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2022 DIGILAW 410 (BOM)

Sandeep v. Raut VS State of Goa

2022-02-10

MANISH PITALE

body2022
JUDGMENT/ORDER 1. By this Petition, the petitioner has challenged order dtd. 27/1/2022, passed by the respondent no. 2, Magistrate, whereby externment proceedings initiated against the petitioner have been dropped, but, at the same time, the petitioner has been asked to execute a bond of good behaviour of 2,00,000/-, valid for a ? period of six months. It is also directed that if there is a breach of such bond, the petitioner shall stand externed without any further proceedings. 2. Mr. A.D. Bhobe has appeared on behalf of the petitioner. Since an advance copy of the Petition was served on the office of the learned Advocate General, Mr. S.G. Bhobe, learned Public Prosecutor, has appeared on behalf of the respondents. 3. The learned Counsel for the petitioner submitted that in the externment order passed on 6/1/2022, it was recorded that there was no reason for externment of the petitioner. Yet, it was recorded that given the violent nature of the petitioner, he ought to execute a bond of good behaviour and the said directions were issued in the impugned order. It is submitted that a perusal of Sec. 109 of the Cr.P.C. would show that the Magistrate is first required to put the concerned person to notice to show cause as to why such bond for good behaviour is to be executed by him. It is further submitted that in a recent judgment in Swapnil Sakharam Parab Vs. State of Goa, 2021 Online Bom 2393, this Court in a similar situation, where a conditional order of externment was issued by the Magistrate, a Writ Petition was entertained and it was held that the approach adopted by the Magistrate was foreign to the scheme of the Goa Maintenance of Public Order and Safety Act, 1988. On this basis, it was submitted that the impugned order deserves to be set aside. 4. The learned Public Prosecutor did not dispute the position of law highlighted on behalf of the petitioner. It was conceded that the proceedings for externment was initiated under the aforesaid Act and the impugned directions appear to have been issued under Sec. 109 of the Cr.P.C. 5. 4. The learned Public Prosecutor did not dispute the position of law highlighted on behalf of the petitioner. It was conceded that the proceedings for externment was initiated under the aforesaid Act and the impugned directions appear to have been issued under Sec. 109 of the Cr.P.C. 5. Having heard the learned Counsel for the rival parties and on perusal of the impugned order, this Court finds that although, the direction under the impugned order is traceable to Sec. 109 of the Cr.P.C., there is nothing on record to demonstrate that a notice to show cause was issued to the petitioner before giving the aforesaid direction for execution of the bond for good behaviour. 6. In the impugned order, the Magistrate has reached a conclusion that the externment of the petitioner is not required. Once this conclusion was reached, the proceeding ought to have been dropped against the petitioner. In the impugned order, while recording that there was no convincing reason to extern the petitioner, the Magistrate ought not to have directed the petitioner to execute a bond for good behaviour on the unsustainable ground that given the violent nature of the petitioner, he was required to execute such a bond. 7. It was also recorded in the impugned order that if there was a breach in the bond to be executed by the petitioner, he shall stand externed. This Court finds that reliance placed on Swapnil Sakharam Parab (supra) is justified because such conditional order of initiating externment proceedings has been deprecated and it is found that the same is foreign to the provisions of the said Act. In the present case, it is also an admitted position that the petitioner was never put to notice to show cause as to why he should execute a bond of good behaviour under Sec. 109 of Cr.P.C. Merely because the externment proceedings were initiated under the provisions of the aforesaid Act, the Magistrate could not have jumped to the provisions of Cr.P.C., particularly, Sec. 109 of the Cr.P.C. after having reached the conclusion that externment of the petitioner was not required. 8. In view of the above, the impugned order is found to be unsustainable, as it has been passed in erroneous exercise of power under the aforesaid Act as well as the Cr.P.C. 9. Accordingly, the Writ Petition is allowed and the impugned direction contained in the order dtd. 8. In view of the above, the impugned order is found to be unsustainable, as it has been passed in erroneous exercise of power under the aforesaid Act as well as the Cr.P.C. 9. Accordingly, the Writ Petition is allowed and the impugned direction contained in the order dtd. 27/1/2022 is quashed and set aside.