Bombay High Court
Pintu @ Ramesh S/O. Uttamrao Gapat vs The State Of Maharashtra on 25 July, 2017
Author: S.S.Shinde
Bench: S.S.Shinde
462.2016 Cri.WP.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.462 OF 2016
Pintu @ Ramesh s/o. Uttamrao Gapat,
Age: 40 years, Occ: Agri.,
R/o. Indapur, Tq. Washi,
Dist. Osmanabad. PETITIONER
VERSUS
1. The State of Maharashtra
Through its Principal Secretary,
Home Department, Mantralaya,
Mumbai-32.
2. The Divisional Commissioner,
Aurangabad.
3. The Sub-Divisional Magistrate,
Kallamb, Tq. Kallamb,
Dist. Osmanabad.
4. The Sub-Divisional Police Officer,
Bhoom, Tq. Bhoom, Dist. Osmanabad.
RESPONDENTS
...
Mr.V.R.Dhorde, Advocate for the Petitioner
Mr.V.M.Kagne, APP for Respondent Nos.1 to 4 -
State.
...
CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
Reserved on : 17.07.2017
Pronounced on : 25.07.2017
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462.2016 Cri.WP.odt
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JUDGMENT:(Per S.S.Shinde, J.):
1. Heard.
2. Rule. Rule made returnable forthwith, and heard finally with the consent of the parties.
3. The background facts for filing the present Petition as disclosed in the memo in brief as under:
It is the case of the petitioner that the petitioner came to be elected as Upa-Sarpanch of Grampanchayat, Indapur. The petitioner is also the Chairman of village Level Credit Co-operative Society, namely Indapur Vividh Karyakary Sevak Sahakari Society Ltd., and the petitioner was desirous of contesting the elections of Agriculture Produce Market Committee, Washi. On 3rd ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 3 September, 2015, respondent no.4 - Sub Divisional Police Officer, Bhoom issued show-
cause notice to the petitioner. On 25th September, 2015, the petitioner filed his reply to the said notice. Thereafter, the Sub Divisional Police Officer, Bhoom, submitted proposal to the Sub Divisional Magistrate, Kallamb, with recommendation to extern the petitioner from five Districts.
4. It is further the case of the petitioner that on 19th October, 2015, show cause notice came to be issued by respondent no.3 Sub Divisional Magistrate, Kallamb, in pursuance of the report submitted by respondent no.4-Sub Divisional Police Officer, proposing the externment of the petitioner. The petitioner filed reply to the said show cause notice on 8th February, 2016, and reiterated his stand, and opposed the proposed externment of the petitioner. ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 :::
462.2016 Cri.WP.odt 4 It is further the case of the petitioner that, on 24th February, 2016, respondent no.3 Sub Divisional Magistrate, Kallamb, without giving personal hearing to the petitioner and in violation of the principles of natural justice, has passed the order under Section 56 [1] [a] [b] of the Maharashtra Police Act, 1951, [for short 'Act of 1951'] externing the petitioner from Osmanabad, Beed and Solapur Districts for two years.
5. Being aggrieved by the said order, on 29th February, 2016, the petitioner preferred an Appeal under Section 60 of the Maharashtra Police Act before respondent no.2
- Divisional Commissioner, Aurangabad. Respondent no.2 - Divisional Commissioner, vide order dated 19th March, 2016, partly confirmed the order dated 24th February, 2016 ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 5 and maintained the said order to the extent of externing the petitioner from Osmanabad District only. Hence this Criminal Writ Petition.
6. The learned counsel appearing for the petitioner invites our attention to the contents of the show-cause notice and submits that in the said show cause notice, there is no mention that the witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension on their part as regards the safety of their person or property. He submits that while passing the impugned order, the respondent authorities have placed reliance on as many as 12 offences without taking into consideration the fact that the petitioner stood acquitted from 6 cases, even prior to issuance of the show cause notice. He submits that an initiation of the proceedings of externment is out of political ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 6 vendetta and to deprive the petitioner from enjoying the political status which he has acquired in his career as politician. He further submits that the order passed by respondent no.3 is excessive inasmuch as though the offences registered against the petitioner are at Washi Police Station, District Osmanabad, the petitioner was externed from the boundaries of Osmanabad, Beed and Solapur Districts. In support of his aforesaid contentions, he pressed into sevice exposition of law in the cases of Bilal Gulam Rasul Patel v. Divisional Magistrate, Thane and others1, Salauddin s/o. Akramuddin v. State of Maharashtra & Ors.2, Rajendra Karbhari Kale v. The State of Maharashtra & Ors.3 and Kanifnath Radhakishan Popalghat v. The State of Maharashtra & Ors.4 Therefore, he submits that the Petition may be allowed. 1 2014 ALL.M.R. [Cri.] 2161 2 2014 ALL.M.R. [Cri.] 993 3 2017 ALL M.R. [Cri.] 824 4 2017 ALL.M.R. [Cri.] 795 ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 7
7. On the other hand, the learned APP appearing for the respondent - State relying upon the averments in the affidavit-in-reply and the reasons assigned by respondent nos.2 and 3 in the impugned judgments and orders submits that the authorities, after adhering to the procedure prescribed under the provisions of the 56 [1] [a] [b] of the Act of 1951, have rightly externed the petitioner from the boundaries of the Osmanabad District.
8. We have heard the learned counsel appearing for the petitioner, and the learned APP appearing for the respondent - State at length. With their able assistance carefully perused the grounds taken in the petition, annexures thereto, reply filed by the respondents, and original record of the case maintained by the office of the respondents. Upon careful perusal of the contents of the ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 8 show-cause notice sent by the Sub Divisional Police Officer, Bhoom, to the petitioner, it appears that in the said notice as many as 12 offences have been mentioned and status of those offences at serial nos.2 to 4 and 6 to 10 is shown pending for investigation or trial, and so far serial no.5 is concerned, it is mentioned that the petitioner is acquitted from the said offence. All the offences have been registered at Washi Police Station, Taluka Bhoom, District Osmanabad. In the said notice, it is not mentioned that the witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension on their part as regards the safety of their person or property.
The petitioner has given reply to the said notice stating therein that he stands acquitted from 6 offences, which are ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 9 mentioned at serial nos.1, 2, 3, 4, 5 and 7 of the offences in the show cause notice. It is also stated that there were 10 offences registered against him and only 4 offences are pending, and in remaining 6 he stands acquitted. We have carefully perused the proposal submitted by respondent no.4 to respondent no.3 on 7th October, 2015. In the said proposal also 12 offences registered at Washi Police Station against the petitioner are shown and in two cases at serial nos.2 and 5 it is mentioned that the petitioner is acquitted from the said offences and remaining are yet pending. It is stated in the said proposal that in-camera statement of the witnesses have been recorded and their signatures are taken. There is also reference to the contents of the said statement in the said proposal. There is also reference that the petitioner filed reply to the show-cause notice issued by respondent no.4, and it was ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 10 recommended that the petitioner should be externed from the boundaries of Beed, Latur, Solapur and Ahmednagar.
9. The respondent no.3 passed the order in the month of February, 2016. Upon careful perusal of the contents of the said order, there is reference of Section 56 [1] [a] [b] of the Act of 1951, and also to the proposal submitted by respondent no.4 with recommendation for externing the petitioner from the four Districts. In spite of specific reply by the petitioner that before initiating an externment proceedings, he has been acquitted from 6 offences which are mentioned in the show cause notice, respondent no.3 without adverting to the said contention of the petitioner, proceeded to consider the proposal submitted by respondent no.4 on the basis that out of 12 offences, the petitioner is acquitted only from 2 ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 11 offences and other offences are pending. It shows complete non-application of mind to the facts of the case by respondent no.3. It is mentioned in the said order that the witnesses are not willing to come forward to depose or to give complaint against the petitioner due to his fear. It is mentioned that the Police Inspector of Police Station Washi has recorded in-camera statements of such witnesses and those are kept in sealed envelope.
In the first place in the show cause notice there is no mention that the witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension on their part as regards the safety of their person or property. It is true that it is not expected from the authority that the names of such witnesses or date of such incident or other ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 12 material particulars should be mentioned in the show cause notice. However, the Supreme Court in the case of Pandharinath Shridhar Rangnekar Vs. Dy.Commissioner of Police, State of Maharashtra5, held that, proposed externee is entitled, before an order of externment is passed under Section 56, to know the material allegations against him and general nature of those allegations.
10. 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 5 AIR 1973 SC 630 ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 13
(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 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 [Underlines are added]
11. 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 ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 14 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 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. But in addition to the above, the concerned Officer, who is dealing externment proceedings, should be of the opinion that the 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.
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462.2016 Cri.WP.odt 15 Keeping in view the above legal position, it was incumbent upon respondent no.3, who dealt with an externment proceedings, to arrive at the opinion that the 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. It appears that in the present case the Police Inspector appears to have been recorded in-camera statements of the witnesses.
12. It is true that there is reference of recording in-camera statements of the witnesses by respondent No. 3 in the impugned order, however, as already discussed there is no reference of recording in camera statements of the witnesses in the show cause notice. The Division Bench of the Bombay High Court [at Principal seat] in the case of ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 16 Yeshwant Damodar Patil Vs.Hemant Karkare, Dy. Commissioner of Police & another6 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 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 6 1989 (3) Bom.C.R. 240 ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 17 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 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 ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 18 in public against such person by reason of apprehension on their part as regards the safety of their person or property.
[Underlines added]
13. It appears that there is no live link and proximity in between the initiation of externment proceedings by respondent nos.3 and 4, and the offences registered against the petitioner. It appears that some of the offences were registered in the year 1999, 2001, 2003, 2008, 2009 and 2010, etc. As already observed, the authorities have also not considered that the petitioner stood acquitted from 6 offences by the Competent Court even prior to the issuance of the show cause notice.
14. Upon careful perusal of the offences registered against the petitioner, it is abundantly clear that all offences have been ::: Uploaded on - 26/07/2017 ::: Downloaded on - 08/08/2017 01:32:24 ::: 462.2016 Cri.WP.odt 19 registered at Washi Police Station, Taluka Bhoom, District Osmanabad. Upon careful perusal of the discussion in the impugned judgment of respondent no.3, there are no specific reasons assigned for the externment of the petitioner from Osmanabad, Beed and Solapur Districts.
15. Though the Appellate Authority i.e. respondent no.2 has restricted the implementation and operation of the order of externment passed by respondent no.3 from the boundaries of Osmanabad District, nevertheless the Appellate Authority did not consider the procedural irregularities and illegalities committed by respondent no.3 while passing the impugned order, and also by respondent no.4 while initiating the proposal for externment of the petitioner from 5 Districts.
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462.2016 Cri.WP.odt 20
16. In that view of the matter, we are of the considered view that, the impugned orders passed by respondent nos.2 and 3 cannot legally sustain, hence those orders are quashed and set aside. Rule is made absolute on above terms. The petition stands disposed of accordingly. No order as to costs.
17. In view of disposal of Criminal Writ Petition No.462/2016, Criminal Application No.1930/2016 does not survive, hence same stands disposed of.
[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
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