Bombay High Court
Umesh Ashok Pawar vs Deputy Commissioner Of Police-Zone 1, ... on 13 February, 2019
Equivalent citations: AIRONLINE 2019 BOM 1812
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, S. M. Modak
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 1092 of 2018
Petitioner : Umesh Ashok Pawar, aged about 27 years,
Occ: Private, resident of Vilas Nagar, Amravati
versus
Respondents: 1) Deputy Commissioner of Police, Zone-I,
Amravati
2) Assistant Commissioner of Police, Gadge Nagar Zone, Amravati Shri Mir Nagman Ali, Advocate for petitioner Shri N. B. Jawade, Addl. PP for respondents Coram : Sunil B. Shukre & S. M. Modak, JJ Dated : 13th February 2019 Oral Judgment (Per Sunil B. Shukre, J)
1. Heard. Rule. Heard forthwith by consent of parties.
2. By the impugned order dated 27th March 2018, the petitioner ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 08:52:03 ::: 2 has been externed by respondent no. 1 from the District of Amravati for a period of two years. This order has been passed under Section 56 (1) (b) of the Maharashtra Police Act, 1951 (for short, the "Act, 1951").
3. In the opinion of learned counsel for the petitioner, the impugned order is unreasonable as it has no nexus or live-link with the requisite apprehension nurtured by the externing authority. Learned Additional Public Prosecutor for the respondents strongly opposing the petition, submits that there are in all eight criminal cases which are pending adjudication before different criminal courts at Amravati and in many of these cases, serious offences are alleged to be committed by the petitioner either individually or in league with his associates and, therefore, it cannot be said that there is no live-link between the activities of the petitioner and the impugned order. He also points out that the last crime being crime no. 720/2016 registered with Police Station, Gadge Nagar, Amravati was dated 20.9.2016 and now, it is pending for trial before the concerned Criminal Court at Amravati. He submits that this offence not being separated by a bigger period of time from the show- cause notice issued on 30.1.2018 would serve as live-link and proximate link with the reasons stated in the impugned order, which notice was then followed by another notice dated 3.3.2018 issued by respondent no. 1. He submits that the petitioner did not furnish any reply to both the notices ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 08:52:03 ::: 3 issued by the respondents.
4. On the aspect of failure of the petitioner to furnish reply to the show-cause notice that was issued to him by the externing authority, we must make it clear that the exercise of discretion regarding externing a person from a certain area infringes upon the liberty of an individual and, therefore, the authority seeking to restrict or curtail liberty of an individual must act reasonably and reasonableness of the action, we would further say, could not be presumed or inferred from the failure of a person to file reply to the show-cause notice. At the most, on the factual aspects stated in such notice, necessary inference about their existence on record could be drawn, but when it comes to the application of mind and acting reasonably the authority must act within the parameters of law. If the Authority also draws any further inference adverse to the petitioner regarding fulfillment of necessary conditions of an action of externment, we are of the considered opinion, it would be permissible for the Authority to do so only when there is subjective satisfaction based upon material on record recorded by the authority. Therefore, the failure of the petitioner in the present case to file his reply or replies to the show- cause notices issued to him would at the most indicate his acceptance of statements of facts made in the concerned notice and for application of law to the admitted factual aspects, the Authority is required to apply its ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 08:52:03 ::: 4 mind independently and it can do so by considering the material available on record. Of course, such a decision of the Authority being based upon its subjective satisfaction, cannot be assailed only because the material available on record is insufficient or inadequate as this Court as a court of secondary review, would not be looking into sufficiency or otherwise of the material available on record. A useful reference in this regard may be made to the Full Bench decision of this Court in the case of Sumit Ramkrishna Maraskolhe v. Dy Commissioner of Police (with two companion petitions) decided on 8th January 2019. But, that would not exempt the Authority, as stated by us, from independently satisfying itself regarding fulfillment of conditions before the externment order is passed by it. On the issue of absence of presence of live-link in the present case, we find that the issue can be resolved only by considering the ingredients of the particular clause of Section 56 of the Act, 1951 which has been invoked in the present case while passing the impugned order.
5. In essence, this is clause (b) of Section 56 (1) of the Act, 1951 which has been resorted to by respondent no. 1. This clause has two conditions which must be fulfilled and such fulfillment must be seen to be done subjectively, but on the basis of some material present on record furnishing an objective criteria for such subjective making up of mind. The first condition is that there must be reasonable ground to ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 08:52:03 ::: 5 believe that the proposed externee is engaged or is about to be engaged in the commission of an offence mentioned in this clause. The second condition is that in the opinion of the externing authority, witnesses are not willing to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety of their person or property. A careful reading of this provision would show that both the conditions must be present simultaneously and together and it is not permissible to read these conditions as stand-alone conditions.
6. The gist of the first condition, what we note, is the alleged activities of the petitioner constituting in a reasonable manner a ground for believing that because of the activities, one can say that such person is actually engaged or is about to be engaged in the commission of crime mentioned therein. This condition would thus necessarily indicate presence of live-link between the activities of the proposed externee and the subjective satisfaction reached today or on the day of the show cause notice issued in the matter. by the externing authority. That would also mean that the externing authority would be required to consider as to whether the crime which was registered about one year or even before prior to the issuance of show-cause notice could furnish any reasonable ground to believe that such person is engaged or is about to be engaged in ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 08:52:03 ::: 6 commission of prohibited offences in the present day context. Here the present day context, we may clarify, is nothing but the scenario occurring on or about the day when show-cause notice is issued. If considerable period of time has gone by between the date of commission of last offence and the date of issuance of show-cause notice, it will have to be said that there is absence of live-link between the criminal activities of the proposed externee and the subjective satisfaction of the authority or the reasons stated in the impugned order. This has been the view consistently taken by this Court over a period of time in several of its decisions. To cite a few, we would make a mention of some of the cases, which are -
(1) Rajesh Jiwan Jangle v. State of Maharashtra & ors 2017 ALL MR (Cri) 5320.
(2) Sunil Shriram Wankhede v. State of Maharashtra & ors Cri. WP No. 485 of 2016, decided on 16th Aug 2016 (3) Sheikh Dastagir Sk Chand v. State of Maharashtra & ors 2014 ALL MR (Cri) 171 (4) Premlal Asharfilal Yadav v. Sub-Divisional Magistrate & anr Cri. WP No. 3423 of 2016, decioded on 20th July 2016 (5) Yasin Khan Masum Khan v. State of Maharashtra & anr 2018 ALL MR (Cri) 3303 In the light of settled position of law as discussed above, we would have to examine the impugned order.
7. If the law expects of us to see as to whether or not there is any live-link between criminal activities and subjective satisfaction of the ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 08:52:03 ::: 7 authority, we must also know what is the concept of subjective satisfaction. The expression "subjective satisfaction" means the satisfaction of a reasonable man and it can be arrived at on the basis of some such material as would enable a rational mind to subjectively or through mental process arrive at some decision. Undoubtedly, the impugned order is based upon the criminal activities of the petitioner and the last of his criminal activity is reflected in Crime No. 720/2016 registered with Police Station, Gadge Nagar, Amravati on 20 th September 201 for the offences punishable under Sections 452, 448 and 427 read with Section 34 of the Indian Penal Code. After this September 2016, admittedly, no other crime has been registered against the petitioner. The first show-cause notice in the present case has been issued by respondent no. 2 on 30th January 2018 and the subsequent show-cause notice was issued on 3rd March 2018. The impugned order has been passed on 27 th March 2018. Thus, there was a gap of about fifteen months between registration of last crime against the petitioner and the date of issuance of show-cause notice. This time gap was further extended by three months when the impugned order dated 27th March 2018 was passed in the present case. So, the time lag was about 16-18 months in this case and during this period, admittedly, no criminal case or offence came to be registered against the petitioner. One would then question, as to how could it be said that there exists a ground to reasonably believe in this ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 08:52:03 ::: 8 case that the petitioner is engaged or is about to engage in the commission of offence involving force, violence or an offence mentioned in Section 56 (1) (b) of the Act, 1951 ? The question would have to be answered in the negative for the sheer gap of time and absence of any criminal activity in between and as such, we are of the opinion that the impugned orders suffer from arbitrariness. These orders do not show any live-link between subjective satisfaction of the authority and the alleged criminal activities. We thus, find substance in the petition and it will have to be allowed.
8. Writ Petition is allowed. Impugned orders are quashed and set aside.
9. Rule is made absolute accordingly.
(S. M. MODAK, J) (SUNIL B. SHUKRE, J)
joshi
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