Bombay High Court
Yasin Khan Masum Khan Multani vs The State Of Maharashtra And Anr on 22 June, 2018
Equivalent citations: AIRONLINE 2018 BOM 603, (2018) 5 MH LJ (CRI) 391 2020 (1) ABR(CRI) (NOC) 13 (BOA), 2020 (1) ABR(CRI) (NOC) 13 (BOA)
Author: S.S.Shinde
Bench: S.S.Shinde, V.K. Jadhav
448.18WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 448 OF 2018
Yasin Khan Masum Khan Multani
Age : 47 years, Occ : Business,
R/o Ganeshpuri, Mehrun, Jalgaon.
PETITIONER
VERSUS
1. State of Maharashtra
Through Sub-Divisional Police Officer,
Jalgaon.
2. Sub-Divisional Magistrate,
Jalgaon.
RESPONDENTS
...
Mr.Vijay Sharma, Advocate for the Petitioner
Mr.D.R. Kale, APP for Respondent/State.
...
CORAM: S.S.SHINDE &
V.K. JADHAV,JJ.
Reserved on : 14.06.2018
Pronounced on : 22.06.2018
JUDGMENT:(Per S.S.Shinde, J.):
This Petition is filed praying therein to quash and set aside the order of ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 2 externment dated 10.08.2017 issued by the 2nd Respondent herein under Section 56 of the Bombay Police Act, 1951 in Externment Proceedings bearing No.05/2017.
2. It is the case of the petitioner that, on 29th March, 2017, the Police Inspector Police Station MIDC, Jalgaon submitted the proposal to the Sub-Divisional Police Officer, Jalgaon, stating therein that there are 10 crimes registered against the petitioner and in usual course of law, it becomes difficult to put a check on his activities, and hence, he proposed that, the petitioner should be externed from Jalgaon, Dhule, Buldhana and Aurangabad districts for a period of one year. On 15th May, 2017, the Sub-Divisional Police Officer, Jalgaon has informed Respondent No.2 that after making enquiry, he found that the petitioner is a man of criminal tendency and he is habituated ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 3 to commit offences against human body and property. So also, there is likelihood of breach of peace, as such it is recommended to extern the petitioner from Jalgaon district for a period of two years. It is the case of the petitioner that, respondent no.2 issued show-cause notice on 23rd June, 2017 and the petitioner submitted his reply to the said show-cause notice on 17th July, 2017, stating therein that the false cases have been registered against him and he has been falsely implicated into those cases. Thereafter on 10th August, 2017, Respondent No.2 has passed an externment order, thereby externing the petitioner from Jalgaon, Dhule and Bhuldhana districts for a period of two years. Hence this Petition.
3. At the outset, learned counsel appearing for the petitioner submits that, on the very same and in identical set of facts ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 4 of the present externment proceedings, Respondent No.2 had externed the petitioner vide order dated 18th September, 2014 for a period of two years from six districts i.e. Jalgaon, Dhule, Nashik, Aurangabad, Jalna and Buldhana. Being aggrieved by the said order, the petitioner had approached High Court by filing Criminal Writ Petition No.1166/2014. In the said Writ Petition, the High Court quashed and set aside the said order of externment, on 2nd December, 2014. Therefore, he submits that, the impugned order passed by Respondent No.2 now on the same set of facts is illegal, and may be quashed and set aside. It is submitted that, there is nothing in the impugned order to show or support the subjective satisfaction arrived at by the competent authority, and the reasons as why his externment is required from the districts of Dhule and Buldhana. Learned counsel appearing for the petitioner submits that, ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 5 there is no reference of recording of in camera statements by the authority and hence the impugned order is contrary to the provisions of the law. It is further submitted that the impugned order is passed without adhering to the provisions of section 56 of the Maharashtra Police Act, 1951. In support of aforesaid contentions, learned counsel pressed into service the exposition of law in the cases of Umar Mohamed Malbari V/s K.P. Gaikwad, Dy. Commissioner of Police and Anr.1 and Sayeed Firoz S/o. Sayeed Noor V/s The State of Maharashtra2.
4. On the other hand, the learned A.P.P. appearing for respondent/State, relying upon the reasons assigned by respondent no.2 in the impugned order, submits that, Respondent No.2 has adhered to the proper procedure and has passed the 1 2000 All MR (Cri) 578 2 2016 All MR (Cri) 3410 ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 6 impugned order. He invites our attention to the reasons assigned in the impugned order and also original record in relation to an externment proceedings and submits that the Petition may be rejected.
5. We have considered the submissions of learned counsel appearing for the petitioner, and learned APP appearing for the respondent - State. With their able assistance, we have carefully perused the grounds taken in the petition, annexures thereto and also the original record maintained by the office of Respondent No.2, and the reasons assigned by respondent no.2 in the impugned orders.
6. At the outset, it is necessary to state that, the impugned order dated 10th August, 2017 is passed by Respondent No.2 - Sub-Divisional Magistrate, Jalgaon and the ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 7 said order has to be challenged before the Appellate Authority i.e. the Divisional Commissioner. However, the Division Bench of this Court (Coram : Prasanna B. Varale & Smt. Vibha Kankanwadi, JJ) has passed the order on 16th April, 2018, thereby issuing Rule in the matter. Hence, in the peculiar facts and circumstances of this case, we are not inclined to relegate the petitioner to approach the appropriate authority.
7. Upon careful perusal of the reasons assigned in the impugned order, it appears that, the provisions of Section 56(1)(b) of the Maharashtra Police Act, 1951 has not been followed/adhered to by Respondent No.2 while passing the impugned order. Though there is reference in the impugned order that, in camera statements of the witnesses were recorded, from the perusal of the original record, it reveals that, statements of both ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 8 the witnesses are stereotype with similar contents.
At this juncture, it would be apt to make reference to the provisions of Section 56(1)(a)(b) of the Act of 1951, which reads thus:
56.Removal of persons about to commit offence (1) ....
(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 Chapters XII, XVI or XVII of the Indian Penal Code, or in ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 9 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"
8. Upon careful perusal of the aforesaid provisions, an order of externment can be passed against a person whose movements or acts are causing or calculated to cause alarm, danger or harm to person or property as provided in clause (a). The order of externment can also be passed against a person if there are reasonable grounds for believing that such a person is engaged or is about to be engaged in the commission of an offence involving force or violence as provided in clause (b). An order of ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 10 externment can also be passed against a person if that person is engaged or about to be engaged in the commission of an offence punishable under Chapter XII, or Chapter XVI, or Chapter XVII of the Indian Penal Code.
9. The Division Bench of the Bombay High Court [at Principal seat] in the case of Yeshwant Damodar Patil Vs. Hemant Karkar, Dy.
Commissioner of Police & another3 had occasion to consider the scope of provisions of Section 56 [1] [a] and [b] of the Bombay Police Act. It would be gainful to reproduce herein below para 3 of the said judgment:
3. Section 56 (i) of the Bombay Police Act visualises three situations in which the order of externment could be passed by the designated officer. We will, however, ignore, for the purpose of the disposal of this petition the 3 1989 (3) Bom.C.R. 240 ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 11 third type of situation and only analyse the two situations which are covered by Clauses
(a) and (b) of section 56 (i) of the Act. An order of externment can be passed against a person whose movements or acts are causing or calculated to cause alarm, danger or harm to person or property. That is what is provided in clause (a). The order of externment can also be passed against a person if there are reasonable grounds for believing that such a person is engaged or is about to be engaged in the commission of an offence involving force or violence. It is so provided in the first part of clause (b) of section 56 (i) of the Act.
An order of externment can also be passed against a person if that person is engaged or about to be engaged in the commission of an offence punishable under Chapter XII, of Chapter XVI, or ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 12 Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause
(b) of section 56 (i) of the Act. But it is not enough that these conditions alone are satisfied. In addition to this the designated officer should be of the opinion that 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.
10. It appears that, the authority has not made discussion in the impugned order showing live link and proximity in between the initiation of externment proceedings by respondent no.2. Further though the eleven offences have been mentioned in the impugned order passed by respondent no.2 which have been registered at Jalgaon and Raigad ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 13 districts, the petitioner was externed by respondent no.2 from Jalgaon, Dhule and Buldhana districts, without assigning any reasons why his externment was necessary from Dhule and Buldhana districts. So also there is no discussion or subjective satisfaction disclosed in the impugned order, why the externment of the petitioner from Dhule and Buldhana districts is necessary. Therefore, the impugned order passed by Respondent No.2 is excessive.
11. The point raised in this Petition is no longer res integra and covered by the exposition of law by this Court in the case of Nisar @ Nigro Bashir Ahmed Khan V/s Dy. Commissioner of Police & ors reported in 2013(3) Bom.C.R.(Cri.) 566. The paragraph nos. 9 to 11 of the said judgment read as under :-
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448.18WP.odt 14 "9. The point raised by the learned Counsel for the Petitioner that the externment order is excessive, in as much as, the alleged activities against the Petitioner, which are alleged in the show cause notice are confined to the jurisdiction of the Shivaji Nagar Police Station and within the area of Greater Bombay, therefore, externment of the Petitioner from aforesaid other three Districts is excessive, is no more res integra and is covered by the authoritative pronouncements of the Hon'ble Supreme Court as well as by this Court. The Hon'ble Supreme Court in the case of (Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra), reported in 1973 Mh.L.J. 413, in Paragraph 16, held as under :
"16. An excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case. The decision of the Bombay High Court in (Balu Shivling Dombe v. The Divisional Magistrate, Pandharpur) 1969 Mh.L.J. ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 15 387 is an instance in point where an externment order was set aside on the ground that it was far wider than was justified by the exigencies of the case. The activities of the externee therein were confined to the city of Pandharpur and yet the externment order covered an area as extensive as the districts of Sholapur, Satara and Poona. These areas are far widely removed from the locality in which the externee had committed but two supposedly illegal acts. The exercise of the power was, therefore, arbitrary and excessive, the order having been passed without reference to the purpose of the externment."
10. This Court had also occasion to consider the same point involved in this Petition in the case of Balu Vs. The Divisional Magistrate, Pandharpur, reported in 1969 Mh.L.J. 387, while appreciating the facts involved in that case, this Court held that extending the area of externment not only outside Pandharpur Taluka but to the Districts ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 16 of Solapur, Pune and Satara is illegal since the alleged activities against the Petitioner therein, as stated in the show cause notice, were confined to the Pandharpur City. In the case of Punjaji Dagdu Gaikwad Vs. State of Maharashtra and Ors., reported in 2001(Supp.2) Bom.C.R. 611(N.B.): 2001 (3) Mh.L.J. 926, in the facts of that case, this Court held that the Petitioner's area of activities is confined to Buldhana District, but the Petitioner is externed from Buldhana District as well as Districts of Akola, Washim, Jalna, Parbhani and Jalgaon. Order suffered from vice of excessive externment from five Districts in respect of which no data was placed and the entire externment order was in the circumstances liable to be quashed. Yet in another exposition of this Court, in the case of Ganpat @ Ganesh Tanaji Katare Vs. Assistant Commissioner of Police and Ors., reported in 2006 (1) Bom.C.R. (Cri.) 44, in the facts of that case, this Court held that the alleged activities of the Petitioner therein are restricted to particular District. ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 :::
448.18WP.odt 17 Therefore, an externemnt order of the respective Petitioners from other District except Greater Bombay and adjoining Districts of Thane is excessive.
11. In the background of aforesaid discussion and upon perusal of facts of this case, when the crimes registered against the Petitioner are confined to Shivaji Nagar Police Station within the limits of Greater Bombay, by impugned order, the Petitioner is externed from Greater Bombay, New Bombay, Thane and Raigad Districts for two years."
12. Once this Court has reached to the conclusion that, the externment order is excessive, the same deserves to be quashed in its entirety.
13. While issuing the show-cause notice and passing the impugned order, Respondent No.2 has relied upon as many as eleven offences registered against the present ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 18 petitioner, namely, Crime No.5/2010 dated 03.02.2010, Crime No. 236/2013 dated 11.09.2013, Crime No. 169/2013 dated 23.06.2013, Crime No.39/2014 dated 16.02.2014, Crime No. 39/2016 dated 04.02.2016, Crime No. 26/2017 dated 31.01.2016, Crime No.4/2013 dated 22.08.2013, Crime No. 8/2014 dated 05.01.2014, Crime No. 137/2014 dated 28.08.2014 and Crime No. 59/2014 dated 05.02.2014. Out of above said eleven offences, the offence at Sr. No.1 is registered as long back as in the year 2010, Sr. Nos.2, 3 and 7 are registered in the year 2013, Sr. Nos.4, 8, 9 and 10 are registered in the year 2014. Therefore, there is no live link between the registration of the said offences and initiation of the present externment proceedings.
14. In that view of the matter, we are of the considered view that, the impugned ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 02:59:05 ::: 448.18WP.odt 19 order passed by respondent no.2 is excessive and cannot legally sustain, hence the order is quashed and set aside. Rule is made absolute on above terms. The petition stands disposed of accordingly. No order as to costs.
[V.K. JADHAV] [S.S.SHINDE]
JUDGE JUDGE
SAG
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