Research › Search › Judgment

Bombay High Court · body

2022 DIGILAW 892 (BOM)

Sudam v. State Of Maharashtra

2022-03-25

SANDIPKUMAR C.MORE, V.K.JADHAV

body2022
JUDGMENT Sandipkumar C. More, J. - Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 This Criminal Writ Petition is directed against the impugned orders dated 17.05.23021 and 29.07.2021, passed by present Respondents No.2 and 3, respectively, whereby the petitioner has been externed from the area of MIDC Waluj Police Station, aurangabad, for the period of two years. 3 Background facts of the case are as under: The petitioner is an agriculturist by profession and resident of village Jogeshwari, Tq. Gangapur, District aurangabad. His main source of income is agriculture. However, the assistant Police Commissioner, aurangabad, on 28.01.2021, issued show cause notice to him under the provisions of Section 59 of the Maharashtra Police act, 1951 (herein after referred to as 'the act'), mentioning that since four crimes were registered against him, his presence was found dangerous to the public at large. as such, he was asked, as to why he should not be removed from aurangabad district for two years. The petitioner thereafter replied the show cause notice and claimed that he has been involved in the alleged crimes falsely. according to him, since he had contested the election of Village Panchayat against the complainants, he was involved therein falsely out of political revenge. However, under the order dated 17.05.2021, Respondent No.2, i.e. Deputy Commissioner of Police, aurangabad, by ignoring the defence of the petitioner, externed him from the area of Police Station MIDC, Waluj, aurangabad, for two years. 4 The petitioner preferred an appeal under Section 60 of the act, before the Divisional Commissioner, aurangabad Division, aurangabad, i.e. present Respondent No.3. However, Respondent No.3 has also not considered say of the petitioner so also the grounds raised in the appeal and vide order dated 29.07.2021, confirmed the order of externment. 5 Learned Counsel for the petitioner submits that the crimes mentioned in the notice issued against the petitioner were registered only because he has contested the election of village panchayat, Jogeshwari against the complainants in those cases.. The learned Counsel further submits that both the authorities below have failed to appreciate the grounds raised by the petitioner in his say, as to how he is not liable to be externed. The learned Counsel further submits that both the authorities below have failed to appreciate the grounds raised by the petitioner in his say, as to how he is not liable to be externed. It is further submitted on behalf of the petitioner that the petitioner has already been acquitted in first two crimes bearing RCC No. 343/2020 and 587/2020 by the learned Judicial Magistrate, First Class, Gangapur, under the orders dated 04.08.2021 and 05.08.2021, respectively. It is further submitted that rest of the two crimes bearing Crime No. 161/2019 and 82/2020 are registered under Section 65 (kh) of the Maharashtra Prohibition act, 1949 and thus not related to property or public at large. as such, on the basis of those two crimes, being private in nature, the petitioner cannot be externed. 6 Besides the oral submissions, learned Counsel for the petitioner has also relied upon following judgments: (i) Karan Ramesh Ghuge Vs. Dy. Commissioner of Police, Zone-II, Nashik & others, reported in 2013 (4) Mh.L.J. (Cri.) 90; (ii) Hanuman Rajaram Mhatre Vs. State of Maharashtra, reported in 2013 (2) Mh. L. J. (Cri.) 683; and (iii) Hari Singh Vs. State of Maharashtra & others, reported in 1987 (3) Crimes (Bom.) 605. 7 On the contrary, on the basis of the affidavit-in-reply filed on behalf of Respondents, learned a. P. P. has strongly opposed the petition on the ground that serious crimes are registered against the petitioner involving offences against human body as well as offences involving illegal sale of liquor. Besides, there are confidential statements of the witnesses wherein it is mentioned that the petitioner is involved in criminal acts of threatening to the public at large and robbery, etc. as such, learned a. P. P. prays for dismissal of the petition. On perusal of the show cause notice dated 28.01.2021, issued by the assistant Police Commissioner, aurangabad, it is evident that following crimes have been registered against the petitioner: Sr. No Police Station Crime No./Sections Charge sheet/Court Case No. Present status 01 MIDC, Waluj Crime No. 245/2020 Sections 324, 323, 504, 506/34 of the IPC Charge sheet No.259/2020 dated 23.09.2020 Pending 02 MIDC, Waluj Crime No. 348/2020, Sections 324, 504, 506/34 of the IPC Court Case No. 587/2020 dated 10.10.2018 Pending 03 MIDC, Waluj Crime No.161/2019, Section 65 (Kh) Maharashtra Prohibition act. Charge Sheet No.81/2020 dated 04.09.2019 Pending 04 MIDC, Waluj Crime No.08/2020 Section 65 (kh), Maharashtra Prohibition act. Charge Sheet No.81/2020 dated 04.09.2019 Pending 04 MIDC, Waluj Crime No.08/2020 Section 65 (kh), Maharashtra Prohibition act. Charge Sheet No. 05/2020, dated 25.02.2020 Pending 8 In addition to that, preventive action has also been taken against the petitioner in MIDC Waluj Police Station vide Chapter Case No. 90/2020 under Section 107 of the Code of Criminal Procedure. 9 It appears from the offences registered against the petitioner under the Sections of Indian Penal Code, that the petitioner is involved in the crimes relating to human body and the complainants and witnesses in those crimes are injured at the hands of the present petitioner. Other two offences are relating to illegal sale of country liquor by the petitioner. Further, it also appears that the petitioner has been involved in deterrent criminal activities, such as abusing, beating and giving threats under the point of dangerous weapons to the public at large. Moreover, it has also been found that the petitioner often commits robbery by snatching valuable amounts from the people. It is also apparent that nobody from the common people is willing to come forward to lodge a complaint against the petitioner. There are also in-camera statements of confidential witnesses wherein criminal deterrent activities of the petitioner are mentioned. under Section 56 (1) (a) and (b) of the act, which reads as under: 56. It is also apparent that nobody from the common people is willing to come forward to lodge a complaint against the petitioner. There are also in-camera statements of confidential witnesses wherein criminal deterrent activities of the petitioner are mentioned. under Section 56 (1) (a) and (b) of the act, which reads as under: 56. Removal of persons about to commit offences: (1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under Section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this Section, to the District Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf- (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 any 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 11 On going through the aforesaid provisions, it appears that the said Section provides externment of persons about to commit offences or persons convicted of certain offences. The object underlying these provisions is to protect the locality or contiguous areas or districts from a probable danger of commission of offences by the externees. 12 In the instant case, learned Counsel for the petitioner has relied upon afore-mentioned cases. In the judgment in the case of Karan Ramesh Ghuge Vs. Dy. Commissioner of Police, Zone-II, Nashik & others, reported in 2013 (4) Mh.L.J. (Cri.) 90, this Court has observed that the externment order was liable to be set aside as it was found that contents of the show cause notice were not sufficient enough and besides the offences, there was no additional material produced against the externee to prove that he was likely to get engaged in the offences for which he was convicted earlier. However, the facts of this case are different. 13 In the next judgment, in the case of Hanuman Rajaram Mhatre Vs. State of Maharashtra, reported in 2013 (2) Mh. L. J. (Cri.) 683, this Court has quashed the externment order mainly on the ground that no opportunity was given to the petitioner therein to explain the alleged charges against him and that the petitioner did not misuse his bail order and also that the petitioner was sought to be externed even from the area where no offences were registered against him. However, this is not the case in the instant matter, since sufficient opportunity has been given to the petitioner to raise grounds to challenge the accusations made against him in the show cause notice. 14 The last judgment, relied upon by learned Counsel for the petitioner, is in the case of Hari Singh Vs. State of Maharashtra & others, reported in 1987 (3) Crimes (Bom.) 605, wherein the externment order was set aside mainly because the authority has relied upon additional material which was not the subject matter of the show cause notice. However, this judgment is also not applicable to the instant case since no such contingency is there in the instant case. 15 The learned Counsel for the petitioner has vehemently argued that the petitioner is already acquitted from the first two crimes mentioned herein above by the concerned Judicial Magistrate, First Class and, therefore, rest of the two crimes, which are only under the provisions of Maharashtra Prohibition act, cannot be used for externment of the petitioner since those cases are of private nature and not related to public at large. However, though the petitioner has been acquitted from the aforesaid first two crimes, but on perusal of the material on record, it is clearly evident that such acquittal of the petitioner has been recorded by the concerned Judicial Magistrate, First Class, mainly because the complainant and the witnesses refused to support the prosecution. Therefore, there was no proper evaluation of the allegations made against the petitioner. On the contrary, the material on record indicates that despite registration of first crime, the petitioner has involved himself again in the criminal activities dangerous to the public at large. Therefore, there was no proper evaluation of the allegations made against the petitioner. On the contrary, the material on record indicates that despite registration of first crime, the petitioner has involved himself again in the criminal activities dangerous to the public at large. Moreover, there are also in- camera statements indicating as to how the petitioner is involved in the crimes relating to abusing, beating, snatching of valuable amounts and possessing dangerous weapons like knife. 16 Moreover, on perusal of the impugned orders, it further appears that the concerned authorities have properly gone through the entire material on record against the petitioner and with their subjective satisfaction, came to the conclusion that presence of the petitioner, in the said area, is dangerous to the public at large and, therefore, passed order of his externment. It further appears that there is live-link between the last crime committed by the petitioner and submission of proposal for externment under the show cause notice dated 28.01.2021 and, therefore, it is not the case that old crimes are considered for externment of the petitioner. It is extremely important to note that the show cause notice speaks about the externment of the petitioner from entire aurangabad district, but the impugned orders then indicate that both the authorities, by applying mind, have come to the conclusion that the petitioner is liable to externed only from the jurisdiction of MIDC Waluj Police Station. Therefore, the impugned orders cannot be said to be excessive in nature. There is sufficient material on record to indicate as to how presence of the petitioner, in the said area, is dangerous to the public at large. 17 as such, considering all these aspects, we are of the opinion that both the authorities have passed the impugned orders with their subjective satisfaction by proper application of mind and by rightly appreciating the material on record. as such, no interference is required in the impugned orders. 18 Hence, we pass the following order: (i) Criminal Writ Petition is hereby dismissed. (ii) Rule stands discharged.