Bombay High Court
Dagdu Rambhau Aamle vs The Divisional Commissioner, ... on 9 March, 2022
Author: V. K. Jadhav
Bench: V. K. Jadhav
1 JUDGMENT IN WP 1502-21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1502 OF 2021
Dagdu Rambhau Aamle,
Age : 30 years, Occu.: Agril.,
R/o.: Kherda, Tq. Pathari,
District : Parbhani.
At present C/o. Nagesh Shivaji Avchar,
R/o.: Vidoli, Tq. Mantha, Dist. Jalna. .... PETITIONER
VERSUS
1. The Divisional Commissioner,
Aurangabad Division, Aurangabad.
2. The Sub-Divisional Magistrate,
Pathari, District : Parbhnai.
3. The Sub-Divisional Police Offcer,
Sailu, District Parbhani.
4. The Police Inspector,
Police Station, Pathari,
District Parbhani. ... RESPONDENTS
.....
Advocate for Petitioner : Mr. Sudarshan J. Salunke
APP for Respondents-State : Smt. P. V. Diggikar
....
CORAM : V. K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
RESERVED ON : 03/03/2022
PRONOUNCED ON : 09/03/2022
....
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2 JUDGMENT IN WP 1502-21
JUDGMENT :(Per : Sandipkumar C. More, J.) :
1. Rule. Rule made returnable forthwith. By consent, heard fnally at admission stage.
2. The petitioner has fled this writ petition for quashing the order passed by the learned Sub-Divisional Magistrate, Pathri, Districit Parbhani i.e. respondent no.2 in the matter of 2021/MAG/Externment/Kavi, dated 17/09/2021 as well as the judgment and order passed by the learned Divisional Commissioner Aurangabad Division, Aurangabad i.e. respondent no.1 bearing Outward No.2021/GAD/Desk-1/Pol-1/Externment/CR-62, dated 07/12/2021.
3. Background facts are as under :
The petitioner is resident of village Kherda, Tq. Pathri, District Parbhani and enshrined with the rights and privileges under the Constitution of India, 1950. Respondent no.3 had issued show cause notice dated 17/06/2021 to the petitioner mentioning that on the basis of three crimes for the offences under Chapter XVI of IPC and under the provisions of Atrocities Act, calling upon the petitioner as to why he should not be externed for a period of two years under Section 56(1)(a)(b) of the Maharashtra Police Act (in ::: Uploaded on - 09/03/2022 ::: Downloaded on - 10/03/2022 11:31:24 ::: 3 JUDGMENT IN WP 1502-21 short 'the Act') from Parbhani District. The petitioner submitted reply dated 06/07/2021 to the said notice and claimed that the said notice was illegal since he was not yet charge-sheeted in any offence mentioned therein. Accordingly, he prayed for cancellation of said notice. However, respondent no.3 under notice dated 05/07/2021 under Section 56 of the Act, had called the petitioner for enquiry of the proposal of externment. Respondent no.2 thereafter considering the material on record and say fled by the petitioner, passed order dated 17/09/2021 and thereby externed the petitioner from the Talukas Parali and Majalgaon of Beed District, Talukas Ashti and Partur of Jalna District and entire Parbhani District for a period of one year. When the petitioner questioned the legality of the aforesaid order passed by respondent no.2 before respondent no.1 by way of Appeal No. 2021 / GAD / Desk-1 / Pol-1 / Externment / CR-62, respondent no.1 by dismissing the said appeal vide judgment dated 07/12/2021 confrmed the order of externment passed by respondent no.2. As such, the petitioner has challenged the aforesaid impugned orders by way of this writ petition.
On perusal of the said notice dated 17/06/2021 issued by respondent no.2, it appears that following crimes as mentioned in the said notice as well as confdential statements of witnesses as regards the dangerous activities of the petitioner are considered for ::: Uploaded on - 09/03/2022 ::: Downloaded on - 10/03/2022 11:31:24 ::: 4 JUDGMENT IN WP 1502-21 the externment. We would like to reproduce those crimes herein below :
Sr. Police Crime No. Under Section Present No. Station status
1. Pathri 144/2021, 507 of IPC -
dated 04/06/2021
2. Pathri 145/2021 324, 323, 504, 506 Under r.w. 34 of IPC, investigation under Section 3(1)
(r), 3(1)(s) of SC and ST (Prevention of Atrocities )Act
3. Pathri 250/2021, 341, 294, 295(A), Under dated 323, 504, 506 r.w. investigation 06/06/2021 34 of IPC and under Section 3(1)(s), 3(2) (va) of SC and ST (Prevention of Atrocities )Act
4. Learned counsel for the petitioner submits that the notice as well as impugned orders have been issued and passed erroneously as the petitioner is not at all convicted in the aforesaid crimes, which are only at the stage of investigation. He further submits that registration of Crime No. 145 and 250 of 2021 against the petitioner, are only due to political reasons. He further submits that in the show cause notice dated 17/06/2021 the concerned authority did not mention about any in-camera statements of witnesses and therefore, the petitioner lost an opportunity of explaining the same. ::: Uploaded on - 09/03/2022 ::: Downloaded on - 10/03/2022 11:31:24 :::
5 JUDGMENT IN WP 1502-21 The learned counsel for the petitioner also submits that while passing the impugned orders, there was no sign of subjective satisfaction from the side of concerned authorities. Lastly, he submitted that even though the crimes mentioned in the show cause notice against the petitioner are from Pathri Taluka only, but the concerned authorities have externed the petitioner from larger area including portions of two districts viz. Beed and Jalna and also entire Parbhani District. As such, the petitioner has prayed for quashing of both the impugned orders about his externment as directed. Besides the oral submissions, the learned counsel for the petitioner also relied on following judgments.
I) Sayyed Jafar Sayyed Nasir vs. The Divisional Commissioner, Amravati, 2017 ALL MR (Cri) 4303;
II) Ajay @ Golu Shyam Solank vs. State of Maharashtra and another, 2019 ALL MR (Cri) 702;
III) Umar Mohamed Malbari vs. K. P. Gaikwad, Dy.
Commissioner of Police and another, 2000 ALL MR (Cri) 578 and IV) Gunwanta s/o Gajanan Khandekar vs. Sub-
Divisional Magistrate, Sub-Division Ramtek and others, 2008 ALL MR (cri) 1519.
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6 JUDGMENT IN WP 1502-21
5. On the other hand, the learned APP strongly opposed the petition and supported both the impugned orders, which according to her, passed with subjective satisfaction and considering the nature of crimes registered against the petitioner along with confdential statements of witnesses. She submits that both the impugned orders are based upon the material on record, which indicates that presence of the petitioner in the area from he is externed, is highly dangerous to the public at large. So far as non- mentioning of confdential statements of witnesses in the show cause notice dated 17/06/2021 is concerned, the learned APP heavily relied upon the Full Bench judgment passed by this court at Nagpur Bench, in the case of Sumit s/o Ramkrishna Maraskolhe vs. Deputy Commissioner of Police, Nagpur and another, reported in 2019 ALL MR (Cri) 1961 (F.B.).
6. Admittedly, it has been observed by the Hon'ble Supreme Court as well as this court in many earlier cases that under clause
(d) of Article 19(1) of the Constitution of India, there is a fundamental right conferred on the citizens to move freely throughout the territory of India. In view of clause (5) of Article 19, State is empowered to make a law enabling the imposition of reasonable restrictions on the exercise of the right conferred by ::: Uploaded on - 09/03/2022 ::: Downloaded on - 10/03/2022 11:31:24 ::: 7 JUDGMENT IN WP 1502-21 clause (d). Since an order of externment passed under provisions of Section 56 of the Act imposes a restraint on the person against whom the order is made for entering a particular area, such restriction imposed by passing an order of externment must stand the test of reasonableness. Thus, it appears that while passing the order of externment in view of Section 56(1)(a)(b) of the Act the concerned authorities must pass such orders with subjective satisfaction considering the material on record.
7. Though the learned counsel for the petitioner has argued that the orders are liable to be quashed mainly on the ground of non- mentioning of confdential or in-camera statements of the witnesses in the show cause notice itself, but the learned APP contrary submitted that there is no such requirement as the said issue has already been resolved by the Full Bench judgment of this court at Nagpur Bench as mentioned above. In the case of Sumit s/o Ramkrishna Maraskolhe vs. Deputy Commissioner of Police, Nagpur and another, reported in 2019 ALL MR (Cri) 1961 (F.B.) after considering various earlier cases have observed in para no.45 as follows :
"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 : ::: Uploaded on - 09/03/2022 ::: Downloaded on - 10/03/2022 11:31:24 :::
8 JUDGMENT IN WP 1502-21 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 suffcient 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."
Obviously, on reading the aforesaid observations, it is evident that mentioning of such in-camera statements is not necessary at all. As such, we discard the submission of the learned counsel for the petitioner to that effect.
8. So far as another submission of the learned counsel for the petitioner is concerned, it is the main submission that the impugned orders are excessive in nature since the petitioner has been externed from larger area as compare to his criminal activities, which are only restricted for the area of Pathri Taluka. Admittedly, the crimes ::: Uploaded on - 09/03/2022 ::: Downloaded on - 10/03/2022 11:31:24 ::: 9 JUDGMENT IN WP 1502-21 which are considered for the externment of the petitioner are concerned with Pathri Police Station only and there are no crimes registered against the petitioner in the excess area as mentioned in the impugned orders from which he has been externed.
9. The learned APP again by relying upon the aforesaid judgment of Full Bench pointed out that the Hon'ble Supreme Court in the cases of Pandharinath Shridhar Ragnekar vs. Dy. Commissioner of Police, the State of Maharashtra reported in (1973)1 SCC 372, State of NCT of Delhi and another vs. Sanjeev @ Bitto, reported in 2005 SCC (cri)2015 and Lt. Governor, NCT and others vs. Ved Prakash @ Vedu, reported in 2006 ALL MR (Cri) 2645 has held that a person can be directed to be externed from an expansive area so as to make implementation of the order of externment much effective, easier and convenient. However, on going through the conclusion of the Full Bench of this Court at Nagpur Bench it is observed in para no. 26 of the said judgment 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 ::: Uploaded on - 09/03/2022 ::: Downloaded on - 10/03/2022 11:31:24 :::
10 JUDGMENT IN WP 1502-21 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 refection of application of mind in the externment order in a specifc 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 ::: Uploaded on - 09/03/2022 ::: Downloaded on - 10/03/2022 11:31:24 ::: 11 JUDGMENT IN WP 1502-21 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.
Question no. (1) having three aspects enumerated in clauses (a), (b) and
(c), is answered specifcally through the three conclusions made as above".
10. Thus, it appears that an externment order directing a person from much larger area than the one of his illegal activities, must be based upon some effective material to that effect and that too after reaching a subjective satisfaction by the concerned authorities. Moreover, there should be an application of mind by the concerned authorities to arrive at a particular conclusion for externing the person from much larger area and there must be a reasoned order to that effect.
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12 JUDGMENT IN WP 1502-21
11. In the instant case, only three crimes are considered by both the concerned authorities for externment of the present petitioner. All these crimes are only concerned with the area of Pathri Taluka, District Parbhani and there appears no material in respect of criminal activities of the petitioner for the area of Talukas Parali and Majalgaon of Beed District Ashti and Partur Talukas of Jalna District. Further though it is mentioned that the petitioner is to be externed from Ashti Taluka of Jalna District but in fact Ashti Taluka falls under Beed District and not in Jalna District. As such non- application of mind by the concerned authorities is apparent prima facie. Further in both the impugned orders though there is mention of such confdential witnesses, but it is not specifed as to what was stated by those confdential witnesses. It is extremely important to note that even though the crimes against the petitioner are only registered in Pathri Police Station, which have been considered for his externment, but there is no explanation at all in both the impugned orders as to why the petitioner is required to be externed from the larger area involving Parali, Majalgaon, Ashti and Partur Talukas and entire Parbhani District. Thus, it is clearly a non- application of mind on the part of both the concerned authorities, who passed the impugned orders. Therefore, in view of the observation of Full Bench of this Court at Nagpur Bench, we come to ::: Uploaded on - 09/03/2022 ::: Downloaded on - 10/03/2022 11:31:24 ::: 13 JUDGMENT IN WP 1502-21 the conclusion that the externment orders appear excessive in nature as regards the externment of the petitioner from larger area than the area in respect of his criminal activities. Further, there is no explanation in both the orders as to why the petitioner has been externed from larger area. It indicates clear non-application of mind. Moreover, the impugned orders also appear to be passed without subjective satisfaction by the concerned authorities. Hence, we fnd that the impugned orders are liable to be quashed and set aside being an excessive orders. In the result, we pass following order.
ORDER I) Criminal writ petition is hereby allowed in terms of prayer clause "C".
II) Rule made absolute in above terms.
III) Criminal writ petition is disposed of accordingly.
(SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)
vsm/-
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