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2021 DIGILAW 555 (BOM)

Dipak Sudhakar Patil v. State of Maharashtra

2021-03-09

M.G.SEWLIKAR, V.K.JADHAV

body2021
JUDGMENT M G Sewlikar, J. - This is a writ petition fled under Article 226 and 227 of the Constitution of India and under section 55 of the Maharashtra Police Act, 1951 challenging the order of externment passed by the respondent no.4 and confrmed by respondent no.2. 2. By notice dated 30.9.2020 under section 55 of the Maharashtra Police Act, 1951 the petitioner was called upon to explain as to why he should not be externed from the District Jalgaon as he is in the habit of committing offences relating to property and offences affecting human body. It is alleged that the offence under section 379 r/w 34 of the IPC has been registered against the petitioner in Jalgaon Taluka police station. It is further alleged that offence under section 379 r/w section 34 vide crime no.54 of 2017 has been registered against the petitioner and others in Shanipeth Police Station. It is further alleged that Pravin Gokul Sapkale is a gang leader and the proceedings under section 107 of Cr.P.C. were initiated against him in the year 2012 and 2018 in Jalgaon Taluka Police Station and Shani Peth police station respectively. Accordingly, the petitioner furnished his explanation. Said explanation did not fnd favour with the Externing Authority respondent no.4. Respondent no.4 externed the petitioner for a period of one year from the entire Jalgaon District vide order dated 28.9.2020. 3. The petitioner preferred appeal before the Divisional Commissioner, Division Nashik bearing Externment Appeal No.86 of 2020. Respondent no.2, the Divisional Commissioner, after giving hearing to the petitioner, dismissed the appeal vide his order dated 28.12.2020. This order is impugned in this writ petition. 4. We have heard Shri Jadhav, the learned counsel for the petitioner and Shri Nerlikar, the learned APP for the State. 5. Learned counsel Shri Jadhav submitted that from the date of notice and passing of the order, period of two years has lapsed. This itself clearly indicates that there was no occasion to initiate the proceedings of externment against the petitioner. He further submitted that in the crime under section 379 read with section 34 vide crime no.54 of 2017 registered with Shani Peth Police Station, petitioner is not an accused. He submitted that there was no material before the Externing Authority and the appellate authority to extern the petitioner. 6. He further submitted that in the crime under section 379 read with section 34 vide crime no.54 of 2017 registered with Shani Peth Police Station, petitioner is not an accused. He submitted that there was no material before the Externing Authority and the appellate authority to extern the petitioner. 6. Learned APP submitted that there was ample material before the respondent no.4 and respondent no.2 for externing the petitioner. Petitioner is alleged to have committed theft of sand, which is a very serious offence and has caused environmental problems and, therefore, petitioner has been rightly externed. So far as the offence registered with Shanipeth Police Station is concerned, Shri Nerlikar the learned APP submits that the petitioner is not arrayed as an accused. 7. On perusal of the police papers produced by the learned APP of respondent nos.2 and 4, it appears that notice was issued to the petitioner under section 55 of the Maharashtra Police Act in the year 2018. The record further shows that in the year 2020 the petitioner came to be externed. It clearly indicates that since 2012 till the issuance of notice, there was no offence registered against the petitioner of whatsoever nature, leave alone the offence under section 379 for theft of sand. On perusal of the police papers, it is further seen that on page no.37 the appellate authority/respondent no.4 has made a noting that notice was issued in the year 2018 and process was delayed for too long. Therefore, he sought details from the concerned police station as to the criminal activities of the petitioner after the issuance of the notice. 8. The concerned police station replied that no offence was registered thereafter against the petitioner. This clearly shows that without there being any material from the concerned police station about illegal activities of the petitioner, the petitioner has been directed to be externed for a period of one year that too from the entire Jalgaon District. The sine-qua-non for initiation of the proceedings under section 55 of the Maharashtra Police Act is the movement or encampment of any gang or body of persons in the area in the charge of the proposed externee which is causing or is calculated to cause alarm or danger or alarm or reasonable suspicion that unlawful designs are entertained by such gang or body. So far as present proceedings are concerned, only one offence is registered i.e. under section 379 of IPC in the year 2012. It is a stale case. On the basis of a single case that too a stale case, it cannot be said that the petitioner is the member of a gang and his movements or encampment caused alarm or danger of his unlawful designs. In the case of Sachin Hiraman Tayde Vs. Dy. Commissioner of Police and ors., (2013) 3 BCR(Cri) 493 in paragraph no.6 this court observed thus :- " 6. It is argued that the first case taken shelter of by the Competent Authority is of the year 2002 and as such it is a stale case. Secondly, there is a delay in recording the in-camera statements of two alleged witnesses. Apparently the in-camera statements were recorded on 7.9.2011 regarding the incidents of 16.12.2010 and 22.11.2010. Moreover allegedly said in-camera statements were belatedly verified after one month on 8.10.2011 and thereafter again belatedly after four months the externment order was passed on 7.2.2012. Apparently this delay, as apparent on the record, vitiates the subjective satisfaction arrived at by the Competent Authority in passing the externment order, as rightly argued by the learned Counsel for the petitioner. In other words, it is a case in which the live link is snapped thus rendering the externment order liable to be interfered and set aside." 9. Moreover as held in the case of Sumit s/o Ramkrishna Maraskolhe Vs. Deputy Commissioner of Police Zone-1, Nagpur and another, (2019) 2 MhLJ(Cri) 14 that if the criminal activities are restricted to a particular area, the proposed externee cannot be externed beyond that area unless it is shown that these areas are contiguous or adjacent to each other or interconnected with each other through the improved means of transport and communication necessitating externment of proposed externee from a larger area. It has been held in this authority, as under :- 24. A combined reading of the principles of law laid down in all the aforesaid cases would show that ordinarily the externment order be restricted to the area of illegal activity of externee. It has been held in this authority, as under :- 24. A combined reading of the principles of law laid down in all the aforesaid cases would show that ordinarily the externment order be restricted to the area of illegal activity of externee. In a given case, the order can be capacious which would include more area than the actual field of the illegal activities of the externee so as to shake the externee off his roots and this may be so necessary in a particular case for achieving the object of externment order. While making such an expansive order, sufficient leeway has been granted to the officer and it includes the power conferred under amended provision of Section 56 of the Act, 1951 to remove a person from a much bigger area than the area of his actual activity and such a larger area may not necessarily be contiguous to the area of illegal activities or may not be falling within the local limits of the jurisdiction of the officer. But, this discretion is always subject to the limits drawn by the Wednesbury triad of unreasonableness, already elaborated upon in the previous paragraphs. 25. Thus, we can now reasonably say that although the officer is having the discretion to extern a person from a much larger area, the discretion is neither unfettered nor uncanalized nor unrestricted. The discretion is rather guided by the sound principles of judicial review of administrative action or statutory discretion which have now been called the Wednesbury principle of unreasonableness. That would mean that an externment order must be based upon some material, that it must refer to some material on record, and if that is done, the requirements of law are met and the judicial review would go no further to examine sufficiency or otherwise of such material. In a given case, it may also happen that the externment order does not refer to some material on record. Still, the externment order could be seen as unassailable. In a given case, it may also happen that the externment order does not refer to some material on record. Still, the externment order could be seen as unassailable. Such possibility would arise when the situation of surrounding areas is such as to give rise to an impression upon taking of judicial notice of the situation that these areas are contiguous or adjacent to each other or inter-connected with each other through the improved means of transport and communication warranting externment of a person from a larger area in order to sweep the person off his moorings, just to make the order of externment effective and practicable, as held in Pandharinath (supra). But, some time the facts and circumstances may not be so self-speaking and in such a case, no judicial notice could possibly be taken. It is in such a case, there would be need for the externment order to refer to some material on record, though not eloquently, and if that is done, the externment order would clear the validity test of Wednesbury doctrine. Once such reference to some material on record is seen, the judicial review has to stop as no further enquiry into sufficiency or otherwise of the material to pass a spacious externment order is permissible. This is on account of the cardinal principle of judicial review that when exercise of discretion is questioned as being arbitrary, a secondary reviewing Court, a High Court examining the challenge on the ground of arbitrariness of administrative action or statutory discretion would be a secondary court of review unlike in a situation where it considers the challenge based on grounds of inequality and discrimination when it turns into a primary court of review, cannot substitute it's own view for the view taken by the authority whose decision is under review just because another view is possible, unless the view of the authority subject to review is shown to be illegal or perverse or illogical or impossible, or procedurally improper. These are all nothing but part of Wednesbury principle of unreasonableness." In the instant case, no such evidence is forthcoming. 10. In this view of the matter, the order passed by respondent no.4 and confrmed by respondent no.2 is unsustainable. Criminal Writ Petition, therefore, deserves to be allowed. Hence, following order. O R D E R i. Criminal Writ Petition is hereby partly allowed. ii. 10. In this view of the matter, the order passed by respondent no.4 and confrmed by respondent no.2 is unsustainable. Criminal Writ Petition, therefore, deserves to be allowed. Hence, following order. O R D E R i. Criminal Writ Petition is hereby partly allowed. ii. The order passed by respondent no.4-the Superintendent of Police, Jalgaon dated 28.9.2020 and confrmed by respondent no.2 Divisional Commissioner Nashik Division Nashik is set aside. iii. Writ Petition is accordingly, disposed off.