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2016 DIGILAW 2227 (BOM)

Sandip S/o. Dnyanoba Gude v. State of Maharashtra

2016-12-16

K.K.SONAWANE, S.S.SHINDE

body2016
JUDGMENT : S.S. SHINDE, J 1. Rule. Rule made returnable forthwith. Heard finally by consent of parties. 2. Since the question of law involved in all these petitions is same, all the petitions are being heard and disposed of by the common judgment and order. 3. In Criminal Writ Petition No. 1373 of 2016, the petitioner has challenged the propriety, correctness and legality of the order dated 12.08.2016 passed by the Sub Divisional Magistrate, Ausa-Renapur and the order dated 23.9.2016 passed by the Sub Divisional Officer, thereby partly confirming the order passed by the Sub Divisional Officer in externment proceedings. In other two petitions also, the dates of impugned orders are identical. 4. It appears that the respondent No.5 submitted report to the respondent No.4 for initiating externment proceedings against the petitioners. The respondent No.4, after receiving the said proposals issued show cause notices to the petitioners, why the petitioners should not be externed from Latur, Beed and Osmanabad Districts. It appears from perusal of the record that the petitioners did not file reply to the said show cause notices. The respondent No.4, by order dated 12th August, 2016, externed the petitioners from the jurisdiction of Latur, Beed and Osmanabad Districts. The petitioners aggrieved by the said order of externment, filed appeals before the Divisional Commissioner, Aurangabad. The Divisional Commissioner, by order dated 23.9.2016 partly allowed the appeal and confined the operation of the order of externment within the jurisdiction of Latur District. Being aggrieved by the order passed by the respondent No.4 and respondent No.2, these writ petitions are filed by the petitioners under Articles 226 and 227 of the Constitution of India. 5. Learned counsel for the petitioners invites our attention to the provisions of Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 and submits that respondent No.4 did not adhere to the mandate of the provisions of Section 56(1)(a), inasmuch as, there is no mention in the show cause notice issued to the petitioners that the witnesses are not coming forward to depose against the petitioners due to fear to their person or property from the petitioners. It is submitted that in absence of said requirements, if proceedings are initiated culminating in passing the order of externment for the reason that there is no fulfillment of the mandate of the provisions of Section 56(1)(b), the subject satisfaction arrived at by respondent No.4 stood vitiated and, therefore, the orders of externment are not legally sustainable. 6. In support of his contention that if the externing authority, who has passed the order of externment has not adhered to the provisions of Section 56(1)(b) of the said Act, and in-camera statements of witnesses are not recorded and to that effect, if reference is not made in the show cause notices, the subjective satisfaction arrived at by the authorities stands vitiated and consequently, the orders of externment cannot be sustained, learned counsel pressed into service the exposition in the case of Yashwant Damodar Patil Vs. Hemant Karkare, reported in 1989(3) Bom.C.R. 240 . 7. He further submits that respondent No.4 has not assigned any reason in the impugned order of externment, why externment of the petitioners is warranted from the Beed and Osmanabad Distrits when the alleged activities of the petitioners are confined to Renapur Police Station. In support of said contention, learned counsel for petitioners pressed into service the exposition of law in the case of Balu Shivling Dombe vs. The Divisional Magistrate Pandharpur, reported in 1969 Mh.L.J. 387. 8. He further submits that though the appellate authority modified the order passed by the respondent No.4, nevertheless, did not take into consideration, the aforementioned legal aspects and by cryptic reasons, passed the impugned orders, thereby confined the effect and operation of the externment orders within the jurisdiction of Latur District. 9. On the other hand, learned APP, relying upon the original record submits that, as a matter of fact, in-camera statement of one of the witnesses was recorded on 14th August, 2016. However, he fairly concedes that there is no mention in the show cause notice issued to the petitioners that the witnesses are not coming forward to depose against the petitioners, out of fear to their person or property. He further submits that activities of the petitioners are causing danger to the public order. They are involved in serious offences, even assaulting police officers and, therefore, the order of externment of petitioners is justified in the peculiar facts of this case. He further submits that activities of the petitioners are causing danger to the public order. They are involved in serious offences, even assaulting police officers and, therefore, the order of externment of petitioners is justified in the peculiar facts of this case. Therefore, he submits that the petitions may be rejected. 10. We have carefully considered the submission of the learned counsel for the petitioners and learned APP appearing for the State; and with their able assistance carefully perused the grounds taken in the petition, annexures thereto, reasons assigned by the respondent Nos.2 and 4 in the impugned judgment and order and also the original record made available for perusal of this Court. Upon careful perusal of the contents of the show cause notices, it is abundantly clear that there is no mention that witness are not coming forward to depose against the petitioners by reason of apprehension on their part as regards the safety of their person or property. The Division Bench of the Bombay High Court, at the Principal Seat in the case of Yashwant Damodar Patil Vs. Hemant Karkare (supra) while explaining the scope of interpreting the provisions of Section 56(1)(a), in para.3, held thus :- “3. Section 56 (i) of the Bombay Police Act visualises three situations in which the order of externment could be passed by the designated officer. We will, however, ignore, for the purpose of the disposal of this petition the third type of situation and only analyse the two situations which are covered by Clauses (a) and (b) of section 56 (i) of the Act. An order of externment can be passed against a person whose movements or acts are causing or calculated to cause alarm, danger or harm to person or property. That is what is provided in clause (a). The order of externment can also be passed against a person if there are reasonable grounds for believing that such a person is engaged or is about to be engaged in the commission of an offence involving force or violence. It is so provided in the first part of clause (b) of section 56 (i) of the Act. An order of externment can also be passed against a person if that person is engaged or about to be engaged in the commission of an offence punishable under Chapter XII, of Chapter XVI, or Chapter XVII of the Indian Penal Code. It is so provided in the first part of clause (b) of section 56 (i) of the Act. An order of externment can also be passed against a person if that person is engaged or about to be engaged in the commission of an offence punishable under Chapter XII, of Chapter XVI, or Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause (b) of section 56 (i) of the Act. But it is not enough that these conditions alone are satisfied. In addition to this the designated officer should be of the opinion that witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property.” 11. Even upon careful perusal of the orders passed by the respondent No.4, only it is mentioned that witnesses are not coming forward, however, there is no reference that, as a matter fact, respondent No.4 recorded statement of one of the witnesses and gist of the statements of said witness is taken. Therefore, it is abundantly clear from reading para.3 of the judgment in the case of Yashwant Damodar Patil vs. Hemant Karkare (supra) , that the mandate of Section 56(1)(a)(b) to record the incamera statements of the witnesses so as to ascertain that the witnesses are not coming forward to depose against the proposed externees, out of fear to property or person, is necessary to be mentioned in the show cause notices and also in the orders of externment. However, the said mandate of the aforementioned provisions has not been made in the facts of the present cases. 12. We find considerable force in the submissions of the counsel appearing for the petitioners that respondent No.4 has not assigned any reasons, why externment of the petitioners was warranted from Osmanabad and Beed Districts. Upon careful perusal of the reasons assigned by respondent Nos.2 and 4, in the impugned orders, we find that there is no discussion, why the externment of the petitioners was warranted from Beed and Osmanabad Districts when the alleged activities of the petitioners are confined within the jurisdiction of Renapur Police Station of Latur District. 13. Upon careful perusal of the reasons assigned by respondent Nos.2 and 4, in the impugned orders, we find that there is no discussion, why the externment of the petitioners was warranted from Beed and Osmanabad Districts when the alleged activities of the petitioners are confined within the jurisdiction of Renapur Police Station of Latur District. 13. In the light of the discussion in foregoing paragraphs, inevitable conclusion is that, subjective satisfaction arrived at by the respondent No.4 while passing the order of externment stood vitiated. Consequently, the impugned orders externing the petitioners from Latur District and also other two Districts, namely, Beed and Osmanabad, are not legally sustainable. Respondent No.2 did not consider the legal aspects of the matter and with cryptic reasons modified the orders passed by the respondent No.4 and confined the enforcement of Externment Orders only in Latur District. 14. For the aforesaid reasons, we are inclined to allow these writ petitions. Accordingly, writ petitions are allowed. The impugned orders dated 12th August, 2016 and 23rd September, 2016 are quashed and set aside. Petitions are disposed of in above terms.