Criminal Writ Petition No.708 of 2017

19th July, 2017.

Petitioner Counsel: Mr. AMOL P. KHEDKAR
Respondent Counsel: Mr. V.M. KAGNE

Cases Cited:
Sharad s/o. Vithalrao Mundhe Vs. State of Maharashtra & Ors., 2017 ALL MR (Cri) 388 [Para 5]
Umar Mohammad Malbari Vs. K.P. Gaikwad & Anr., 2000 ALL MR (Cri) 578=1988 (2) Bom.C.R.724 [Para 5]
Gunwanta Gajanan Khandekar Vs. S.D.O., 2008 ALL MR (Cri) 1519=2008 (1) BomC.R. (Cri.)329 [Para 5]
Silva @ Gora Silva Ayanar Vs. Nawal Bajaj & Anr., 2007 ALL MR (Cri) 84=2007 (1) Bom.C.R. (Cri.) 331 [Para 5]
Waseem Khan s/o. Hakim Khan Vs. State of Maharashtra, Cri. W.P. No.472/2009 (Aur.) [Para 5]
Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police & another, 1989 (3) Bom.C.R. 240 [Para 12]

JUDGMENT

S. S. SHINDE, J. :- Rule. Rule made returnable forthwith and heard finally with consent of the parties.

2. The petitioner has filed this petition challenging the final order dated 02.05.2017 passed by the Divisional Commissioner at Aurangabad, thereby externing the petitioner from the area of Jalna district for a period of two years. The petitioner submits that he is running Om Sai Enterprise and xerox business and meanwhile certain offences are registered against the petitioner. The petitioner has contended that there was RCC No.369 of 2011 against him and two others for offence punishable under sections 353, 332, 504 and 506 read with 34 of the Indian Penal Code [for short "IPC"]. As per judgment dated 24.02.2014, said accused were acquitted of the offence under sections 504 and 506 read with section 34 of the IPC. The accused were convicted for the offence under section 353 read with 34 of the IPC and sentenced to suffer simple imprisonment for six months and to pay a fine of Rs.1000/-, in default to undergo simple imprisonment for one month. Further, they were convicted for offence under section 332 read with section 34 of the IPC and sentenced to suffer simple imprisonment for six months and to a fine of Rs.1000/- in default they shall further undergo simple imprisonment for one month. The petitioner submits that he preferred Criminal Appeal No.30 of 2014 before the Sessions Court, Jalna against the conviction order dated 24.02.2014 in RCC No.369 of 2011 which is pending adjudication.

3. The petitioner states that the S.D.P.O. Jalna vide order dated 24.10.2016 conducted enquiry and submitted report vide letter No.2210/2016 dated 06.12.2016. The externment proceedings came to be initiated against the petitioner on the ground that petitioner is involved in Crimes punishable under the IPC and created terror in the locality. However, a notice dated 02.11.2016 issued by the S.D.P.O. Jalna was served to the petitioner, wherein reply was called from the petitioner to submit his say regarding the allegation. Accordingly, the petitioner appeared and submitted written statement before enquiry officer dated 29.11.2016. On the basis of said report, respondent No.3 issued a notice dated 23.12.2016 to the petitioner in respect of initiation of externment proceedings against him. The petitioner appeared in the said proceedings on given date and filed written statement against show cause notice, dated 04.02.2017. The petitioner asked for personal hearing, however, the said request of the petitioner was not considered and the respondent No.3 passed impugned order dated 27.02.2017, thereby ordering externment of petitioner from Jalna, Aurangabad, Buldhana districts for a period of two years in Ws No.2016/MAG/cr-41.

4. It is the case of the petitioner that before passing said order, the respondent No.3 ought to have strictly adhered to the principles of natural justice. It is further case of the petitioner that none of the offences registered against the petitioner are registered within the boundaries of Aurangabad and Buldhana districts, still he is ordered to be externed from entire Jalna, Aurangabad and Buldhana districts, whereas the offences are registered against the petitioner only at Sadar Bazar Police Station, Jalna. Thus, the petitioner states that the impugned order is excessive and unsustainable.

5. The petitioner further states that respondent No.3 has committed an error while passing the order dated 22.02.2017. Therefore, the petitioner prays that since the said order of externment is excessive, the same deserves to be quashed, in view of the law laid down by this High Court in the case of Sharad s/o. Vithalrao Mundhe Vs. State of Maharashtra & Ors., reported in 2017 ALL MR (Cri) 388, including in the case of Umar Mohammad Malbari Vs. K.P. Gaikwad & Anr., reported in 1988 (2) Bom.C.R.724 : [2000 ALL MR (Cri) 578] (Division Bench), also in case of Gunwanta Gajanan Khandekar Vs. S.D.O., reported in 2008 (1) BomC.R. (Cri.)329 : [2008 ALL MR (Cri) 1519], Silva @ Gora Silva Ayanar Vs. Nawal Bajaj & Anr., reported in 2007 (1) Bom.C.R. (Cri.) 331 : [2007 ALL MR (Cri) 84] and a recent unreported judgment dated 03.12.2009 of this Court in the case of Waseem Khan s/o. Hakim Khan Vs. State of Maharashtra in Criminal Writ Petition No.472 of 2009.

6. The petitioner further states that being aggrieved by the impugned final order dated 27.02.2017 passed by the respondent No.3 the Sub-Divisional Magistrate, Jalna, thereby externing the petitioner from the area of Jalna, Aurangabad and Buldhana districts for a period of two years, earlier the petitioner preferred the writ petition in this Court being Criminal Writ Petition No.511 of 2017, which came to be disposed of vide order dated 05.04.2017 thereby granting liberty to the appellant to prefer an appeal before the respondent No.6 - the Divisional Commissioner, Aurangabad. Accordingly, the appeal was preferred which was disposed of on 02.05.2017 by the Divisional Commissioner, Aurangabad, thereby externing the petitioner from the area of only Jalna district for a period of two years. Hence, this petition.

7. Learned Counsel appearing for the petitioner invites our attention to the show cause notice and the order passed by the Sub-Divisional Magistrate and also the Divisional Commissioner and submits that, in the show cause notice the S.D.M., Jalna mentioned that why the petitioner should not be externed from the jurisdiction of the Jalna district, however, the petitioner is externed from other districts also. He submits that when the order was passed by respondent No.3, to the surprise of the petitioner, the petitioner was externed from the boundaries of Jalna, Aurangabad and Buldhana districts. He submits that even the Divisional Commissioner did not consider the contentions raised by the petitioner that the order passed by respondent No.3 suffers from serious procedural irregularities as well as illegalities and same is not sustainable. Therefore, relying upon grounds taken in the petition and annexures thereto, he submits that the petition deserves to be allowed.

8. On the other hand, learned APP appearing for the respondent/State relying upon reasons recorded by respondent Nos.3 and 6 in the impugned judgments - orders, submits that the authorities after adverting to the material collected by respondent No.5 and contents of the forwarding report, have reached to the correct conclusion. However, he fairly submits that section 57(A)(5), which is mentioned in the show cause notice and in the impugned order, does not find place in the Maharashtra Police Act, 1951. He further submits that he has perused the original record, however, did not notice the statements of witnesses recorded 'in-camera', by respondent authorities.

9. We have given careful consideration to the submissions of the learned Counsel appearing for the petitioner and learned APP appearing for the State. Perused the grounds taken in the petition and annexures thereto and contents of the show cause notice which was issued to the petitioner and also the reasons assigned by respondent Nos.3 and 6 while passing the impugned orders. Upon careful perusal of the show cause notice issued by respondent No.3, it is abundantly clear that reply was called from the petitioner why he should not be externed from the boundaries of Jalna district. However, when respondent No.3 passed the final order, it appears that the petitioner was externed from the boundaries of Jalna, Aurangabad and Buldhana districts.

10. Respondent No.3 in his order has crystallized/ mentioned as many as eight grounds carved out from the appeal memo filed by the appellant. The respondent No.3 has also in the impugned judgment has mentioned the conditions to be verified before the proposed externee is externed by passing final order. Those are as under :-

(1) His movements or acts should be causing or calculated to cause alarm danger or harm to person or property, or there should be reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of offence involving force or violence.

(2) That the witnesses are not willing to come forward to give evidence in public against the person by reason of apprehension.

(3) The cases registered against a non-applicant are under Chapter 12,16 and 17 of IPC, 1960.

11. Upon careful perusal of aforementioned three conditions mentioned in the impugned order by respondent No.3 and also the points for consideration carved out from the appeal memo by respondent No.6 in the impugned judgment, clearly shows that before the order of externment is passed by the concerned authority, such authority is legally bound to record in-camera statement of the witnesses stating that due to fear to property and person from the proposed externee, the witnesses are not willing to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety of their person or property. Admittedly, such exercise has not been done by respondent No.3. In order to meet the requirement of law, it was incumbent upon respondent No.3 to record statement of the witnesses so as to form opinion that witnesses are not willing to come forward to depose against the petitioner due to fear to their person or property.

12. The Division Bench of the Bombay High Court [at Principal seat] in the case of Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police & another, 1989 (3) Bom.C.R. 240 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 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 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 is not necessary for us to assign reasons in greater length. Suffice it to say that there is total non-application of mind by the authorities and as a result, legally unsustainable orders have been passed, thereby externing the petitioner from the boundaries of Jalna, Aurangabad and Buldhana districts by respondent No.3 and said order is confirmed by the appellate authority except modifying the same thereby restricting the externment of the petitioner from boundaries of Jalna district. Even if we take into consideration Crime No.48 of 2011 registered against the petitioner for the offences punishable under sections 353, 323, 504, 506 read with section 34 of the Indian Penal Code, registered with Sadar Bazar Police Station, Jalna, said offence has been registered in the year 2011. Therefore, there is no live link/proximity between the registration of such offence against the petitioner and the proceedings of externment initiated against the petitioner. In that view of the matter, for the reasons aforesaid the orders impugned in this petition cannot legally sustain. Hence, the following order :-

14. The impugned order dated 02.05.2017 passed by the Divisional Commissioner at Aurangabad in JA No.2017/SAPRA/KAKSHA-1/POLE-1/EXTERN/CR-23, is quashed and set aside.

15. The writ petition is accordingly allowed and disposed of. Rule made absolute in above terms. No costs.

Petition allowed.