Bombay High Court
Anand @ Anant Shirishkumar Pardeshi vs The State Of Maharashtra And Others on 4 August, 2017
Author: S.S.Shinde
Bench: S.S.Shinde
916.2017 Cri.WP.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.916 OF 2017
Anand @ Anant Shirishkumar Pardeshi
Age-29 Years, Occ-Business
R/o. Pardeshpura, Chandrashekhar Chowk
Sangamner, Tq.Sangamner, Dist-Ahmednagar
Presently residing at Flat No.101,
G Wing, Akashnidhi Housing Society,
Ramdev Park Road, Mira Road,
Mumbai. PETITIONER
VERSUS
1. The State of Maharashtra
Through Secretary,
Home Department,
Mantralaya, Mumbai
2. The Superintendent of Police,
Ahmednagar, Dist-Ahmednagar.
3. Deputy Superintendent of Police,
Sangamner, Sub Division, Sangamner
Dist. Ahmednagar.
4. The Sub Divisional Officer / Magistrate,
Sangamner, Taluka-Sangamner,
Dist-Ahmednagar. RESPONDENTS
...
Mr.S.S.Dixit, Advocate for the Petitioner
Mr.V.M.Kagne, APP for the Respondent / State
...
CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
Date: 04.08.2017.
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916.2017 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. This Petition is filed praying therein for quashing and setting aside the order dated 13th April, 2017, passed by the Divisional Commissioner, Nashik Division, Nashik in Externment Appeal No.15/2017 and the order dated 31st January, 2017, passed by the Sub Divisional Officer, Sangamner in Externment S.R.No.5/2016.
4. It is the case of the petitioner that on 17th January, 2017, the petitioner had received a show cause notice from the office of Sub Divisional Officer, Sangamner, thereby intimating the petitioner that the proposal for externment of the petitioner is proposed ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 3 by respondent no.2. On 25th January, 2017, the petitioner has replied the said show cause notice thereby replying to the allegations made against the petitioner in the show cause notice. Thereafter, on 31st January, 2017, the Sub Divisional Officer, after considering the record and after hearing the petitioner, was pleased to extern the petitioner from three Districts for two years. Being aggrieved by the said order, the petitioner preferred an appeal before the Divisional Commissioner, Nashik Division, Nashik on various grounds.
On 13th April, 2017, the Appellate Authority modified the order passed by the Sub Divisional Officer thereby externing the petitioner from Ahmednagar District for one year. Hence this Petition.
5. 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 ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 4 no mention about the in-camera statements of the witnesses. He submits that while passing the impugned order, the respondent no.4 has placed reliance on as many as 3 offences without taking into consideration the fact that the petitioner has not been convicted even prior to issuance of the show cause notice. He further submits that the order passed by respondent authorities is excessive inasmuch as though the offences registered against the petitioner are at Sangamner City Police Station, District Ahmednagar, the petitioner was externed from the boundaries of Ahmednagar, Nashik and Pune Districts. In support of his aforesaid contentions, he pressed into service exposition of law in the cases of Rajendra Karbhari Kale Vs. State of Maharashtra and others1, Shanno @ Shamali Jafar Pathan Vs. The State of Maharashtra & Ors.2, Shaikh Mukhtyar s/o.Mustafa Shaikh Vs. 1 2017 [1] Mh.L.J.[Cri.] 4791 2 2017 ALL MR [Cri.] 2192 ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 5 State of Maharashtra & Ors.3, Yashwant Damodar Patil Vs. Hemant Karkare, Deputy Commissioner of Police, Thane & another4, Umar Mohamed Malbari Vs. K.P.Gaikwad, Dy. Commissioner of Police & another5 and Nisar @ Nigro Bashir Ahmed Khan Vs. Dy. Commissioner of Police & Ors.6. Therefore, he submits that the Petition may be allowed.
6. On the other hand, learned APP appearing for the respondent-State relying upon the reasons assigned by the respondents authorities in the impugned judgments and orders submits that the authorities, after adhering to the procedure prescribed under the provisions of the Section 56 [1] [a] [b] of the Act of 1951, have rightly externed the petitioner from the boundaries of the Ahmednagar District.
3 2017 ALL MR [Cri.] 268 4 1989 Mh.L.J. 1111 5 1988 Mh.L.J. 1034 6 2013 [3] Bom.C.R.[Cri.] 566 ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 6
7. We have heard learned counsel appearing for the petitioner, and learned APP appearing for the respondent-State at length. With their able assistance, we have carefully perused the grounds taken in the petition, annexures thereto, and the original record of the case maintained by the office of the respondents. Upon careful perusal of the contents of the show-cause notice sent by the Sub Divisional Police Officer, Sangamner, to the petitioner, it appears that in the said notice as many as 3 offences have been mentioned. Out of those three offences, the offences at serial nos.1 and 2 are shown to be pending adjudication and offence at serial no.3 is shown to be under investigation. All the offences have been registered at Sangamner City Police Station, District Ahmednagar. In the said notice, it is mentioned that the witnesses are not willing to come forward to give evidence in public ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 7 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 out of three offences registered against him and pending adjudication; in one of the offences, he is not prime accused and necessarily involved out of vengeance, one is likely to be compromised.
8. We have carefully perused the proposal submitted by the Sub Divisional Police Officer, Sangamner to respondent no.4 on 26th September, 2016. In the said proposal, 4 offences registered at Sangamner Police Station against the petitioner are shown. In one of the offences at serial No.1 i.e. Crime No.79/2006, the petitioner is shown to have been acquitted. The offences at serial Nos.2 and 3 are shown pending adjudication, whereas the offence at serial no.4 is shown to be ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 8 under investigation. There is reference in the said proposal about secret statements given by the people in the vicinity. Ultimately, the Sub Divisional Police Officer has recommended that the petitioner should be externed from the boundaries of Ahmednagar, Nashik and Pune Districts.
9. The respondent no.4 passed the order in the month of January, 2017. 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 Sub Divisional Police Officer, Sangamner with recommendation for externing the petitioner from the three Districts.
10. In the reply to the said show cause submitted by the petitioner, he has specifically stated that the offences referred in the show cause notice are yet to be decided by the competent authority and the ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 9 petitioner is not prime accused and has been involved out of vengeance. According to the petitioner, he is a business man and has not committed any of the offences. Since none of the offences are proved against him by the competent authority, it cannot be said that he is guilty of the said offences, there is no question of causing danger to any body's life or property. Therefore, respondent authorities without adverting to the said contention of the petitioner, proceeded to consider the proposal submitted by the Sub Divisional Police Officer, Sangamner. It shows complete non-application of mind to the facts of the case by the competent authorities. 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. However, on careful perusal of the original record, we do not find statements of ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 10 witnesses recorded in-camera by the concerned authority.
11. 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 - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 11 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]
12. 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 ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 12 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.
Keeping in view the above legal position, it was incumbent upon respondents, 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 ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 13 safety of their person or property.
The Division Bench of the Bombay High Court [at Principal seat] in the case of Yeshwant Damodar Patil [supra] 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 ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 14 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 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 ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 15 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.
[Underlines added]
13. Upon careful perusal of the offences registered against the petitioner, it is abundantly clear that all offences have been registered at Sangamner City Police Station, Taluka Sangamner, District Ahmednagar. Upon careful perusal of the discussion in the impugned judgment of respondent no.4, there are no specific reasons assigned for the externment of the petitioner from Nashik and Pune Districts.
14. Though the Appellate Authority i.e. Divisional Commissioner, Nashik Division, ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 16 Nashik has restricted the implementation and operation of the order of externment passed by respondent no.4 from the boundaries of Ahmednagar District, nevertheless the Appellate Authority did not consider the procedural irregularities and illegalities committed by respondent no.4 while passing the impugned order, and also by the Sub Divisional Police Officer while initiating the proposal for externment of the petitioner from three Districts.
15. In that view of the matter, we pass the following order:
ORDER i] The impugned order dated 13th April, 2017 passed by the Divisional Commissioner, Nashik in Externment Appeal No.15/2017 and the order dated 31.01.2017 passed by the Sub-
Divisional Officer, Sangamner in ::: Uploaded on - 24/08/2017 ::: Downloaded on - 24/08/2017 23:16:16 ::: 916.2017 Cri.WP.odt 17 Externment S.R. No.5/2016 are hereby quashed and set aside.
ii] Rule is made absolute on the above terms. The Petition stands disposed of accordingly.
[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
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