Bombay High Court
Praful Bhausaheb Yadav vs Shri K. K. Pathak on 1 February, 2013
Author: A.P.Bhangale
Bench: A.S.Oka, A.P.Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3580 OF 2012
Praful Bhausaheb Yadav
Age:24 Yrs. Occ. Business,
Resident at Dhanlaxmi Apartment,
Shivajinagar, Tal. Sinner, Dist. Nashik ... Petitioner.
V/s.
1. Shri K. K. Pathak,
Principal Secretary (Home),
State of Maharashtra, Mantralaya, Mumbai
2. Shri Dattarya Borude,
Sub-Divisional Magistrate, Niphad Division
Niphad.
3. Shri R.N. Hajari,
Sub-Divisional Officer, Niphad
Division, Niphad
4. The State of Maharashtra ... Respondents.
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Mr. Saurabh Singha i/by Mr. Amin Solkar for the Petitioner.
Mr. J.P. Yagnik, A.P.P. for the State.
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CORAM : A.S.OKA & A.P.BHANGALE,JJ.
DATE : 01st FEBRUARY, 2013
JUDGEMENT :(Per A.P.Bhangale,J.)
1. Rule. Heard finally by consent. Perused the record.
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2. The case of the Petitioner is that he is cable operator by profession. Police Inspector Mr. Mangalsingh Suryavanshi of Sinnar Police station harbored personal grudge against the Petitioner and initiated false externment proceedings on the basis of false cases. According to the Petitioner on 25-12-2010 he had gone to Vaishnavi Dhaba at Sinnar -Goti Highway, to have food. The Petitioner came to know of some incident had happened outside a Company near that Dhaba. One unknown man was lying dead The Petitioner and others went to see what had happened. P.I Mangalsingh was present there who started abusing the Petitioners and others. Petitioner had objected the police inspector Mangalsingh who had abused the people as well as friends of the Petitioner, over their Mother and Sister. Petitioner was then indicted in the false Murder case by said Mangalsingh who was bent upon to take revenge upon the Petitioner. The Petitioner was arrested, remanded for few days and then was released on Bail on 05-02-2011 by the Sessions Court.. On 01-10-2011 show-cause notice was slapped upon the Petitioner under Section 59 of the Bombay Police Act, 1951, proposing action under section 56(1) (b) of the said Act to extern the Petitioner from the limits of Districts of Nashik, Ahmadnagar, Dhule, Jalgaon for the period of two years. On 13-04-2012, Sub Divisional Magistrate passed the order of externment, externing the Petitioner from the limits of Nashik for period of two years. The appeal preferred against the externment order was also dismissed by Principal Secretary (Home) State of Maharashtra at Mantralaya, Mumbai. Hence Petition is filed impugning the externment order.
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3. Learned Advocate on behalf of the Petitioner contended that the impugned externment order is illegal, malafide and bad in law. There was no application of mind and the order was issued mechanically in most cavalier manner. Case under section 185 of the Motor Vehicles Act was also taken in to consideration for to form subjective satisfaction as to extern the Petitioner. It is submitted that three cases alleged against the Petitioner are pending and the Petitioner is on bail. There is no conviction in the past and no any instance of misuse or abuse of personal liberty. Without resorting to normal remedy available at law i. e. cancellation of bail, the State took drastic action of externment without any valid and sound reason. The order was passed after unexplained and gross delay in respect of the alleged incidents of the year 2010.
Learned Advocate prayed for to quash and set aside the impugned order.
4. Learned APP Shri Yagnik sought to defend the externment proceeding and contended that the impugned order of externment was passed in view of the four pending criminal cases giving rise to alarm and danger to the peace and order in the society. He prayed for dismissal of the Petition.
5. It is settled principle that to pass externment order under Section 56(1)(a)(b) of the Bombay Police Act, the extending authority Police Commissioner or the District Borey 3/6 ::: Downloaded on - 09/06/2013 19:37:21 ::: spb/ 49wp3580-12jt.sxw Magistrate, as the case may be, must record his judicious satisfaction that :-
(i) The acts of the person are causing or calculated to cause willful danger or harm to the person or property or that there are reasonable grounds that he is engaged or about to be engage in the commission of an offences under Chapters XVI and XVII I.P.C. And
(ii) In the opinion of the officer, witnesses are not willing to come forward to give evidence and unless such an opinion is formed by the officer, he cannot pass the order for externment of the person
6. We find that the Show -cause notice dated 01-10- 2011 was observed merely as a formality which mentioned about the proposal to extern received from the Sinnar police station on the ground of four pending criminal cases including a case under the Motor vehicles Act reported at Sinnar police station. It contained omnibus allegations that despite preventive proceedings against the noticee there was no change in his behavior. And there is increasing tendency to commit offences on his part and there is danger to person or property of the people. It is alleged that nobody is coming forward to give evidence against the noticee. All the cases are in respect of the alleged incidents occurred on 06-04-2010, 18-07-2010, 25-12- 2010 and 26-12-2010 and cases are still pending. The show Borey 4/6 ::: Downloaded on - 09/06/2013 19:37:21 ::: spb/ 49wp3580-12jt.sxw cause notice was belatedly issued on 1 st October, 2011 and the impugned order was passed more than five months thereafter.
Thus, the order was passed nearly 16 month after the date of the last alleged offence. The order granting bail in the last offence records a finding that there was no incriminating material brought on record. Hence, the live link between the prejudicial activities and necessity of passing order of externment was snapped.
7. Furthermore, there was no any past instance of conviction recorded against the externee. He cannot be branded as habitual criminal merely on the basis of fact of pending criminal cases of 2010 particularly in the absence of any past conviction. He cannot be branded as dangerous in the absence of any complaint by any witness in any pending criminal case against the noticee. There was no any instance of misuse or abuse of the bail order by him in any pending criminal case.
When impugned order of externment was passed there was no any tangible material for the externing authority to record subjective satisfaction that the externee was so dangerous that no witness or witnesses are willing to come forward to depose against him. In fact no such subjective satisfaction has been recorded by the externing authority which is a condition precedent for passing an order of externment under Section 56 (1)(b). Externment order when implemented may result in far- reaching harsh consequences for the externee and his family members if dependent upon him for their livelihood. It may spell economic death for the externee. That being so, Procedure Borey 5/6 ::: Downloaded on - 09/06/2013 19:37:21 ::: spb/ 49wp3580-12jt.sxw established by law must be shown to have been followed vigilantly and cautiously before a person is deprived of his fundamental right of free movement as guaranteed under article 19(1)(d) and personal liberty guaranteed under article 21 of the Constitution of India.
8. For the aforesaid reasons, the impugned order of externment not only suffers from the vice of laches but also from the non-application of mind. There was no justification to pass such drastic order; hence it is indefensible and unsustainable. It must be quashed and set aside.
9 In the result following order is passed.
Rule is made absolute in terms of prayer clause (a).
(A.P. BHANGALE,J.) (A.S. OKA,J.)
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