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2017 DIGILAW 278 (BOM)

Nitin s/o Manohar Kakade v. State of Maharashtra

2017-02-09

K.K.SONAWANE, S.S.SHINDE

body2017
JUDGMENT S.S. Shinde, J.(Oral) Heard. Rule. Rule made returnable and heard forthwith with the consent of the learned Counsels for the parties. 2. This Writ Petition under Articles 226 and 227 of the Constitution of India is filed by the petitioner with following prayer: "A. For a writ of certiorari, Order or direction in the nature of certiorari calling for the record and proceeding of the Order dated 25.01.2017 ( Exhibit "L") passed by learned Divisional Commissioner, Nashik Division, Nashik, in Externment Appeal No. 4/2017 thereby modifying order dated 12.01.2017 passed by respondent no.3 in Externment Case No. SR-6/2016 and after examining the legality, validity and propriety thereof, Order dated 25.01.2017 (Exhibit "L") passed by learned Divisional Commissioner, Nashik Division, Nashik in Externment Appeal No. 4/2017 thereby modifying order dated 12.1.2017 passed by respondent no.3 in Externment Case No. SR-6/2016 be quashed and set aside. " 3. It is the case of the petitioner that when the elections of Zilla Parishad, Ahmednagar, were scheduled in the year 2012, at that time also, out of political rivalry, with the help of Police, and the Revenue authorities, externment proceedings were initiated against the present petitioner and the petitioner was externed for three months from Ahmednagar, Beed and Aurangabad district. Aggrieved by the order of an externment, the petitioner filed Writ Petition No. 524/2012 (Nitin s/o Manohar Kakade and others v. The State of Maharashtra and others). In the said Writ Petition, the High Court was pleased to quash and set aside the order of externment. 4. It is further the case of the petitioner that since the elections to the Zilla Parishad and Panchayat Samiti are due to be held in the month of February, 2017, certain political rivals of the petitioner were instrumental in initiating the externment proceedings so as to deprive the petitioner from contesting the elections of the Zilla Parishad. 5. On 6th October, 2016, respondent no.4 submitted proposal for externment of the petitioner from three districts. Respondent no.3 issued the show cause notice to the petitioner on 1st of November, 2016, seeking his response; why he should not be externed from five districts. The petitioner filed reply to the said show cause notice. Respondent no.3 passed the order of externing the petitioner from Shevgaon, Pathardi Newasa, Shirur Kasar, Georai and Paithan Taluka of three districts i.e. Ahmednagar, Beed, and Aurangabad, for a period of two years. 6. The petitioner filed reply to the said show cause notice. Respondent no.3 passed the order of externing the petitioner from Shevgaon, Pathardi Newasa, Shirur Kasar, Georai and Paithan Taluka of three districts i.e. Ahmednagar, Beed, and Aurangabad, for a period of two years. 6. Being aggrieved by the order passed by respondent no.3 on 12th January, 2017, the petitioner filed appeal before respondent no.2. Respondent no.2, by order dated 25th January, 2017, modified the order passed by respondent no.3, and the externment of the petitioner is restricted to the extent of two talukas i.e. Shevgaon and Pathardi, district Ahmednagar. Hence, this petition. 7. On 31st of January, 2017, this Court was pleased to issue notices to the respondents. Pursuant to the notices issued to the respondents, learned A.P.P. has procured the original record and the same is made available for perusal of this Court. 8. Mr. V.J. Dixit, Learned Senior Counsel appearing for the petitioner, invited our attention to the show cause notice issued to the petitioner and submits that though respondent no.4, in his proposal for initiating the externment proceedings against the petitioner, mentioned about the proposed externment of the petitioner from three districts i.e. Beed, Ahmednagar and Aurangabad, while issuing show cause notice, respondent no.3 mentioned five districts in the said show cause notice i.e. Beed, Ahmednagar, Aurangabad, Nashik and Sholapur. Learned Senior Counsel further submitted that, when respondent no.3 was considering/dealing with the externment proceedings initiated on the basis of the proposal submitted by respondent no.4, there was no question of mentioning Sholapur and Nashik districts in the show cause notice. He further submits that, respondent no.3, in the final order externing the petitioner from three districts, has made reference to the statements of the witnesses recorded in camera, however, there is no reference to the said statements in the show cause notice issued by respondent no.3. Learned Senior Counsel submits that, merely because the petitioner is convicted in one offence, which is mentioned in the show cause notice, is no ground to pass the order of an externment. He further submits that, in order to satisfy the requirement under the relevant provisions of the Maharashtra Police Act, an empowered officer must have reason to believe that such person is likely again to engage himself in the commission of a similar offence. He further submits that, in order to satisfy the requirement under the relevant provisions of the Maharashtra Police Act, an empowered officer must have reason to believe that such person is likely again to engage himself in the commission of a similar offence. At the cost of repetition, he submits that there is no reference to the in camera statements being recorded by respondent no.3 in the show cause notice. He further submits that there are no specific reasons assigned in the impugned order passed by respondent no.3, stating that the externment of the petitioner is necessary/warranted from three districts. In his submission, the order is excessive and, therefore, it has to be quashed in its entirety. He submits that though the appellate authority has modified the order passed by respondent no.3, nevertheless, legal provisions which were pressed into service by the petitioner are not considered. There is no mention in the show cause notice about recording of in camera statements of the witnesses by respondent no.3; the appellate authority was bound to consider the said contentions. However, the appellate authority has not properly appreciated the said contentions and instead of quashing the order passed by respondent no.3, in its entirety, has modified the same and it is restricted to two talukas i.e. Shevgaon and Pathardi. It is submitted that, there is no any offence registered in Pathardi taluka against the petitioner and, therefore, there was no reason to hold that the externment of the petitioner is warranted from Pathardi taluka. He further submits that there is no application of mind on the part of respondent no.3 inasmuch as when the show cause notice was issued by respondent no.3, the provisions of Section 57 (1)(a) (b) were mentioned, however, when the final order is passed by respondent no.3, the provisions of Section 57 (a) (1) find mention in the order; that also is indicative of the fact that there is non application of mind on the part of the respondent no.3. It is submitted that by way of passing an order of externment of the petitioner from three districts, respondent no.3 had curtailed the fundamental right of the petitioner to stay/reside at his native place and, therefore, the petition deserves to be allowed. 9. It is submitted that by way of passing an order of externment of the petitioner from three districts, respondent no.3 had curtailed the fundamental right of the petitioner to stay/reside at his native place and, therefore, the petition deserves to be allowed. 9. In support of his contention that the order passed by respondent no.3 is excessive and, therefore, same deserves to be quashed in its entirety, learned Senior Counsel placed reliance on an unreported judgment of the Division Bench of this Court in Writ Petition No. 367 of 2014, dated 30th September, 2014 (Coram: S.S. Shinde & V.L. Achliya, JJ.) (Aurangabad Bench) and also in the case of Iqbaluddin Ziauddin Pirzade v. State of Maharashtra and others (2015 (2) Bom.C.R. (Cri.) 464). He further placed reliance on un-reported judgment of the Division Bench of this Court at Nagpur Bench in the case of Shaikh Mukhtyar s/o Mustafa Shaikh v. The State of Maharashtra and others (Coram: B.P.Dharmadhikari & A.S.Chandurkar, JJ) (Criminal Writ Petition No. 317/2016), and in particular paragraph nos. 4 and 9 thereof, and submitted that in the facts of that case also, there was reference of recording of secret statements in the final order passed by the authority externing the petitioners therein from the particular area, however, there was no reference of recording of said secret statements in the show cause notice which was issued to the petitioners therein and, therefore, a view was taken by the High Court that the relevant material available with the authorities was not taken into consideration before directing externment of the petitioner therein. 10. Learned Senior Counsel invites our attention to paragraph no.9 of the aforesaid judgment and submits that, it is observed in the said paragraph that non mentioning of the recording of secret statements in the show cause notice resulted in vitiating the impugned order of externment of the petitioner therein. 10. Learned Senior Counsel invites our attention to paragraph no.9 of the aforesaid judgment and submits that, it is observed in the said paragraph that non mentioning of the recording of secret statements in the show cause notice resulted in vitiating the impugned order of externment of the petitioner therein. The learned Senior Counsel further pressed into service the exposition of law in the case of Ratan Singh Ramsingh Rajput v. M.V. Chitale and another reported in 1986 (3) Bom.C.R. 709 , and submitted that two requirements have to be fulfilled; firstly, there must be a conviction or convictions for an offence mentioned in the relevant clauses of the Section and, secondly, the externing authority should have reason to believe that the proposed externee is likely again to engage himself in the commission of an offense similar to that for which he was convicted. He further placed reliance on the ratio laid down in the case of Rameshchandra v. The State (AIR 1955 Bom.346) in support of his contention that once the petitioner was convicted for the offence punishable under the Indian Penal Code, relying upon the said conviction, his externment cannot be ordered; otherwise, it will amount to double jeopardy in violation of provisions of Article 20 of the Constitution of India. Therefore, he submits that the petition may be allowed. 11. On the other hand, learned A.P.P. appearing for the State, relying upon the original record maintained by the respondents and in particular, the contents of the show cause notice, reasons assigned by respondent no.3 and 4 in the impugned orders, and also the provisions of Section 57 (1) (a) of the said Act, submits that respondent nos. 2 and 3 have considered all the legal aspects. He further submits that, recording in camera statements of the witnesses and making reference of those statements in the show cause notice is not the mandate of the provisions of Section 57(1)(a) of the said Act. Therefore, he submits that there is no substance in the argument of the learned Senior Counsel appearing for the petitioner that it is necessary for the authority to get subjectively satisfied by recording statements of the witnesses that petitioner is likely again to engage himself in the commission of an offence similar to that for which he was convicted. Therefore, he submits that there is no substance in the argument of the learned Senior Counsel appearing for the petitioner that it is necessary for the authority to get subjectively satisfied by recording statements of the witnesses that petitioner is likely again to engage himself in the commission of an offence similar to that for which he was convicted. Therefore, he submits that the writ petition is devoid of any merits and the same may be rejected. 12. We have considered the submissions of learned Counsel appearing for the petitioner and learned A.P.P. appearing for the State at length and with their able assistance, carefully taken into consideration the grounds raised in the petition, annexures thereto, the contents of the proposal submitted by respondent no.4 for initiating an externment proceedings against the petitioner to respondent no.3, the show cause notice issued by respondent no.3 and also the impugned order passed by him and the order passed by the appellate authority and the original record of the case. Upon careful perusal of the proposal submitted by respondent no.4, it is abundantly clear that respondent no.4 proposed the externment of the petitioner from three districts i.e. Ahmednagar, Aurangabad and Beed. In the said proposal there is a mention of Section 57 1(a) (b) of the said Act. Upon careful perusal of the show cause notice, it is mentioned that, why the petitioner should not be externed from Ahmednagar, Beed, Aurangabad, Nashik and Sholapur districts. In fact, when the proposal was submitted by respondent no.4, after inquiry for initiation of the externment proceedings against the petitioner to respondent no.3, respondent no.3 has to restrict scope of the said proceedings keeping in view and in conformity with the proposal submitted by respondent no.4. It is also not clear from the contents of the show cause notice that why respondent no.3 felt it necessary to issue show cause notice for externment of the petitioner from Nashik and Sholapur districts. Therefore, it clearly indicates the non application of mind of respondent no.3 to the proceedings which were initiated on the proposal submitted by respondent no.4. In the impugned order passed by the respondent No. 3 there is also reference to the statements of witnesses A and B recorded by said authority. However, admittedly, there is no reference of recording of statements of witnesses in the show cause notice. In the impugned order passed by the respondent No. 3 there is also reference to the statements of witnesses A and B recorded by said authority. However, admittedly, there is no reference of recording of statements of witnesses in the show cause notice. The Division Bench of the Bombay High Court, Bench at Nagpur, had occasion to consider the similar argument while considering scope of provisions of Section 56 (1)((a) of the said Act. It would be gainful to reproduce here-in-below paragraph nos. 4, 9 and 10 of the judgment in the case of Shaikh Mukhtyar s/o Mustafa Shaikh (cited supra), which read thus: "4. Learned counsel Shri A.K. Waghmare for the petitioner submitted that the impugned order indicated non-application of mind on the part of the Externing Authority. He submitted that out of the five offences that were referred to in the show cause notice, the petitioner had been acquitted in two of the offences. Though it was stated in the order of externment that the aforesaid offences had been excluded from consideration by the Externing Authority, it has been stated in the impugned order that the petitioner had been indulging in such activities since the year 2001 onwards. It was then submitted that though in the show cause notice there is no reference to recording of secret statements, the reference to secret statements finds place in the impugned order. Further in the impugned order it has been vaguely stated that the witnesses were not willing to come forward to make any complaint. He then submitted that the last offence relating to the year 2015 pertains to a petty offence in which no charge-sheet has been filed even till date. He, therefore, submitted that the impugned order was liable to be set aside. 9. In the impugned order, there is a reference to certain secret statements that have been recorded by the Authorities on the basis of which the order of externment came to be issued. However, the show cause notice does not refer to any such secret statement on the basis of which the petitioner was asked to show cause for his proposed externment. This aspect has resulted in vitiating the impugned order. However, the show cause notice does not refer to any such secret statement on the basis of which the petitioner was asked to show cause for his proposed externment. This aspect has resulted in vitiating the impugned order. It is also to be noted that when the intervenors, who are six in numbers, have come up with the specific grievance that they had lodged reports against the petitioner, the show cause notice does not indicate that the Authorities have sought to rely upon these statements made by the intervenors while seeking to extern the petitioner. It is thus apparent that relevant material available with the Authorities has also not been taken into consideration before directing externment of the petitioner. 10. Another aspect to be taken into consideration is, that the show cause notice indicates five offences being registered in Ambazari Police Station against the petitioner. The order of externment, however, relates to the entire area of the Commissionerate at Nagpur. The impugned order does not indicate any such reason as to why the petitioner was required to be externed from the entire area of the Commissionerate at Nagpur in the backdrop of the show cause notice referring only to five offences pertaining to Ambazari Police Station. To that extent, the impugned order is excessive in nature." (Underlines are added) In para 4 of the said judgment, the Division Bench has considered the submission of the Counsel appearing for the petitioner therein that though in the show cause notice there is no reference to recording of secret statements of the witnesses, the reference to secret statements finds place in the impugned order. The Division Bench appreciated the said argument and recorded its conclusion in para 9 reproduced herein above. 13. It is true that, on plain reading of provisions of Section 57 (1) (a) of the said Act, it is not mentioned in the said provision that, for the authority to arrive at the subjective satisfaction, it is necessary to record the statements of the witnesses. Even on plain reading of Section 56 (1) (a) of the said Act, there is no provision that the authority should record in camera statements of the witnesses so as to satisfy itself before passing the externment order that, the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property. Even on plain reading of Section 56 (1) (a) of the said Act, there is no provision that the authority should record in camera statements of the witnesses so as to satisfy itself before passing the externment order that, the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property. However, as already observed, the Nagpur Bench, in the case of Shaikh Mukhtyar s/o Mustafa Shaikh (cited supra), has taken a view that in case the secret statements of which reference is made in the order of externment are not mentioned in the show cause notice, in that case, the said lapse resulted in vitiating the order of externment. 14. It is imperative to take into consideration that for passing an externment order under Section 57, it is not enough that the externee is convicted for the offences mentioned in the sub-section (1) thereof but the externing authority must, in addition, should consider the material indicating repetition of the activities on the part of the externee after the conviction similar to that for which he was convicted. The recurrence of activities of the externee must further be of such nature as should reasonably give rise to the belief that the person concerned is likely again engage himself in the commission of similar offence. In absence of these sort of further material and reasonable belief, the externing authority cannot pass and also is not empowered to pass an order of externment by exercising the powers under Section 57(1) of the Maharashtra Police Act. 15. In the instant case, the externee has been convicted in a criminal case on 20.8.2015 by the concerned Court for offences committed against human body. But, there are no any material produced on record to show that after conviction, once again, the externee indulged in such activities of similar nature which would constrain the externing authority to initiate proceedings against him. The law postulates that the externing authority is required to take into consideration the present tendency of the person against whom action is proposed to be taken under Section 57 of the Maharashtra Police Act. The law postulates that the externing authority is required to take into consideration the present tendency of the person against whom action is proposed to be taken under Section 57 of the Maharashtra Police Act. It is essential to ascertain whether there is a reasonable belief that a person is likely to engage himself in the commission of an offence similar to those described in clause (a), (b) and (e) of Section 57 and, thereafter, the externing authority must ascertain whether the person has been previously convicted of the specified offences. Therefore, the mere conviction of the externee for offence of condition precedent stipulated under Section 57 does not itself empower the externing authority to proceed further to curtail the fundamental right of the externee. There is no material on record to point out that after the alleged conviction awarded in the month of August, 2015 by the Criminal Court, the externee once again indulged in the activities similar in nature of which he has been convicted by the Criminal Court. This sort of lacuna also created serious flaw in the impugned order passed by the externing authority. 16. Respondent no.3 has passed the order of externment externing the petitioner from three districts. It is true that, to some extent, the reasons are assigned by respondent no.3 in the impugned order, however, why the externment of the petitioner was warranted from Beed and Aurangabad districts, is not specifically stated. We find considerable force in the submission of the learned Counsel for the petitioner that the order passed by respondent no.3 was excessive inasmuch as the offences registered against the petitioner are at Police Station Bodhegaon in Shevgaon taluka. It is true that the appellate authority, while modifying the order passed by respondent no.3 has restricted the effect, operation and implementation of the order of externment to Pathardi and Shevgaon talukas, however, on careful perusal of the reasons assigned by respondent no.2 i.e. the appellate authority, it is abundantly clear that the appellate authority has not considered effect of not mentioning the recording of statements of the witnesses in the show cause notice. Article 19 of the Constitution of India confers fundamental right on the citizens to move from one place to another and reside at his place of choice. By passing the order of externment, such right gets curtailed. Article 19 of the Constitution of India confers fundamental right on the citizens to move from one place to another and reside at his place of choice. By passing the order of externment, such right gets curtailed. Therefore, whenever there are cases of externment or detention, as the case may be, the concerned authorities are bound to adhere to the provisions of the Act and also the various pronouncements of the High Court and the Supreme Court on interpretation of the provisions of the said Act. It is necessary for the authority to arrive at subjective satisfaction on the basis of material collected during the inquiry and after seeking response of the proposed externee, however, as already observed, respondent no.3, without assigning any reason, issued the show cause notice mentioning therein that why the petitioner should not be externed from five districts though the proposal submitted by respondent no.4 mentions only three districts. Apart from it, so far as the externment of the petitioner from other two districts i.e. Beed district and Aurangabad is concerned, no justifiable or sound reasons have been recorded by respondent no.3. As already observed, the appellate authority did not consider the legal aspects and proceeded to modify the order, making it enforceable in Pathardi and Shevgaon talukas. 17. As already observed, respondent no.3 at one place has also mentioned the provisions of Section 57 (1) (b) of the said Act. In fact, the mandate of the said Section is that there should be registration of offence under the Bombay Prohibition Act. 18. Once we hold that there was non application of mind on the part of respondent no.3 while dealing with the proceedings of externment, the said point goes to the root of the matter and, therefore, the order of externment passed by respondent no.3 stands vitiated. Consequently, the inevitable conclusion is that the impugned orders passed by respondent no.3 and respondent no.2 are not legally sustainable and, therefore, the petition deserves to be allowed and is accordingly allowed in terms of prayer clause A. The orders impugned in the present petition are quashed and set aside. Rule made absolute in above terms. The Criminal Writ Petition is allowed and the same stands disposed of. Petition allowed.