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2013 DIGILAW 1504 (BOM)

Shiva Shrimant Pawar v. State of Maharashtra

2013-08-05

S.B.SHUKRE, S.C.DHARMADHIKARI

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Judgment :- S.B. Shukre, J. 1. This writ petition is directed against the order dated 9 th April, 2013 passed by the Deputy Commissioner of Police, Zone3, Kalyan, externing the petitioner and also the order of the appellate authority dated 24th May, 2013 confirming the said order. 2. With the consent of both sides, this petition has been heard finally at the stage of admission. Hence, Rule. Rule made returnable forthwith. Learned A.P.P. waives notice for the respondents. 3. We have heard learned counsel for the petitioner and learned A.P.P. for the State. 4. It is submitted by the learned counsel for the petitioner that, the impugned orders suffer from grave errors of law and are based upon insufficient and also some material extraneous to the inquiry conducted by the learned Assistant Commissioner of Police, Dombivali (East). He has submitted that, in the show cause notice dated 18th December, 2012, there are no allegations coming from the witnesses to the effect that the criminal activities of the petitioner have created so much fear in the persons residing in that locality that they are not coming forward to give evidence in public against the petitioner. He has argued that, even most of the criminal offences mentioned in the show cause notice are stale and have no relation with the present behaviour of the petitioner and, therefore, should not have been made any basis for moving a proposal for externment of the petitioner. He has further submitted that, even the order of the appellate authority does not take into account the fact that there was neither any sufficient material brought on record warranting the drawing of inferences as required under Clauses (a) and (b) of Section 56(1) nor the in-camera statements of two witnesses showed that the witnesses were not coming forward to give evidence out of fear of the petitioner. The learned counsel, therefore, has urged that the impugned orders deserve to be quashed and set aside. 5. Learned A.P.P. for the State has submitted that the show cause notice does contain the averments that due to criminal activities of the petitioner, the witnesses are not coming forward for giving evidence against him in public. The learned counsel, therefore, has urged that the impugned orders deserve to be quashed and set aside. 5. Learned A.P.P. for the State has submitted that the show cause notice does contain the averments that due to criminal activities of the petitioner, the witnesses are not coming forward for giving evidence against him in public. He has taken us through the show cause notice as well as the impugned orders to substantiate his point as to how there has been adequate material available on record to enable the externing authority to take action against the petitioner under both clauses (a) and (b) of Section 56(1) of the Bombay Police Act, 1951. He, therefore, submits that the petition need not be allowed. 6. On going through both the impugned orders, we find that there is great substance in the arguments advanced on behalf of the petitioner and no merit in the submissions advanced on behalf of the respondents. 7. This Court has, in several judgments held that, in order to take action against the proposed externee under clause (a) or (b) of Section 56(1), the show cause notice issued to the proposed externee, must not only contain the allegation that the movements or actions of the proposed externee are causing or calculated to cause alarm, danger or harm to person or property or that there are reasonable grounds to believe that the proposed externee is engaged or about to be engaged in the commission of an offence mentioned therein but, also must inform the proposed externee that in either of the cases, in the opinion of such officer, witnesses have been found to be reluctant to give evidence in public against the proposed externee. In other words, the show cause notice must contain the allegations as contemplated under clause (a) or (b) of Section 56(1) and in addition must also inform the proposed externee of the opinion of the officer that the witnesses are not willing to come forward to give evidence against him in public. The second requirement is common to both these clauses. A reference to the observations of this Court in paragraph No.5 of the judgment in the case of Yeshwant Damodar Patil V/s. Hemant Karkar, Dy. Commissioner of Police & Anr. reportedin 1989 (3) Bom. C.R. 240 would be useful in this regard. The second requirement is common to both these clauses. A reference to the observations of this Court in paragraph No.5 of the judgment in the case of Yeshwant Damodar Patil V/s. Hemant Karkar, Dy. Commissioner of Police & Anr. reportedin 1989 (3) Bom. C.R. 240 would be useful in this regard. The relevant part of the para reads thus: “This notice must inform the proposed externee the grounds on which action is proposed to be taken against him. For example, if action is proposed to be taken against him under Clause (a) of Section 56(i) of the Act, then the proposed externee must be told that his movements or acts are causing or calculated to cause alarm, danger or harm to person and property and witnesses are not willing to come forward to give evidence in public against him.” 8. Now having said so, let us proceed to examine the show cause notice dated 18th December, 2012. It is seen therefrom that it seeks to rely upon some criminal cases registered against the petitioner, some preventive action taken in the past against the petitioner and in-camera statements of two witnesses. So far as criminal cases are concerned, out of 12 cases, 7 relate to the period from 1993 to 2001 and 1 relates to the year 2010. All these cases being old, would have no bearing on the present status of the petitioner. Rest of the 4 criminal cases, though relate to the year 2012, at least 3 of them could not have formed any basis for proposing externment action against the petitioner, for the reason that two crime numbers i.e. 13 of 2012 and 14 of 2012 involve offences punishable under Bombay Prohibition Act and the third Crime No.138 of 2012 has been recorded as a non-cognizable case. Same is true about preventive action or chapter cases, which cannot be referred to for initiating externment order. That is the settled legal position. This Court in the case of NamdeoZipa Desale V/s. M.V. Chitale reported in 1987 (3) Bom. C.R. 370 has discussed the law laid down in cases of (i) Ashok V/s. Shri Ravindra, 1983(2), Bom. Same is true about preventive action or chapter cases, which cannot be referred to for initiating externment order. That is the settled legal position. This Court in the case of NamdeoZipa Desale V/s. M.V. Chitale reported in 1987 (3) Bom. C.R. 370 has discussed the law laid down in cases of (i) Ashok V/s. Shri Ravindra, 1983(2), Bom. C.R. 763 and (ii) Lahu V/s. G.S. Thaker in W.P. No.949 of 1986 decided on 3rd August, 1987 and has affirmed the view that cases under the Bombay Prohibition Act and Chapter cases are not relevant for passing an order of externment under Section 56 (1)(a) or (b) of the Bombay Police Act, 1951. 9. In view of above discussion, what remains is only the Crime No.206 of 2012 registered for offences punishable under Sections 323, 324, 504 and 506 read with Section 34 of Indian Penal Code. It is difficult to believe that, on the basis of just one crime, an opinion can be formed that a person is engaged or is likely to be engaged in the commission of an offence as contemplated by clause (b) of Section 56(1), much less, the witnesses would dread such a person so much so that they would not come out in public for giving evidence against him. Then, the show cause notice also refers to in-camera statements of two witnesses. But none of them, as is apparent from the show cause notice, states that witnesses are not willing to come forward for giving evidence in public against the petitioner. Therefore, such a show cause notice does not answer the requirements of law as applicable to the action proposed to be taken under clauses (a) and (b) of Section 56(1) of the Bombay Police Act, 1951. It would then logically follow that the petitioner has not been given sufficient notice in this case of the material against him and thus has not been able to defend himself against the proposed action. 10. From the above discussion, it can be seen that, if the show cause notice has been found to be vitiated in law, any action of externment based upon such a show cause notice can also be not found to be in accordance with law. 10. From the above discussion, it can be seen that, if the show cause notice has been found to be vitiated in law, any action of externment based upon such a show cause notice can also be not found to be in accordance with law. The order of the externing authority relies upon three crime numbers, being 206 of 2012, 138 of 2012 and 35 of 2001, with first two crime numbers having been registered with Vishnu Nagar Police Station and the last one with Dombivali Railway Police Station. Crime No.138 of 2012 has been recorded as a non-cognizable case and Crime No.35 of 2001 is stale. Both these crime numbers find their mention in the show cause notice and we have already observed that both of them could not have formed the basis of action of externment against the petitioner as they are insignificant to determine the present state of affairs visavis the petitioner. So, just on the basis of one crime number registered with Vishnu Nagar Police Station, the externing authority could not have drawn an inference that the movements or the actions of the petitioner are causing or calculated to cause alarm, danger or harm or that the petitioner would again commit offences as contemplated under clause (b) of Section 56(1), unless there was some further material consistently pointing out towards the criminal nature of the petitioner. That has not been the case here. Then, the in-camera statements of two witnesses also do not show any material against the petitioner as required under clauses (a) and (b) of Section 56(1). Therefore, such an order of externment passed by the Deputy Commissioner of Police, Zone-3, Kalyan, cannot be upheld by us. 11. There is one more reason why do we find the order of externment as in violation of law. The criminal activities referred to in the externment order related to only Vishnu Nagar and Dombivali Railway areas. In the show cause notice the alleged criminal activities have been mentioned as confined to only these areas and no more. There are no allegations in the show cause notice nor any material referred to in the order of externment alleging that the petitioner had carried on with his criminal activities even in other areas falling within limits of districts of Thane, Greater Mumbai and Mumbai suburban. There are no allegations in the show cause notice nor any material referred to in the order of externment alleging that the petitioner had carried on with his criminal activities even in other areas falling within limits of districts of Thane, Greater Mumbai and Mumbai suburban. Even then, the petitioner, by the impugned order of externment, has been externed from these three districts. Obviously, the externing authority has either considered some material which was extraneous to the inquiry held against the petitioner or arbitrarily passed the order without there being any material on record to justify the order. Such an order based on extraneous or no material agitates against principles of fairness and natural justice and deserves to be struck down. 12. Even the order of the appellate authority discloses total non-application of mind on its part. The appellate authority has not properly considered the in-camera statements of two witnesses and has simply reiterated the reasons recorded by the externing authority in the order of externment. The appellate authority has also not considered a very vital aspect of the case and it was that the petitioner has been externed from three districts of Thane, Greater Mumbai and Mumbai suburban in spite of the fact that the material allegations against him related to only those incidents which had taken place within the jurisdiction of Vishnu Nagar and Dombivali Railway police stations and that there was nothing on record showing commission of some criminal acts by the petitioner in areas beyond the jurisdictions of these police stations. There was complete non-application of mind on the part of the appellate authority when it rejected the appeal against the externment order. This order, therefore, also cannot be sustained in law. 13. In the result, the petition succeeds and both the impugned orders are hereby quashed and set aside. 14 Rule is made absolute in the above terms.