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2016 DIGILAW 146 (BOM)

Kiran Ramrao Shinde v. Sub-Divisional Magistrate, Jath, Sub-Division Jath, Dist. Sangli

2016-01-21

A.S.OKA, C.V.BHADANG

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JUDGMENT : C.V. Bhadang, J. As the regular Bench, to which this petition was assigned is unable to take up this petition, as per the general standing order in this regard this petition is listed before this Bench. 2. On 27th October 2015, rule was issued in this petition. We have, accordingly, heard the learned counsel for the parties and the petition is being disposed of finally. 3. A show-cause notice under section 57(1)(a) of the Bombay Police Act, 1951 ("said Act" for short) was issued to the petitioner thereby calling upon him to show cause as to why he should not be externed from the four revenue districts viz., Sangli, Kolhapur, Solapur and Satara. This was on account of the fact that the petitioner was allegedly found involved and was facing prosecution for offences in Crime No.125/2007 under sections 379, 332 read with section 34 of the Indian Penal Code ("IPC" for short) as also other offences viz., Crime No.109 of 2013 under sections 143, 147, 149, 323 and 504 of IPC and Crime No.101 of 2014 under sections 452, 324, 341, 323, 504, 506, 427 read with section 34 of IPC. The Sub-Divisional Magistrate, Jath was of the opinion that preventive action was necessary as there was an apprehension that the petitioner would engage in cognisable offences. It appears that the petitioner replied to the said notice refuting the allegations. The respondent No.1, by an order dated 7th October 2015, has directed externment of the petitioner from Sangli district for a period of six months purportedly under section 57A of the said Act. Feeling aggrieved, the petitioner is before this Court. 4. It is submitted by the learned counsel for the petitioner that the impugned order under section 57A of the said Act is illegal, inasmuch as the provisions of the said section are not attracted. It is also submitted that there is no live link between the offences as set out in the show-cause notice and the impugned action. It is also submitted that the offence in Crime No.109/2013 has been quashed by this Court in Criminal Writ Petition Nos. 4226/2015 and 4227/2015 vide order dated 11th December 2015. 5. The learned APP has supported the impugned order on the ground that there is sufficient material for the competent authority to arrive at the subjective satisfaction contemplated under the relevant provisions. 6. 4226/2015 and 4227/2015 vide order dated 11th December 2015. 5. The learned APP has supported the impugned order on the ground that there is sufficient material for the competent authority to arrive at the subjective satisfaction contemplated under the relevant provisions. 6. On hearing the learned counsel for the parties and on perusal of the record, we find that the petition will have to succeed for more reasons than one. A bare perusal of the impugned order dated 7th October 2015 would show that the offences on the basis of which the impugned action was taken pertain to the year 2013-14. The last of such offences being dated 15th May 2014. The impugned order which is passed on 7th October 2015 would be vitiated on account of absence of any live link. That apart, the offence vide Crime No.109/2013 has also been quashed by this Court, albeit on the basis of a reconciliation between the parties. 7. We also find that the impugned order refers to section 57A of the said Act. There are distinct sections in the said Act viz., section 57 and section 57A under which the District Magistrate derives power which is of a drastic nature. While the action under section 57(1) is based on previous offences and an apprehension of the person indulging into offences relating to life and property and such other offences as set out in section 57(1), section 57A pertains to removal of certain persons declared to be beggars. Obviously, said section 57A is not attracted and could not have been called into aid in the present case. We are conscious that mere label and mentioning of wrong provision would not be decisive and, therefore, we have examined the impugned order in relation to the power as is available to respondent No.1 under section 57(1)(a) of the said Act. We are of the considered view that the impugned action cannot be sustained in relation to the powers available under section 57(1)(a) or section 57A of the said Act. We, therefore, proceed to pass the following order: Order (a) The Rule is made absolute in terms of prayer clause (a) which reads thus: "This Hon'ble Court be pleased to quash and set aside the Impugned Order dated 07.10.2015 passed by Sub Divisional Magistrate, Jath in No.MAG/hadpar/SR12/2014".