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2022 DIGILAW 2086 (BOM)

Vijay Dhanjai Pawar v. State of Maharashtra

2022-09-19

PRAKASH D.NAIK

body2022
JUDGMENT 1. The Petitioner has challenged the order of externment dtd. 10/7/2021 issued by Deputy Commissioner of Police, Zone-1, Pune under Sec. 56(1)(a)(b) of the Maharashtra Police Act, and order dtd. 18/2/2022 passed by the Divisional Commissioner, Pune (appellate authority) to the extent of confirming externment from Pimpri Chinchwad Police commissionerate area, Pune city commssionerate Haveli Maval, Mulshi Bhor, Shirur and Khed. 2. Show cause notice dtd. 3/5/2021 was issued against the Petitioner by Assistant Commissioner Pune, Pimpri Division, Pimpri Chinchwad. Thereafter, another notice dtd. 11/6/2021 was issued by the Deputy Commissioner of Police, Zone-1. The externment order dtd. 10/7/2021 was issued by Deputy Commissioner of Police Zone-1 and Pimpari Chinchwad Police Commissionerate and Pune Rural area for a period of twenty four months. 3. The Petitioner preferred appeal before Divisional Commissioner Pune, challenging externment order. The Appellate authority modified the order of externment by directing that, petitioner is externed for two years from Pimpri Chinchwad Police Commssionerate, Pune City commissionrate and adjoining areas Haveli, Maval Malshi Bhor, Shirur and Khed. 4. Learned Advocate for the Petitioner submitted that, the order of externment is contrary to law. The incidents considered for issuing the externment are stale. The appellate authority has modified the order qua the areas of externment, however confirmed the externment order without appreciating the illegality in the order. The show cause notice was issued alleging that, the Petitioner was proposed to be externed for a period of two years under sec. 56(1)(a)(b). The show cause notice is silent, as far as satisfaction to be recorded that the witnesses are not willing to come forward to depose against the Petitioner qua Sec. 56(1)(a) (b) of the Maharashtra Police Act. In the order of externment the authority has tried to suggest that the witnesses are not coming forward to deposes against the Petitioner in relation to allegations under Sec. 56(1)(a) as well as 56(1)(b). Hence, the order of externment is bad in law. The requirement of law to initiate the proceeding under Sec. 56(1)(a)(b) is that the witnesses are not willing to come forward to dispose against the externee. Reliance is placed on the decision of this Court, in the case of Yashwant Damodar Patil Vs. Hemant Karkare, D.C.P. and Anr. 1989 (3) Maharashtra Law Journal 1111.[Yashwant Damodar Patil Vs. Hemant Karkar, D.C.P. and Anr. 1989 (3) Maharashtra Law Journal 1111.] 5. Reliance is placed on the decision of this Court, in the case of Yashwant Damodar Patil Vs. Hemant Karkare, D.C.P. and Anr. 1989 (3) Maharashtra Law Journal 1111.[Yashwant Damodar Patil Vs. Hemant Karkar, D.C.P. and Anr. 1989 (3) Maharashtra Law Journal 1111.] 5. Learned APP submits that, there is no infirmity in the order. The appellate authority has applied mind and modified the order of externment. The show cause notice refers to cases registered against the Petitioner, the statements of two witnesses recorded by the concerned Police Station and acts committed by externee. The initiation of proceeding under Sec. 56(1)(a)(b) of the Maharashtra Police Act is preventive measure. The notice and order of externment record the satisfaction for externing the Petitioner. The Petitioner is involved in three cognizable offences registered against him. The externing authority was satisfied that, it is necessary to initiate preventive measures against the Petitioner. The requisite requirement to initiate action under Sec. 56(1)(a) (b) are reflected in the order of externment. He relied on Full Bench decision of this Court in the case of Sumit Ramkrishna Maraskolhe Vs. Deputy Commissioner of Police, Nagpur 2019 ALL MR (Cri) 1961. (F.B.) 2. 6. Perused documents on record. A.C.P. has issued the notice dtd. 3/5/2021. The title of the said notice indicated that it was issued under Sec. 59 of the Maharashtra Police Act. Rreference is made to three cases registered against Petitioner. C.R. No.101 of 2020 was registered for offences under Sec. 325, 323, 504, 427 read with Sec. 34 of the Indian Penal Code, C.R. No.653 of 2020 was registered for offences under Sectgion 324, 141, 143, 144, 147, 148, 149, 427 of Indian Penal Code and Sec. 4, 27 of the Arms Act and C.R. No.194 of 2021 was registered under Sec. 354, 294, 332, 504, 506 read with 34 of the Indian Penal Code. Notice also mentions that, first case is pending in Court and two cases are under investigation. All the offences were registered with Pimpri, Police Station. The show cause notice also refers to statements of two witnesses recorded in camera who has refers to incidents enumerated therein. Thereafter, another show cause notice was issued to the Petitioner by externing authority. The title of the said notice is refers it as show cause notice. It is not clear whether it is under Sec. 59 of the Maharashtra Police Act. Thereafter, another show cause notice was issued to the Petitioner by externing authority. The title of the said notice is refers it as show cause notice. It is not clear whether it is under Sec. 59 of the Maharashtra Police Act. The aforesaid notice was followed by the impugned order of externment dtd. 10/7/2021. Sec. 56 1(a) and (b) of said act indicates that to initiate action under the said provision satisfaction is required to be recorded that the witnesses are not willing to come forward to openly depose against externee. Apparently the show cause notice is not clear on this issue it doesn't refer to the said fact. 7. Learned counsel for the Petitioner, has relied upon the decision in the case of Yashwant Damodar Patil (supra) wherein this Court in paragraph Nos.3, 4, 5 and 10 had observed as follows:- "3. Sec. 56(i) of the Bombay Police Act visualizes 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 sec. 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 sec. 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 XIL, of Chapter XVL or Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause (b) of sec. 56(i) of the Act. But it is not enough that these conditions alone are satisfied. This is so provided in the latter part of clause (b) of sec. 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." "4. Summarising again, the provisions of sec. 56(i) in so far as they are relevant for the purpose of this petition, it can be stated that a person, whose movements or acts are causing or calculated to cause alarm or danger or harm to person or property against whom witnesses are unwilling to depose, can be externed under Clause (a) of sec. 56(i) of the Act. Similarly, if there are reasonable grounds for believing that a person is engaged or is about to be engaged in the commission of an offence involving force or violence and witnesses are unwilling to depose against him, he can be externed under the first part of Clause (b) of sec. 56(i) of the Act. Again a person who is engaged or is about to engage in the commission of an offence punishable under Chpater XII, or Chapter XVI, or Chapter XVII of the Indian Penal Code and against whom witnesses are unwilling to come forward and depose, can also be externed as per the second part of Clause (b) of sec. 56(i) of the Act." "5. Whenever, therefore, an action is proposed to be taken against an externee, hereinafter referred to as "the proposed externee", a notice naturally has to be given to him under sec. 59 of the Bombay Police Act. This notice must inform the proposed to be taken against him under Clause 9(a) of sec. sec. 56(i) of the Act, then the proposed externee must be told that his movements or acts are causing or calculated to cause alarm, danger or harm to person and property and witnesses are not willing to come forward to give evidence in public against him. sec. 56(i) of the Act, then the proposed externee must be told that his movements or acts are causing or calculated to cause alarm, danger or harm to person and property and witnesses are not willing to come forward to give evidence in public against him. If action is proposed to be taken against him on the ground that the proposed externee is engaged or is about to be engaged in the commission of an offence involving force or violence, then he must be told so and he must also be informed that in the opinion of the officer witnesses are not willing to come forward to given evidence in public against him. Similarly, if any action is proposed to be taken against the proposed externee on the ground that he is engaged or is likely to be engaged in the commission of offences punishable under Chapter XII or Chapter XVI or Chapter XVII of the Indian Penal Code, then he must be informed about the same and he must be necessarily informed that witnesses are not coming forward to depose against him. The fact that the proposed externee is engaged or is about to be engaged in one or the other type of the activity or movement in Clauses (a) and (b) of sec. 56(i) of the Bombay Police Act, is not sufficient by itself to warrant an order of externment. That fact, coupled with the opinion formed by the designated officer that witnesses are not willing to come forward to give evidence in public for the reasons mentioned in clause (a) and (b) of sec. 56(i) of the Bombay Police Act, will provide a proper basis for the exercise of the power of externment under the provisions of the Act." "10. This itself would not have been fatal to an action that could have been taken under the first part of Clauses (b) of sec. 56(i) of the Bombay Police Act. Unfortunately, the Deputy Commissioner of Police has ultimately passed the order of externment under the second part of Clause (b) of sec. 56(i) of the Act. He enumerates, as he had enumerated in the notice under sec. 59. the, three cases which are pending against the petitioner. 56(i) of the Bombay Police Act. Unfortunately, the Deputy Commissioner of Police has ultimately passed the order of externment under the second part of Clause (b) of sec. 56(i) of the Act. He enumerates, as he had enumerated in the notice under sec. 59. the, three cases which are pending against the petitioner. Thereafter, he also proceeds to say that as a result of the conduct of goondaism engaged by the proposed externee the people in the neighbourhood have developed a fright about their lives and they are unwilling to give evidence in public against him. For a valid order udner sec. 56(i) (b) (later part) of the Act, this satisfaction is undoubtedly necessary, but the petitioner was not told, when he was told about the conditions mentioned int eh second part of Clause (b) of sec. 56(1), that witnesses was mentioned only in relation to the circumstances covered by the first part of Clause (b) of sec. 56(i) of the Act. This shows that the externing authority has taken into consideration a factor of which notice had not been given to the proposed externee under sec. 59 of the Act. In view of this, we are bound to hold that there has been a breach of the rule of natural justice which has been incorporated in sec. 59 of the Bombay Police Act and, therefore, the order of externment will have to be set aside. In the instant case, if the externing authority had acted only on the ground mentioned int eh first part of Clause (b) of sec. 56(i) of the Act, that order would have been sustainable, because of notice, as required by law, had been given in so far as the first part of Clause (b) of sec. 56(I) was concerned. As already mentioned above, this has not been done." 8. The Full Bench decision of this Court in the case of Sumit Maraskolhe (supra) bserves that, Application of mind to material on record by authority is necessary. Its reflection in specific manner in externment order is not necessary. 9. In the light of facts of this case the impugned orders deserves to be set aside. ORDER i. The Criminal Writ Petition No. 1456 of 2022 is allowed. ii. Order of externment dtd. 10/7/2021 and the order passed by the appellate authority dtd. 18/2/2022 are quashed and set aside.