Bombay High Court
Mahaboddin S/O. Mehtab Saheb Pandhare vs The State Of Maharashtra And Anr on 8 October, 2018
Author: Mangesh S. Patil
Bench: R.M. Borde, Mangesh S. Patil
(1) wp 1209.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1209 OF 2018
Mahaboddin s/o Mehtab Saheb Pandhare
Age: 55 years, Occu.: Agriculture
R/o: Hanegaon, Taluka - Degloor
Dist. Nanded. ...PETITIONER
Versus
1. The State of Maharashtra
Through Public Prosecutor
High Court of Judicature of Bombay
Bench at Aurangabad.
2. Sub Divisional Magistrate
Degloor, Dist. Nanded. ... RESPONDENTS
-----
Mrs. A N. Ansari, Advocate for the Petitioner.
Mr. S.W. Mundhe, APP for Respondents/State.
-----
CORAM : R.M. BORDE &
MANGESH S. PATIL, JJ.
RESERVED ON : 01.10.2018
PRONOUNCED ON : 08.10.2018
JUDGMENT:(Per Mangesh S. Patil, J.) Heard. Rule. The Rule is made returnable forthwith. The learned A.P.P. waives service. With the consent of both the sides the matter is heard finally.
::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 02:18:22 :::
(2) wp 1209.18
2. This is a petition under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code wherein the petitioner is taking exception to the order passed by the Respondent No.2-Sub Divisional Magistrate, Degloor on 30.07.2018 directing his externment from the revenue district of Nanded from that day till 31.12.2018, in exercise of the powers under Section 56 of the Maharashtra Police Act, 1951 (hereinafter referred to as the Act).
3. The learned advocate for the petitioner submitted that the impugned order suffers from gross illegality. The respondent no.2 has not specifically mentioned as to which of the Clauses of Section 56 (1) of the Act he was invoking. The notice issued to the petitioner under Section 59 of the Act merely refers to four criminal cases registered against him whereas while passing the impugned order the respondent no.2 has taken into consideration one more case which is not referred to in the notice. The petitioner has been deprived of defending himself in the absence of reference to the fifth case which goes to the root of the legality of the notice. She would then submit that out of these four cases referred to in the notice, the petitioner has already been acquitted in one of those, whereas in one case the police have filed 'B' Summary Report and in one case the trial is on the verge of completion. ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 02:18:22 :::
(3) wp 1209.18 Besides all these crimes, cases registered against the petitioner arise out of a land dispute and the offences have been registered only at the instance of the person against whom he has the dispute. Therefore factually, registration of these crimes at the instance of a person with whom the petitioner has a land dispute pending in the civil Court could not have been sufficient basis to draw inference that his movements were calculated to cause alarm, danger or harm to any person or property or were sufficient to entertain a belief that he would engage in the commission of any crime punishable under the Indian Penal Code. She would then submit that the impugned order is vague. The respondent no.2 is not sure as to which Clause he was invoking. Without any material justifying the order of externnment the order is not sustainable. Even the impugned order was not served upon him though mandated by law. The impugned order is nothing but the abuse of process of law and may be quashed and set aside.
4. The learned A.P.P. referring to the affidavit-in-reply of the respondent no.2 submitted that the petitioner has not availed of the efficacious remedy of preferring an appeal under Section 60 of the Act and has directly invoked the jurisdiction of this Court and therefore for this reason alone the writ petition is not maintainable. The learned A.P.P. would further submit that after extending sufficient opportunity of being heard to the ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 02:18:22 ::: (4) wp 1209.18 petitioner the respondent no.2 has proceeded to pass the impugned order. Registration of number of crimes under various provisions of the Indian Penal Code against the petitioner was sufficient for him to form an opinion which justified the order and the writ petition may be dismissed.
5. We have carefully gone through the record and proceedings before the respondent no.2. Needless to observe that the powers conferred upon the authorities under Section 56 of the Act make a serious inroad on the personal liberty of a citizen. These powers seek to create an exception to the constitutional rights of a citizen. Therefore it is imperative for the authorities to invoke such power with utmost care and caution as has been laid down by the Supreme Court in the case of Pandharinath Shridhar Rangnekar V/s. Dy. Commissioner of Police, The State of Maharashtra; (1973) 1 SCC 372. It is therefore utmost necessary for the authorities to form the opinion based on some objective and concrete material to justify the externment.
6. It is trite that a person sought to be externed has to be extended an opportunity of being heard. This pre supposes that he is made known the allegations or the material which is likely to be used against him so as to enable him to meet these allegations and the material. That is why Section 59 of the Act requires a notice to be served on the person against whom the order ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 02:18:22 ::: (5) wp 1209.18 of externment under the powers of Section 56 are likely to be passed and he has to be heard.
7. Bearing in mind these principles if one looks to the notice (Exhibit-B), the first thing that catches the eye is that the notice is as vague as it could be. It merely refers to Section 56 of the Act without precisely indicating as to whether the proposed action would be either under clause (a) or (b) or any other clause of Sub-section 1 of Section 56 of the Act. It is important to note that these Clauses are distinct and in a given case could be invoked either cumulatively or independently. It was therefore incumbent on the part of the respondent no.2 to have precisely indicated in the notice under Section 59 of the Act as to which was the clause which was in the contemplation for being used as a material against the petitioner. Clause (a) can be invoked when the acts or the movements of a person are causing or calculated to cause alarm, danger or harm to any person or property. Whereas under clause (b) there should exist a reasonable ground for believing that a person is engaged or is about to be engaged in commission of some offence under Chapter XII, XVI, or XVII of the Indian Penal Code and when the witnesses are not willing to come forward to give evidence against him because of apprehension. Under clause (bb) there should be reasonable ground for believing that the person is acting in a pre judicial manner to the ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 02:18:22 ::: (6) wp 1209.18 maintenance of public order and under clause (c) continued residence of an immigrant is likely to result in outbreak of some epidemic.
8. It was therefore necessary for the respondent no.2 to have informed the petitioner as to what was the material before him and under which of these clauses he was to form an opinion justifying the order of externment. However, the notice clearly omits to state precisely the clause which the respondent no.2 intended to invoke and has thereby clearly deprived the petitioner of an opportunity to defend himself which is the objective of Section 59 of the Act. For this reason alone, the notice can be branded as illegal.
9. Apart from the above state of affairs, perusal of the notice would reveal that it refers to the four crimes registered against the petitioner and then vaguely alleges that in spite of having earlier initiated preventive measures against him there was no change in his attitude. However conspicuously, it nowhere refers to any precise or specific case wherein preventive action was taken against him on any earlier occasion. For that matter even the impugned order does not refer to any such preventive action initiated against the petitioner on earlier point of time. The notice thereafter merely uses the wordings of clause (a) of Sub-section 1 of Section 56 of the ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 02:18:22 ::: (7) wp 1209.18 Act and alleges that the petitioner was a hooligan and his activities were likely to cause alarm, danger or harm to a person or property. More importantly, except referring the four crimes registered against the petitioner it does not refer to any other incident which could constitute as the basis for the respondent no.2 to form an opinion about his movements or acts. Therefore it is quite clear that the notice dated 21.05.2018 served to the petitioner in purported obedience to Section 59 of the Act does not comply with the real intentment of that provision and consequently the proceeding initiated based upon such a vague and illegal notice itself would not be sustainable.
10. Now coming to the impugned order, without there being any reference to the allegations which would indicate that the provision of clause
(b) of Sub-section 1 of Section 56 of the Act was being invoked and without reference to any precise and specific instances it has been observed that statements of few witnesses have been recorded in-camera to justify an inference that there were reasonable grounds for believing that the petitioner was likely to commit some crime and the witnesses were not ready to come forward due to an apprehension of their safety at his hands. As is mentioned earlier, the notice under Section 59 nowhere refers to this circumstance of there being any witness, which may not be named but who is habouring some apprehension of being harmed by the petitioner. Without such foundation in ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 02:18:22 ::: (8) wp 1209.18 the notice, a vague statement has been made in the impugned order about existence of such witnesses and recording of their statements in-camera. It is quite apparent that the respondent no.2 has attempted to take recourse to clause (b) of Sub-section 1 of Section 56 without putting the petitioner to notice about it. For this reason alone we are of the firm opinion that this has resulted in gross injustice to the petitioner and goes to the root of the jurisdiction of the respondent no.2 in invoking the powers under Section 56 of the Act.
11. Interestingly, in the body of the order, a reference has been made to clause (b) of Sub-section 1 of Section 56 of the Act but in the operative part even that has been ignored and only a reference is made to Section 56 of the Act. Precisely for this reason we have no hesitation in concluding that a bare look at the notice served to the petitioner under Section 59 of the Act and the impugned order clearly indicates that the respondent no.2 is oblivious of the powers which vested in him under Section 56 of the Act and the principles governing it, else, neither the notice would have been so vague nor would he have been equally vague while passing the impugned order.
12. In this respect it is interesting to note that even in his affidavit-in- reply the respondent no.2 has not been able to precisely demonstrate as to ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 02:18:22 ::: (9) wp 1209.18 how he was justified in forming an opinion and which of the clauses under Sub-section 1 of Section 56 of the Act he was invoking to justify the impugned order.
13. In any event, the notice served to the petitioner under Section 59 of the Act itself is illegal and the impugned order based thereon also suffers from gross illegality and is liable to be quashed and set aside. It is in this view of the matter, we hold that absence of recourse to the provision of an appeal under Section 60 of the Act should not deter us from invoking the power of this Court under Article 226 of the Constitution of India.
14. The Writ Petition is allowed. The impugned order passed by the respondent no.2 on 30.07.2018 is quashed and set aside.
15. The Rule is made absolute.
[MANGESH S. PATIL, J.] [R.M. BORDE , J.]
KAKADE
::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 02:18:22 :::