Bombay High Court
Rajendra Karbhari Kale vs The State Of Maharashtra And Others on 23 January, 2017
Author: S.S. Shinde
Bench: S.S. Shinde, K.K. Sonawane
1 Cri.WP-1612-16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1612 OF 2016
Rajendra Karbhari Kale,
Age: 38 years, occu. Agri.,
R/o: Newasa, Tq. Newasa,
District : Ahmednagar. ...PETITIONER
versus
1. The State of Maharashtra
2.
Sub-Divisional Officer,
Shevgaon Sub-Division, Shevgaon
Tq. Shevgaon, Dist. Ahmednagar.
3. Sub-Divisional Magistrate,
Nagar Division Ahmednagar
Tq. & District Ahmednagar.
4. Divisional Commissioner,
Nashik Division Nashik,
Dist.Nashik ...RESPONDENTS
.....
Mr. Satej S. Jadhav, Advocate for petitioner
Mr. S.Y. Mahajan, APP for Respondent State authorities
.....
CORAM : S.S. SHINDE AND
K.K. SONAWANE, JJ.
DATED : 23rd JANUARY, 2017.
ORAL JUDGMENT : ( PER : S.S. SHINDE, J. )
1. Rule. Rule made returnable forthwith. With consent of learned counsel appearing for the parties, heard finally.
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2. It is the case of the the petitioner that the show cause notice was issued to the petitioner on 14-01-2016 by respondent No. 3 taking recourse of the provisions of section 56(1)(a)(b) of the Maharashtra Police Act, 1951 (for short "Act of 1951"). The petitioner has filed reply to said notice. Respondent No. 3 by his judgment and order dated 30-03-2016 externed the petitioner from Ahmednagar District and also area/limits of adjoining districts to Ahmednagar district.
3. Being aggrieved by order passed by respondent No. 3 the petitioner filed appeal bearing Externment Appeal No. 48 of 2016 before respondent No. 4 - appellate authority. The appellate authority vide judgment and order dated 29-11-2016 confirmed the order judgment and order dated 30-03-2016 passed by respondent No. 3. Hence, this writ petition.
4. The learned counsel appearing for the petitioner submits that an order passed by respondent No. 3 externing the petitioner from the territorial limits of Ahmednagar District and also from the area/territorial limits of adjoining districts to Ahmednagar District is excessive inasmuch as there are no reasons assigned, why externment of the petitioner was warranted from the area of adjoining districts to the Ahmednagar District. It is also submitted that alleged offences mentioned in the show cause notice are registered at Newasa Police Station, ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:49:16 ::: 3 Cri.WP-1612-16 District Ahmednagar. In support of afore said contention, the learned counsel appearing for the petitioner has placed his reliance on the reported/unreported judgments, viz; Juber Abdul Vahid Kureshi Vs. State of Maharashtra1, Umar Mohamed Malbari Vs. K.P. Gaikwad Dy. Commissioner of Police and another 2, Balu Vs. the Divisional Magistrate, Pandharpur3 ,Pandiarnath Shridhar Ragnekar Vs. Dy. Commissioner of Police State of Maharashtra 4, Sunil Mani Shetty Vs. Dy. Commissioner of Police Ors. 5, Nisar @ Nigro Bashir Ahmed Khan Vs. Dy. Commissioner of Police, Zone-
VI Mumbai and ors.6, Prasad Shrikant Purohit Vs. State of Maharashtra and another7 and Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police & another 8.
5. The learned counsel appearing for petitioner further submits that though there is reference about recording of in camera statement of witnesses in the order passed by respondent No. 3, nevertheless it was not mentioned in the show cause notice that respondent No. 3 has recorded in camera statements of witnesses. He further submits that in camera statements of the witnesses on which reliance has been placed by respondent No. 3 no specific incident and date of said incident 1 Cri.W.P No. 15-11-2006, decided on September, 10, 2007 2 1988 Mh.L.J. 1034 3 1969 MH.L.J. 387 4 1973 Supreme Court 630 5 2014(2) Bom.C.R.(Cri.) 503 6 2013 ALL MR (Cri)122 7 Cri.Appeal Nos. 1969-1970 of 2010 decided on 15-04-2015 : (2015) 7 SCC 440 8 1989 (3) Bom.C.R. 240 ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:49:16 ::: 4 Cri.WP-1612-16 has been mentioned in the impugned judgments and orders by respondent No. 3 and 4 and only statement is made about character of the petitioner, and the same is not sufficient so as to meet requirement of provisions of section 56(1)(a)(b) of the Maharashtra Police Act Act 1951. He further submits that in the show cause notice there is no reference to the proceedings initiated against the petitioner under the provisions of Maharashtra Control of Organized crime Act 1999 ( for short "MCOCA"), and therefore, the petitioner had no opportunity to reply about the same. He further submits that in crime No. 186 of 2010 registered with Newasa Police Station for the offence punishable under sections 307, 143, 147,148, 379, 353 and 120B of the Indian Penal Code (for Short "IPC") and section 3/25 of the Arms Act, the concerned court has already framed the charge and the contention of the respondents that in the said crime even petitioner deserves to be tried for the offences under MCOCA has no basis inasmuch as neither there is reference in show cause notice about such initiation of the proceeding under MCOCA Act nor there is discussion in detailed in the impugned order about applicability of provisions of MCOCA, in the case of petitioner, in crime No. 186 of 2010 registered with Newasa Police Station for the offence punishable under sections 307, 143, 147, 148, 379 353 and 120B of the IPC and section 3/25 of the Arms Act.
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6. He further invites our attention to the provisions of Section 2(1)(d) of the MCOCA and submits that to invoke the provisions of MCOCA, mandate of aforesaid provision is, more than one charge-sheets have been filed before the competent court within preceding period of ten years and that court has taken cognizance of such offence. He further submits that, no such material is collected by respondents, so it would show that requirement of section 2(1)(d) of the MCOCA has not been fulfilled in the present case and as a matter of fact, offence is not registered against the petitioner under the provisions of MCOCA.
Therefore, relying upon the pleadings and grounds raised in the petition and annexures thereto learned counsel submits that petition may be allowed.
7. On the other hand, learned APP appearing on behalf of respondents relying upon the reasons assigned by respondents No. 3 and 4 in their respective judgments and orders and also an original record of the case submits that both the authorities have considered material available on record and also an activities of the petitioner which are causing alarm and danger to public order and the fact that the witnesses are not coming forward to give evidence against the petitioner in public. It is submitted that respondent No. 3 had recorded in camera statements of the witnesses and to that effect there is reference in the judgment ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:49:16 ::: 6 Cri.WP-1612-16 and order passed by respondent No. 3. It is submitted that if grounds in the show cause notice and reasons assigned by the authorities are considered conjointly the same lead to the conclusion that the petitioner's externment from Ahmednagar District and area/limits of the adjoining districts to the Ahmednagar District was warranted, therefore, respondent No. 3 has passed the order externing the petitioner from the Ahmednagar District and also from area/limits of adjoining districts to the Ahmednagar District.
8. We have carefully considered the submissions of the learned counsel appearing for the parties, with their able assistance perused the grounds taken in the writ petition annexures thereto, and also original record made available for perusal. Admittedly, in the show cause notice issued to the petitioner there is no mention of recording of in camera statements of the witnesses and the fact that the concern Police Officer, i.e. Investigating Officer, in Crime No. 186 of 2010 registered with Newasa Police Station for the offence punishable under sections 307, 143, 147,148, 379, 353 and 120B of the IPC and section 3/25 of the Arms Act, has submitted the proposal to the superior authority to apply the provisions of MCOCA, in case of the petitioner, as a sequel it was not possible for the petitioner to file his reply to show cause notice in respect of aforesaid ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:49:16 ::: 7 Cri.WP-1612-16 aspects. At this juncture, it would be apt to make reference to the provisions of Section 56(1)(a)(b) of the Act of 1951, which reads thus:
56.Removal of persons about to commit offence (1) ....
(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, or [Underlines are added] ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:49:16 ::: 8 Cri.WP-1612-16
9. Upon careful perusal of the aforesaid provisions, an order of externment can be passed against a person whose movements or acts are causing or calculated to cause alarm, danger or harm to person or property as 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 as provided in clause (b). 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. But in addition to the above, the concerned Officer, who is dealing externment proceedings, should be of the opinion that the 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.
10. Upon careful perusal of the order passed by respondent No. 3, it is abundantly clear that no reasons are recorded for petitioner's externment from the area of adjoining districts to the Ahmednagar district. It is true that it is legally permissible for respondent No. 3 to initiate externment proceeding not only from one district but from the adjoining districts also. However, the ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:49:16 ::: 9 Cri.WP-1612-16 authority while passing the order of externment from the area of particular district/districts wherein offences are not registered against the concerned person, has to assign specific reasons, why externment of said person is necessitated from the more than one districts.
11. In the present case, admittedly, all the offences registered against the petitioner are at Newasa Police Station. Upon perusal of reasons assigned by respondents No. 3 and 4, it is abundantly clear that there are no reasons assigned why petitioner's externment was warranted from the area/limits of adjoining districts to Ahmednagar district.
12. In the case of Balu Vs. The Divisional Magistrate, Pandharpur [cited supra], while appreciating the facts involved in that case, this Court held that extending the area of externment not only outside Pandharpur Taluka but to the Districts of Solapur, Pune and Satara is illegal since the alleged activities against the petitioner therein, as stated in the show cause notice, were confined to the Pandharpur City.
13. As already observed, even in show cause notice, there is no mention of initiation of any proposal or proceeding against petitioner under the provisions of MCOCA, therefore, the casual reference of said alleged initiation of proposal against the ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:49:16 ::: 10 Cri.WP-1612-16 petitioner under MCOCA could not have been considered while passing the impugned order of externment by respondent No. 3.
14. It is true that there is reference of recording in camera statements of the witnesses by respondent No. 3 in the impugned order, however, as already discussed there is no reference of recording in camera statements of the witnesses in the show cause notice. The Division Bench of the Bombay High Court [at Principal seat] in the case of Yeshwant Damodar Patil [cited supra] had occasioned to consider the scope of provisions of Section 56 [1] [a] and [b] and also the mandate of provisions of Section 59 of the Bombay Police Act. It would be gainful to reproduce herein below para 3 of the said judgment:
3. Section 56 (i) 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 (i) of the Act. An order of externment can be passed against a person whose movements 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 ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:49:16 ::: 11 Cri.WP-1612-16 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 (i) 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, of Chapter XVI, or Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause (b) of section 56 (i) 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.
[Underlines added]
15. Be that as it may, even if we consider/take into consideration that respondent No. 3 has recorded in camera statements of the witnesses. However, it is not specifically mentioned about the specific incident and date of such incident in the impugned judgment and order passed by respondent No. 3.
Therefore, inevitable conclusion is, the order passed by respondent No. 3 and confirmed by respondent No. 4 externing the petitioner from Ahmednagar District and area/limits of ::: Uploaded on - 25/01/2017 ::: Downloaded on - 26/01/2017 00:49:16 ::: 12 Cri.WP-1612-16 adjoining districts to Ahmednagar District is not legally sustainable. Hence, writ petition deserves to be allowed and accordingly the same is allowed in terms of prayer clauses "B and C".
16. Rule made absolute to above extent and accordingly writ petition stands disposed of. No order as to costs.
Sd/- Sd/-
[ K. K. SONAWANE, J. [ S.S. SHINDE, J.]
MTK
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