Criminal Writ Petition No.862 of 2017

12th October, 2017.

Petitioner Counsel: Mr. S.V. SIRPURKAR
Respondent Counsel: Mr. S.M. UKEY

Cases Cited:
Gajanan Kashinath Kamble Vs. State and Ors., Cri.W.P. No.652/2017, Dt.24.8.2017 (Nag). [Para 9]
Dilip Laxman Kokare Vs. S.M. Ambedkar and anr., 1991(1) Mh.L.J. 833 [Para 9,12,13]
Prashant s/o. Shashikant Mandal Vs. State of Maharashtra and another, 2013 ALL MR (Cri) 4357 [Para 9,14]
Sudhakar s/o. Mahadeorao Khelkar Vs. The State of Maharashtra and Others, 2014 ALL MR (Cri) 1706 [Para 9,14]
Sudhir Raviraj Choudhary Vs. The State of Maharashtra, 2013 ALL MR (Cri) 175 [Para 9,15]

JUDGMENT

M. G. Giratkar, J. :- Rule. Rule is made returnable forthwith. Heard finally with the consent of the learned Counsel for the respective parties.

2. By way of present petition, the petitioner challenges the externment order passed by respondent no2 externing the petitioner from the local limits of Chandrapur district. It is submitted that the petitioner is active in politics. He was Sarpanch of village Shegaon from the year 2010 to 2015. Proposal for externment of petitioner was submitted on 30.3.2016. He received show cause notice u/s.56(1)(b) of the Maharashtra Police Act, dt.20.9.2016. It is submitted that when the petitioner was Sarpanch, Gram Panchayat, Shegaon had passed a resolution against the Police Sub-Inspector Dange of Police Station, Shegaon for his transfer and holding of departmental enquiry against him. Therefore, the petitioner is falsely involved in the proceedings of externment.

3. It is submitted that the petitioner is already acquitted in three criminal cases, which were pending against him. Learned Sub-Divisional Magistrate has not taken into account these cases.

4. Proposal for exterment of petitioner was submitted on 30.3.2016. Show cause notice was issued on 20.9.2016 and the order of externment is passed on 31.7.2017. Hence, there is abnormal delay in passing the impugned order of externment, which vitiates the order passed against the petitioner. There is a delay of more than ten months. Offences against the petitioner have been shown to be registered in between the years 2002 to 2013, except the offence which is of the year 2016. The said offence is in respect of the Maharashtra Prohibition Act. Hence, stale offences should not have been considered by respondent no.2 to extern the petitioner. As per Section 56 of the Maharashtra Police Act, the offences committed under Chapters XII, XVI or XVII of the Indian Penal Code may be taken into consideration for externment. Six offences are shown to be registered against the petitioner. However, in three offences, he has been acquitted by the Competent Court. Offence punishable under the Maharashtra Prohibition Act cannot be considered while passing the order of externment.

5. It is submitted that respondent no.2 has not applied his mind while passing the impugned order. He has not supplied statements of both the witnesses. They are not witnesses in any of the offences pending against the petitioner. The statements are stereotype in nature. The grounds raised in the reply to the show cause notice are not considered by respondent no.2. At last, it is submitted that there is delay of near about one year in passing the impugned order. Hence, the impugned order is liable to be quashed and set aside.

6. Respondent no.2 has filed an affidavit and submitted that the petitioner is involved in the crime. Respondent no.2 has recorded incamera statements and has come to the conclusion that externment of petitioner is necessary to prevent any danger to person and property.

7. Heard Mr.S.V.Sirpurkar, learned Counsel for the petitioner. He has pointed out resolution passed by Gram Panchayat, Shegaon and has submitted that the petitioner was Sarpanch of the said village. Resolution was passed against PSI Dange for initiating departmental enquiry against him due to his trouble to the villagers and other citizens. Hence, the impugned order is passed in revengeful manner.

8. Mr.Sirpurkar, learned Counsel has pointed out the show cause notice and has submitted that the show cause notice is dt.20.9.2016. The impugned order is passed on 31.7.2017. There is inordinate delay. Out of six offences, the petitioner is acquitted of three offences/crimes, but those are not taken into consideration.

9. Mr.Sirpurkar, learned Counsel has pointed out the Judgment of this Court in Criminal Writ Petition No.652 of 2017 (Gajanan Kashinath Kamble .vs State and Ors.), dt.24.8.2017. The learned Counsel also pointed out the decisions reported in [1991(1) Mh.L.J. 833], Dilip Laxman Kokare vs. S.M.Ambedkar and another; 2013 ALL MR (Cri) 4357, Prashant s/o. Shashikant Mandal .vs. State of Maharashtra and another; 2014 ALL MR (Cri) 1706, Sudhakar s/o. Mahadeorao Khelkar .vs. The State of Maharashtra and Others and 2013 ALL MR (Cri) 175, Sudhir Raviraj Choudhary .vs. The State of Maharashtra. At last, it is submitted that, in view of the above cited Judgments, the impugned order is liable to be quashed and set aside.

10. Perused the show cause notice. It is dt.20.9.2016. Six offences/crimes are shown to be registered against the petitioner. Sr.No.6 is in respect of Crime No.11 of 2016 for the offence punishable under Section 65(e) of the Bombay Prohibition Act. All other offences are in respect of offences punishable under the Indian Penal Code. Reply to the show cause notice shows that the petitioner is acquitted in Crime No.56 of 2002 (Sr.No.1) and Crime No.52 of 2003 (Sr.No.3). Other three cases are pending and likely to be disposed of. It is submitted that the petitioner is not convicted in any crime. He was a Sarpanch of village Shegaon (Bh) from 2010 to 2015. On perusal of the order dt.31.7.2017, it appears that all the six offences/crimes are taken into consideration. Last offence is of the year 2016, which is an offence punishable under Section 65(e) of the Bombay Prohibition Act. Respondent no.2 has not taken into consideration the aspect of acquittal of petitioner in Crime No.56 of 2002 and 52 of 2003. Offence punishable under Section 65(e) of the Bombay Prohibition Act is also taken into consideration. As per Section 56 of the Maharashtra Police Act, offences under Chapters XII, XVI or XVII of the Indian Penal Code are to be taken into consideration; whereas respondent no.2 has taken into consideration offence punishable u/s.65(e) of the Bombay Prohibition Act. Therefore, it is clear that respondent no.2 has not applied his mind properly and has come to the wrong conclusion.

11. The petitioner was Sarpanch of village Shegaon (Bh) for the period from 2010 to 2015. Gram Panchayat Shegaon (Bh) has passed a resolution against Police Inspector Mr.Dhange about his trouble to the villagers and nearby villagers. Resolution was passed requesting the Authorities to initiate departmental inquiry against PSI Dange. That may be the reason for implicating the petitioner in the proceedings of externment. It is clear from the documents that he is a respectable person of the village. He was Sarpanch of village for about five years i.e. from 2010 to 2015. Therefore, it cannot be said that his presence is danger to any person and property. Hence, the impugned order is liable to be quashed and set aside.

12. There is inordinate delay in passing the impugned order. Show cause notice is dt.20.9.2016 and the impugned order came to be passed on 31.7.2017. In Writ Petition No.652 of 2017, this Court has taken into consideration delay of 1½ years in passing the exterment order and on that ground, the externment order was quashed and set aside. In the case of Dilip Laxman Kokare .vs. S.M.Ambedkar and another, delay of about 1½ years in passing the exterment order was taken into consideration to quash the order.

13. Learned Additional Government Pleader has raised an objection that the delay was on the part of externee and therefore, externment proceedings could not be completed. In the case of Dilip Kokare vs. S.M.Ambedkar and another, this Court (Principal Seat) has held that "Police Authorities vaguely stating that externment proceedings could not be completed due to delay on part of externee and his counsel, such an explanation cannot be availed of by the externing Authority. Therefore, order of exterment is quashed in view of abnormal delay"

14. In the case of Prashant Mandal vs. State of Mahrashtra it is observed that "the externment procedings was quashed on the ground of delay of 18 months". In the present case also, there is delay of near about one year. Hence, the impugned order of externment is liable to be quashed and set aside. In the case of Sudhakar s/o. Mahadeorao Khelkar vs. The State of Maharashtra and Others, this Court has observed that " the impugned order passed after seven months of issuance of show cause notice. Same show that the impugned order has no nexus with object to be achieved. Nothing is placed on record by the respondents to show that in the meantime the petitioner had been indulging in illegal activities. Irrelevant material considered by the Authorities to order externment...... " Therefore, externment order came to be quashed. In the present case, there is inordinate delay of about one year. Therefore, the impugned externment order is liable to be quashed and set aside.

15. Respondent no.2 has not applied his mind properly and mechanically passed the impugned order. He has not taken into consideration the aspect of acquittal of petitioner in three offences/crimes. Only two offences/crime under the Indian Penal Code are pending against the petitioner. All those are of the years 2011 and 2013. Therefore, it is clear that stale offences/crimes are taken into consideration. Offence punishable under Section 65(e) of the Act vide Crime No.11 of 2016 is wrongly taken into consideration. Therefore, it is clear that respondent no.2 has not applied it's mind properly. In the case of Sudhir Raviraj Choudhary vs. State of Maharashtra, this Court (Principal Seat) has observed that "order of externment shows that there is complete absence of such subjective satisfaction of the fact that the witnesses are unwilling to come forward to give evidence in public against the petitioner by reason of apprehension on their part as regards safety of their person and property. Therefore, the impugned order is illegal and deserved to be quashed and set aside".

16. In the present case, stale offences are taken into consideration. None of the witnesses in respect of the said offences have stated against the petitioner. The petitioner is well respectable person of the village He was Sarpanch of village Shegaon (Bu.) for about five years from 2010 to 2015. The documents filed on record show that Gram Panchayat, Shegaon (Bu.) has passed a resolution against PSI Dange for initiating departmental enquiry against him and that may be the reason for externment of the petitioner.

17. In view of the above observations, the impugned order of exterment dt.31.7.2017 is liable to be quashed and set aside. Hence we pass the following order.

// ORDER //

The impugned order dt.31.7.2017 is hereby quashed and set aside. The petition is allowed in terms of prayer clause (i) of the petition. No order as to costs.

Petition allowed.