Bombay High Court
Gahininath S/O Jagannath Shirsath vs The State Of Maharashtra on 18 January, 2017
Author: S.S.Shinde
Bench: S.S.Shinde
1551.2016Cri.WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1551 OF 2016
Gahininath s/o. Jagannath Shirsath,
Age: 33 Years, Occ. Social Work & Agri.
R/o. Takali Manoor, Tq. Pathardi,
Dist. Ahmednagar. PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Chief Secretary,
Home Department,
Mantralaya, Mumbai-32.
2. The Sub Divisional Magistrate,
Pathardi Division, Pathardi,
Tq. Pathardi, Dist. Ahmednagar.
3. The Divisional Commissioner,
Nashik Division, Nashik. RESPONDENTS
...
Mr.N.B.Narwade, Advocate for the Petitioner
Mr.S.G.Karlekar, APP for the Respondent nos.1
to 3 / State
...
CORAM: S.S.SHINDE &
K.K.SONAWANE,JJ.
Date: 18.01.2017
JUDGMENT:(Per S.S.Shinde, J.) 1] This Petition is filed with following prayer:
::: Uploaded on - 23/01/2017 ::: Downloaded on - 25/01/2017 00:28:15 :::1551.2016Cri.WP.odt 2 B. That, by issuing appropriate writ or direction in the like nature, the order passed by the Respondent No.3 Ld. Divisional Commissioner Nasik Division, Nasik in Externment Appeal No.51/2016 dtd.21.11.2016 may kindly be quashed and set aside.
2] The learned counsel appearing for the petitioner submits that, the petitioner is the Chairman of the Agriculture Produce Market Committee, Pathardi and reputed person in the society. He further submits that, the mandate of provisions of Section 56 [1] [a] and [b] of the Maharashtra Police Act [in short 'the said Act'] and also procedure prescribed under Section 59 of the said Act has not been followed by respondent no.2 while passing the order thereby externing the petitioner from three Districts. It is submitted that, when the alleged offences stated against the petitioner are registered ::: Uploaded on - 23/01/2017 ::: Downloaded on - 25/01/2017 00:28:15 ::: 1551.2016Cri.WP.odt 3 at Pathardi Police Station in Ahmednagar District, there was no reason for respondent no.2 to extern the petitioner from the boundaries of Beed and Aurangabad Districts.
Since the order passed by respondent no.2 is excessive, the same deserves to be quashed and set aside.
3] In support of aforesaid contention, the learned counsel appearing for the petitioner relied upon the various judgments of the Bombay High Court in the case of Nisar @ Nigro Bashir Ahmed Khan Vs. Dy.
Commissioner of Police & Ors.1, Umar Mohammed Malbari Vs. K.P. Gaikwad & another2, Balu Shivling Dombe Vs. The Divisional Magistrate, Pandharpur and another3, Ganpat @ Ganesh Tanaji Katare Vs. Assistant Commissioner of Police and others4, Namdeo Laxman Charde Vs. Sub-Divisional Magistrate, Katol and 1 2013 [3] Bom.C.R. [Cri.] 566 2 1988 [2] Bom.C.R. 724 3 AIR 1969 Bombay 351 4 2006 [1] Mh.L.J.510 ::: Uploaded on - 23/01/2017 ::: Downloaded on - 25/01/2017 00:28:15 ::: 1551.2016Cri.WP.odt 4 another5, Kashinath @ Kashya Sitaram Keluskar Vs. The Dy. Commissioner of Police & Ors.6, in the case of Aakash Anil Tambe Vs. The State of Maharashtra & others in Criminal Writ Petition No.500/2014 decided on 08.08.2014 and in the case of Sajid s/o.
Mahemood Shaikh Vs. The State of Maharashtra and others in Criminal Writ Petition No. 521/2014 decided on 26.08.2014. He further submits that, one of the crimes mentioned in the proposal submitted by the Police Authority to respondent no.2 was registered in the year 2002, wherein there was full-
fledged trial. It is submitted that, though the affidavits of the various persons were filed on record, wherein it is stated that, the petitioner is a reputed person in the society and he is not indulged in the criminal activities as alleged, have not been taken into consideration by respondent nos. 2 5 1996 [1] Mh.L.J. 483 6 2000 All MR [Cri.] 801 ::: Uploaded on - 23/01/2017 ::: Downloaded on - 25/01/2017 00:28:15 ::: 1551.2016Cri.WP.odt 5 and 3. It is submitted that, the petitioner's right guaranteed under Article 19 [1] [d] and 21 of the Constitution of India has been violated. Being the President of APMC, Pathardi, he has to look after the day to day affairs of APMC, Pathardi, therefore his stay at Pathardi is necessary. It is submitted that, since the petitioner's wife is the member of Zilla Parishad, on account of grudge developed by the political leaders from the opposite party, the externment order is passed by the respondent no.2. There is no substance in the allegations made against the petitioner in First Information Reports/ Crimes registered against the petitioner.
Those offences are registered out of malice.
4] The learned counsel further submits that, since the election schedule of the Zilla Parishad elections for the Ahmednagar District is declared, and the petitioner has interest in the said elections, he may be ::: Uploaded on - 23/01/2017 ::: Downloaded on - 25/01/2017 00:28:15 ::: 1551.2016Cri.WP.odt 6 allowed to enter Ahmednagr District, till the completion of election process.
5] On the other hand, the learned APP appearing for the respondent - State, relying upon the reasons recorded by respondent nos.
2 and 3 in the impugned orders submits that, both the authorities have concurrently held that the petitioner's activities are prejudicial to the interest of the public and therefore his externment was warranted.
He further submits that, respondent no.2 in his order has recorded that, the witnesses are not wiling 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. He further submits that, the Appellate Authority modified the order passed by respondent no.2 thereby confining the effect and implementation of the order of externment qua Ahmednagar District and also ::: Uploaded on - 23/01/2017 ::: Downloaded on - 25/01/2017 00:28:15 ::: 1551.2016Cri.WP.odt 7 has reduced the period of externment.
Therefore, he prays that, the Petition may be rejected.
6] We have given careful consideration to the submissions of the learned counsel appearing for the petitioner and the learned APP appearing for the respondent-State. With their able assistance, perused the pleadings and grounds taken in the Petition, annexures thereto, reasons assigned by respondent nos.
2 and 3 in the impugned orders and also the original record made available for perusal.
Upon careful perusal of the show cause notice and also the impugned order, respondent no.2 has placed reliance upon 5 crimes registered against the petitioner i.e. Crime Nos.
159/2011, 191/2011, 100/2014, 273/2015 and 43/2015 registered with Pathardi Police Station. It is true that, while submitting proposal and even in show cause notice, there is mention of Crime No.128/2002 registered ::: Uploaded on - 23/01/2017 ::: Downloaded on - 25/01/2017 00:28:15 ::: 1551.2016Cri.WP.odt 8 with Pathardi Police Station. However, while passing the impugned order, respondent no.2 has not placed reliance upon the said crime.
Upon careful perusal of the reasons assigned by respondent no.2, it is specifically stated that, he recorded in-camera statements of the witnesses 'A' and 'B' and they deposed that, due to fear and terror created by the petitioner, the witnesses are not coming forward to depose against him. Upon considering the documents placed on record and the original record, there is no doubt that, respondent no.2 while passing the order of externment, externing the petitioner has followed the mandate of provisions of Section 56 [1] [a] and [b] of the said Act and also procedure prescribed under said Act. The Appellate Authority, while deciding appeal filed by the petitioner, has reduced the period of externment of the petitioner and also confined the effect, implementation and ::: Uploaded on - 23/01/2017 ::: Downloaded on - 25/01/2017 00:28:15 ::: 1551.2016Cri.WP.odt 9 execution of the order of externment passed by respondent no.2 to only Ahmednagar District. The contention of the learned counsel appearing for the petitioner that, since the order passed by respondent no.2 was excessive and therefore the Appellate Authority ought to have quashed the order passed by respondent no.2 in its entirety has no force. Respondent no.3 has exercised jurisdiction within permissible limits and accordingly modified the order passed by respondent no.2.
7] In the case of Umar Mohammed Malbari [cited supra], the Division Bench in para 8, has observed thus:
8. ........ It must not be forgotten that in issuing the writ this Court is not acting as a Court of appeal. It is exercising supervisory powers conferred upon it, and those powers are exercised by means of issuing high prerogative ::: Uploaded on - 23/01/2017 ::: Downloaded on - 25/01/2017 00:28:16 ::: 1551.2016Cri.WP.odt 10 writs. But the power and jurisdiction of the Court is limited and the same cannot extend to the powers of an Appellate Court. This Court is only concerned with the question as to whether the Tribunal exercising judicial or quasi judicial functions has or has not acted without jurisdiction or whether in the exercise of jurisdiction it has acted in excess of jurisdiction. If it has acted in excess of jurisdiction, then the jurisdiction of this Court is to quash the order passed in excess of jurisdiction. There the power of the High court stops. It has no power to go further and to correct an excessive order passed by the authority concerned.
[Underline added] In the facts of the present case, in our opinion, the orders passed by respondent nos.2 and 3 are well within their jurisdiction and they have not acted in ::: Uploaded on - 23/01/2017 ::: Downloaded on - 25/01/2017 00:28:16 ::: 1551.2016Cri.WP.odt 11 excess of jurisdiction. Therefore, there is no reasons to interfere in the impugned orders.
8] The Hon'ble Supreme Court in the case of Pandharinath Shridhar Rangnekar Vs. Dy.Commissioner of Police, State of Maharashtra7, while explaining the scope and and purport of the provisions of Sections 56, 58 and 59 of the Maharashtra Police Act in para 15 observed that it is primarily for the externing authority to decide how best the externment order can be made effective, so as to subserve its real purpose. How long, within the statutory limit of 2 years fixed by Section 58, the order shall operate and to what territories, within the statutory limitations of Section 56 it should extend, are matters which must depend for their decision on the nature of the data which the authority is able to collect in the 7 AIR 1973 SC 630 ::: Uploaded on - 23/01/2017 ::: Downloaded on - 25/01/2017 00:28:16 ::: 1551.2016Cri.WP.odt 12 externment proceedings. There are cases and cases and therefore no general formulation can be made that the order of externment must always be restricted to the area to which the illegal activities of the externee extend. A larger area may conceivably have to be comprised with the externment order so as to isolate the externee from his moorings.
9] An alternate submission of the learned counsel appearing for the petitioner that, he may be allowed to enter within boundaries of Ahmednagar District so as to take part in the ensuing Zilla Parishad elections is beyond the scope of the prayers in the Petition. Once we have reached to the conclusion that, the order passed by respondent no.3 needs no interference and the Petition deserves to be rejected, we cannot entertain an alternate prayer.
::: Uploaded on - 23/01/2017 ::: Downloaded on - 25/01/2017 00:28:16 :::1551.2016Cri.WP.odt 13 10] For the reasons aforesaid, we do not find any substance in the petition and hence Writ Petition stands rejected.
Sd/- Sd/-
[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
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