Smita Suryakant Ashtekar @ Smita Deepak Kumbhare v. State of Maharashtra, Through Principal Secretary, Home Department
2014-04-29
K.U.CHANDIWAL, V.M.DESHPANDE
body2014
DigiLaw.ai
Oral Judgment: (K.U. Chandiwal, J.) 1. Heard. Considering the nature of controversy raised by the petitioner, particularly challenge to the order of externment, we do not propose to permit intervention of applicant Narwade or getting him added as respondent no.2. Application for intervention dismissed. 2. Heard. Rule. Rule made returnable and heard finally by consent. 3. The petitioner questions order of externment in externment proceeding No.5/2013 recorded by Sub Divisional Magistrate, Nagar Division, Ahmednagar, dated 20th Jan., 2014, and 27th Jan., 2014, confirmed in appeal by order dated 10th March, 2014. 4. Before we advert and ponder upon the issues, the broad out-line of submissions from Mr. Gaware needs to be scanned. (a) The notice dt.14.10.2013 is vague, without particulars. (b) The witnesses whose affidavits are tendered are not summoned. (c) For the same set of offense, she was earlier externed for four months and she has been victimized by second notice dated 14.10.2013. (d) The order is excessive. (e) Stale prosecution is given new life. (f) The cause for action or criminal prosecution has inherent public cause on behalf of the petitioner. 5. The petitioner asserts to be a social worker and also advocates that in the light of the duties assigned to her, it was her bounden obligation to agitate before authorities to address the grievance of the society at large. The agitation was not liked by certain political groups who are in power and hence, the provisions of Bombay Police Act, 1951, are mischievously used against her. 6. We have gone through earlier orders and also the notice dt.14.10.2013. We do not subscribe to the contentions of Mr. Gaware that the notice is vague or stale instances are recked up.. Annexures to the notice, in unequivocal terms, disclose the offence, the vigour created by such offenses and the threat in the mind of the people at large. 7. Learned Counsel relied to the following judgments: (1) 1986(1) Bom.CR 144 - (Ayub Yusuf Mansuri vs. The Sub Divisional Magistrate), (2) 1989 (3) Bom.C.R. 240 -(Yeshwant Damodar Patil vs Hemant Karkar, Dy.Commissioner of Police and another), (3) 1997 (Supplement) Bom.C.R. 788 -(Namdeo Laxman Charde vs. Sub Divisional Magistrate, Katol & anr) of learned Single Judge and (4) 2010 (3) Bom.C.R.(Cri.) 286 - (Sandip Devidas Thorat Vs.
Principal Secretary) of learned Single Judge, and (5) 2013(10) LJSoft.15 - (Rameshkumar @ Ramu Singh s/o Shriram Singh Thakur vs The State of Maharashtra and anr). There should not be contest on legal proposition enunciated in each of the afore referred case; either by the Division Bench or by the learned Single Judge, however, each of the case projects its particular facts and in the light of those facts, the observations are flashed by the learned Judges. They will not tend to be a declaration of law or precedent. 8. Straightway reverting to the latter judgment of 2013 (1) LJSOFT 15, the Division Bench has recorded in paragraph no.7 that stale offenses of 1990, 1993, 2004 were considered by the learned Sub Divisional Magistrate. Even he had considered extraneous material for passing impugned order. The externment of said petitioner from six districts was without any reason inasmuch, the crimes against the said petitioner were registered with Police Stations only at Warora tehsil. 9. In another case, the authorities failed to distinguish between effect of Section 56(1)(a) and Section 56(1)(b) of the Bombay Police Act, 1951, and the Division Bench also recorded, in Thane district, identical orders, and with same set of legal issues, were routinely passed against persons, curtailing their liberties, and externment orders were quashed and set aside. 10. If parameters of afore referred judgments are seen, and the facts projected in the instant case are put in juxtaposition, it emerges that those cases, or the observations therein, will not be fitting to the bracket of the present scenario. 11. Mr. Gaware has stated, right of livelihood and right of movement is curtailed. However, the petitioner has failed to consider that Constitution equally provides obligation on citizens to maintain law and order. Petitioner has no license to take law into her hand, and to terrorize, pressurize ransack public / Government Offices. She cannot subterfuge the established system. There is, certainly, mismatch in the narration of learned Advocate and the record. Record illustrate, the petitioner was earlier externed; it was reduced to four months. However, she did not mend her ways and means. During the process of said externment, she vibrantly breached orders and invited registration of offense vide Crime No.173/2008 for offense under Section 142 of IPC. 12.
Record illustrate, the petitioner was earlier externed; it was reduced to four months. However, she did not mend her ways and means. During the process of said externment, she vibrantly breached orders and invited registration of offense vide Crime No.173/2008 for offense under Section 142 of IPC. 12. On her request, the Division Bench of this Court has protected her, and allowed to enter in the city of Ahmednagar, however, again, taking advantage of such concession, she continued to commit offenses against public officers. It is not that at all the times, the petitioner was dealing with public cause. She has, from the available record, damaged property of private citizen, made their life miserable and a threat perception was looming large, to public, owing to political clout petitioner carried. 13. The petitioner, on number of occasions, took advantage of she being female and manhandled male officers. She obstructed official activities to be carried and organized agitation, not befitting to the procedure. She has, by her conduct, brought governance and discipline to brink. Her conduct has raised strife in the mind of people at large. 14. The reference that the appellate authority meekly recorded order against her or confirmed the order dated 20th Jan., 2014, or 27th Jan., 2014, is again out of context. The appellate authority, as could be seen, referred the twelve cases against the petitioner out of which the petitioner asserted to have been acquitted from some of the cases. It also cannot be said that either the Sub Divisional Magistrate or the appellate authority were influenced because of stale cases, pending or decided. 15. Learned Counsel says, affidavit of two witnesses is not considered, however, the purport of notice illustrate, it was issued under Section 56(1)(a) which stipulate that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property. It was not a case of mere reasonable ground based on belief that such person was engaged in such activities but, there was concrete prima facie material that her presence was causing or was calculated to cause danger or alarm to the public property. In this situation, there could not be hearing or examination of the two affiants.
It was not a case of mere reasonable ground based on belief that such person was engaged in such activities but, there was concrete prima facie material that her presence was causing or was calculated to cause danger or alarm to the public property. In this situation, there could not be hearing or examination of the two affiants. It was obligatory on the part of the petitioner to have moved the Sub Divisional Magistrate to issue summonses to his witnesses; and refusal on the part of the said authority would have provided a leverage to the petitioner. Incidentally, the notice under challenge illustrate, on page no.58, that petitioner was called upon to bring forward her witnesses or remain present with a legal advisor. Sending affidavit by itself would not meet requirement of statute. 16. Mr. Gaware, learned Counsel for the petitioner, sensing disinclination of the Court to entertain petition, implored that the order of externment confirmed by the appellate authority for a period of one year may be reduced to six months. Learned A.P.P. says there is no such eventuality. 17. We have given thought to the latter expression of repentance by the petitioner and since the General Elections in the vicinity of Ahmednagar are also over and already the petitioner has paid price by way of her externment, since there is no untoward incident of her intrusion in the city, the period of externment is reduced to eight months from 27th Jan., 2014. 18. Conspectus of all the facts illustrate that the order of externment cannot be branded to be excessive as the petitioner has been externed from Ahemadnagar district alone for a period of one year. It also cannot be said that earlier order of externing her from Ahmednagar taluka and then modifying the same has caused any prejudice to her. This is more so as the notices, replies and the hearing which the petitioner got, in unmistakable terms, illustrate that the proposal was for externing her from Ahmednagar district. Rule made partly absolute. Externment is reduced to eight months from 27th Jan., 2014. Petition disposed of in above terms.