Bombay High Court
Deepak Laxman Dongre vs The State Of Maharashtra And Others on 20 August, 2021
Author: V. K. Jadhav
Bench: V.K. Jadhav, S.G. Dige
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.224 OF 2021
Deepak s/o Laxman Dongre,
age 27 years, Occ. Business,
R/o Mandeolgaon, Tq. Badnapur,
District Jalna.
At present c/o Sanjay Kisan Kuche,
New Shubh Housing Society,
Ayodhya Nagar, Bajaj Nagar,
Tq. & District Aurangabad. ...Petitioner...
Versus
1. The State of Maharashtra,
the Divisional Commissioner,
Aurangabad Division, Aurangabad.
2. Sub-Divisional Magistrate, Jalna.
3. Superintendent of Police, Jalna.
4. Police Inspector, Police Station,
Badnapur, District Jalna. ..Respondents..
...
Mr. R.N.Dhorde, Senior Counsel i/b Mr. R V Gore
Advocate for the petitioner.
Mr. M M Nerlikar, APP for the respondents-State.
...
CORAM : V.K. JADHAV & S.G. DIGE, JJ.
...
Reserved on : 26.07.2021
Pronounced on : 20.08.2021
...
ORDER :- ( Per V. K. Jadhav, J.)
1. By consent of the parties, heard fnally at admission stage.
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2. By way of this writ petition, the petitioner is challenging the externment order externing him from Jalna District for a period of two years dated 15.12.2020 passed by the Sub-Divisional Magistrate, Jalna under section 56(1)(A)(B) of the Maharashtra Police Act, 1951 and the order dated 28.1.2021 passed by the Divisional Commissioner, Aurangabad in appeal preferred under section 60 of the Maharashtra Police Act, 1951 confrming thereby the order dated 15.12.2020 passed by the Sub-Divisional Magistrate, Jalna in externment proceeding.
3. Brief facts, giving rise to the present writ petition, are as follows :-
a] On 7.7.2020 the Sub-Divisional Police Offcer, Jalna has issued a notice to the petitioner under section 59 of the Maharashtra Police Act calling upon him to show cause, why he should not be externed from Districts Jalna, Aurangabad and Buldhana for a period of two years by referring six crimes registered against him in the notice. It has alleged in the notice that the movements/acts of the petitioner are causing danger or ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 3 criwp 224.2021.odt harm to person or property, citizens. There are reasonable grounds for believing that the petitioner is engaged in commission of the offences involving force or violence. It has also alleged in the notice that the witnesses are unwilling to come forward to give evidence in public against him because of the terror created by the petitioner in the area. In response to the said notice, the petitioner had appeared before the Sub-
Divisional Police Offcer, Jalna and submitted his detailed reply on 20.7.2020. The Sub-Divisional Police Offcer, Jalna, however, has made a report to the Sub- Divisional Magistrate, Jalna recommending the externment of the petitioner.
b] The respondent No.2 Sub-Divisional Magistrate, Jalna had issued a notice under section 56 of the Maharashtra Police Act. The petitioner was informed that externment was proposed against him in respect of Jalna, Aurangabad and Buldhana Districts. In response to the said notice, the petitioner had appeared before the Sub-Divisional Magistrate, Jalna and submitted his reply. By order dated 15.12.2020 the Sub-Divisional ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 4 criwp 224.2021.odt Magistrate, Jalna has externed the petitioner from Jalna District for a period of two years. Being aggrieved by the same, the petitioner has preferred an appeal under section 60 of the Maharashtra Police Act before the Divisional Commissioner, Aurangabad. By judgment and order dated 28.1.2021 the learned Divisional Commissioner, Aurangabad has dismissed the said appeal. Hence, this writ petition.
4. Mr. R.N.Dhorde the learned senior counsel for the petitioner submits that, the petitioner is a registered contractor with P.W.D. and other public authorities since last eight years and, at present about two works are assigned to him by PWD and other authorities after accepting his tender for making the construction in terms of the said contract in Jalna District. The mother of the petitioner was also duly elected as a Sarpanch of village Mandeolgaon, Tq. Badnapur, District Jalna. The petitioner is from respectable family having political background. Learned senior counsel submits that the action was malafde at the behest of the local MLA to settle the family dispute. There is no question of any ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 5 criwp 224.2021.odt disturbance of law and order or threatening to any witnesses. Alongwith the replies, the petitioner submitted affdavit of various respectable persons pointing good conduct of the petitioner in public life and other documents.
5. Learned senior counsel Mr. Dhorde has given certain instances, which can be summarized as below to demonstrate as to how the externment proceeding came to be initiated at the behest of the local MLA, who happened to be his maternal uncle.
i] In the year 2013, maternal uncle of the petitioner namely Narayan Kuche has made a declaration before his relatives gathered for Rakshabandhan at his residence that, his daughter, who was then studying in 9 th standard, would be marrying to the petitioner. ii] In the year 2014, in the assembly elections, said maternal uncle of the petitioner namely Narayan Kuche elected as MLA Badnapur for a term till 2019. The petitioner alongwith his family members has worked hard for his success in the election.
iii] Said maternal uncle of the petitioner Narayan Kuche, again given ticket from BJP Party. In that election, petitioner allegedly helped him by giving Rs.40.00 lakhs for election expenses and also campaigned vigorously. Said Narayan Kuche won the election by huge margin of votes.
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6 criwp 224.2021.odt iv. Meanwhile, said daughter of his maternal uncle Narayan Kuche passed 12th standard and admitted in MBBS College.
v. On 10.12.2019 the petitioner was in need of money as he wanted to fll in the tender and undertake further work, therefore, he had demanded Rs.40 lakhs given to his maternal uncle for election expenses. At that time, his maternal uncle Narayan Kuche told him that he would not pay Rs.40 lakhs and also he would not marry his daughter with him.
vi. Thereafter, said Narayan Kuche alongwith his brother Devidas Kuche have tried to implicate the petitioner in a false case by using one Varsha Bankar. The petitioner has lodged a complaint against said Varsha Bankar with Chandanzira Police Station, Jalna. In the said complaint, statement of Varsha Bankar was recorded, wherein, she had admitted that she was advised, to make phone calls, messages, and photographs to the petitioner, by Devidas Kuche.
vii. On 2.6.2020 petitioner was suddenly arrested by Badnapur Police Station, without having any reason under section 151 of the Cr.P.C. at the instance of his maternal uncle MLA Narayan Kuche. He was produced before the Magistrate on the same day. However, the Magistrate has released the petitioner. viii. The petitioner has lodged the complaint against his maternal uncle MLA Narayan Kuche, Devidas Kuche and said Varsha Bankar and under the orders of this court in writ petition no.583 of 2020, crime no.238 of 2020 came to be registered against them. However, MLA Narayan Kuche had fled writ petition no.742 of 2020 challenging crime no.238 of 2020 and ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 7 criwp 224.2021.odt writ petition was allowed to his extent and this court has quashed the FIR.
ix. The moment crime no.238 of 2020 was registered against MLA Narayan Kuche, his brother Devidas Kuche and Varsha Bankar, on 7.7.2020 the Sub Divisional Police Offcer has issued a notice under section 59 of the Maharashtra Police Act for externment.
6. The learned senior counsel submits that, said action under section 56 of the Maharashtra Police Act has been taken with malafde intention at the behest of MLA Narayan Kuche, who is maternal uncle of the petitioner and his brother Devidas Kuche to harass the petitioner and to exploit his career as a contractor. Learned senior counsel submits that, roznama of the proceedings under section 56 before the Sub-Divisional Magistrate, Jalna indicates that, matter was being prolonged for the reason of election of the village panchayat as voters' list was declared on 1.12.2020 and election programme was published on 11.12.2020. Election programme of the village panchayat was published including the village of the petitioner i.e. Mandeolgaon. Learned senior counsel submits that those proceedings were kept deliberately pending to ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 8 criwp 224.2021.odt prevent the petitioner from contesting the election of the village Panchayat and, suddenly the impugned order came to be passed by the Sub-Divisional Magistrate, Jalna on 15.12.2020 externing the petitioner from Jalna District while the election was in progress.
7. Learned senior counsel submits that, six cases have been referred in the notice under section 59 of the Maharashtra Police Act issued by the Sub Divisional Police Offcer, Jalna and also the notice issued by the Sub Divisional Magistrate, Jalna, so far as crime no.367 of 2013 is concerned, the petitioner has been acquitted. The learned senior counsel submits that, in connection with the crime no.247 of 2018, the petitioner has been falsely implicated being the cousin brother of the original accused no.1 in the said crime. In connection with crime no.378 of 2018 the petitioner came to be released on anticipatory bail by this Court in criminal application no.1433 of 2018 on the ground that the petitioner was not present at the time of the incident on the spot. Learned senior counsel submits that in crime no.15 of 2020 the petitioner has been falsely implicated ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 9 criwp 224.2021.odt as a plan to trap the petitioner in Varsha Bankar's case was not succeeded. It is submitted that in crime no.215 of 2020 the complainant is none else, but the relative of the Kuche family. Chapter case no.2 of 2020 was initiated under the political pressure of Narayan Kuche. Learned senior counsel submits that, petitioner has explained each and every case in reply to the notice in paragraph no.4 alongwith the relevant documents.
8. Learned senior counsel submits that, on 19.8.2020 respondent no.2 had issued a notice under section 56 of the Maharashtra Police Act, 1951 to the petitioner without considering the reply of the petitioner. In response to the notice dated 19.8.2020, petitioner has submitted his reply dated 25.8.2020 before the respondent no.2, wherein it has been specifcally pointed out that, though the petitioner has expressed his desire to examine the witnesses, but, still that opportunity was not given to the petitioner. Learned senior counsel submits that, there is violation of the principles of natural justice. Further, copy of the inquiry report was also not served on the petitioner. ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 :::
10 criwp 224.2021.odt Learned senior counsel submits that, the details about information furnished by the witnesses was also not disclosed. Petitioner has been falsely implicated under the political pressure.
9. Learned senior counsel submits that, the Sub- Divisional Magistrate, Jalna has not recorded any fnding in the externment proceeding to the effect that the harm caused by the petitioner to a person in connection with the crime registered against him would cause alarm, danger or harm to the general public or a considerable section of the general public. Learned senior counsel submits that, there is no live-link between the offences relied upon in a show cause notice and the impugned order. Learned senior counsel submits that, though the alleged acts in terms of the crime registered against the petitioner are restricted to Taluka Badnapur, the petitioner came to be externed from the entire District, which is an excessive order. Learned senior counsel submits that, the authorities below have failed to consider the ratio laid down by the Division Bench of this Court in a case of Prashant ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 11 criwp 224.2021.odt Bodkhe Vs. State of Maharashtra in writ petition no.567 of 2019 dated 27.6.2019.
10. The learned senior counsel in order to substantiate his contentions, placed his reliance on the following judgments :-
i. Balu Shivling Dombe Vs. Divisional Magistrate, Pandharpur and another reported in 1969 Cri.L.J. 1341. ii. Kanifnath Radhakishan Popalghat Vs. State of Maharashtra and others reported in 2017 (2) Bom.C.R. (cri) 359.
iii. Yeshwant Damodar Patil Vs. Hemant Karkare, Dy.
Commissioner of Police and another reported in 1989 (3) Bom.C.R. 240.
iv. Ravi Raju Bhalerao Vs. State of Maharashtra and others reported in 2017 DGLS (Bom) 1275 : 2018 (1) Bom.C.R. (Cri) 609.
v. Ravi Ramdas Aher Vs. State of Maharashtra reported in 2018 DGLS (Bom) 1921.
vi. Shanno @ Shamali Jafar Pathan Vs. State of Maharashtra reported in 2017 DGLS (Bom) 2092. vii. Rauf Khan Wahab Khan Patel Vs. State of Maharashtra reported in 2018 DGLS (Bom) 1106.
11. The learned APP Mr. Nerlikar submits that, impugned orders came to be passed after giving an opportunity of being heard to the petitioner and also considering all the facts, circumstances and legal provisions. The learned APP submits that the proposal dated 5.6.2020 for externing the petitioner was received ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 12 criwp 224.2021.odt through the offce of the Superintendent of Police, Jalna to the respondent no.2 on 11.6.2020. Thus, after receiving the said proposal, respondent no.2 has appointed the Sub Divisional Police Offcer as Enquiry offcer in terms of the section 59 clause-1 of the Maharashtra Police Act vide order dated 17.6.2020. Thereafter, the Sub Divisional Police Offcer/inquiry offcer has issued notice under section 59 of the Maharashtra Police Act, 1959 to the petitioner for externment on 7.7.2021. The petitioner has fled his reply to the said notice. After hearing the petitioner, the Sub Divisional Police Offcer/inquiry offcer has submitted his report dated 25.7.2020 to the Sub- Divisional Magistrate/respondent no.2, which is received in the offce on 29.7.2020. The Sub Divisional Police Offcer/inquiry offcer has recommended that the petitioner should be externed for two years from Jalna, Aurangabad and Buldhana District. On 19.8.2020 the Sub-Divisional Magistrate, Jalna has issued notice to the petitioner for his appearance and his explanation on 25.8.2020. On 25.8.2020 the petitioner had appeared before the respondent no.2-Sub-Divisional Magistrate, ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 13 criwp 224.2021.odt Jalna alongwith his lawyer and submitted his written statement. Matter was adjourned for 18.9.2020 for further hearing. From 18.9.2020 till 7.12.2020 matter was adjourned for one or another reason. Finally, on 7.12.2020 the matter was heard by the respondent no.2/Sub-Divisional Magistrate, Jalna and it was reserved for the order. Learned APP submits that respondent no.2 has followed the procedure prescribed by law and passed the impugned order.
12. Learned APP submits that since 2013 onwards, there were fve crimes registered against the present petitioner and one chapter case was registered against him in the year 2020. The petitioner is having criminal antecedents. Learned APP submits that, in connection with the crime no.367 of 2013 the petitioner was acquitted, however, so far as crime no.247 of 2018 is concerned, the offence was registered against the petitioner for having committed the offences punishable under sections 354, 354-A, 323, 504, 506, 509 r/w 34 of the Indian Penal Code. In crime no.247 of 2018, the complainant is a lady Police offcer and after attending ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 14 criwp 224.2021.odt her duties, she went to the market for purchasing the groceries. When she was returning to the police quarters, one car bearing registration No.MH-20/BY- 2889 has wrongly overtaken her. Initially, she felt that that has been done unintentionally, however, the driver of the said car again reduced the speed and he was looking at her from the side mirror. Thus, the complainant has given him a signal to stop the vehicle. The petitioner was driving the said vehicle. He has not only threatened her but grabbed her hairs and pushed her on the heap of the mud by the side of the road. He told her that, he is the Sarpanch of the village and abused her in a very flthy language. The petitioner has allegedly mentioned his political background also. Learned APP also submits that, so far as crime no.378 of 2018 is concerned, same was registered against the petitioner for the offences punishable under sections 307, 325, 323, 341, 201, 120-B, 504, 506, 507 r/w 34 of the Indian Penal Code. It has been alleged in the complaint that, it has been revealed during the investigation of the said crime that, at the instance of the local MLA, the petitioner and two others had ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 15 criwp 224.2021.odt assaulted the informant by iron rod and sharp weapons. Learned APP submits that, charge-sheet is also submitted in connection with the crime. Learned APP submits that, at the initial stage when the investigation was in progress, with certain observations this Court has released the petitioner on bail, the same may not be signifcant. Learned APP submits that crime no.15 of 2020 came to be registered against the petitioner for having committed the offences punishable under sections 354, 354-A, 354-D, 509, 506 of IPC. It has been alleged in the said complaint that, the petitioner had been to the Hostel of the complainant and after giving sexual expressions insisted her to sit in his vehicle. Learned APP submits that, crime no.215 of 2020 came to be registered against the petitioner for having committed the offence punishable under sections 509, 501, 506 of the Indian Penal Code and sections 67, 67A of the Information Technology Act, 2000. It has alleged in the said complaint that, the petitioner had given threats to the informant of crime no.15 of 2020 for withdrawing the said complaint. The petitioner has also kept his whatsapp status mentioning therein that the ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 16 criwp 224.2021.odt informant in crime 15 of 2020 is his wife. Learned APP submits that, the informant in the said case happened to be the daughter of the local MLA and she is unmarried.
13. The learned APP submits that, during the inquiry, in-camera statements of three witnesses came to be recorded on 5.6.2020, in which witnesses have stated that the petitioner is a very dangerous person and due to his fear, no one could dare to fle any complaint against him. He also alleged that the petitioner has given threats to them of dire consequences.
14. Learned APP submits that there is a live-link between the registration of crime and the proposal submitted to the offce of the respondent no.2. The petitioner is a dangerous person. He has no respect of the rule of law. The respondent no.2 Sub-Divisional Magistrate, Jalna has rightly passed the order of externment. Learned APP submits that the appellate authority has considered all the relevant provisions. ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 :::
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15. Learned APP submits that, so far as the show cause notice issued to the petitioner is concerned, only general nature of material allegations are required to be mentioned and nothing more to be stated. It is not necessary to refer to details or particulars of in-camera statements of the witnesses recorded by the externing authority. Learned APP submits that, so far as the excessive area as submitted by the learned senior counsel is concerned, it all depends upon the facts and circumstances of the case, which need be vetted through the judicial process of drawing legitimate inference. Learned APP submits that the respondent no.2/Sub-Divisional Magistrate, Jalna has applied mind to the material placed on record. However, the refection of the application of mind in the externment order in a specifed manner would not be necessary. Learned APP submits that, the impugned order discloses that subjective satisfaction has been reached by considering the material available on record. Learned APP submits that, the authorities have considered the entire Jalna District by giving due weightage to the activities of the ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 18 criwp 224.2021.odt petitioner and also considering the interconnection between the areas of the Talukas in the district.
16. Learned APP in order to substantiate his contentions placed reliance on following cases :-
i. State of NCT of Delhi Vs. Sanjeev @ Bitto reported in 2005 DGLS (SC) 320.
ii. Sumit s/o Ramkrishna Maraskolhe Vs. Deputy Commissioner of Police, Nagpur and another reported in 2019 ALL MR (Cri) 1961 (F.B.).
17. The learned senior counsel by pointing out the various instances as detailed in the foregoing paragraphs has vehemently submitted before us that the order impugned is malafde order at the behest of local MLA, who happened to be the maternal uncle of the petitioner for settling the score against the petitioner due to some family dispute. We are not convinced by the submissions made on behalf of the petitioner since the learned senior counsel has mostly argued on the personal grudge, which allegedly resulted into externment order passed against the petitioner, we have considered the background, carefully. Initially, the petitioner was a loyal political worker of his maternal ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 19 criwp 224.2021.odt uncle Narayan Kuche. It appears that, the petitioner was the active political worker and he has treated himself as the kingmaker as because of his efforts, his maternal uncle got elected as a MLA. The petitioner has also allegedly paid huge amount to his maternal uncle Narayan Kuche for election expenses.
18. We have carefully gone through the crimes shown against the petitioner in the externment proceedings. So far as the crime no.247 of 2018 is concerned, it is serious in nature. The petitioner alleged to have committed the offence punishable under sections 354, 354-A, 323, 504, 506, 509 r/w 34 of the Indian Penal Code. The informant is a police offcer and the petitioner by expressing his political background has not only assaulted her, but also outraged her modesty at public place. So far as crime no.378 of 2018 is concerned, though this Court had granted anticipatory bail with certain observations on the basis of the statement made by the Investigating offcer, however, it appears that, the petitioner is the mastermind of the said crime, which is registered for the serious offences ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 20 criwp 224.2021.odt like 307, 325, 323, 341, 201, 120-B, 504, 506, 507 r/w 34 of the Indian Penal Code. It has been alleged that, at the instance of the local MLA, accused persons had assaulted the informant by iron rod and sharp weapon. Further, crime no.15 of 2020 is registered against the petitioner for the offence punishable under sections 354, 354-A, 354-D, 509, 506 of the Indian Penal Code. The informant is one Sayali Narayan Kuche (daughter of the local MLA). She was taking education in the Indian Institute of Medical Science and Research MBBS College, (Noor Hospital), Warudi in Second Year. On 14.1.2020 in the evening at about 5.00 p.m. when she was taking walk on the walking track of the hostel, the petitioner went their in his car, given her sexual expressions and insisted her to sit in his vehicle. That vehicle was without registration number. After sometime, when she was proceeding towards the Canteen to meet her girl friend Khushbu, the petitioner had stopped his car, caught hold off her hand and forcibly tried her to drag in the car. Even, thereafter, the petitioner has not only threatened the uncle of the informant Sayali in reference to the said crime, but also ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 21 criwp 224.2021.odt kept his whatsapp status mentioning therein that said Sayali is his wife.
19. In our considered opinion, there is a live-link between the registration of the crime and the proposal submitted to the offce of the respondent no.2. We have also carefully gone through the original record, particularly, three in-camera statements of the witnesses. They are not willing to come forward to give the evidence or to fle the complaint against the petitioner by reason of apprehension to their life.
20. In a case of Balu Shivling Dombe Vs. The Divisional Magistrate, Pandharpur and another (supra), relied upon by the learned senior counsel for the petitioner, the Sub-Divisional Magistrate, Jalna has relied upon two statements. According to those two witnesses, they had no courage to give evidence against the petitioner. On the basis of the statements of those two witnesses, the Sub-Divisional Magistrate, Jalna exterened the petitioner therein with the observations that there will be no peace in the localities where those two witnesses are staying and the maintenance of law ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 22 criwp 224.2021.odt and order in these localities will become diffcult. In the backdrop of these facts, the Division Bench of this Court has observed that an order of externment cannot be passed under clause (a) merely on a fnding that the movement or acts of a person are causing or are calculated to cause alarm, danger or harm to one or two individuals in the locality.
In the instant case, however, the facts are altogether different. Externment order is not merely based upon in-camera statements of certain witnesses, however, it is also based upon the live-link between the crime registered against the petitioner and the impugned order of externment.
21. In a case Kanifnath Radhakishan Popalghat Vs. State of Maharashtra and others (supra), relied upon by the learned senior counsel for the petitioner, wherein, the Division Bench of this Court has quashed the externment order on two grounds. Firstly, the externing authority did not record subjective satisfaction or reached to the defnite conclusion that due to fear of petitioner, witnesses are not coming forward to give ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 23 criwp 224.2021.odt evidence against the petitioner in public by reason of apprehension on their part as regards safety or their person or property, and, consequently, the impugned order also suffers from not demonstrating the live-link between the offences relied upon in show cause notice and impugned order.
In the instant case, the Sub Divisional Police Offcer, Jalna has submitted his inquiry report dated 25.7.2020 stating therein that the petitioner is a very ferocious person and is involved in number of crimes like house tress-pass, voluntarily causing hurt by dangerous weapons, assault or criminal force to woman with an intent to outrage her modesty, sexual harassment, stalking, intent to provoke breach of peace, criminal intimidation, criminal intimidations by anonymous communication, etc., and involved in other serious offences of I.T. Act, accordingly, strongly recommended to extern the petitioner from three districts i.e. Jalna, Aurangabad and Buldhana for a period of two years. The Sub-Divisional Magistrate, Jalna in the impugned order has observed that the Sub Divisional Police Offcer/inquiry offcer has followed the ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 24 criwp 224.2021.odt proper procedure in the inquiry. The learned Sub Divisional Magistrate, Jalna has also dealt with the grounds raised by the petitioner that he was not given an opportunity to lead the evidence. The Sub-Divisional Magistrate, Jalna has also discussed all the crimes and observed that all sequence of the cases registered against the petitioner clearly demonstrates the activities of the petitioner as dangerous in the area of the District Jalna and he will also continue in future. The learned Sub Divisional Magistrate, Jalna has also referred in- camera statements of 'A" and 'B' who are not willing to come forward in public.
In the instant case, the Sub-Divisional Magistrate, Jalna has assigned the reasons and also demonstrated the live-link between the offences relied upon in the show cause notice and the impugned order. The learned Sub-Divisional Magistrate, Jalna has recorded the satisfaction and reached to the defnite conclusion.
24. In a case of Ravi Ramdas Aher Vs. State of Maharashtra (supra), relied upon by the learned senior counsel for the petitioner, the Division Bench of this ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 25 criwp 224.2021.odt Court has observed that externment order is excessive in as much as the petitioner alleged prejudicial activities mentioned in the show cause notice are confned to Kopargaon Taluka of Ahmednagar District, however, the petitioner is externed from three Districts. This Court has, therefore, considered the order as an excessive order. The learned senior counsel has also placed his reliance on a case Shanno @ Shamali Jafar Pathan Vs. State of Maharashtra (supra), wherein, similar view is expressed on the excessive area.
25. In the instant case, in addition to police station Badnapur, crime also found to be registered at Police Station Chandanzira, Kadim Jalna and also in Taluka Jalna. So there is no material available to indicate that the learned Sub-Divisional Magistrate, Jalna has considered the excessive area.
26. In a case Rauf Khan Wahab Khan Patel Vs. State of Maharashtra (supra), relied upon by the learned senior counsel for the petitioner, the Division Bench of this Court, in the facts of the said case alongwith other grounds, considered the ground to brand a person as ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 26 criwp 224.2021.odt habitual criminal and in the backdrop of the said ground, the Division Bench has observed that both the authorities have not considered the fact that the petitioner is not convicted in any of the cases registered against him.
27. In a case Sumit s/o Ramkrishna Maraskolhe Vs. Deputy Commissioner of Police, Nagpur and another (supra), relied upon by the learned APP, the following two questions have been referred to the Larger Bench, which reads thus :-
3.F] The Division Bench, however, having been confronted with some divergent views expressed in some of the Judgments rendered by the other coordinate Benches, such as in the cases of Pappu Mishra vs. Union of India, 2017 ALL MR (Cri.) 1, Sanjay Ruptakke vs. State, 2017 ALL MR (Cri.) 3983, Sayyad Jafar vs. Divisional Commissioner, 2017 ALL MR (Cri.) 4303 found itself in a dilemma and, therefore, formulating two questions for their answer by a larger Bench, passed the referral order. The questions framed are thus :-
(1) Where the activities of externee are confined to specific area of the local limits of the jurisdiction of a police station in a district but the order of externment extends to the entire district, rural areas and even beyond the district or districts (irrespective of the fact that it is contiguous or not) wheether such an order needs to show the existence of material -
(a) that a larger or additional area so chosen or selected is intimately connected with the actual area of the activities of the externee due to improved or common means of transport and communication system, (b) that the facts or the material warranting externment from a larger or additional area or neighbouring area exist, and
(c) that the externing authority has applied its mind to the factors (a) and (b) while passing an order of externment?::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 :::
27 criwp 224.2021.odt (2) Whether it is necessary to state in the show cause notice the details of in-camera statements recorded by the externing authority to reach to the satisfaction that the witnesses are not coming forward to give evidence or depose in public against the proposed externee due to fear of alarm, danger or harm to their person or property ?
28. The Full Bench of this court, after referring the various cases on this point, in paragraph no.26 of the judgment has recorded fnding to question no.1 as follows :-
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 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 ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 28 criwp 224.2021.odt available to it, whether such larger area has within it contiguous or inter-connected or intimately connected pockets of areas or not.
Question no. (1) having three aspects enumerated in clauses
(a), (b) and (c), is answered specifically through the three conclusions made as above.
So far as question no.2 is concerned, in paragraph no.45, the Full Bench has observed the same in the following manner :-
"45. Having comprehended clearly the issues central to second question of reference, it is time for us to formalize the answer to it and it is as follows :
It is not necessary to state in the show-cause notice the details or the particulars of in-camera statements recorded by the externing authority and only the general nature of material allegations is all that is necessary to be said in the show-cause notice. In other words, it is sufficient compliance with the requirement of law if the show cause notice refers in general terms to the material allegations against the proposed externee and when the action is under Section 56 (1) (b) of the Act, 1951 it also generally says that the witnesses are not coming forward to give evidence in public against the proposed externee due to fear, alarm, danger or harm to the person or property, as the case may be."
29. In view of the answers recorded by the Full Bench to the aforesaid issues/questions, we are satisfed that the impugned order is based upon the 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 in the order itself. It is not necessary that the order of ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 09:51:51 ::: 29 criwp 224.2021.odt externment should refer the details of the material considered by the authority 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. Application of mind to the material present on record by the authority passing the externment order is necessary. We are satisfed that the respondent no.2 Sub-Divisional Magistrate, Jalna has passed the impugned order by applying the mind. The impugned order discloses that subjective satisfaction has been reached by considering the material available on record. Thus, the inference could be drawn that while considering the materials to satisfy about the need for and extent of externment to be ordered.
30. In view of the discussion above and considering the ratio laid down by the Full Bench while answering the referred questions, we fnd that the impugned orders calls for no interference. We accordingly proceed to pass the following order.
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30 criwp 224.2021.odt ORDER
1. Criminal writ petition is hereby dismissed.
2. Criminal writ petition accordingly disposed off.
( S.G.DIGE, J. ) ( V.K. JADHAV, J. )
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aaa/-
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