Bombay High Court
Amjad Khan Aziz Khan Pathan vs The State Of Maharashtra And Anothers on 12 February, 2015
Author: A.M. Badar
Bench: S.S. Shinde, A.M. Badar
{1}
crwp 641.14.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 641 OF 2014
Amjad Khan s/o. Aziz Khan Pathan
Age 30 years, Occ. Agriculture,
R/o. Demani Wahegaon , A/P. Karmad,
Tq. and Dist. Aurangabad.
.. PETITIONER
VERSUS
1] The State of Maharashtra
Through the Secretary
Department of Home,
Mantralaya, Mumbai.
2] The Sub Divisional Police Officer,
Aurangabad Rural, N-12 Hudco,
Aurangabad.
3] The Sub-Divisional Magistrate,
Sub-Division, beside Collector Officer,
Aurangabad. .. RESPONDENTS
Mr. C.V. Dharurkar, Advocate for the petitioner
Mrs. M.S. Patni, APP for respondent/s.
CORAM : S.S. SHINDE & A.M. BADAR, JJ.
DATE OF RESERVING ORDER : 29TH JANUARY, 2015 DATE OF PRONOUNCEMENT OF ORDER : 12TH FEBRUARY, 2015.
ORDER [ PER A.M. BADAR, J.] :-
1] By this petition under Article 226 and 227 of the Constitution of India, the petitioner is challenging the show cause notice dated 23.1.2014, ::: Downloaded on - 17/02/2015 23:45:04 ::: {2} crwp 641.14.odt issued by the respondent No.3, Sub-Divisional Magistrate, Aurangabad, asking him to show cause why he should not be externed from limits of Aurangabad and Jalna Districts for two years.
2] Heard learned counsel for the petitioner at length and perused the documents placed on record, including the annexures to the petition.
The learned counsel for petitioner vehemently argued that the petitioner is a peace loving citizen residing at Village Demani Wahegaon, Karmad, in Aurangabad District.
ig According to learned counsel for petitioner on 23.7.2013, petitioner received a show cause notice informing initiation of proceedings under Section 110(e) (g) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C." for brevity) by Special Executive Magistrate/Police Inspector of local crime branch Aurangabad (Rural). On his appearance before the said authority, he was illegally detained up to 25.7.2013 on the ground of failure to furnish surety. The learned counsel for petitioner further submitted that, then on his release after furnishing necessary surety, the petitioner challenged his illegal detention for 3 days and prayed for compensation by filing W.P. No. 155 of 2014 and this court has issued notice to respondents in that petition on 13.2.2014. The learned counsel further submitted that in the meanwhile on 12.2.2014, the petitioner received a show cause notice under Section 59 of the Maharashtra Police Act, 1951 issued by respondent No.2, Sub Divisional Police Officer, Aurangabad (Rural) asking him to show cause as to why he should not be externed from Aurangabad and Jalna District for a period of 2 ::: Downloaded on - 17/02/2015 23:45:04 ::: {3} crwp 641.14.odt years. He was asked to show cause at 10.30 a.m. of 14.2.2014. The petitioner could not reach at that time as his bus was late and when he reached at the office of respondent No.3 Sub Divisional Police Officer, said Officer was not present. As the employees of that office refused to accept the explanation tendered by the petitioner, he sent it by RPAD. That explanation was accompanied by statements of 3 witnesses. Learned counsel for the petitioner further contended that at about 1.00 a.m. of 18.2.2014, officials of Karmad Police served notice of appearance to the witnesses cited by the petitioner and immediately on next day i.e. 19.2.2014, statements of those witnesses came to be recorded behind back of the petitioner. This action, according to learned counsel for the petitioner is in flagrant breach of provisions of Section 59 of the Maharashtra Police Act. The petitioner, therefore, sent a letter on 21.2.2014 and cited few more witnesses in support of his contention. However, respondent No.3/Sub Divisional Police Officer, did not examine those witnesses nor the petitioner is given an opportunity to record their evidence. According to learned counsel for the petitioner, ultimately, be was served with final show cause notice (Exhibit A-1) of externment from 2 districts on 21.3.2014 by respondent No.3 Sub-Divisional Magistrate, Aurangabad.
3] learned counsel for the petitioner further contended that the impugned communication of proposed externment of the petitioner is illegal as the petitioner is undergoing a separate enquiry on the same facts under the provisions of Section 110(e)(g) of the Cr.P.C. As grounds for this ::: Downloaded on - 17/02/2015 23:45:04 ::: {4} crwp 641.14.odt preventive action under Cr.P.C. are same, initiation of externment proceeding against him is in violation of the provisions of Article 20(2) of the Constitution of India. Learned counsel for the petitioner further contended that the Code of Criminal Procedure is an ordinary law, whereas, the Maharashtra Police Act is a Special statute. According to the learned counsel for the petitioner alleged actions of the petitioner can be taken care under the ordinary law, proceeding under the special law, is totally illegal. The petitioner is put to rigour of "double jeopardy" for no reasons. Learned counsel for the petitioner further contended that he was not granted fair and sufficient opportunity of hearing before the contemplated action of externment. In support of his contention, the petitioner is relying upon several judgments, which would be dealt with at the appropriate time.
4] The learned APP opposed the petition but without filing any affidavit in reply. She supported the impugned action.
5] It is not in dispute that the Special Executive Magistrate/Police Inspector Aurangabad had issued a show cause notice dated 23.2.2014 Exhibit D under Section 110(e)(g) of the Cr.P.C. to the petitioner asking him as to why he should not be asked to furnish bond of good behaviour by stating that 4 offences are registered against the petitioner at Karmad Police Station with a further intimation that there is possibility that he may commit simiar offences in future. The petitioner was then taken in custody as he failed to furnish bond and subsequently, he was released on 25.7.2013. That ::: Downloaded on - 17/02/2015 23:45:04 ::: {5} crwp 641.14.odt action of taking petitioner in custody and detaining him is under challenge in Criminal W.P. No. 155 of 2014, which is pending before this court.
6] It is not in dispute that subsequently the petitioner was served with a notice dated 5.2.2014 issued by respondent No.2 Sub-Divisional Police Officer - an officer authorized by respondent No.2 Sub-Divisional Magistrate under Section 59 of the Maharashtra Police Act, 1951 on 12.2.2014, requiring the petitioner to show cause why he should not externed from 2 districts.
We have carefully perused this show cause notice issued on 5.2.2014 ( Exhibit A). This notice makes it clear that the Sub-Divisional Police Officer Aurangabad (Rural) was authorized by the Sub-Divisional Magistrate to inform to petitioner in writing of the general nature of the material allegations against him and to give him a reasonable opportunity of tendering explanation regarding them. Perusal of this notice dated 5.2.2014 shows that the petitioner was informed about the registration of 4 crimes against him at police station, Karmad, out of which one has resulted in his conviction Entire details about those crimes were made known to the petitioner vide this show cause notice dated 5.2.2014. He was informed that in Regular Criminal case No. 1074 of 2010, on 6.7.2010, the petitioner was convicted of the offences punishable under Sections 354, 323, 504 r/w. 34 of IPC and he was sentenced to suffer R.I. for one year apart from imposition of fine. The petitioner was informed by this show cause notice that his acts are causing alarm, danger or harm to the persons and property of the residents.
The petitioner was specifically informed that the prohibitory action under ::: Downloaded on - 17/02/2015 23:45:04 ::: {6} crwp 641.14.odt Section 107 of Cr.P.C. was taken against the petitioner twice but there is no change in his behaviour. With this, the petitioner was asked to furnish his explanation regarding proposed action of externment.
7] We have carefully perused the photo copy of the record furnished by learned APP. It is seen that the explanation tendered by the petitioner is taken on record so also statement of witnesses furnished by him. It is contention of petitioner that witnesses are examined by respondent No.3 Sub-Divisional Police Officer behind his back. However, we are the preliminary stage and as yet no final order is passed. The petitioner can demonstrate his grievance before the authority empowered to pass final order under Section 56 of the Maharashtra Police Act. It need not be construed to mean that we are saying that the petition challenging the show cause notice is not at all maintainable. Petitioner has relied upon the judgment in the matter of "Dinesh Patil and another s. State of Maharashtra" reported in 2012(1) Mh.L.J. 817 wherein the Division Bench of this court has held that show cause notice can be challenged if proposed action is palpably untenable or in colourable exercise of powers or if the same is malafide in law. We are in respectful agreement with the ratio of this ruling.
8] Now, let us examine, whether the impugned show cause notice is palpably untenable or in colourable exercise of power or same is malafide in law. The first and foremost contention of petitioner is that he is ::: Downloaded on - 17/02/2015 23:45:04 ::: {7} crwp 641.14.odt subjected to double jeopardy in flagrant violation of the provisions of Article 20(2) of the constitution of India. The petitioner has founded this contention on the basis that preventive action under the Cr.P.C. was already initiated against him, vide show cause notice dated 23.7.2013. The petitioner has relied on judgment in the matter of "Hari Khemu Gawali vs. Deputy Commissioner of Police, Bombay and another" reported in AIR 1956 SC 559. In this reported case, the petitioner, under Article 32 of the Constitution of India was challenging the vires of Section 57 and other provisions of the Bombay Police Act, 1951. That petition came to be dismissed by the Hon'ble Supreme Court by holding that authorities appointed under Section 7 of the said Act has no power to direct a person to move himself outside the entire State of Bombay. It is further held that Section 57 of the said Act is not ultra-vires merely because there was no provision for scrutiny by the Advisory Committee. It is also held that the principles of natural justice are not offended as externment order can be passed only by the Commissioner of Police or the District Magistrate or Sub Divisional Magistrate specially empowered in that behalf. It is held that satisfaction is not for a person prosecuting but of the officers specially authorized by the State . The Honourable Apex court has also held in the said matter that right of appeal to the State challenging the order of externment is not illusory. The Honourable Apex Court further clarified that it cannot be laid down as a general proposition of law that the order of discharge or acquittal cannot be taken into consideration by the authorities while dealing with a person under Section 57 of the Bombay Police Act, 1951.
::: Downloaded on - 17/02/2015 23:45:04 :::{8} crwp 641.14.odt In para.10 of the said report, the Honourable Apex Court has observed that the grounds available to an externee had necessarily to be very limited in their scope because if evidence were available which could be adduced in public, such a person could be dealt with under the preventive sections of Cr.P.C., for example, under Section 110 of the Cr.P.C. It is further held that the provisions of the Bombay Police Act under examination are plainly intended to be used for special cases requiring special treatment, that is, cases which cannot be dealt with under the preventive sections of the Cr.P.C.
This observation of the Honourable Apex Court does not lay down a law that if a person is dealt with under the preventive sections of the Cr.P.C., he cannot be dealt with under the special law. In the case in hand, the show cause notice makes it clear that preventive action under the Cr.P.C. taken twice had not yielded result.
9] The petitioner has relied on judgment in the matter of "Anant Reddy vs. State of Hyderabad through Commissioner of Police, Hyderabad" reported in 1984 Cri.L.J. 1499, wherein it is held that the point of distinction between Section 107 of Cr.P.C. and Section 26 of the Hyderabad Police Act is that, where the informants are not willing to give evidence in public for fear of danger to their lives, the Police Commissioner is empowered to take proceedings under Section 26. This observation cannot be construed to mean that after initiation of proceedings under the preventive sections of the Cr.P.C. the subject can not be dealt with under the Maharashtra Police Act, 1951 for externing him.
::: Downloaded on - 17/02/2015 23:45:04 :::{9} crwp 641.14.odt 10] Reliance is placed by petitioner on judgment in the matter of "Pandurang Bhaguram Ruke Vs. State of Maharashtra" reported in 2000(7) LJSoft 93 wherein, challenge was to the externment order dated 9.9.1996. Solitary case was registered against the petitioner therein in January 1994 and show cause notice of externment was issued on 15.5.1996 i.e. after two and half years. Chapter proceedings under Section 110(d)(g) of the Cr.P.C. were also initiated, in which the petitioner therein had executed bond. In this context, this court has observed that there was hardly any necessity to pass externment order. Thus, that case proceeded on its own facts.
11] Reliance is also placed on the judgment in the matter of "Monya @ Rohit Rajendra Chavan vs. Dy. Commissioner of Police and another" reported in 2012 (12) LJSoft 51 wherein, externment order was challenged. That order was passed after dropping the preventive action under the Cr.P.C. Police decided to initiate externment proceedings against the petitioner therein. The Division Bench of this court, held that the preventive action under section 110 of the Cr.P.C. is only in the nature of executing bond of undertaking for maintaining peace, whereas, the preventive action under Section 56 of the Bombay Police Act, 1951 is intended to remove the person from the concerned area to ensure that he will not engage in similar activities in future. The Division Bench of this Court has held that there is nothing wrong if the Sponsoring Authority ::: Downloaded on - 17/02/2015 23:45:04 ::: {10} crwp 641.14.odt decides to drop preventive action under Section 110 of the Cr.P.C. and instead, take stringent action under Section 56 of the Bombay Police Act, 1951. This ruling is also not helpful to the case of the petitioner where despite two preventive actions under the Cr.P.C. prima facie in the opinion of the authorities, it is necessary to take up externment proceedings, as the petitioner has allegedly not mended his ways.
12] At this juncture, it needs to be mentioned that the very nature of provisions of Sections 56 to 59 of the Bombay Police Act, 1951 and the provisions of Chapter VIII of the Cr.P.C. is distinct and different. They both are preventive in nature but the main purpose of the powers under the Maharashtra Police Act, 1951 is to remove the concerned person from the area where he is found to be a menace, whereas, the main purpose of the prevention sections of Cr.P.C. is to allow a person to be in the same place, but bound over him for keeping peace and good behaviour.
13] It cannot be laid down as a proposition of law that when the action is taken resorting to the provisions of preventive sections of the Cr.P.C., such person cannot be dealt with under the preventive sections of the Maharashtra Police Act, 1951. Each case would depend upon peculiar the facts thereof. Hence, we find no merit in contention of the petitioner that as preventive action against him is initiated under the provisions of the Cr.P.C., no action under the preventive sections of the Maharashtra Police Act,1951 can be taken. To illustrate, even the instant case authorities have ::: Downloaded on - 17/02/2015 23:45:04 ::: {11} crwp 641.14.odt prima facie found that the preventive action under Cr.P.C. may not serve the purpose.
14] Let us now examine, whether the impugned action suffers from vice of double jeopardy. Article 20(2) of the Constitution of India, prescribes that no person shall be prosecuted and punished for the same offence more than once and thus, guarantees immunity from double jeopardy. Reliance is placed on provisions of Section 26 of the General Clauses Act, 1897. It prescribes that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. For application of Sub-Clause 2 of Article 20 of the Constitution of India, there must be previous proceedings before a court of law, the person must have been prosecuted in the previous proceedings and conviction or acquittal in the previous proceedings must be in force at the time of second trial. Punishment as contemplated in this clause needs judicial punishment awarded by a criminal court.
'Prosecution' in this context means, an initiating or starting of proceedings of a criminal nature before a Court of Law or a Judicial Tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the punishment. Provisions of Article 20(2) are not applicable unless there is an offence.
15] Section 3(38) of the General Clauses Act, 1897, defines the ::: Downloaded on - 17/02/2015 23:45:04 ::: {12} crwp 641.14.odt term 'offence'. It means, any act or omission made punishable by any law for the time being in force. At this juncture, it is apt to quote observations of the Hon'ble Andhra Pradesh High Court, in the case of Aluva Balaiahgari Chandra Reddy Vs. The Revenue Inspector Rajampet & another, reported in 1980 Cri.L.J. 1169, relied by the petitioner. In para 4 of the report, Hon'ble Andhra Pradesh has held that security proceedings are preventive and not punitive and they are of two kinds - one for keeping the peace and the other for good behaviour. By discussing the preventive provisions of the Code of Criminal Procedure, it is held that those proceedings under Cr.P.C. are not barred by reason of Section 300 of Cr.P.C.
on the ground that a person has been previously convicted or acquitted of a particular set of facts constituting an offence for which he was previously tried.
16] Section 56 of the Maharashtra Police Act, 1951, provides that the officer empowered by the State Government, on coming to the conclusion that the contingencies mentioned therein are fulfilled, may by an order in writing, direct the concerned person to remove himself outside such area or areas in the State of Maharashtra within specified time and not to enter or return to the area as specified. This provision of directing removal of a person about to commit offence, cannot be said to be a punitive provision attracting the rigor of Article 20(2) of the Constitution of India or Section 300 of Cr.P.C. In a similar way, Section 26 of the General Clauses Act, 1897, has no application in such cases. Thus, when neither the ::: Downloaded on - 17/02/2015 23:45:04 ::: {13} crwp 641.14.odt proceedings under Chapter VIII of Cr.P.C., requiring security for keeping the peace and for good behaviour, commonly known as chapter proceedings, nor the proceedings for externment undertaken by resorting to the provisions of Chapter V of the Maharashtra Police Act, 1951, are punitive in nature wherein punishment is inflicted upon the concerned person for any offence, we find no substance in contention of the learned Counsel for the petitioner, that the petitioner is subjected to double jeopardy due to initiation of proceedings for his externment. Reliance placed by him, in the case of Rafiq Khan and another Vs. Smt. Jamila Bee and another, reported in 1999 Cri. L.J. 852, wherein prosecution for offences under Indian Penal Code is dealt with by the Hon'ble Madhya Pradesh High Court; is totally misplaced in the context of the present case.
17] The learned Counsel for the petitioner has also placed reliance on the judgment of this Court, in the case of Inammuddin Umrao Khan Vs. Dy. Commissioner of Police & others, reported in 2013(3) Bom.C.R. (Cri.) 176, wherein challenge was to the order of externment passed under Section 56 of the Bombay Police Act, with an averment that it is suffering from vice of excessive jurisdiction. In the case in hand, the matter is only up to the show cause notice and the petitioner can very well demonstrate this contention before the authorized officer.
18] The learned Counsel for the petitioner has relied upon judgment of this Court, in the case of Ayub Yusuf Mansuri Vs. Sub-
::: Downloaded on - 17/02/2015 23:45:04 :::{14} crwp 641.14.odt Divisional Magistrate, Nandurbar & Others, reported in 1985(1) LJSOFT 270, in which externment order was quashed as show cause notice was not in accordance with requirement of Section 56(1) of the Bombay Police Act, 1951. He further placed reliance on the judgment of this Court, in the case of Namdeo Laxman Charde Vs. Sub-Divisional Magistrate, Katol & another, reported in 1996(1) Mh.L.J. 483, wherein challenge to the order of externment was on the ground of vague notice under Section 59 of the Bombay Police Act.
19] We refrain ourselves to comment on sufficiency of contents of the show cause notice served on the petitioner as the petitioner can very well demonstrate before the authorised officer, that because of vagueness or lacunae in the said notice, the externment proceedings needs to be dropped.
Suffice to mention, that the show cause notice under Section 59 of the Maharashtra Police Act, 1951, placed on record by the petitioner at Annexure "A" to the petition prima facie gives the general nature of material allegations against the petitioner for enabling him to tender an explanation.
The contents of that show cause notice are elaborately dealt with by us in opening para of our judgment.
20] Upon perusal of contents of show cause notice dated 23-7-2013, whereby the petitioner is asked to show cause as to why he should not be externed, we are unable to accept the contention of the learned Counsel for the petitioner, that this show cause notice is palpably untenable or same is ::: Downloaded on - 17/02/2015 23:45:04 ::: {15} crwp 641.14.odt issued in colourable exercise of power or the same is mala fide in law. The petitioner has an opportunity to demonstrate his contentions and grounds before the Sub-Divisional Magistrate, Aurangabad, and he can very well point out alleged haste by respondent no.3 - Sub-Divisional Police Officer in concluding the enquiry contemplated by Section 59 of the Maharashtra Police Act, 1951. The petitioner can very well demonstrate defects and lacunae in the proceedings before the Sub-Divisional Magistrate, Aurangabad. Prima facie, we found that by giving detail descriptions of the offences registered against the petitioner, and conviction recorded against him, by the impugned show cause notice, the petitioner is informed that despite conviction as well as preventive action under the Code of Criminal Procedure, he has not mended his ways. It is further informed that his acts are causing or calculated to cause law and order problem and harm to the persons or properties of the residents and witnesses are not willing to come forward to give evidence in public against him by reason of apprehension on their part as regards their safety of person or their property. Therefore, though a challenge to the show cause notice is not barred, as the impugned show cause notice cannot be said to be palpably untenable or issued in colourable exercise of power, the same requires no interference. It cannot be said that the same is mala fide in law.
21] For the aforesaid reasons, we find no substance in the petition.
The same is, therefore, dismissed. However, we clarify that the observations made by us, in this judgment, are prima facie observations and respondent ::: Downloaded on - 17/02/2015 23:45:04 ::: {16} crwp 641.14.odt no.3 - Sub-Divisional Magistrate should decide the proceedings uninfluenced by the observations made by us in this judgment.
[A.M. BADAR] [S.S. SHINDE ]
JUDGE JUDGE.
grt/-
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