Bombay High Court
Sandip @ Sandy Premnath Bamne vs The State Of Maharashtra And Others on 3 January, 2022
Author: V. K. Jadhav
Bench: V.K. Jadhav
1 crwp 1107.2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1107 OF 2021
Sandip @ Sandy Premnath Bamne,
age 32 years, Occ. Business,
R/o Sai Corner, Parbhani,
Tq. & District Parbhani ...Petitioner...
Versus
1. The State of Maharashtra
2. The Superintendent of Police,
Parbhani, District Parbhani.
3. The Divisional Commissioner,
Aurangabad Division,
Aurangabad. ..Respondents..
...
Advocate for Applicant : Mr. S.S. Jadhav
APP for Respondents : Mr. K S Patil
...
CORAM : V.K. JADHAV & SANDIPKUMAR C. MORE, JJ.
...
Reserved on : December 21, 2021
Decided on : January 03, 2022
...
ORDER :- ( Per V. K. Jadhav, J.)
1. Heard fnally with the consent of parties at admission stage.
2. By way of this criminal writ petition, the petitioner is taking exception to the judgment and order dated 30.8.2021 passed by the learned Divisional aaa/-
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2 crwp 1107.2021.odt Commissioner, Aurangabad in externment proceeding O.No.2021/MAG/EXT./CR arising out of the judgment and order passed by the Sub Divisional Magistrate, Parbhani, District Parbhani dated 15.2.2021 in externment proceeding no.4 of 2020.
3. On 16.9.2020 the police station, Nanalpeth, Parbhani has submitted the proposal for externment of the petitioner to the Sub-Divisional Magistrate, Sub Division, Parbhani, District Parbhani. In consequence of that, the Sub-Divisional Magistrate, Parbhani has issued a show cause notice to the petitioner dated 2.1.2021 under section 59 of the Maharashtra Police Act, 1959 calling upon him to show cause as to why pursuant to the aforesaid proposal, he should not be externed under section 56 (1) (a) (b) of the Maharashtra Police Act. In terms of the proposal submitted by the Nanalpeth Police Station, Parbhani, the show cause notice as aforesaid has been issued to the petitioner by referring four crimes registered against him. In aaa/-
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3 crwp 1107.2021.odt response to the said notice, the petitioner has appeared before the authority and submitted his say.
4. By order dated 15.2.2021, after giving an opportunity of being heard to both the sides, the Sub- Divisional Magistrate, Parbhani Sub Division, District Parbhani has rejected the proposal of the externment.
5. Being aggrieved by the said order dated 15.2.2021 passed by the Sub Divisional Magistrate, Sub Division Parbhani, District Parbhani, the police station Nanalpeth has preferred an appeal under section 60 of the Maharashtra Police Act before the Divisional Commissioner, at Aurangabad. After hearing both the sides, the learned Divisional Commissioner, Aurangabad by the impugned order dated 30.8.2021 allowed the appeal and thereby externed the petitioner for a period of one year from the date of judgment from Parbhani Taluka. Hence, this writ petition.
6. Learned counsel for the petitioner submits that so far as the crimes/cases at serial numbers 1 and 2 as aaa/-
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4 crwp 1107.2021.odt referred in the externment order i.e. crime no.182 of 2010 and crime no.2 of 2015 are not only stale prosecution but also attained the fnality. Learned counsel submits that, in crime no.182 of 2010 summary report was fled, whereas in crime no.2 of 2015 criminal Court has passed the judgment and order of acquittal. Learned counsel submits that so far as the cases at serial numbers 3 and 4 which are of the year 2019 and 2020 are concerned, those cases are pending the trial and material against the petitioner in those cases is extremely scanty. Learned counsel submits that though the learned Divisional Commissioner, Aurangabad has observed in the impugned judgment and order that acquittal on account of the hostility of the witnesses cannot be used in favour of the externee in the externment proceedings, however, the learned Divisional Commissioner has failed to consider the other grounds of rejection of the proposal.
7. Learned counsel for the petitioner submits that while rejecting the proposal of externment, the Sub- aaa/-
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5 crwp 1107.2021.odt Divisional Magistrate, Parbhani, has arrived at a subjective satisfaction and also taken into consideration the statutory requirements necessary for the purpose of externment in terms of the provisions of section 56 (1)(a)
(b) of the Maharashtra Police Act. On the other hand, the Divisional Commissioner, Aurangabad has taken an objective overview and theoretical approach while considering the appeal.
8. Learned counsel for the petitioner submits that the petitioner is only 32 years of age and recently married. There is no history of continuous movements or acts of the petitioner causing or calculated to cause alarm, danger or harm to a person or a property and there are no reasonable grounds for believing that the petitioner is continuously engaged in the commission of an offence involving the force or violence. Learned counsel for the petitioner submits that writ petition deserves to be allowed by quashing and setting aside the impugned order passed by the learned Divisional Commissioner, Aurangabad.
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9. Learned APP has supported the impugned order passed by the Divisional Commissioner, Aurangabad. Learned APP submits that the Divisional Commissioner has taken into consideration the entire material and on the basis of the subjective satisfaction and after application of the mind passed the impugned order. Learned APP submits that the learned Divisional Commissioner has rightly observed that, if the petitioner is acquitted in connection with the case at serial no.2 for the sole reason that the complainant and informant in that case have turned hostile and, as such, said order of acquittal is not helpful for the petitioner. Learned APP submits that, there are two in-camera statements of the witnesses, who have not come forward to lodge the complaint against the petitioner due to his terror in the society. Learned APP submits that the Divisional Commissioner has rightly observed about the movement of the petitioner causing alarm, danger to the person or the property and further the petitioner is engaged in the commission of offence involving the force or violence. On the other hand, the learned APP submits that the aaa/-
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7 crwp 1107.2021.odt Sub-Divisional Magistrate, Sub-Division, Parbhani has not considered the same. The learned APP submits that the petitioner is facing trial for serious offences like murder and so also the other cases showing his involvement in the commission of an offence of force and violence and an offence punishable under Chapter XII, XVI and XVII of the IPC. The learned APP submits that there is no substance in this criminal writ petition and the writ petition is liable to be dismissed.
10. We have also heard the learned counsel appearing for the petitioner and the learned APP for the respondent State. With their able assistance, we have perused the pleadings in the petition, annexures thereto. We have also perused the original record made available by the learned APP.
11. Upon careful reading of the entire pleadings and perusal of the original record, show cause notice and also the impugned order and the case history, we are of the considered opinion that there is no substance in aaa/-
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8 crwp 1107.2021.odt this writ petition and the same is thus liable to be dismissed.
12. So far as the crime at serial no.1 bearing crime no.182 of 2010 is concerned, though, it has been submitted by the petitioner in his say before the Sub- Divisional Magistrate, Sub-Division, Parbhani that the police has submitted the 'B' summary report, however, in the entire record, we do not fnd any order of the Magistrate accepting said 'B' Summary. Even, assuming that 'B' summary has been submitted, however, as per the allegations made in the FIR of Crime no.182 of 2010, it appears that on 14.10.2010 at about 17.30 hours, present petitioner has demanded certain subscription to the complainant and on his refusal not only extended beating to him with the help of iron rod, but also snatched his golden chain and cash amount worth Rs.31,300/-.
We have perused the judgment and order passed in Sessions Trial No.84 of 2015 which is in connection with the crime no.2 of 2015, referred in serial no.2. The aaa/-
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9 crwp 1107.2021.odt incident allegedly taken place on 2.1.2015. The complainant in the said case when noticed at about 11.45 p.m. to 12.00 midnight, the accused persons including the petitioner watching through the windows of their house and when the complainant objected the same, the complainant and his son were subjected ruthlessly beating with the help of iron rod, wooden log, fst and kick blows. Accused persons including the petitioner came to be tried by the Sessions Court for the offence punishable under sections 307, 326, 324, 143, 147, 148, 149, of IPC and Section 135 of the Maharashtra Police Act. The learned Additional Sessions Judge-3, Parbhani by judgment and order dated 7.2.2019 has acquitted all the accused persons with the observations in one paragraph that neither the informant Ashok Tapke (PW-1) nor injured Gajendra Tapke (PW-2) have supported the prosecution. The learned Additional Sessions Judge, Parbhani has observed that the accused and informant resides in the same lane and this must be the reason for the witnesses to refrain from stating anything against the accused. aaa/-
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10 crwp 1107.2021.odt We agree with the observations made by the learned Divisional Commissioner, Aurangabad that the petitioner cannot be permitted to take advantage of the said acquittal especially which has followed the witnesses turning hostile.
. So far as the crime at serial no.3 is concerned bearing crime no.152 of 2019, the same has been registered in Kotwali Police Station for the offence punishable under sections 302, 341, 323, 324, 143, 147, 148, 149 of IPC. On perusal of the FIR, it appears that name of the petitioner is mentioned in the FIR with the specifc allegations that he was the Member of an unlawful assembly and in prosecution of the common unlawful object of the said assembly, deceased Amol was assaulted due to the dispute about displaying the banner. Deceased Amol was beaten with the help of bricks, iron rod, Jamiya (big knife) sticks, etc. Said case is pending before the Sessions Trial/Court.
13. The case at serial no.4 bearing crime no.349 of 2020 is for the offence punishable under section 452, aaa/-
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11 crwp 1107.2021.odt 143, 147, 148, 149, 324, 323, 504 of IPC registered at Nanalpeth Police Station, Parbhani. We are unable to understand as to how the Sub-Divisional Magistrate, Parbhani has made the observations that the petitioner has not committed any serious offence after 2019.
14. In addition to this, there are two in-camera statements. Incident of the frst in-camera statements allegedly occurred some one and half months back before externment proceedings. The complainant was proceeding on motorcycle. He was obstructed. he was made aware that said area belongs to the petitioner, who is popularly known as Sandy. It has been alleged that at that time, the petitioner has removed and snatched an amount of Rs.5,00/- from his pocket on the point of Gupti. He threatened to kill if the incident is reported to the police.
So far as second in-camera statement is concerned, wherein the complainant was proceeding on foot, however, at that time some 4-5 persons were consuming beer in the open space. Thus, the aaa/-
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12 crwp 1107.2021.odt complainant was obstructed by them and further informed that this area belongs to the petitioner, who is popularly known as Sandy. Further, understanding was also given to him that the petitioner has recently committed the murder. He was extended beating. The petitioner has snatched cash amount of Rs.1100/- from him on the point of knife.
15. On perusal of the impugned order, we fnd that the learned Divisional Commissioner, Aurangabad has applied the mind to the material placed on record. The impugned order discloses that subjective satisfaction has been reached by considering the material available on record. The order of externment need not necessarily refer to the details of the materials, however, it appears that the learned Divisional Commissioner, Aurangabad has rightly considered the need for and extent of the externment to be ordered. The learned Divisional Commissioner, Aurangabad has very reasonably externed the petitioner for a period of one year from Parbhani Taluka only.
aaa/-
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13 crwp 1107.2021.odt
16. In view of the same, we fnd no substance in this criminal writ petition. Hence, following order.
ORDER i. Criminal writ petition is hereby dismissed. ii. The impugned judgment and order dated 30.8.2021 passed by the Divisional Commissioner, Aurangabad in Externment Proceeding No. 2021/MAG/Ext./CR [O.No.2021/SaPra/Kaksha-1/Poll-1/Haddapar /CR-20] thereby externing the petitioner from Parbhani Taluka stands confrmed.
iii. Criminal writ petition is accordingly disposed off.
( SANDIPKUMAR C. MORE, J. ) ( V.K. JADHAV, J. ) ...
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