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2007 DIGILAW 1010 (BOM)

Girdhari Sohanlal Agrawal v. State of Maharashtra

2007-07-23

C.L.PANGARKAR

body2007
ORAL JUDGMENT: Rule. Returnable forthwith. Heard finally with consent of parties. 2. This criminal writ petition challenges the externment order passed by the Deputy Commissioner of Police Nagpur. 3. The present petitioner is a resident of Nagpur and deals in steel material and scrap. He owns movable and immovable property. It is alleged that police machinery is bent upon to harass the petitioner on some or the other pretext. The respondent has registered several criminal cases against the petitioner within a period of 9 days and in almost all those cases the petitioner was discharged. It is alleged that the externment proceedings are being taken up against him due to the fact that he has not paid the amount demanded by the respondents officers. 4. Deputy Commissioner of Police issued a show cause notice to the petitioner on 10.11.05 calling upon him to show cause why he should not be externed from Nagpur city. When a notice was issued to the petitioner it was alleged that he was involved in 7 crimes. The first two crimes related to offences under Section 452, 294, 506 Indian Penal Code, third related to offence under Section 124 Bombay Police Act, while 4, 5, 6, and 7 related to offence under Section 379 Indian Penal Code. Immediately after this notice was served the petitioner filed this writ petition. It is alleged that thereafter several notices were issued to the petitioner but he did not care to appear before the externing authority. Ultimately he appeared. His statement was recorded and the externment authority came to the conclusion that he needs to be externed for a period of one year from Nagpur city as well as Nagpur rural. The petitioner after this order came to be passed amended this petition and sought to challenge the order or externment also besides the notice that was already issued. 5. I have heard the learned counsel for the petitioner and the respondents. 6. The first ground that was raised by the learned APP was that the writ petition was not maintainable since a remedy of appeal was available under Section 60 of the Bombay Police Act. He submitted that equally efficacious remedy was available in the form of an appeal and therefore no writ petition could be filed. 6. The first ground that was raised by the learned APP was that the writ petition was not maintainable since a remedy of appeal was available under Section 60 of the Bombay Police Act. He submitted that equally efficacious remedy was available in the form of an appeal and therefore no writ petition could be filed. The question whether the writ petition would lie when remedy of appeal is available is no more resintegra, particularly when there is an infringement of the fundamental right. The Division Bench of this Court held in a case Umar Mohamed Malbari Vs. K. P. Gaikwad, Dy. Commissioner of Police and another 1988 Maharashtra Law Journal 1034, as follows: .The rule about the failure to exercise an alternative remedy when one is in existence is a Rule relating to the discretion of the Court and that Rule does not act as a bar to the jurisdiction of the Court to entertain and grant the petition. The rule that the High Court will not issue a prerogative writ when an alternative remedy is available does not apply when a petitioner comes to the Court with an allegation that his fundamental rights have been infringed. When an order of externment is passed against the petitioner, he can undoubtedly come to the High Court with a writ petition on the ground that his fundamental right of freedom of movement is affected and this he can do without exhausting the other remedy provided for in the Bombay Police Act viz. An appeal to the State Government against the order.. In view of this decision this petition is certainly maintainable. 7. Learned counsel challenges the order on 3 grounds: 1) Delay in passing the order of externment after notice; 2) Consideration of extraneous material and 3) Malafides in passing the order inasmuch as there is no proof that the witnesses are not coming forward to give statement or to depose. 8. Shri Rizwy, learned counsel for the petitioner submitted that there is unexplained delay in passing the order of externment after the notice was given and that itself vitiates the order. He sought to rely on the decision of this Court in Writ Petition 10/96 Raju Mahadeo Vs. State of Maharashtra (Nagpur Bench). 8. Shri Rizwy, learned counsel for the petitioner submitted that there is unexplained delay in passing the order of externment after the notice was given and that itself vitiates the order. He sought to rely on the decision of this Court in Writ Petition 10/96 Raju Mahadeo Vs. State of Maharashtra (Nagpur Bench). The Court has observed as follows: It is apparent that all the secret complaints loaded against the petitioner are before the commission of the offence of murder dated 13.07.1994. The respondent No.2 has not relied on Crime No. 335/94 for the offence under Section 302 of the Indian Penal Code as he has passed the order under Section 56(1)(a) of the Act, as the averments in the petition regarding delay in passing the impugned order go unchallenged, the authorities did not want to take immediate action of externment against the petitioner because of his activities and therefore the unexplained delay of about five months vitiates the action taken by the respondent No.2 and hence the impugned order is bad in law. It required to be set aside. 9. Shri Sonare the learned APP contended that there is no deliberate delay nor it could be said that it is unexplained. He submitted that the attitude of the petitioner himself was very recalcitrant and therefore the order could not be passed early. It is stated by the respondent in the affidavit dated 19.09.06 in para 5 that the notice of externment was issued on 10.11.05 and was served on 12.11.05. The externment order is dated 18.08.06. This order itself explains the delay. A notice was issued on 22.12.05 to appear before the externing authority on 30.12.05. It is stated in the affidavit that the petitioner merely left the application at the office of the respondent on 30.12.05 but did not come forward for hearing, hence again on 13.01.06 notice was issued to remain present for enquiry on 26.01.06. The said notice was duly pasted on the door of the house on 19.01.06 but the petitioner did not appear. On 27.01.06 another notice through post was sent but the same was also returned unserved and the petitioner did not appear till 09.04.06. Again on 10.04.06 a notice was issued and it was served on 02.05.06 calling upon the petitioner to appear for hearing on 06.05.06. On that day the petitioner appeared and his statement was recorded and he was heard. Again on 10.04.06 a notice was issued and it was served on 02.05.06 calling upon the petitioner to appear for hearing on 06.05.06. On that day the petitioner appeared and his statement was recorded and he was heard. The order is passed on 18.08.06. It is, therefore, apparent that it is due to the fact that the petitioner was not present for personal hearing that he could not be heard and the order could not be passed early. The delay is, therefore, very well explained in the present matter. 10. Shri Rizwy learned counsel for the petitioner contended that extraneous matters have been considered by the externing authority. The notice dated 10.11.05 makes a reference to 7 cases. He submitted that in three cases petitioner has been discharged and those cases are considered. Externment order shows that the two cases in which the petitioner is discharged are not at all taken into account. So far as third case is concerned it appears that accused No.2 came to be discharged by the Sessions Judge by order dated 25.06.07. Thus on the date the externment order was passed the accused was in fact not discharged. The authority was therefore justified in taking into consideration that case. It is stated by the learned counsel for the State that in the second case also order has been challenged by the State and the revision is pending before the Sessions Judge. Thus in no case it could be said that any extraneous material is considered for passing the order. 11. It was contended that the offences taken into consideration do not fall into the category mentioned in Section 56 (a) or (b) of the Bombay Police Act. The contention is not correct. Item No.1 in notice shows that offence under Section 294, 506 and 452 was registered. It speaks of petitioner having entered the house having made preparation to cause hurt and having given threats to kill. The nature of offence is such that it must cause alarm in the mind of people around. Offence at item No.3 is under Section 124 of the Bombay Police Act. This Section speaks of possession of property which could not be accounted for and which is believed to be stolen or fraudulently obtained. The property in this case is very large i.e. almost 7 ½ tonnes. Offence at item No.3 is under Section 124 of the Bombay Police Act. This Section speaks of possession of property which could not be accounted for and which is believed to be stolen or fraudulently obtained. The property in this case is very large i.e. almost 7 ½ tonnes. It is an offence which is akin to an offence falling under Section 379 and 411 of Indian Penal Code. The only thing is that complaint is not coming forward. Item no.7 is an offence under Section 379 and property involved is again very large. Even item No. 5 is also property worth Rs. 6000/-. All property is said to be iron scrap. The petitioner admittedly says that he is a dealer in scrap. If he was so it was not difficult for him to have shown the police or the Court the acquisition of this scrap by lawful means. Therefore, the nature of offence is certainly such which is covered by Clause (a) and (b) of Section 56. 12. This takes me to consider the last argument of the the learned counsel. It was contended that the allegations that the witnesses do not come forward to depose or give statement is totally false. Learned counsel submitted that in case No. 1 trial is over and accused is convicted and this shows that witnesses do come forward. Shri Rizwy contended that this is enough to hold that the order is not good. He relied on a decision of this Court in 1987 Bombay Cases Report Vol. 1, 471 (Ram Narayan Patil Vs. State of Maharashtra and Others). If in one case few witnesses appear that does not falsify the allegations of police. Their Lordships of the Supreme Court in A. I. R. 1973 Supreme Court 630 (Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra) have observed as follows: These provisions show that the reasons which necessitate or justify the passing of an externment order arise out of extraordinary circumstances. An order of externment can be passed under Cl.(a) or (b) of Section 56 if, and only if the authorrity concerned is satisfied that witnesses are unwilling 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. An order of externment can be passed under Cl.(a) or (b) of Section 56 if, and only if the authorrity concerned is satisfied that witnesses are unwilling 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. A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding. If the show cause notice were to furnish to the proposed exeternee concrete data like specific dates of incidents, or the names of persons involved in thoise incidents, it would be easy enough to fix the identity of those who out of fear of injury to their person or property are unwilling to depose in public. There is a brand of lawless element in society which it is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence. And legal evidence is impossible to obtain, because out of fear of reprisals witnesses are unwilling to depose in public. That explains why Section 59 of the Act imposes but a limited obligation on the authorities to inform the proposed externee of the general nature of the material allegations against him That obligation fixes the limits of the correlative right of the proposed externee. He is entitled, before an order of externment is passed under Section 56, to know the material allegations against him and the general nature of those allegations. He is not entitled to be informed of specific particulars relating to the material allegations.. The petitioner has himself placed on record the order of the Sessions Judge in Criminal Revision No. 135 of 2007. I quote the observations of the learned Judge here: .In my opinion at the time of framing charge the statement of co-accused as regards the presence of other co-accused is not admissible in evidence. Besides this there is no evidence whatsoever to raise a strongest suspicion against the applicant to show his complicity in the offence charged against him.. In that case it appears besides the statement of accused there was no other statement and hence the present petitioner was discharged. Besides this there is no evidence whatsoever to raise a strongest suspicion against the applicant to show his complicity in the offence charged against him.. In that case it appears besides the statement of accused there was no other statement and hence the present petitioner was discharged. Now here it must be borne in mind that co-accused implicates the present petitioner but no witness is coming forward to give a statement and this precisely makes out the case against the present petitioner. Therefore, I do not find that the order suffers from any infirmity. Petition is dismissed.