:BHC-AUG:2749
(1) 939 cri wp 1951.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1951 OF 2024
Santosh @ Raju s/o Vishwanath Zalte,
Age 38 years, Occ : Nil,
R/o : High Court Colony, Satara Parisar,
Chhatrapati Sambhaji nagar.
Chennai. (Tamil Nadu). ... PETITIONER
V/s.
1. The State of Maharashtra
2. The Divisional Commissioner,
Aurangabad.
3. The Deputy Police Commissioner,
Zone-1 and the Special Executive
Magistrate, Aurangabad.
4. The Assistant Police Commissioner
Commissioner Office, Aurangabad.
5. The Senior Police Inspector,
Waluj M.I.D.C. Police Station,
Taluka & District Aurangabad. ... RESPONDENTS
.....
Mr. P.P. Giri & T.V. Kamble , Advocate for the Petitioner
Mr. S.M. Ganachari, APP for the Respondent-State
.....
CORAM : Y.G. KHOBRAGADE, J.
RESERVED ON : 22.01.2025
PRONOUNCED ON : 31.01.2025
(2) 939 cri wp 1951.24
JUDGMENT:
-
1. Rule. Rule made returnable forthwith. With the consent of both
sides, heard finally.
2. The Petitioner, who has been externed, invoked the jurisdiction of
this Court under Article 226 of the Constitution of India and takes exception to
the order dated 05.08.2024 passed by the Respondent No.2 Divisional
Commissioner, Ch. Sambhajinagar in externment Appeal No.2024/साiz./कक्ष-
1/पाsल-1/हद्दपार/सिआर-65 under Section 60 of the Maharashtra Police Act,
thereby affirming the order of externment passed by the Respondent No.3 on
06.05.2024.
3. In a nutshell, the facts giving rise to the present petition are that,
the Petitioner was served with the Notice dated 10.04.2024 under Section 59 of
the Maharashtra Police Act issued by the Respondent No.3 and called upon him
to submit his cause as to why he should not be externed from the entire Ch.
Sambhajinagar District for a period of two years because of registration of
following crimes as under:
Sr. Police Station Crime Nos. & Sections Date of Present position
No. registration
1. MIDC Waluj 989/2023 u/s 447, 437 r/w 24.11.2023 Investigation in
34 of IPC and u/s. 3 of the progress
Prevention of Damage to
Public Property Act, 1984
(3) 939 cri wp 1951.24
2. MIDC Waluj 1098/2022 u/s. 395, 397, 14.12.2022 Trial pending /
398, 506 and u/s. 3/25 of the sub-judice
Arms Act
3. MIDC Waluj 1099/2022 u/s. 143, 147, 14.12.2022 Trial pending /
427, 447 and u/s. 135 of the sub-judice
Maharashtra Police Act, 1951
4 City Chowk 45/2022 u/s. 269, 270 and 09.02.2022 Trial pending /
u/s. 135 of the Maharashtra sub-judice
Police Act, 1951
Prohibitory action
1. MIDC Waluj Chapter Case No.59/2022 u/s.On 30.12.2022, the Petitioner had
110 of Cr.P.C. furnished a bond of Rs.50,000/-
ensuring that he will maintain
peace for a period of two years
4. On 24.09.2024, the Petitioner submitted his reply and claimed
that, he is a social worker and agitated for the grievances of the general public
but his Politically rival group having a grudge against him and jealous about his
popularity in the society. He is a Builder by profession and runs a Security
Agency. Further, he is distributing fruits, clothes to the needy person, so also,
such as pen and books, stationery items to students from lower income strata.
He regularly celebrates anniversaries of national leaders. However, the Police
Authorities falsely implicated him in criminal cases. He is enlarged on bail in all
the crimes described in the tabular form avoe. Therefore, proposed action of
his externment for a period of two years is illegal, bad in law.
(4) 939 cri wp 1951.24
5. On 06.05.2024, the Respondent No.3 passed an order and
externed the Petitioner from the entire Ch. Sambhajinagar city and district for a
period fo two years. Being aggrieved by the said order dated 06.05.2024, the
Petitioner preferred Externment Appeal under Section 60 before the
Respondent No.2, Divisional Commissioner, Ch. Sambhajinagar. On
05.08.2024, the Respondent No.2 passed the impugned order and affirmed the
order of externment passed by the Respondent No.3 on 06.05.2024.
6. The learned counsel appearing for the Petitioner canvassed that,
the Respondent Authority failed to appreciate the material available in proper
perspective manner and arrived at an erroneous finding. It is further canvassed
that the Petitioner is a social activist and is always helpful to the poor, needy
people and agitate for their grievances. Therefore, the Petitioner's political
rivals group made false allegations and implicated the Petitioner in false crimes.
7. The learned counsel appearing for the Petitioner further canvassed
that, the 1st Crime No.1098/2022 registered with the MIDC Waluj Police Station
against the Petitioner for the offence punishable under Section 395, 397, 398,
506 of the I.P.C., r/w Sec. 3/25 of the Arms Act and on the same day, 2 nd Crime
No.1099/2022 was also registered against the present Petitioner for the offence
punishable under Section 143, 147, 427, 447 of the I.P.C. and under Section
135 of the Maharashtra Police Act, 1951. But prior to the registration of said
(5) 939 cri wp 1951.24
crimes, the Petitioner approached the MIDC Waluj Police Station to lodged a
complaint for cognizable offence arising out of same incident described in
Crime No.1099/2022. However, the Police Authorities did not register FIR on
the Petitioner's report and falsely implicated the Petitioner. It is further
canvassed that, Crime No.1099/2022 is of civil nature and Civil Suit bearing
RCS No.388/2024 is pending before the C.J.S.D., Aurangabad in respect of the
land between him and the adverse party. However, the Respondent No.3 has
considered 5 Crimes, viz:
(i) No.45/2022 registered with City Chowk Police Station for the
offence punishable under Section 269, 270 of the I.P.C. and Section
135 of the Maharashtra Police Act,
(ii)098/2022 registered with Wajuj MIDC P. S. u/s. 395, 397, 398,
506 and u/s. 3/25 of the Arms Act
(iii) 1099/2022 registered with Wajuj MIDC P. S. u/s. 143, 147, 427,
447 and u/s. 135 of the Maharashtra Police Act, 1951
(iv)45/2022 registered with City Chowk P. S. u/s. 269, 270 and u/s.
135 of the Maharashtra Police Act, 1951
(v) Chapter Case No.59/2022 u/s. 110 of Cr.P.C.
8. However, the Respondent No.3-Authority failed to consider that
chapter case was registered during the Covid-19 pandemic for not following the
directions issued by the District Magistrate but subsequently prosecution has
(6) 939 cri wp 1951.24
been withdrawn. Therefore, considering the registration of stale crimes and as
such the Petitioner was release on bail in all these crimes, therefore, there is no
necessity to extern the Petitioner from Ch.Sambhajinagar city and the entire
district without giving elaborate reasons. Therefore, prayed for quashing and
setting aside both orders dated 05.08.2024 and 06.05.2024 passed by the
Respondent No. 2 & 3 Authorities.
9. In support of these submissions the learned counsel appearing for
the Petitioner placed reliance on the following case laws:
i) Deepak S/o Laxman Dongre V/s. State of Maharashtra & Ors.; (2023) 14
SCC 707.
ii) Judgment dated 10.07.2023 passed by the Coordinate Bench of this
Court at Nagpur in Criminal Writ Petition No.235/2023.
iii) Imtiyaz Hussain Sayyad V/s. State of Maharashtra & Ors; 2024 SCC
OnLine Bom 442.
iv) Deepak V/s. State of Maharashtra & Ors; 2024 SCC OnLine Bom 2840.
v) Judgment dated 24.01.2023 passed by the Coordinate Bench of this
Court at Nagpur in Criminal Writ Petition No. 908/2022.
10. Per contra, the learned APP canvassed that, on 23.01.2024, the
Respondent No.5- Senior Police Inspector, MIDC Waluj Police Station submitted
a proposal for the externment of the Petitioner from the entire
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Ch.Sambhajinagar District for a period of two years. The Respondent No.4 was
appointed being a Inquiry Officer. After due inquiry and being satisfied that,
the witnesses are not willing to come forward to give evidence in public against
the Petitioner under the apprehension of their safety and endanger to their
property. Therefore, the Respondent No.4 issued show cause notice to the
Petitioner directing him to appear on 10.02.2024 and to submit explanation.
Though, the Petitioner appeared and sought time to file reply till 29.02.2024
but subsequently the Petitioner remained absent and no reply was filed.
Therefore, the Respondent No.4 considered material available on record and
submitted inquiry report on 09.04.2024.
11. The learned APP further canvassed that, the Respondent No.3
issued a notice dated 10.04.2024 under Section 59 of the Maharashtra Police
Act and called upon the Petitioner to submit his cause as to why he should not
be externed for a period for two years for his illegal activities disturbing peace,
and tranquility in the society. The Petitioner filed his reply dated 29.04.2024
and denied allegations. Thereafter, in compliance of principal of natural
justice, the Respondent No.3 provided an opportunity of hearing and passed
the order dated 06.05.2024 and externed the Petitioner from the entire Ch.
Sambhajinagar city and District for a period of two years. In Appeal under
Section 60, the Respondent No.2 passed the impugned order and affirmed the
order of externment passed by the Respondent No.3 on 06.05.2024. Therefore,
(8) 939 cri wp 1951.24
the impugned order does not suffer from any illegality and no substantial
grounds are set out. Hence, prayed for dismissal of the petition.
12. The learned APP further canvassed that, the police authorities
complied with the due process of law and followed the principles of natural
justice by giving sufficient opportunity to file reply and also of a personal
hearing. It is further canvassed that the Respondent Nos.2 and 3-Authorities
have passed the impugned orders on administrative grounds to maintain peace
in the society, hence, prayed for dismissal of the petition.
13. Section 56 of the Maharashtra Police Act, which reads as under.
56. Removal of persons about to commit offence. Whenever it shall appear
in Greater Bombay and other areas for which a Commissioner has been
appointed under Sec. 7 to the Commissioner and in other area or areas to
which 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 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;
(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 of the
(9) 939 cri wp 1951.24
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 of Maharashtra (whether
within the local limits of his 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 area") from which he was directed to
remove himself.]
14. On plain reading of Section 56, it prima facie appears that, if any
person's movements or acts of any person are causing or calculated to cause
alarm, danger or harm to person or property and there are reasonable
grounds to believe that such person is engaged or is about to engage 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 if the concerned officer believe that act of such person
is likely to disturb the peace in the society, the District Magistrate or Sub
Divisional Magistrate empowered to remove such person from any specified
area or areas for the specific period.
( 10 ) 939 cri wp 1951.24
15. In case of Deepak Laxman Dongre V/s. State of Maharashtra and
Ors.; cited supra, wherein the Hon'ble Apex Court laid down guidelines for
deciding the Petitions challenging the order of externment passed by the
Competent Authority and held that, to invoke the said provisions, there must be
objective material on record based on which the Competent Authority must
record its subjective satisfaction. It is further observed in cited case that, 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.
16. In case of Imtiyaz Hussain Sayyad-Vs-State of Maharashtra & Ors.,
cited supra, it is held that, the Externing Authority require to satisfy the
requirement of class of cases stipulated by clause (b) and also to consider the
crimes which were under investigation and charge-sheet had not been filed. It
is trite, the crimes which are still under investigation cannot be taken into
consideration as depending upon the outcome of the investigation, the
investigating agency may or may not sent the accused for trial.
( 11 ) 939 cri wp 1951.24
17. In case of Deepak V/s. State of Maharashtra, 2024 SCC OnLine
Bom 2840, exigencies for invoking Sec. 56 of Maharashtra Police Act are
prescribed as under:
"a) The show cause notice under section 59 of the Act should mention the
details of crimes registered against the proposed externee.
b) The show cause notice should disclose the facts that the witnesses are
not willing to come forward to give the evidence against the proposed
externee in public by reason of apprehension on their part as regards the
safety of their person or property.
c) The Authority should believe that there are reasonable grounds to
form an opinion that such person is engaged or is about to be engaged in the
commission of an offence involving force or violence or an offences
punishable under Chapters XII, XVI and XVII of the Penal Code, 1860 and
abetment thereof.
d) The principle of natural justice by granting fair hearing to such person
shall be followed.
e) There shall be live link and proximity in crime and the action of the
externment. There should be no abnormal delay in passing externment orders
from the last offence registered against him.
f) The Authority shall be subjectively satisfied with the objective
material.
g) The cases registered and pending against such a person should not be
stale and old.
h) The orders should not be for excessive areas of externing such a
person from larger areas and while, passing such orders, the authority must
assign the reasons for externing him beyond the area of operation.
i) The authority can not consider the extraneous material which was not
disclosed in the show cause notices.
j) The camera statements of the witnesses should not be vague and
identical. The order should reflect the application of mind."
18. No doubt, in case of N.C.T. of Delhi and Anr. V/s. Sanjeev alias
Bittoo; AIR 2005 SC 2080, the Hon'ble Apex Court has held that, the Courts
( 12 ) 939 cri wp 1951.24
should be slow while 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, the impugned orders have been considered in
the facts and circumstances of the case.
19. In the case in hand, it prima facie appears that, the Respondent
No.5 submitted a proposal on 23.01.2024 in respect of externment of the
Petitioner from entire Ch.Sambhajinagar District for a period of two years. The
Respondent No.4-Assistant Police Commissioner was appointed for conducting
the inquiry. Thereafter, the Petitioner was served with the show cause notice
directing him to appear on 10.02.2024 with an explanation in his defence.
Though, the Petitioner appeared before the Respondent No.4 but he failed to
submit his reply till 29.02.2024 in spite of fact that the Petitioner had sought
time he remained absent. Therefore, the Respondent No.4 recorded in-camera
statements of the witnesses and submitted Report dated 09.04.2024 on the
basis of material available.
20. Needless to say that, thereafter, the Petitioner was again served
with the show cause notice dated 10.04.2024 directing him to submit his reply
as to why he should not be externed for a period of two years from the entire
Ch.Sambhajinagar district due his act of breach of peace and tranquility. It is
( 13 ) 939 cri wp 1951.24
not in dispute that, on 29.04.2024 the Petitioner filed his reply and stated
about registration of above false crimes against him on the same day and he
already being enlarged on bail in said crimes. Further, there is no live link with
the externment notice and registration of crimes against him at the time of
service of externment notice.
21. It is submitted that, on 06.05.2024, the Respondent No.3 passed
an order and considered registration of Crime Nos.1098/2022 and 1099/2022
registered with MIDC Waluj Police Station, Crime No.45/2022 registered with
City Chowk Police Station, Crime No.989/2023 registered with MIDC Waluj
Police Station and trials of all these crimes are pending. So also, one chapter
case is registered against the Petitioner for which the Petitioner has furnished
bond but said chapter case was subsequently withdrawn.
22. On perusal of record, it appears that Crime Nos.1098/2022 &
1099/2022 are registered with MIDC Waluj Police Station on same day. On
perusal of contents of FIR in Crime Nos.1098/2022, it appears that the
Informant lodged a report against the Petitioner for forcibly disturbing his
possession over the landed property which is of civil nature and Civil Suit is
sub-judice between the Petitioner and Informant. The Investigation Agency did
not file a charge-sheet against the Petitioner in connection with Crime
No.989/2023 registered with MIDC Waluj P. S. on 24-11-2023 for the offences u/s
( 14 ) 939 cri wp 1951.24
447, 437 r/w 34 of IPC and u/s. 3 of the Prevention of Damage to Public Property Act,
1984. Therefore, said crime cannot be taken into consideration as per the law laid
down in case of Imtiyaz Hussain Sayyad, cited supra.
23. It is not out of place to mention that, 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, however, it is mandatory provides about acts and movements
of any person must be causing or calculated to cause alarm, danger or harm to
person or property. As per clause (b) the ground requires that, the competent
authority must satisfy that, the material must established about existence of
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 on record before the authority and the same
must be considered in accordance with law.
( 15 ) 939 cri wp 1951.24
24. Needless to say that though four crimes have been registered
against the Petitioner under Chapter XII, XVI or XVII of the I.P.C., however, in
all these crimes the Petitioner was already released on bail and the prosecution
has not moved application for cancellation of bail due to breach of bail
conditions. However, the Respondent No.2 as well as the Respondent No.3 have
not at all considered the bail orders. Though, the Respondent No.4 allegedly
conducted an inquiry and recorded statements of the confidential witnesses but
in the inquiry nothing was disclosed about conduct of the present Petitioner in
respect of disturbing peace in the society.
25. On perusal of the FIR in Crime No.1099/2022, it also appears that
the dispute is of a civil nature in respect of forcibly taking possession of the
landed property by the Petitioner and his associates. Crime No.45/2022
appears to be registered about making agitation in respect of refusal of the
permission by the Collector for agitation. Another Crime No.989/2023 also
appears to be about demolition of construction raised by the public body.
Therefore, the conduct of the Petitioner does not appear to be hazardous to the
society and disturbing peace in the society.
26. On perusal of record, it appears that the Respondent No.4
recorded statements of the confidential witnesses, however, the order passed
by the Respondent No.3 does not show about personal verification of
( 16 ) 939 cri wp 1951.24
statements of those witnesses, which requires scrupulous examination.
Therefore, serious prejudice is caused to the Petitioner.
27. It would be worthwhile to mention here that, order of externment
apart from making inroads on the personal liberty guaranteed under Section 19
of the Constitution of India and the Petitioner will be required to live separately
from his family members for a period of two years and no specific reasons are
recorded while externing the Petitioner for the maximum period of two years
provided u/s 56 of the Act, 1951, merely three cases are registered in respect of
property dispute and one for taking out morcha without permission at the
office of Collector. Therefore, the Writ Petition is hereby allowed. The
impugned order dated 05.08.2024 passed by the Respondent No.2 and order
dated 06.05.2024 passed by the Respondent No.3 are hereby quashed and set
aside.
28. Accordingly, Rule is made absolute in the above terms.
[Y.G. KHOBRAGADE, J.]
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