Bombay High Court
Kunal @ Ilu S/O. Gopichand Nandvanshi vs The State Of Maharashtra And Others on 7 September, 2020
Author: M.G. Sewlikar
Bench: T.V. Nalawade, M.G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.741 OF 2020
Kunal @ Illu S/o Gopichand Nandvanshi
Age: 25 years, Occu: Labour
R/o Lalmandi, Begumpura,
Aurangabad. Petitioner
versus
1 The State of Maharashtra,
Though Secretary,
Home Department,
Mantralaya, Mumbai
2 The Divisional Commissioner,
Aurangabad Division, Aurangabad
3 The Commissioner of Police,
Aurangabad
4 The Asst. Commissioner of Police,
Aurangabad City, Dist. Aurangabad
5 The Deputy Commissioner of Police (Zone-1)
Aurangabad City, Dist. Aurangabad
6 The Police Inspector,
Police Station, Begumpura,
Tq. Begumpura, Dist Aurangabad Respondents.
...
Mr. A.K. Bhosale advocate for the petitioner.
Mr. B.V. Virdhe, Assistant Public Prosecutor for respondents-
State
....
CORAM: T.V. NALAWADE AND
M.G. SEWLIKAR, JJ
...
Reserved on : 14-08-2020
Pronounced on :07-09-2020
JUDGMENT (Per: M.G. SEWLIKAR, J)
1 Rule. Rule is made returnable forthwith. Learned APP waives service of notice for the respondent-State. With the ::: Uploaded on - 07/09/2020 ::: Downloaded on - 09/09/2020 22:53:16 ::: {2} cR. WP 741.20.odt consent of both the sides the matter is heard finally at the stage of admission.
2 The petitioner, herein has challenged the externment order dated 18.4.2019 passed by the Deputy Commissioner of Police, Circle-I, Aurangabad, confirmed by the Divisional Commissioner, Aurangabad vide order dated 18.10.2019 in File No.2019/GA/POL I/Externment/CR-71.
3 Facts giving rise to this petition are as under:-
On 4.2.2019, Police Inspector, Begumpura Police Station forwarded proposal for initiating externment proceedings against the petitioner alleging that Crime No.132/13 (RCC No.1561/2014) for the offences punishable under sections 307, 323, 504, 506 read with section 34 of Indian Penal Code (IPC) registered at Begumpura Police Station, Crime No.168/2015 (RCC No.105/2016) for the offences punishable under sections 384, 452, 427, 323, 506 read with section 34 of IPC registered at Begumpura Police Station, Crime No.03/2006 (RCC No.57/2016) for the offences punishable under sections 353, 341, 323, 504, 506 read with section 34 IPC and Crime No.307/2017 (RCC No.1507/2016) for the offences punishable under section 307 read with section 34 of IPC registered at MIDC Waluj Police station are pending against the petitioner. ::: Uploaded on - 07/09/2020 ::: Downloaded on - 09/09/2020 22:53:16 :::
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4 It is alleged in the said proposal that despite pendency of these proceedings, there is no improvement in the behavior of the applicant and he has continued with his unlawful activities. On the basis of this proposal, the Deputy Commissioner of Police issued notice under section 56(1) of The Maharashtra Police Act. In the said notice, it was stated that the activities of the petitioner have created terror in the society because of which people are not coming forward to depose against him. He extorts money from the residents of that locality, from the shop keepers, businessmen and beats them. The offences as stated above were shown to be pending against the petitioner. He, therefore, was called upon to explain why he should not be externed from city of Aurangabad and contagious district Jalna for a period of two years. Thereafter, on 14.2.2019, a show cause notice under section 59 of the Maharashtra Police Act came to be issued to the applicant, calling upon him to explain why he should not be externed from district of Aurangabad and Jalna for a period of two years.
5 The petitioner replied to the notice by filing his Say on 15.4.2019. In the Say, he has stated that false cases have been filed against him. In S.C.C. No.846/2016 for the offences punishable under section 353 of IPC, the informant is not a public servant within the meaning of section 21 of IPC and therefore, he is likely to be acquitted in that case. He has ::: Uploaded on - 07/09/2020 ::: Downloaded on - 09/09/2020 22:53:16 ::: {4} cR. WP 741.20.odt further stated that, in R.C.C No.2101/2015 registered for the offences punishable under section 384, 452, 323, 506 & 427 of IPC, he may be acquitted. He has further stated that he is on bail in all the cases. He is working in a film prepared by Shrikant Talatkar named 'USAN' under Beti Bachav, Beti Padhav scheme. He, therefore, prayed for the dropping of the proceedings. 6 The learned Deputy Commissioner of Police by his order dated 18.04.2019, externed the petitioner for a period of two years from the limits of Aurangabad Commissionerate and from Aurangabad district. The petitioner preferred appeal against this order before the Divisional Commissioner, Aurangabad. The Divisional Commissioner, Aurangabad confirmed the order of Deputy Commissioner of Police vide order dated 18.10.2019. Both the Deputy Commissioner of Police and Divisional Commissioner considered the cases registered against the petitioner i.e. Crime No.132/2013, Crime No.168/2015, Crime No.3/2016 registered at Begumpura Police Station, and Crime No.307/2017 registered at MIDC Waluj Police Station in-camera statements of two witnesses have also been considered. There- after the Deputy Commissioner of Police came to the conclusion that the activities of the petitioner have become dangerous to the society at large, witnesses are not coming forward to depose against him and he needs to be externed from Aurangabad district. This order, as stated above, has been confirmed by the ::: Uploaded on - 07/09/2020 ::: Downloaded on - 09/09/2020 22:53:16 ::: {5} cR. WP 741.20.odt Divisional Commissioner. This order is impugned in this petition. 7 Heard Shri A.K. Bhosale, learned counsel for the petitioner and Shri B.V. Virdhe, learned Assistant Public Prosecutor. 8 Shri Bhosale submits that the order has been passed without application of mind. Both the learned authorities have not considered the material before them in proper perspective and hence, have come to wrong conclusion. He argued that the activities of the petitioner are confined to Begumpura Police Station, but he is externed from Aurangabad Commissonerate and Aurangabad district, which is illegal. 9 Learned APP Shri Virdhe argued that both the authorities have recorded a finding that the activities of the petitioner have become dangerous to the society. People are not coming forward to depose against the petitioner and therefore, the order of externment has been properly passed against the petitioner. 10 The only point that has been raised before us is that the activities of the petitioner are restricted to Begumpura Police Station, but he has been externed from Aurangabad - local jurisdiction and from entire Aurangabad district. 11 The chart annexed with the show cause notice shows that the activities of the petitioner are confined to Begumpura Police Station and MIDC Waluj Police station.
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{6} cR. WP 741.20.odt 12 This shows that though the activities of the petitioner are restricted to only Begumpura Police Station and Waluj Police Station, he has been externed from a larger area i.e. from the entire Aurangabad district.
13 In case of Sayeed Firoz Sayeed Noor versus State of Maharashtra (2016 (1) Bom. C.R. (Cri.)270) Nagpur bench of Bombay High Court has held in para No.10 of the Judgment as under:-
"If all the offences are committed in the jurisdiction of only one Police Station, why it has become necessary to extern the petitioner out of city limits or then out of district itself i.e. the limits of urban and rural areas, is not apparent from the orders of externment. "
14 The Full Bench in the case of Sumit s/o Ramkrishna Maraskolhe V/s. Deputy Commissioner of Police, Nagpur and Anr. in Criminal Writ Petition No. 1002 of 2017 has held in para No.26 as under:-
"26. The discussion made so far would lead us to record our conclusions as follows :
(i) The externment order directing externment of a person from a much larger area than the one of his illegal activities, must be based upon some material which provides an objective criteria to the authority for reaching a subjective satisfaction regarding the need for externing a person to an expansive area though it may not always directly or elaborately refer to that material ::: Uploaded on - 07/09/2020 ::: Downloaded on - 09/09/2020 22:53:16 ::: {7} cR. WP 741.20.odt in the order itself, as it all depends upon facts and circumstances of the case which need be vetted through the judicial process of drawing of legitimate inference following the law of Pandharinath and Sanjeev @ Brittoo (supra).
(ii) The order of externment need not necessarily refer to the details of the material considered by it so as to show independently that larger or additional area chosen by it is intimately connected with the actual area of the activities of the externee due to improved or common means of transport and communication.
(iii) Application of mind to the material present on record by the authority passing the externment order is necessary, but any reflection of application of mind in the externment order in a specific manner, as if to pass a reasoned order, would not be necessary. It would be enough if the order discloses that the subjective satisfaction has been reached by considering the material available on record and it would and should be a matter of legitimate inference that the authority, while considering materials to satisfy itself about the need for and extent of externment to be ordered, also considered all the options available to it and selected in it's wisdom the one which it thought to be most appropriate. This would also mean that authority, in this way, can select a larger area for being covered under it's externment order, as one of the options available to it, whether such larger area has within it contiguous or inter-connected or intimately connected pockets of areas or not."
15 The externing authority, undoubtedly, has authority to extern a person from a much larger area than the one of his illegal activities. This discretion is not unfettered, but has to be exercised judiciously. There has to be some material to indicate ::: Uploaded on - 07/09/2020 ::: Downloaded on - 09/09/2020 22:53:16 ::: {8} cR. WP 741.20.odt that there is a need to extern a person to an expansive area. In the case at hand, the impugned order does not reflect that there was any such material before the Deputy Commissioner of Police and the Divisional Commissioner to extern the petitioner beyond the area of his illegal activities. No reason is assigned for externing him from a larger area. Therefore, the impugned order suffers from the vice of arbitrariness. Petition, therefore succeeds. Hence, the following order:-
ORDER I. The writ petition is allowed.
II. The impugned order dated 18.10.2019 passed by the Divisional Commissioner bearing No.2019/GA/POL-1/ Externment/CR-71 confirming the order dated 18.04.2019 passed by the Deputy Commissioner of Police is set aside. III Rule is made absolute in the above terms.
(M.G. SEWALIKAR, J.) (T.V. NALAWADE, J.)
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