Bombay High Court
Rohit Sambhaji Bhajnaik vs The Divisional Commissioner on 17 September, 2018
Author: S.S. Shinde
Bench: S.S. Shinde, Mridula Bhatkar
15.WP2837_2018.doc
Vidya Amin.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 2837 OF 2018
Rohit Sambhaji Bhajnaik ... Petitioner
vs.
The Divisional Commissioner, Pune & Ors. ... Respondents
Mr. Umesh R. Mankapure, Advocate for the petitioner.
Mrs. M.M. Deshmukh, APP for the respondent-State.
CORAM: Mr.S.S. SHINDE &
Mrs.MRIDULA BHATKAR, JJ..
DATED: 17th September, 2018
ORDER (PER S.S. SHINDE, J.)
1. Rule. Rule made returnable. Heard forthwith with the consent of the parties.
2. This Petition under Articles 226 and 227 of the Constitution of India takes exception to the impugned order dated 21st June, 2018 passed by respondent no. 1 thereby confirming the order dated 12th April, 2018 passed by respondent no. 2 in an Externment Proposal No. 58 of 2017.
3. The brief facts leading for filing the present Petition are as under:
The petitioner herein received show-cause notice on 2 nd 1 of 7
15.WP2837_2018.doc February, 2018 from Sub-Divisional Police Officer, City area Sangli under section 59(1) of the Bombay Police Act, 1951 (hereinafter referred to as the said Act) stating therein that, why the petitioner should not be externed from the revenue boundaries of Sangli, Satara, Solapur and Kolhapur Districts, for 2 years for his alleged illegal activities mentioned in the show-cause notice. The petitioner appeared before the Sub-Divisional Officer, Miraj and put forth his contention in reply to the show-cause notice. By the impugned order dated 12th April, 2018, the Sub-Divisional Magistrate, Miraj Division, Miraj passed the order of an externment of petitioner externing him from the revenue boundaries of Sangli and Kolhapur district.
4. Being aggrieved by the aforesaid orders, the petitioner filed an Appeal under section 60 of the said Act, before the Divisional Commissioner, Pune Division, Pune. The Appellate Authority confirmed the order passed by the Sub-divisional Magistrate, Miraj Division, Miraj. Hence, this Petition.
5. The learned counsel appearing for the petitioner invites our attention to the grounds taken in the Petition and submitted 2 of 7
15.WP2837_2018.doc that, in fact the alleged activities of the petitioner are confined within the jurisdiction of Vishrambaug Police Station and Sangli City Police Station at Sangli. However, the petitioner has been externed from entire Sangli and Kolhapur Districts. It is submitted that the order of an externment from aforesaid two districts is excessive in as much as, the offences registered against the petitioner are within the jurisdiction of only two police stations situated in Sangli City. Secondly, in the show-cause notice issued to the petitioner, it is not stated that the concerned respondent/authority has recorded the statements of witnesses (in- camera) and therefore, in view of the observations of the Supreme Court in paragraph 9 in the case of Pandharinath Shridhar Rangnekar vs. Deputy Commissioner of Police, The State of Maharashtra, reported in (1973) 1 SCC 372, the impugned orders stand vitiated and consequently deserves to be quashed and set aside.
6. On the other hand, learned APP appearing for the State invites our attention to the reasons assigned in the impugned orders and submitted that, both the authorities have kept in view the show cause notice, reply filed by the petitioner and also other 3 of 7
15.WP2837_2018.doc material brought on record during the course of enquiry by the concerned police officer and thereafter an order of externment has been passed thereby externing the petitioner from Sangli and Kolhapur Districts.
7. We have given careful consideration to the submissions of the learned counsel appearing for the petitioner and the learned APP appearing for the State. With their able assistance, we have carefully perused the contents of the show-cause notice and also the reasons assigned in the impugned orders by the Sub- Divisional Magistrate, Miraj and also by the Appellate Authority. Upon careful perusal of the show cause notice dated 2 nd February, 2018, it is abundantly clear that, it is not mentioned in the said notice about recording of an in-camera statements of the witnesses, who have deposed that they are not willing to come forward in public to give evidence against the petitioner by reason of apprehension on their part as regards the safety of their person or property. It is true that the concerned respondent/authority is not supposed to give specific name of the witnesses or the specific contents of their statements. Nevertheless, in view of the observations of Supreme Court in paragraph 9 in the case of 4 of 7
15.WP2837_2018.doc Pandharinath Shridhar Rangnekar (supra), it was incumbent upon the concerned Government Authority to mention material allegations against the proposed externing, i.e., petitioner herein, and also the general nature of allegations against him. Paragraph 9 of the said judgment reads as under:
"9 ..... That explains why Section 59 of the Act imposes but a limited obligation on the authorities to inform the proposed externee "of the general nature of the material allegations against him". That obligation fixes the limits of the co-relative right of the proposed externee. He is entitled, before an order of externment is passed under section 56, to know the material allegations against him and the general nature of those allegations. He is not entitled to be informed of specific particulars relating to the material allegations."
8. We have carefully perused the reasoning given in both the impugned orders, and we find that there are no specific reasons assigned in the impugned orders why the petitioner's externment was necessary from the revenue boundaries of the Kolhapur District. Admittedly, three offences registered against the petitioner which are mentioned in the show-cause notice are at Sangli City Police Station and Vishrambaug Police Station at Sangli about his alleged illegal activities within the jurisdiction of 5 of 7
15.WP2837_2018.doc said police stations. It is open to the concerned authority who has jurisdiction under the aforesaid act to extern the proposed externee from more than one districts. However, it is necessary for such authority to record specific reasons for such externment of the proposed externee from the adjoining districts.
9. We have carefully perused the offences mentioned in the impugned orders, and we do not find specific reasons mentioned therein showing live-link in between the initiation of externment proceedings and registration of Crime No. 35 of 2016 for the offences punishable under sections 324, 504, 506 r/w. 34 of Indian Penal Code and Crime No. 178 of 2015 registered with Vishrambaug Police Station at Sangli under sections 326 and 324 of Indian Penal Code.
10. To sum up, the orders impugned in this Writ Petition are not legally sustainable for three reasons - firstly, in the show cause notice the material allegations and the general nature of allegations against the petitioner are not mentioned. There is no reference to the recording of an in-camera statements of the witnesses; secondly, the order of an externment is excessive, in as 6 of 7
15.WP2837_2018.doc much as, no reasons have been assigned in both the impugned orders that the externment of the petitioner was warranted from the Kolhapur District though the alleged activities of the petitioner are confined to boundaries of Sangli District; thirdly, there is no live-link between an initiation of externment proceedings against the petitioner and registration of Crime No. 35 of 2016 and Crime No. 178 of 2015, against the petitioner. In that view of the matter, in our considered view, the impugned orders deserves to be quashed and set aside. Accordingly the following order is passed:
(i) The order dated 12th April, 2018 passed by Sub-
divisional Magistrate, Miraj Division, Miraj, which has been merged in the impugned judgment and order dated 21st June, 2018 passed by the Divisional Commissioner, Pune Division, Pune are quashed and set aside;
(ii) Rule made absolute in above terms.
11. Writ Petition stands disposed of accordingly.
(MRIDULA BHATKAR, J.) (S.S. SHINDE, J.)
Vidya Digitally signed 7 of 7
by Vidya Suresh
Amin
Suresh Date:
2018.09.21
Amin 18:02:56 +0530