2016 ALL MR (Cri) 1820
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
S. S. SHINDE AND A. I. S. CHEEMA, JJ.
Dinesh s/o. Prakash Sonar Vs. The State of Maharashtra & Ors.
Criminal Writ Petition No.629 of 2015
9th July, 2015.
Petitioner Counsel: Shri B.R. WARMA
Respondent Counsel: Shri S.D. KALDATE
(A) Maharashtra Police Act (1951), S.60 - Constitution of India, Art.227 - Externment order - Modification of order by appellate authority - Challenge - Petitioner contended that once order of externment was found to be excessive same should be quashed and modification by appellate authority not permissible - Held, appeal is the appropriate remedy as the appellate authority can correct grievance that order is excessive - Writ Court is rather not an appropriate forum. 2000 ALL MR (Cri) 578 Ref. to. (Para 9)
(B) Maharashtra Police Act (1951), S.56 - Penal Code (1860), Ss.353, 324, 323, 160, Chaps. XII, XVI, XVII - Externment order - Petitioner contended that many offences referred in externment order are under Gambling Act and it could not be said that petitioner was danger to society - 9 offences pointed out against petitioner - No material brought before authority to show acquittal - Apart from Gambling Act, there are offences u/Ss.160, 323, 324, 353 - Under S.56 of Police Act authority can pass order to ask person to remove himself outside specified area.
Section 56 of the Maharashtra Police Act provides that, when there are reasonable grounds for believing that the person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI, XVII of the Indian Penal Code or any abetment of 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, the authority can pass orders so as to ask the person to remove himself outside specified area. [Para 11]
3. According to the petitioner, respondent No.2 Police Inspector, Amalner Police Station submitted proposal (Exhibit A), dated 12.3.2014 to respondent No.3 Sub-Divisional Police Officer, Amalner Division under Section 156(1)(b) of the Bombay Police Act (now - The Maharashtra Police act). The respondent No.3 Sub-Divisional Police Officer was appointed as Enquiry Officer, who recorded evidence and submitted the enquiry report. The Sub-Divisional Magistrate, Amalner passed the impugned order of externment. Petitioner claims that, the petitioner runs a pan stall and soda water shop near Dagadi Darwaja vicinity at Amalner and has a family to maintain. There are no complaints from the residents of the locality. It is averred that, respondent No.3 had issued notice under section 56(1) (Exhibit C) to petitioner. The petitioner filed say to the notice (Exhibit D). The petitioner examined two witnesses in support of himself claiming that the offences registered are on false information and he had also been acquitted in some. The respondent No.3, however, submitted report (Exhibit F). The petitioner had filed written arguments (Exhibit G), but in spite of petitioner defending the action, the respondent No.4, without applying mind and considering the evidence and explanation of the petitioner, passed impugned order dated 19.9.2014 (Exhibit H) and the petitioner was externed from Jalgaon, Buldhana, Dhule and Nandurbar districts for one year. The petitioner preferred appeal (Exhibit I) to the State Government on 19.9.2014 and initially stay was granted to the impugned order. However, subsequently, the appellate authority recorded its decision on 27.1.2015 (Exhibit K) and the externment order was modified and externment was limited to Jalgaon district only. According to the petitioner, the impugned order dated 19.9.2014 of externment was without application of mind and bad in law and once the order of externment was found to be excessive, the same should have been quashed, and modification was not permissible under the law in view of decision of this Court (Coram : S.S. Shinde & N.W. Sambre, JJ.), passed in Criminal Writ Petition No.1246/2014.
4. The learned counsel for the petitioner vehemently argued and submitted that the externment of the petitioner from four districts was apparently and clearly excessive and the criminal cases pointed out against the petitioner were all from Amalner, District Jalgaon and once this was so, the appellate authority had no other option but to quash the externment order in appeal. According to him, the externment order could not have been modified as has been done by the appellate authority.
5. Against this, learned A.P.P. for the State submitted that, the petitioner had filed the appeal and the appellate authority has rightly modified the externment order so as to limit the same to Jalgaon district only and there is nothing illegal in it.
6. We have gone through the judgment relied on by the petitioner to claim that once the externment order is found to be excessive, it has to be quashed in its entirety. We find that the petitioner has not properly appreciated the order passed by this Court. The observations of this Court in paras 8 and 9 in the concerned judgment read as under :
8. Once this Court has reached to the conclusion that, the externment order is excessive, same deserves to be quashed in its entirety.
9. At this stage, learned Additional Public Prosecutor, however, contended that the entire order of externment was not liable to be struck down merely because it covered areas which were excessive than what was justified. In the case of Umar Mohamed Malbari Vs. K.P. Gaikwad, Dy. Commissioner of Police and anr. (1988 Mh.L.J. 1034) : [2000 ALL MR (Cri) 578], while considering the similar argument advanced by the learned Additional Public Prosecutor, the Division Bench of this Court in para 8 held thus :-
"8. Shri. Khothari, the learned Public Prosecutor however, contended that the entire order of externment was not liable to be struck down merely because it covered areas which were excessive than what was justified. This would be a case where appropriate areas of externment can be substituted with the areas contemplated in the impugned order of externment. In our judgment, there is no merit in the aforesaid contention of Shri. Kothari. The High Court, when it issues the high prerogative writ of certiorari, it directs the judicial Tribunal against which it is acting to transmit its record to the Court and if necessary to quash the order which the Tribunal has passed. 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 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."
7. It is quite clear from the reference by this Court to the judgment of "Umar Mohamed Malbari" that, this Court has found that it being writ Court, was not acting as a Court of appeal and the powers and jurisdiction of the Court was limited and could not extend to the powers of an appellate Court.
8. Now, if Section 60 of the Maharashtra Police Act is perused, which deals with appeal filed by person aggrieved by an order under Sections 55, 56, 57 or 57-A, it provides in subsection (3) as follows :
"On receipt of such appeal the State Government or the specified Officer may, after giving a reasonable opportunity to the appellant to be heard either personally, or by a pleader, advocate or attorney and after such further inquiry, if any, as it may deem necessary, confirm, vary or cancel, or set aside the order appealed against, or remand the case for disposal with such directions as it or he thinks fit, and make its or his order accordingly."
9. In matters like present one, appeal is the appropriate remedy as the appellate authority can correct the grievance that externment order is excessive. For such grievance, Writ Court is rather not an appropriate forum. It is quite apparent from reading the above sub-section that when the appeal is carried to the State Government, the State Government or the specified officer can confirm, vary or cancel or set aside the order appealed against. Thus, in the present matter, the appellate authority was perfectly justified in correcting the externment order passed in the matter when the appellate authority found that the same was excessive.
10. The learned counsel for the petitioner, in the course of arguments, further tried to say that, the activity of the petitioner was restricted only to the city of Amalner and the externment even from district should be treated as excessive. We find that there is no substance in the argument. If the scheme of Section 56 and other sections dealing with externment in the Maharashtra Police Act is looked into, the object is clear that the provisions exist so as to protect the concerned area or adjoining areas or districts from a probable danger of commission of offences by the externee, as externment would sever his link with the regular area of his criminal activities and would reduce his criminal propensity in general. With the better facilities of transport and modern technologies of communication, saving an area from such activities is rather difficult for the authorities and looking to the facts of the present matter, it cannot be stated that externment from the district is excessive. What is excessive is a matter of facts to be decided by the authorities looking into the area of activities and geographical conditions. There can be city on the border of district attracting need to extern from the two neighbouring districts. It would be matter for satisfaction of the authorities giving some reasons when more than one district is to be covered.
11. The learned counsel for the petitioner then tried to assert that the offences referred in the externment order and relied on had many offences under the Bombay Prevention of Grambling Act and it could not have been said that the petitioner was danger to the society at large and thus, according to the counsel, the externment was not justified.
We have gone through the externment order and the cases relied on by the respondents. We have seen the record of the externment proceedings. We have considered the copies of the various F.I.Rs. relating to the 9 offences pointed out against the petitioner. No material was brought before the authorities or in this proceeding to show acquittal in any of the matters though petition refers to one R.C.C. No.19/2014 without linking it to any of the crime numbers. Apart from offences under Bombay Prevention of Gambling Act, there are two offences under section 353, one under Section 324, yet another under section 160 and another offence under section 323 and other Sections of the Indian Penal Code. Section 56 of the Maharashtra Police Act provides that, when there are reasonable grounds for believing that the person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI, XVII of the Indian Penal Code or any abetment of 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, the authority can pass orders so as to ask the person to remove himself outside specified area. Looking to the offences involved in the present matter and the reasons recorded in the externment order as well as in the order of appeal, we find that no fault can be found with the externment. No procedural lapse is pointed out. Satisfaction recorded by the authority is objective and based on material on record. The error of the excessive part, which was in the impugned order, has been corrected in the appeal. Considering this, there is no reason for this Court to interfere in the matter.