CRIMINAL WRIT PETITION NO.5234 OF 2019

18th October 2019

Petitioner Counsel: Mr.Prashant Patil
Respondent Counsel: Ms. P.N. Dabholkar, Mr. V.V.Giri
Act Name: Maharashtra Police Act, 1951

HeadLine : Maharashtra Police Act (1951), Ss. 56(1)(a)(b), 59 – Externment order – Order was based on in-camera statements of two witnesses and on ground that cases were pending against petitioner and his movements are causing harm, alarm and danger to people and their property – Record showing that petitioner was acquitted from 2 cases – Statements suffers from vagueness – Order does not specify why it was necessary to extern petitioner – Order of externment liable to be quashed and set aside.

Section :
Section 56(1)(a)(b) Maharashtra Police Act, 1951 Section 59 Maharashtra Police Act, 1951

JUDGEMENT

PRAKASH D. NAIK, J.

Rule. Rule made returnable forthwith.

2. The Petitioner is aggrieved by the order of Externment dated 13th June, 2019 issued by Deputy Commissioner of Police Zone–1, Nashik City, externing the Petitioner from the areas of police Commissionerate, Nashik City and Nashik Rural for a period of two years.

3. A show-cause notice under Section 59 of Maharashtra Police Act was issued to the Petitioner on 23rd April, 2019. The enquiry was conducted by ACP Division–2 and a report was submitted to Externing Authority. Subsequently, another showcause notice dated 16.05.2019 was issued to the Petitioner by Deputy Commissioner of Police Zone–1 Nashik City. The Petitioner tendered his reply and denied charges. The Petitioner objected to the proceedings on several grounds.

4. The Externing Authority issued an order of Externment dated 13th June, 2019 directing that the Petitioner be externed under Section 56(1)(a)(b) of Maharashtra Police Act for a period of two years from the area of Police Commissionerate, Nashik City and Nashik Rural.

5. The show – cause notice as well as the order of Externment refers to cases registered with Bhadrakali Police Station, Nashik, vide C.R. No.285 of 2008, C.R.No.78 of 2018, C.R.No.213 of 2011, C.R.No.3137 of 2013 and C.R.No.305 of 2019. The notice and order also refer to the statement of witnesses (A) and (B) which were allegedly recorded in camera. Witness (A) has referred to incident dated 10th March, 2019 and witness (B) has referred to the incident of 2018.

6. Aggrieved by the order of Externment, the Petitioner preferred an Appeal before the Divisional Commissioner. The Appellate Authority vide order dated 23rd September, 2019, partly allowed the Appeal by reducing the period of externment to one year.

7. Learned Counsel for the Petitioner has assailed the order on several grounds. It is submitted that the order of Externment has been issued mechanically. The ofences registered vide C.R.No.285 of 2008 and C.R.No.3137 of 2013 had resulted in acquittal. The ofence registered vide C.R.No.305 of 2019 does not fall within the purview of Chapter XII, XVI or XVII of IPC. The statements of the witnesses recorded in camera are vague. The Petitioner is conducting business of chicken shop and the weapons like knife and chopper are regularly used in the shop. Petitioner has relied on licences issued under Shop and Establishment Act. The Appellate Authority has not applied its mind to the material on record. The Petitioner was tried before the Court in two cases which has resulted in acquittal and it is not clear on what basis the Externing Authority has opined that the witnesses are not willing to depose against the Petitioner. The order of Externment is excessive. Learned Counsel placed reliance on the decision of this Court in the case of Kishor Durge Vs. Deputy Commissioner of Police and Others, 2004 (Supp.) Bom.CR 481. In the said decision, the order of Externment was set aside on the ground that the in-camera statement do not specify the place, date, time and month of the incident and hence the statements are vague which deprives the Externee from meeting the allegations against him. It was observed by the Court that the activities were restricted to a particular place and the adjoining areas and inspite of that no reasons were assigned as to why it was necessary to extern the externee from several areas.

8. Learned APP submitted that the challenge is only to order passed by the Appellate Court. The order of Externment is based on the cases registered against the Petitioner and confidential statements. The record includes the statement of witnesses recorded in-camera. The ofences committed by the Petitioner were of serious nature. The Respondents were satisfied that the witnesses are not willing to come forward to depose against Petitioner in open. The Appellate Authority has considered the material on record while adjudicating the Appeal and partly allowed the same which is apparent from the findings of the said Authority. The order is, therefore, required to be confirmed.

9. We have perused the relevant documents. It is apparent that show-cause notice was issued to the Petitioner. The notice refers to the cases registered with Bhadrakali Police Station, Nashik. The first ofence referred to therein was registered in the year 2008. The ofences were registered under Sections 143, 147, 148, 323, 324, 504 and 506 of IPC read with Section 135 of Bombay Police Act. The incident had allegedly occurred on 27th August, 2008. The said case resulted in acquittal vide judgment and order dated 28th November, 2016. The showcause notice, however, is silent in that regard. The impression given in the show–cause notice is that charge–sheets were filed in four cases. The second ofence registered vide C.R.No.78 of 2010 relates to the ofences under Sections 325, 323, 504, 506, 34 of IPC read with Section 135 of the Maharashtra Police Act. The case arises out of incident dated 28th February, 2010. The said case is apparently pending before the competent Court. C.R.No.213 of 2011 relates to the ofences under Section 307, 341, 504 read with 34 of IPC and under the provisions of Arms Act and Maharashtra Police Act in respect to incident dated 19th July, 2011. C.R.No.3137 of 2011 was in relation to the ofence under the Arms Act and Maharashtra Police Act. The said case has resulted in acquittal vide judgment and order dated 7th July, 2017. The 5th case was registered vide C.R.No.305 of 2019, with Bhadrakali Police Station for ofence under Section 135 of Maharashtra Police Act, which is pending. The Petitioner was allegedly found in possession of two choppers on 29th March, 2019. Thus, it is apparent that two of the cases registered in 2008 and 2013 have resulted in acquittal. The ofence registered vide C.R.No.305 of 2019, does not fall under Chapter XII, XVI or XVII of IPC. C.R.No.213 of 2011 was registered on 19th July, 2011. Thus, the last ofence pertaining to Chapter XVI and XVII of IPC was registered against the Petitioner in 2011. The statement of witness (A) refers to the incident dated 10th March, 2019. The place of incident is not mentioned. Witness (B) has referred to the incident occurred in the previous year i.e. 2018. The date/month and place is not stated. Thus, the statements sufers from vagueness resultantly afecting right to meet allegations vide Section 59 of said Act.

10. The order of Externment was issued on 13th June, 2019. From the material on record, it is crystal clear that the issuance of impugned order is contrary to the object of Section 56 of Maharashtra Police Act, which is preventive in nature. The last case which is pending and pertaining to provisions of Indian Penal Code is registered vide CR No.213 of 2011 in the year 2011. The cases resulted in acquittal pertain to Bhadrakali Police Station which is sponsoring Authority. Paragraph 6 of said order of Externment indicate that the Petitioner has contended that he has been acquitted in two cases, viz., the statements of witnesses are false, notice is vague, and he should not be externed. However, the issues raised by Petitioner cannot be considered. He was given opportunity to defend. The order also mentions that acts and movements of Petitioner are causing harm, alarm and danger to people and their property in the areas of Bhadrakali and Nashik City. The order does not specify why it was necessary to extern the Petitioner from Nashik Rural. The Appellate Authority has observed in order dated 23rd September, 2019 that, C.R.No.78 of 2010 and C.R.No.213 of 2011 are covered by Chapter XVI and XVII of IPC. However, taking into consideration the points raised by Appellant, it is observed by the Appellate Authority that although the decision to extern is correct, it was unreasonable and requires interference and the period of externment was reduced to one year. The impugned order does not indicate that the externment order is unreasonable only qua the period of externment. Although, the Appellate Authority opined that the order is unreasonable and needs to be interfered with, the Appeal is partly allowed by reducing the period of externment. In the light of the aforesaid circumstances, the Externment order is required to be quashed and set aside.

11. Hence, we dispose of the Petition by passing the following Order:
:: ORDER ::
We allow the Petition in terms of prayer Clause (a), which reads as under:
“(a) This Hon’ble Court be pleased to quash and set aside the order dated 23rd September, 2019, passed by Divisional Commissioner, Nashik Division, Nashik in Externment Appeal No.87/2019 and Externment Order No. Circle/ Zone – 1 /Extern/34/2890/2019 dated 13.06.2019 passed by Deputy Commissioner of Police, Zone–1, Nashik City.”

Decision : Petition allowed.