Bombay High Court
Ashish S/O Samadhan Makeshwar vs State Of Mah. Thr. Its Secretary Home ... on 13 March, 2023
Author: G. A. Sanap
Bench: G. A. Sanap
1 8.CRIWP.96.23 judge.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION No. 96 OF 2023
PETITIONER : Ashish S/o. Samadhan Makeshwar,
Aged about 22 years, Occu. Student,
R/o Gurudev Nagar, Amravati,
Tq. and Dist. Amravati
VERSUS
RESPONDENTS : 1] State of Maharashtra,
Through its Secretary,
Home Department, Mantralaya,
Mumbai 32
2] The Divisional Commissioner,
Amravati Division, Amravati.
3] Deputy Commissioner of Police,
Zone-1, Amravati.
4] Police Station Officer, Police Station,
Gadge Nagar, Amravati, Tah. And
District Amravati.
----------------------------------------------------------------------------------------------
Mr. S. B. Gandhe, Advocate for the petitioner.
Mr. S. A. Ashirgade, A.P.P. for the respondents
----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : MARCH 13, 2023
JUDGMENT
1. Heard.
2. RULE. Rule made returnable forthwith. Heard finally with the consent of the learned Advocates for the parties. ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:49 :::
2 8.CRIWP.96.23 judge.odt
3. In this writ petition, the petitioner has challenged the order of his externment dated 05.04.2022 passed by respondent No.3
- Deputy Commissioner of Police, Zone-1, Amravati as well as the order dated 28.09.2022 passed by respondent No.2 - Divisional Commissioner, Amravati, whereby the respondent No.2 confirmed the order of externment in appeal.
4. The respondent No.3, by invoking the provisions of Section 56 Sub-section (1), clauses (a)&(b) of the Maharashtra Police Act, 1951 (hereinafter referred to as "the Act of 1951" for short), ordered externment of the petitioner and directed him to remove himself outside the limits of Amravati District for a period of two years. In order to arrive at subjective satisfaction to warrant the order of externment against the petitioner, the respondent No.3 relied upon three crimes registered against the petitioner at Gadge Nagar police station, Amravati. The details of the crimes are as under :
Sr. Police Crime No. Date Sections Case status
No. Station
1. Gadge 884/2019 14.09.2019 307, 143, 147, 148, Pending in Court
Nagar 149 of IPC
2. Gadge 2171/2021 02.07.2021 4/25 of Arms Act, Under Police
Nagar 109, 188, 269, 270, Investigation
::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:49 :::
3 8.CRIWP.96.23 judge.odt
271, 291 of IPC
r/w. 2, 3, 4 of
Epidemic Disease
Act r/w. 51(b) of
Disaster
Management Act
3. Gadge 2857/2021 16.11.2021 143, 147, 148, 149, Under Police
Nagar 427, 435 of IPC Investigation
Rule 7
PREVENTIVE ACTIONS
Sr. Police Station Crime No. Section Date
No.
1. Gadge Nagar 56/2021 110 (e)(g)of 26.07.2021
Cr.P.C
5. In addition to the above crimes, the respondent No.3 placed heavy reliance upon the confidential in-camera statements of two witnesses. On the basis of the crimes and the confidential in- camera statements of the witnesses, the respondent No.3 recorded a satisfaction that the activities of the petitioner are fully covered under the provisions of Section 56(1)(a) & (b) of the Act of 1951 and as such warranting his externment.
6. The petitioner preferred statutory appeal against the order of his externment dated 05.04.2022 before the respondent No.2. The ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:49 ::: 4 8.CRIWP.96.23 judge.odt respondent No.2 found that subjective satisfaction, for the externment of the petitioner, was arrived at on the basis of the objective material placed on record. His appeal came to be rejected. The petitioner is, therefore, before this Court.
7. I have heard Mr. S. B. Gandhe, learned Advocate for the petitioner and Mr. S. A. Ashirgade, learned Additional Public Prosecutor for the respondents. Perused the record and proceedings.
8. Learned Advocate for the petitioner submitted that in this case the crimes at Sr. Nos. 2 and 3 could not have been taken into consideration, inasmuch as the same crimes, on the date of the notice and the order of externment, were under investigation. Learned Advocate further submitted that the crime at Sr. No. 2, even if held to be available to respondent No.2, could not have been taken into consideration by the very nature of the said crime. As far as the crime at Sr. No.1 is concerned, learned Advocate submitted that since the said crime was registered on 14.09.2019, the said crime was stale crime for the purpose of this proceeding and not sufficient to establish the live link. Learned Advocate further submitted that the substance of ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:49 ::: 5 8.CRIWP.96.23 judge.odt the statements of the confidential witnesses was neither set out in the show cause notice nor in the externment order. Learned Advocate further submitted that the statements of the confidential witness were not duly verified by the respondent No.3. Learned Advocate further submitted that all the crimes were registered at Gadge Nagar Police Station, Amravati City. Learned Advocate pointed out that the respondent No.3 ordered the externment of the petitioner from entire Amravati District and that too for a period of two years, without recording any reason. Learned Advocate submitted that, therefore, this externment order suffers from the virus of excessiveness. Learned Advocate, therefore, submitted that there is no iota of any objective material to record the subjective satisfaction for the purpose of passing the externment order. Learned Advocate submitted that the order of externment directly affects the fundamental right of movement of person and as such, ought to have been passed by complying the mandatory requirements of the law. Learned Advocate submitted that the order of externment passed by the respondent No.3 and the order in appeal passed by the respondent No.2 are, therefore, required to be set aside.
::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:49 :::
6 8.CRIWP.96.23 judge.odt
9. Learned Additional Public Prosecutor for the respondents submitted that the continuous indulgence in the commission of serious crimes till the issuance of show cause notice weighed with the respondent No. 3 to record the satisfaction that the movements and acts likely to cause danger or harm to the person or property. Learned APP on the basis of the statements of the confidential witnesses submitted that same are sufficient to form an opinion that the people from locality are not willing to come forward to give a statement against the petitioner by reason of apprehension in their mind with regard to the safety of their person or property. Learned APP submitted that the crimes registered against the petitioner under the Indian Penal Code (for short 'IPC') were serious in nature and as such, sufficient for his externment. Learned APP further submitted that the statements of the confidential witnesses were duly verified. Learned APP further submitted that the respondent No.2-an appellate authority has examined the entire record in the appeal and found that the subjective satisfaction recorded by the respondent No.3 was based on the objective material. The learned APP, in short, supported the impugned orders.
::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:49 :::
7 8.CRIWP.96.23 judge.odt
10. In order to appreciate and deal with the rival submissions, I have gone through the record and proceedings. In this case, relying upon the provisions of Section 56 of the Act of 1951, the externment order is passed. Section 56 reads thus :
" 56. Removal of person about to commit offence:-
(1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under Section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf-
(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or
(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or, (bb) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Antisocial and other Dangerous Activities Act, 1980, or (2) in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in the Explanation to sub-section (1) of Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, or
(c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or other wise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm [ or such prejudicial act] or the outbreak or spread of such disease or [notwithstanding anything ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 ::: 8 8.CRIWP.96.23 judge.odt contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the Officer or not and whether contiguous or not), by such route, and within such time as the officer may specify and not to enter or return to the said area or areas specified (hereinafter referred to as "the specified area or areas") from which he was directed to remove himself].
(2) An Officer directing any person under sub-section (1) to remove himself from any specified area or areas in the State may further direct such person that during the period the order made against him is in force, as and when he resides in any other areas in the State, he shall report his place of residence to the officer in-charge of the nearest police station once in every month, even if there be no chance in his address. The said officer may also direct that, during the said period, as and when he goes away from the State, he shall, within ten days from the date of his departure from the State send a report in writing to the said officer, either by post or otherwise, of the date of his departure, and as and when he comes back to the State he shall, within ten days, from the date of his arrival in the State, report the date of his arrival to the officer in-charge of the police station nearest to the place where he may be staying."
11. In this case, the provisions of Section 56(1) clauses (a) and
(b) have been invoked. The ground under clause (a) indicates that movements or acts of any person must be causing or calculated to cause alarm, danger or harm to person or property. The ground under clause
(b) indicates that to invoke the same, there must be reasonable ground for believing that the person sought to be externed is engaged or about to engage in the commission of an offence involving force or violence or offence punishable under Chapters XII, XVI, XVII of the Indian Penal Code or abetment of any such offence. The second part of clause ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 ::: 9 8.CRIWP.96.23 judge.odt
(b), which has to be read with the first part, clearly stipulates that the Competent Authority empowered to pass an order should form an opinion that the witnesses are not willing to come forward to give evidence in public against such person only because of an apprehension on their part as regards safety of their person or property. The conjoint reading of clauses (a) and (b) would indicate that in arriving at a subjective satisfaction as to the grounds, there must be objective material on record before the authority.
12. Before proceeding to the merits of the arguments, at this stage, it would be necessary to consider the law laid down by the Hon'ble Apex Court in the case of Deepak Laxman Dongre .v/s. The State of Maharashtra and Ors.1. In this case the Hon'ble Supreme Court has considered the decision in the case of Pandharinath Shridhar Rangnekar .vs. Dy.Commissioner of Police, State of Maharashtra 2. On consideration of this decision, it is held that the reasons which necessitate or justify passing of an extraordinary order of externment arise out of extraordinary circumstances. It is held that therefore, the strict compliance of Section 59 of the Act of 1951 is required to be 1 2022 ALL MR (Cri.) 761 (S.C.) 2 (1973) 1 SCC 372 ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 ::: 10 8.CRIWP.96.23 judge.odt made. It is further held that the order of externment deprive the citizen of his fundamental right of free movement throughout the territory of India. The order of externment in fact prevents the person even from staying in his own house along with his family members during subsistence of the externment order. It is, therefore, held that the subjective satisfaction must be arrived at on the basis of the objective material.
13. In order to consider the applicability of the proposition to the facts of the case on hand, it would be necessary to go through the show cause notice, the reply to the show cause notice given by the petitioner, the other materials relied upon in the show cause notice and the orders passed by the respondent Nos.2 and 3 to come to a conclusion whether the externment of the petitioner outside the limits of the Amravati District was based on the subjective satisfaction.
14. The show cause notice was issued by the respondent No.3 on 14.03.2022. The reply was given by petitioner on 25.03.2022. The last crime registered at Gadge Nagar Police Station was on 16.11.2021. The order of externment is dated 05.04.2022. Perusal of the crimes ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 ::: 11 8.CRIWP.96.23 judge.odt registered against the petitioner would show that crimes at Sr. No. 2 and 3 are under police investigation. It is pertinent to note that the crime at Sr. No.2 was for the offences punishable under Section 4 read with Section 25 of the Arms Act, Sections 109, 188, 269, 270, 271, 291 of the IPC, Section 51(b) of the Disaster Management Act and Sections 2, 3 and 4 of the Epidemic Diseases Act. All these offences, which cannot be strictly covered under the provisions of Section 56(1) clauses (a) and (b) of the Act of 1951, have been taken into consideration. It is to be noted, at this stage, that the Government of Maharashtra vide Government Resolution dated 20th September, 2022 has taken a policy decision and decided to withdraw the crimes committed in contravention of the prohibitory order during Covid-19 pandemic and particularly the crime registered for the offences under Sections 188, 269, 270 and 271 of the IPC and Sections 2, 3 & 4 of the Epidemic Diseases Act and Section 51(b) of the Disaster Management Act. It is, therefore, seen that crime at Sr. No.2 could not have been taken into consideration against the petitioner in this proceeding. This crime had no propensity to affect the public peace or tranquility. The object behind issuance of the prohibitory order by the ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 ::: 12 8.CRIWP.96.23 judge.odt Competent Authority during Covid-19 pandemic, ought to have been considered in proper perspective by the respondent No.3 in the externment proceeding and by the respondent No.2 in the appeal. Therefore, in my view, crime at Sr. No.2 ought not have been considered to record the subjective satisfaction.
15. As far as crime at Sr. No.3 is concerned, on the date of the externment order passed by the respondent No.3, it was under police investigation. It is trite law that the crime which is under investigation cannot be taken into consideration for passing the externment order. The satisfaction recorded by the authority on the basis of such crime is not in accordance with law. Therefore, the crime at Sr. No.3 has to be excluded from the consideration. The crime at Sr. No.1 is the only crime which was available for being considered by the respondent No.3 to form an opinion to proceed further against the petitioner under Section 56 of the Act of 1951. The show cause notice was issued by the respondent No. 3 to the petitioner on 14.03.2022. The order of externment was passed on 05.04.2022. The first crime was registered on 14.09.2019. It is to be noted that there was a time gap of ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 ::: 13 8.CRIWP.96.23 judge.odt more than two years between the first crime and the externment order. In the facts and circumstances, it has to be held that this crime was stale crime for the purpose of initiation of externment proceeding. The said crime could not have been taken into consideration at all. This crime, apart from being stale, would also not be sufficient to establish the live link for passing the externment order. It is to be noted that in order to justify the live link, the serious nature of the crime has been made the bone of contention. In my view, the serious nature of the stale crime cannot be made the foundation to establish the live link. The live link in this case was, therefore, completely snapped. In my view, therefore, based on these crimes alone, the order of externment was not at all justified.
16. Perusal of the show cause notice as well as the order passed by the respondent No.3 would indicate that one chapter case bearing No.56/2021 under Section 110(e)(g) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.) was initiated against the petitioner. At the conclusion of such proceeding, the party concerned is called upon by the Executive Magistrate to execute a bond for good ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 ::: 14 8.CRIWP.96.23 judge.odt behaviour. The bond is executed in the proceeding, which is of preventive nature. The duration of such a bond is normally for a period of six months. In the reply, filed by the petitioner, he has stated that as there was no involvement of petitioner in the crime and on account of his good behaviour the chapter case was closed by the Magistrate after execution of bond for good behaviour from the petitioner. The show cause notice as well as the order of externment is silent with regard to the execution of bond for good behaviour and on the point, whether there was breach of the undertaking and conditions of the bond executed in this proceeding. This aspect has not been considered and appropriately dealt with by respondent Nos.2 and 3.
17. The next important aspect is with regard to the reliance on the statement of the confidential witnesses. The main grievance of the petitioner is that the substance of the statements of the confidential witnesses was not set out in the show cause notice and therefore, the opportunity to effectively deal with the same was denied to him. In order to satisfy myself about this aspect, I have gone through the statements of the confidential witnesses and the show cause notice ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 ::: 15 8.CRIWP.96.23 judge.odt issued by the respondent No.3. Perusal of the notice would show that the substance of these statements was not even briefly set out in the notice. Further perusal of the statements would show that the statements were not properly verified. Perusal of the statements of the confidential witnesses would show that these statements were not even verified by the respondent No.3, before issuing the notice as well as before passing the externment order. The statements were recorded by Senior Police Inspector of Gadge Nagar Police Station, Amravati. On the statements, there is an endorsement of verification by Assistant Commissioner of Police, Gadge Nagar Vibhag, Amravati City. As can be seen from the verification endorsement, the Assistant Commissioner of Police had not personally visited to the locality, where the witnesses have been residing. It was obligatory on his part to make a confidential inquiry with people of the locality to cross check the veracity of the confidential witnesses. Similarly, the respondent No. 3 was under an obligation to personally verify those statements or the facts stated in the statements by the witnesses. Therefore, on this ground also, the submission of the petitioner is fully justified. ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 :::
16 8.CRIWP.96.23 judge.odt
18. It is to be noted that considering the serious apprehension placed on record on the basis of the material, one can say that the acts of the petitioner were found to be of the nature and kind stipulated under Section 56(1)(a)(b) of the Act of 1951. In my view, in this backdrop, respondent Nos.2 and 3 ought to have invoked the provisions of Section 151 of the Code of Criminal Procedure in its application to the State of Maharashtra. Section 151 of the Cr.P.C. provides that the arrest of a person can be made to prevent a person from committing cognizable offence. If a police officer apprehends a design of a person to commit any cognizable offence, the police officer can arrest him without order from the Magistrate. It further provides that if it appears to such officer that the commission of the offence cannot be otherwise prevented, the said person can be detained in custody for a total period of thirty days form the date of arrest of such person as per the order of the Magistrate. In this case, considering the apprehension sought to be placed on record and invocation of Section 56(1) Clauses (a) and (b) of the Act of 1951, the respondent No.2 ought to have taken recourse to this remedy. If he had taken recourse to this remedy, then he would have been justified in passing the order ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 ::: 17 8.CRIWP.96.23 judge.odt on the basis of the said material. It is to be noted that the remedy provided under Section 151 of the Cr.P.C. is a speedy remedy. The police officer is required to form an opinion that the person is likely to commit a cognizable offence and that said person cannot be prevented from committing the said offence unless and until he is arrested and detained, as provided under Section 151 of the Cr.P.C. The Judicial Magistrate, who is an independent authority, would definitely make objective analysis of the material on record before granting the prayer for detention of the concerned person. It is to be noted that after taking recourse to the remedy provided under Section 151 of the Cr.P.C. and after completion of the detention period, if the said person comes out and commits an offence then, in my view, it would be a strong circumstance justifying his externment.
19. As per the provisions of Section 56 of the Act of 1951, the maximum period of externment is two years. In this case, the respondent No.3 has ordered externment of the petitioner from the entire Amravati District for a period of two years. It is to be noted that the externment order apart from making inroads on the fundamental ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 ::: 18 8.CRIWP.96.23 judge.odt right of movement compels the said person live separate from his family. Similarly, the said order can deprive the said person of his livelihood. In order to justify the externment for maximum period of two years, the authority is required to consider the objective material to record the subjective satisfaction on this point. The order passed by the respondent No.3 is silent on this point. Reasons have not been recorded by the respondent No.3 to warrant externment of the petitioner for a period of two years from entire Amravati District. It is seen on perusal of the show cause notice and order, that all the crimes committed by the petitioner were within the jurisdiction of Gadge Nagar Police Station in Amravati City. In view of this fact, the respondent No.3 was expected to record the reasons to warrant externment of the petitioner outside Amravati District. The order passed by the respondent No.3 and confirmed by the respondent No.2, therefore, suffers from virus of excessiveness. The law laid down on the point in the cases of Shaikh Mukhtyar S/o Mustafa Shaikh .vs. State of Maharashtra and others3 & Bhagwat Dadasaheb Landge and another .vs. State of Maharashtra and others4, would equally apply in 3 2017 ALL MR (Cri.) 268 4 2020 (5) Mh.L.J. (cri.) 546 ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 ::: 19 8.CRIWP.96.23 judge.odt this case. In my view, this would be one of the factors, which would weigh in favour of the petitioner. This would also reflect upon non- application of mind to the material on record to arrive at subjective satisfaction. In my view, therefore, the externment order passed by the respondent No.3 and the order passed by the respondent No.2-an Appellate Authority confirming the externment order, cannot be sustained. The orders deserve to be set aside.
20. Accordingly, the writ petition is allowed.
The order dated 05.04.2022 passed by respondent No.3 externing the petitioner from Amravati district for a period of two years and the order dated 28.09.2022 passed by the respondent No.2 confirming the said order of externment, are quashed and set aside.
Rule is made absolute in the above terms. The petition stands disposed of.
( G. A. SANAP, J. ) Namrata ::: Uploaded on - 17/03/2023 ::: Downloaded on - 10/06/2023 10:26:50 :::