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2019 DIGILAW 214 (BOM)

Abhijit v. State of Maharashtra

2019-01-24

R.G.AVACHAT, S.S.SHINDE

body2019
JUDGMENT : S.S. Shinde, J. 1. Rule. Rule made returnable forthwith, and heard finally with the consent of the parties. 2. This Petition takes exception to the impugned order of externment dated 25th September, 2017 passed by Respondent No. 3, and confirmed by Respondent No. 2, vide order dated 23rd March, 2018, thereby externing the petitioner from Nanded and Yawatmal districts for a period of one year. 3. It is the case of the petitioner that the petitioner is a labourer and doing labour work. On 15th September, 2017, the petitioner received the show-cause notice, thereby intimating him to remain present before Respondent No. 3 on 25th September, 2017, on account of externment proceedings initiated by Respondent Nos. 4 and 5 under Section 56(b) of the Maharashtra Police Act, 1951. Respondent No. 3 thereafter without giving any opportunity of hearing to the petitioner, has passed the impugned order dated 25th September, 2017, thereby externing the petitioner from Nanded and Yawatmal districts for a period of one year. The petitioner therefore filed appeal before Respondent No. 2 challenging the order dated 25th September, 2017 passed by Respondent No. 3. Respondent No. 2 vide its order dated 23rd March, 2018, has dismissed the appeal filed by the petitioner and confirmed the order dated 25th September, 2017, passed by Respondent No. 3. Hence this Writ Petition. 4. Learned counsel appearing for the petitioner submits that though the petitioner is acquitted of from some of the offences which are mentioned in the impugned orders, both the authorities have not considered the said acquittal, and treated the said offences as pending. It is submitted that though there is casual reference to in-camera statements of the witnesses, however, there is no discussion in both the orders. It is further submitted that the order of externment of the petitioner from Yawatmal district is excessive, in as much as, all the offences registered against the petitioner are with Mandvi Police Station, Tq. Kinwat, Dist. Nanded. Learned counsel invites our attention to the grounds taken in the Petition, annexures thereto and submits that the Petition deserves to be allowed. 5. On the other hand, learned A.P.P. appearing for the respondent/State, relying upon the reasons assigned in the impugned orders, submits that both the authorities have kept in view the record of the petitioner and also the material collected during the course of enquiry and passed the impugned orders. 6. 5. On the other hand, learned A.P.P. appearing for the respondent/State, relying upon the reasons assigned in the impugned orders, submits that both the authorities have kept in view the record of the petitioner and also the material collected during the course of enquiry and passed the impugned orders. 6. We have given careful consideration to the rival submissions advanced by learned counsel appearing for the petitioner, and learned APP appearing for the respondent/State. With their able assistance, we have carefully perused the grounds taken in the petition and annexures thereto. 7. We have carefully perused the reasons assigned in the orders passed by the Sub-Divisional Magistrate and also by the Divisional Commissioner. Though there is a casual reference to in-camera statements recorded, nevertheless it is not clear what those witnesses have stated. The Respondents have also not made available original record for perusal of this Court, inspite of sufficient time granted to them. Therefore, the allegations/contentions made in the Petition by the petitioner remained uncontroverted. It was incumbent upon both the authorities, at least, to refer to the gist of such statements of the witnesses recorded in-camera. It is true that the names of the witnesses need not be disclosed, but the authorities ought to have treated those names as "A", "B", "C" etc. However, mere causal reference to such statements is not keeping inconformity with the relevant procedure. 8. Secondly, both the authorities have not seriously considered the effect of acquittal of the petitioner from some of the alleged offences, which are mentioned in the impugned orders. It appears from the copies of the judgments placed on record by the petitioner that even before initiating the externment proceedings against the petitioner, he was acquitted of from some of the offences. However, it appears from the discussion in the impugned orders that those offences have been considered/treated as pending against the petitioner. 9. Thirdly, there is no strict compliance of mandate of provisions of Section 56(1)(b) of the Maharashtra Police Act. Fourthly, there is no discussion in the impugned orders about, why the externment of the petitioner from Yevatmal district is necessary. 9. Thirdly, there is no strict compliance of mandate of provisions of Section 56(1)(b) of the Maharashtra Police Act. Fourthly, there is no discussion in the impugned orders about, why the externment of the petitioner from Yevatmal district is necessary. It is true that if there is material surfaced on record during the course of enquiry and externment of the proposed externee is necessary from the revenue boundaries of the adjoining districts, the authorities can pass such orders, however, the authorities are legally obliged to assign reasons for such externment from the adjoining districts. It appears that all the offences are registered with Mandvi Police Station, which situates in Nanded district. 10. The Supreme Court in the case of Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra AIR 1973 SC 630 , held that, proposed externee is entitled, before an order of externment is passed under Section 56, to know the material allegations against him and general nature of those allegations. 11. At this juncture, it would be apt to make reference to the provisions of Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, which reads thus:- 56. Removal of persons about to commit offence (1).... (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer 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, or [Underlines are added] 12. Upon careful perusal of the aforesaid provisions, 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 as provided in clause (a). Upon careful perusal of the aforesaid provisions, 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 as 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 as provided in clause (b), 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, or Chapter XVI, or Chapter XVII of the Indian Penal Code. But in addition to the above, the concerned Officer, who is dealing externment proceedings, should be of the opinion that the 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. Keeping in view the above legal position, it was incumbent upon respondent no. 3, who dealt with an externment proceedings, to arrive at the opinion that the 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. 13. The Division Bench of the' Bombay High Court [at Principal seat] in the case of Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police & another, 1989 (3) Bom.C.R. 240 had occasion to consider the scope of provisions of Section 56[1][a] and [b] of the Bombay Police Act. It would be gainful to reproduce herein below para 3 of the said judgment:- 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. 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. 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. [Underlines added] 14. In the present case also Respondent No. 3 has not arrived at definite opinion/subjective satisfaction 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 safety of their person or property. Upon careful perusal of the offences registered against the petitioner, it is abundantly clear that all offences have been registered at Mandvi Police Station, Taluka Kinwat, District Nanded. Upon careful perusal of the discussion in the impugned order of respondent no. 3, there are no specific reasons assigned for the externment of the petitioner from Yawatmal district. 15. In that view of the matter, we are of the considered view that, the impugned orders passed by respondent nos. 2 and 3 cannot legally sustain, hence those orders are quashed and set aside. Rule is made absolute on above terms. The petition stands disposed of accordingly. No order as to costs.