Bombay High Court
Santosh Dattatray Naik vs The Divisional Commissioner And Others on 7 February, 2017
Author: S.S. Shinde
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1034 OF 2016
Santosh Dattatrya Naik,
Age: 27 years Occ. Agril.
R/o : Village Jeour Patoda,
Tq. Kopargaon, Dist. Ahmednagar PETITIONER
VERSUS
1. The Divisional Commissioner,
Nashik Division, Nashik
2. The Sub-Divisional Police Officer,
Shirdi Division, Shirdi,
Tq. Rahata, District Ahmednagar
3. The Sub-Divisional Officer,
Shirdi Division, Shirdi,
Tq. Rhata, Dist. Ahmednagar RESPONDENTS
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Mr. Kishorkumar B. Borde, Advocate for the Petitioner
Mr. S.G. Karlekar, A.P.P. for the respondents
----
CORAM : S.S. SHINDE AND
K.K. SONAWANE, JJ.
DATE : 7th FEBRUARY, 2017
JUDGMENT (PER : S.S. SHINDE, J.) :
Rule, returnable forthwith. With the consent of the parties, the writ petition is heard finally.
2. The petitioner has challenged the vires of the order dated 6 th August, 2016, passed by the Divisional Commissioner, Nashik Division, Nashik in Externment Appeal No. 34 of 2016, whereby the order dated 11th January, 2016, passed by the Sub-Divisional Magistrate, Sub-
::: Uploaded on - 09/02/2017 ::: Downloaded on - 11/02/2017 00:51:21 :::2 Cri.WP-1034-16 Division, Shirdi in Externment Proposal No. 04 of 2015, has been confirmed and the petitioner has been externed from the local limits of Tahsils namely Kopargaon, Rahata, Shrirampur and Sangamner from Ahmednagar District, Yeola, Sinnar, Niphad Tahsils from Nashik District and Vaijapur Tahsil from Aurangabad District, for a period of two years.
3. The Sub-Divisional Officer (for short, "SDPO") sent a proposal on 28th August, 2015 to the Sub-Divisional Magistrate, Shirdi, seeking externment of the petitioner from the local limits of the Districts of Ahmednagar, Nashik, Pune and Aurangabad for a period of two years, on the ground that there were three crimes registered against him and further, the in-camera statements of two witnesses show that the petitioner is a person who creates terror in the locality for illegal excavation of sand and in case somebody obstructs him, he threatens such person of death. He is in the habit of committing crimes with the help of his companions. Therefore, in view of the provisions of Section 56 (1) (a) and (b) of the Bombay Police Act, it was necessary to extern the petitioner from the local limits of the above mentioned Districts for a period of two years.
4. After receiving the said proposal, the Sub-Divisional Magistrate issued a show-cause notice dated 12th August, 2015 to the petitioner, calling upon him to show cause as to why the proposal for his externment, submitted by the SDPO, Shirdi, should not be accepted and he should not be ordered to be externed. The petitioner replied the said ::: Uploaded on - 09/02/2017 ::: Downloaded on - 11/02/2017 00:51:21 ::: 3 Cri.WP-1034-16 notice on 25th August, 2015 and denied the allegations made against him. The learned Sub-Divisional Magistrate, after considering the material placed before him, found substance in the proposal submitted by the SDPO for externment of the petitioner. However, instead of externing the petitioner from the entire area under the districts of Ahmednagar, Nashik and Aurangabad, he ordered externment of the petitioner from the above mentioned Tahsils only from the Districts of Ahmednagar, Nashik and Aurangabad, vide order dated 11 th January, 2016.
5. The petitioner challenged the order dated 11th January, 2016, passed by the Sub-Divisional Magistrate before the Divisional Commissioner, Nashik by filing Externment Appeal No. 34 of 2016. The learned Divisional Commissioner, Nashik, after hearing the petitioner and considering the material produced before him, did not find any substance in the appeal. He, therefore, dismissed the appeal and confirmed the order of externment dated 11 th January, 2016, passed by the Sub-Divisional Magistrate, as per the order dated 6 th August, 2016, which has been impugned in this petition.
6. There are two major objections raised against the impugned order by the learned counsel for the petitioner. Firstly, he submits that there is no mention in the show-cause notice dated 12 th August, 2015 as well as in the impugned order that the in-camera statements of two witnesses disclosed any specific incident with date, time or place when the ::: Uploaded on - 09/02/2017 ::: Downloaded on - 11/02/2017 00:51:21 ::: 4 Cri.WP-1034-16 petitioner allegedly threatened any of them or committed any offence against their persons or properties. Therefore, relying on the judgments in the cases of Bilal Gulam Rasul patel Vs. Divisional Magistrate, Thane and others 2014 All MR (Cri) 2161 and Bajrang Sidaram Jadhav Vs. State of Maharashtra and others 2013 (10) LJSOFT 23, he submits that the show-cause notice dated 12 th August, 2015 is violative of the principles of natural justice. It is cryptic. The petitioner did not get an opportunity to explain the allegations made against him.
Therefore, the externment order would become illegal. Secondly, he submits that there are three crimes registered against the petitioner in Police Station Kopargaon only in the years 2013 and 2014. On the basis of one of the crimes, RTC No. 222 of 2014 was registered against the petitioner and others for the offence punishable under section 379 of the Indian Penal Code and under section 3 read with section 15 of the Protection of Environment Act. He submits that so far as the crimes shown in the notice are concerned, the cases are pending. The petitioner has not been convicted by any Court. Moreover, when it is alleged that the petitioner has committed the offences within the local limits of jurisdiction of Kopargaon Police Station only. Therefore, the impugned externment order prohibiting him from entering into the local limits of Tahsils Kopargaon, Shrirampur and Sinner from Ahmednagar District, Yeola, Sinner and Niphad Tahsils from Nashik District and Tahsil Vaijapur from Aurangabad District, ex-facie is excessive and unsustainable in law.
In support of this contention, he relied on the judgment in the case of ::: Uploaded on - 09/02/2017 ::: Downloaded on - 11/02/2017 00:51:21 ::: 5 Cri.WP-1034-16 Rameshkumar @ Ramu Singh s/o Shriram Singh Thakur Vs. State of Maharashtra and another 2013 (10) LJSOFT 15. He, therefore, prays that the impugned order may be quashed and set aside.
7. As against this, the learned A.P.P. submits that there was sufficient material before the Externing Officer which warranted externment of the petitioner from the above mentioned Tahsils. The Externing Officer as well as the Appellate Authority have applied their minds to the facts of the case and after giving reasonable and fair opportunity to the petitioner of being heard, passed the impugned orders. He supports the impugned order of externment and prays that the writ petition may be dismissed.
8. We have perused the record of externment proceedings. The first show-cause notice dated 12 th August, 2015 issued by the SDPO contains that there were three crimes registered against the petitioner in Police Station, Kopargaon. It further contains that in-camera statements of two witnesses, A and B, show that the petitioner, with the help of his companions, causes illegal excavation of sand for sale and on the basis of the money acquired therefrom, creates terror in the village. Due to his illegal acts, there has been danger to the lives and properties of the villagers. He is habituated to commit serious offences. Therefore, the witnesses gave statements against him on the condition of non-
disclosure of their names. In the show-cause notice dated 12 th August, ::: Uploaded on - 09/02/2017 ::: Downloaded on - 11/02/2017 00:51:21 ::: 6 Cri.WP-1034-16 2015, issued by the Sub-Divisional Magistrate, Shirdi, there is absolutely no mention about the in-camera statements alleged to have been recorded by the SDPO. If the in-camera statements of A and B are compared, it would be clear that they are quite identical. It does not appear to be natural and probable that three persons would state in such a fashion. Moreover, there is no mention in the said statements with regard to the alleged incidents of violence committed by the petitioner which created fear in the minds of the villagers. Such vague and general statements cannot be relied on to curtail the liberty of a person to move freely in the area in which he is legitimately entitled to move. In the circumstances, in view of the judgments in the cases of Bilal Gulam Rasul patel (supra) and Bajrang Sidaram Jadhav (supra), the externment order passed on the basis of such show-cause notices, being violative of the principles of natural justice, is liable to be set aside.
9. As stated above, the petitioner is alleged to have committed the offence within the local limits of Kopargaon Police Station only. However, he has been externed from the above mentioned Tahils from Ahmednagar, Nashik and Aurangabad Districts. The impugned order does not contain any justifiable reason to ban entry of the petitioner in other seven Tahsils of three Districts. The impugned order of externment ex-facie is harsh and excessive. There is no material on record to show that the petitioner committed any offence in the area of the other seven Tahsils, excepting that of Police Station, Kopargaon. In ::: Uploaded on - 09/02/2017 ::: Downloaded on - 11/02/2017 00:51:21 ::: 7 Cri.WP-1034-16 the circumstances, in view of the judgment in the case of Rameshkumar @ Ramu Singh s/o Shriram Singh Thakur (supra), the impugned order of externment would be unsustainable in law.
10. In view of the above facts and circumstances of the case, the externment order dated 6th August, 2016, being illegal, is liable to be set aside and accordingly set aside with the following order :-
ORDER
(i) Criminal Writ Petition is allowed.
(ii) The impugned order of externment dated 6th August, 2016, passed in Externment Appeal No. 34 of 2016, is quashed and set aside.
(iii) Rule is made absolute in the above terms.
Sd/- Sd/-
[ K.K. SONAWANE, J.] [ S.S. SHINDE, J. ]
MTK
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