Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 683 (BOM)

Prasad v. State of Maharashtra

2019-03-07

R.G.AVACHAT, S.S.SHINDE

body2019
JUDGMENT : S.S. Shinde, J. 1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. This petition takes exception to the order dated 31.10.2018 passed by the Sub-Divisional Magistrate, Shrirampur Division, Shrirampur, Dist. Ahmednagar in Externment Proposal No. 8 of 2018, confirmed by the Divisional Commissioner, Nashik Division, Nashik in Externment Appeal No. 77 of 2018 by order dated 08.02.2019. 3. It is the case of the petitioner that he is resident of village Belapur. He is doing part-time business so as to cater financial need of his family. He is also a social activist of Bajarang Dal and helping needy and poor people of the Society. 4. It appears that the Sub-Divisional Police Officer, Shrirampur, issued notice on 26.06.2018 to the petitioner, calling him to explain as to why he should not be externed from the revenue boundaries of Districts Ahmednagar, Aurangabad, Pune, Nashik and Beed for two years, as four criminal cases and two chapter cases are pending against him. The petitioner has become threat to the Society and due to his alleged illegal activities in and around Shrirampur city, witnesses are not coming forward to depose against the him due to his fear to their person and properties. The notice contained details about the alleged activities and the crimes registered against the petitioner. It is mentioned that the following offences are pending against the petitioner:- 1 Shrirampur City 1-191/2013 143, 147, 148, 149, 323, 504, 506 of I.P.C. and Section 1(3) of B.P. Act. Acquitted 2 Rahata 1-79/2016 452, 504, 506 of I.P.C. Pending 3 Shrirampur City 1-148/2017 143, 147, 148, 323, 504, 506 of I.P.C. Acquitted 4 Shrirampur City 1-36/2018 323 and 504 I.P.C. Pending 5. The petitioner filed reply on 21.07.2018 to the notice dated 26.06.2018 issued by the Sub-Divisional Police Officer, Shrirampur. The Sub-Divisional Police Officer, after receipt of the reply from the petitioner, prepared a report and submitted it to respondent no. 3 - Sub-Divisional Magistrate, Shrirampur Division, Shrirampur, on 27.08.2018. The Sub- Divisional Magistrate, Shrirampur, after issuing notice to the petitioner and the respondents/authorities and after conducting full-fledge hearing in the matter, passed the order dated 31.10.2018, thereby externing the petitioner only from Ahmednagar District. 6. The petitioner, being aggrieved by the order passed by respondent no. 3 Sub-Divisional Magistrate, Shrirampur, filed appeal before respondent no. 2-Divisional Commissioner, Nashik Division, Nashik. 6. The petitioner, being aggrieved by the order passed by respondent no. 3 Sub-Divisional Magistrate, Shrirampur, filed appeal before respondent no. 2-Divisional Commissioner, Nashik Division, Nashik. The appellate authority i.e. the Divisional Commissioner, Nashik, after offering an opportunity of hearing to the petitioner and also the respondents/ authorities, dismissed the appeal filed by the petitioner. Hence, this Writ Petition. 7. Learned Counsel for the petitioner submits that the order passed by the Sub-Divisional Magistrate is excessive inasmuch as the alleged activities against the petitioner and the offences registered against the petitioner are in two police stations only i.e. Rahata Police Station and Shrirampur Police Station. It is submitted that when the alleged activities of the petitioner were confined to the afore-mentioned two police stations, there was no need to extern the petitioner from the entire Ahmednagar District. He submits that, though it is stated in the show-cause notice issued by the Sub-Divisional Police Officer, Shrirampur that the witnesses are not coming forward to depose against the petitioner, the gist of the alleged statements of the witnesses recorded in-camera were not mentioned/produced in the show-cause notice. He further submits that out of the four crimes, which have been mentioned in the show-cause notice by the Sub-Divisional Police Officer, Shrirampur, the petitioner was acquitted from two cases even prior to issuance of such show-cause notice. He submits that in the impugned order, there is no discussion about the live-link between the alleged offences and initiation of the externment proceedings by the respondent/ authorities. Learned Counsel submits that the chapter cases pending against the petitioner, cannot be made basis for initiation of the externment proceeding against him. It is further submitted that neither in the order of the Sub-Divisional Magistrate nor in the order passed by the appellate authority, there is elaborate reference to the gist of the statements of the witnesses recorded in-camera and therefore, keeping in view the mandate of the provisions of Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 ("the Act" for short) the order of externment suffers from non-application of mind. 8. 8. Learned Counsel for the petitioner also invites our attention to the order passed by the appellate authority and submitted that though the appellate authority has made a reference to recording of the in-camera statements and said statements were available in the record submitted by the office of Sub-Divisional Magistrate, those statements were not perused by the appellate authority. In support of the aforesaid submissions, learned Counsel for the petitioner placed reliance on following judgments:- (i) Pandharinath Shridhar Rangnekar vs. Dy. Commissioner of Police, State of Maharashtra, 1973 Mh. L.J. 413 (ii) Yashwant Damodar Patil vs. Hemant Karkare, Deputy Commissioner of Police, Thane and Another, 1989 Mh. L.J. 1111 (iii) Ajay @ Golu Shyam Solanki vs. State of Maharashtra and Others, 2019 All MR (Cri.) 702 (iv) Sayeed Firoz S/o Sayeed Noor vs. State of Maharashtra, 2016 All MR (Cri.) 3410 (v) Unreported judgment in the case of Ananda S/o Budha Hatkar vs. State of Maharashtra and Others, Criminal Writ Petition No. 477 of 2018, dated 06.08.2018. Learned Counsel for the petitioner ultimately prayed that the petition may be allowed. 9. On the other hand, learned APP for the State and its officials, relying on the averments in the affidavit-in-reply filed on behalf of the respondents, submits that proper procedure was followed by the respondents/authorities. Show-cause notice was issued to the petitioner and pursuant to the receipt of the reply from the petitioner, a proposal was prepared by the Sub-Divisional Police Officer, Shrirampur and submitted to the Sub-Divisional Magistrate, Shrirampur. Learned APP, inviting our attention to the reasons recorded by the Sub- Divisional Magistrate in the impugned order, submits that that there is a reference to the in-camera statements of the witnesses and that also it was mentioned that the witnesses are not coming forward to depose against the petitioner due to his fear to their person and properties. Learned APP submits that the mandate of Section 56(1)(a)(b) of the Act, has been met with and therefore, interference in the concurrent findings of respondent nos. 2 and 3, is not warranted. He submits that though, initially, notice was issued to the petitioner calling him to show cause as to why he should not be externed from Ahmednagar, Aurangabad, Pune, Nashik and Beed districts, respondent no. 3, passed the order externing the petitioner from revenue boundaries of Ahmednagar district only. 2 and 3, is not warranted. He submits that though, initially, notice was issued to the petitioner calling him to show cause as to why he should not be externed from Ahmednagar, Aurangabad, Pune, Nashik and Beed districts, respondent no. 3, passed the order externing the petitioner from revenue boundaries of Ahmednagar district only. The alleged activities of the petitioner are registered through two police stations namely i.e. Rahata Police Station and Shrirampur Police Station. Therefore, the petitioner has been rightly externed from the boundaries of Ahmednagar district. Learned APP, therefore, prays that the Writ Petition may be rejected. 10. We have given careful consideration to the submissions of learned Counsel for the petitioner and learned APP for the respondents. With their able assistance, we have carefully perused the pleadings and grounds taken in the petition, annexure thereto, the contents of the show-cause notice issued to the petitioner and the orders passed by respondent nos. 2 and 3 thereby externing the petitioner from the revenue boundaries of Ahmednagar district. 11. Upon careful perusal of the show-cause notice issued by the Sub-Divisional Police Officer, Shrirampur to the petitioner, it appears that no gist of the statements of the witnesses recorded in-camera is mentioned. It is only mentioned that the witnesses are not coming forward to depose against the petitioner. Keeping in view the mandate of the provisions of Section 56(1)(a)(b) of the Act and also exposition of law laid down by the Hon'ble Supreme Court in the cases of Pandharinath Rangnekar (supra) and Yashwant Patil (supra) and unreported judgment in the case of Ananda Budha Hatkar (supra), it was necessary and incumbent upon the respondents/ authorities to mention about general nature of the allegations against the petitioner and in particular, in brief, the gist of the statements of the witnesses recorded in-camera. However, such mandate is not adhered to by respondent no. 4, while issuing the show-cause notice to the petitioner. 12. Upon careful perusal of the reasons assigned by the Sub-Divisional Magistrate, Shrirampur, it is clear that the gist of the in-camera statements of the witnesses is not reproduced or there is no discussion at least, in brief, of what has been stated by those witnesses. There is only one sentence that due to the fear of the petitioner, there is threat to the life and properties of the citizens residing in and around Shrirampur city. There is only one sentence that due to the fear of the petitioner, there is threat to the life and properties of the citizens residing in and around Shrirampur city. The Division Bench of this Court in the case of Anand Budha Hatkar (supra), in paragraph 8, held thus:- "(8) Be that as it may, the respondents have not demonstrated the live link between the externment proceedings initiated against the petitioner and offences registered against him in between the year 2002 and 2014. Though, the order of an externment has been passed, taking recourse to the provisions of Section 56(1)(b) of the Act of 1951, nevertheless the gist of the statements of the witnesses recorded in-camera have not been mentioned in the impugned orders. It is true that it is not necessary to mention the names of the witnesses whose statements have been recorded in camera, nevertheless what is stated by the said witnesses, at least in brief in relation to alleged activities of proposed detenu, deserves to be mentioned in the order of an externment. If the material placed on record and also the original record is considered in its entirety, we are of the opinion that an externment proceedings conducted by respondent nos. 3 and 4 appears to have been caused in a casual manner and not strictly in accordance with the procedure established. When the order of an externment is passed and concern person is externed from the particular area, his/her fundamental right to reside at the place of his/her choice or move as per his/her desire gets curtailed and therefore, the concerned authorities are bound to strictly adhere to the procedure. The law mandates that the concerned authorities should scrupulously follow the relevant provisions and procedure." The Division Bench of this Court in the case of Yashwant Patil (supra), held thus:- "Held, that for a valid order under section 56(1)(b) (later part), Bombay Police Act, the satisfaction of the authority is necessary but the externee was not told when he was informed about the conditions mentioned in the second part of clause (b) of section 56(1) that the witnesses were not willing to come forward to depose against him. Condition about the unwillingness of the witnesses was mentioned only in relation to the circumstances covered by the first part of clause (b) of section 56(1) which showed that the externing authority had taken into consideration the factor of which notice had not been given to the proposed externee under section 59 of the Act. There was thus a breach of the rules of natural justice incorporated in section 59 of the Bombay Police Act. The order of externment therefore was liable to be set aside. If the externing authority had acted only on the grounds mentioned in the first part of clause (b) of section 56(1) of the Act, that order would have been sustainable because the notice as required by law had been given in so far as the first part of clause (b) of section 56(1) was concerned. The period during which the prejudicial activities of the proposed externee were committed was absolutely necessary to be mentioned because without the notice or the period with respect to which the action was proposed to be taken, the externee would be unable to defend himself properly. The provisions even though they do not require the authorities under the Bombay Police Act to give details of the activities of the proposed externee, it is still necessary as required by section 59 to give to the proposed externee the information about the general nature of the material allegations against him. The order of externment in the circumstances passed by the Deputy Commissioner of Police under Section 56(1)(b) was liable to be quashed." 13. Taking overall view of the matter and after scrutiny of the original record maintained by the respondents/authorities in relation to externment proceedings of the petitioner and also the contents of the show-cause notice and the impugned orders passed by respondent nos. 2 and 3, we are of the considered view that the mandate of Section 56(1)(a) (b) of the Act, is not adhered to by the respondents/authorities. The appellate authority, though made a cursorily reference to the statements of the witnesses recorded in-camera, had not seen the same at all, as is evident from the reasons assigned by it. 2 and 3, we are of the considered view that the mandate of Section 56(1)(a) (b) of the Act, is not adhered to by the respondents/authorities. The appellate authority, though made a cursorily reference to the statements of the witnesses recorded in-camera, had not seen the same at all, as is evident from the reasons assigned by it. In that view of the matter, an inevitable conclusion is that the impugned order passed by the Sub-Divisional Magistrate on 31.10.2018 in Externment Proposal No. 8 of 2018, which has been confirmed by the Divisional Commissioner, Nashik Division, Nashik, in Externment Appeal No. 77 of 2018, cannot stand to the scrutiny of the law laid down by this Court and the mandate of Section 56(1) (a)(b) of the Act. 14. For the reasons aforesaid, the impugned orders are quashed and set aside. Rule is made absolute in the above terms. The Writ Petition is allowed and disposed of.