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2023 DIGILAW 431 (BOM)

Nitin v. Divisional Commissioner, Amravati

2023-02-08

G.A.SANAP

body2023
JUDGMENT 1. Heard. 2. Rule. Rule made returnable forthwith. Heard finally with the consent of learned Advocates for the parties. 3. In this writ petition, the petitioner has prayed for quashing the order of externment passed by the respondent No.2- Deputy Commissioner of Police, Zone-1, Amravati dtd. 5/4/2022 and the order in appeal dtd. 29/9/2022 passed by the respondent No.1-Divisional Commissioner, Amravati District Amravati. The respondent No.2 initiated the proceedings for externment of the petitioner from Amravati District by invoking the provisions of Sec. 56(1)(a) & (b) of the Maharashtra Police Act, 1951 (hereinafter referred to as "the Act of 1951"). The respondent No.2 to record his subjective satisfaction, relied upon the following crimes. The said crimes are set out hereinbelow in tabulated form: 4. The respondent No.2 conducted necessary inquiry. He issued a notice to the petitioner on 24/3/2022 to show cause as to why he should not be externed from the Amravati District. The respondent No.2, based on the material collected, passed the order of externment on 5/4/2022. The petitioner challenged the said order by filing an appeal before the respondent No.1. The respondent No.1 vide order dtd. 29/9/2022, though found certain deficiencies in the order of externment, dismissed the appeal and confirmed the said order. 5. Learned Advocate for the petitioner submits that orders passed by the respondent Nos. 1 and 2 cannot be sustained at all inasmuch as the satisfaction arrived at was based on the four crimes in which the petitioner was already acquitted. Learned Advocate submitted that these stale crimes were taken into consideration to record the subjective satisfaction. There was no live link between those crimes as well as the externment proceeding initiated in the year 2022. Learned Advocate further submitted that in the show cause notice dtd. 24/3/2022 the substance of the statement of the witnesses, was not stated. The petitioner, therefore, did not get an opportunity to deal with the show cause notice appropriately. Learned Advocate further submitted that two chapter cases, wherein the petitioner has executed bonds were taken into consideration. Learned Advocate submitted that there is no mention in the orders that the petitioner has committed the breach of the conditions of the bond for good behaviour executed by him. Learned Advocate submitted that in remaining three cases at Sr. No. 4, 6 and 7 the petitioner has been released on bail. These cases are pending before the Court. Learned Advocate submitted that there is no mention in the orders that the petitioner has committed the breach of the conditions of the bond for good behaviour executed by him. Learned Advocate submitted that in remaining three cases at Sr. No. 4, 6 and 7 the petitioner has been released on bail. These cases are pending before the Court. Learned Advocate submitted that the last crime registered against the petitioner was on 10/8/2020. The notice issued by the respondent No.2 was dtd. 24/3/2022. Learned Advocate, therefore, submitted that there was time gap of two years between the last crime relied upon and the date of notice as well as the order of externment dtd. 5/4/2022. Learned Advocate submitted that, therefore, the live link sought to be established on the basis of these three crimes was completely snapped. Learned Advocate further submitted that the order of externment from the entire Amravati District and that too for a period of two years was excessive. Learned Advocate pointed out that no reasons have been recorded in the order for warranting the externment of the petitioner from entire Amravati District and that too for a period of two years. Learned Advocate submitted that there was no objective material to arrive at subjective satisfaction sought to be asserted by the respondent Nos. 1 and 2 for passing the externment order. Learned Advocate submitted that the respondent No.1, the appellate authority, has not dealt with the aspect of subjective satisfaction arrived at on the basis of the crimes in which the petitioner was acquitted. Learned Advocate submitted that the appellate authority apart from making a mention of this fact in the order was required to consider the same appropriately. On all these grounds the learned Advocate submitted that the order of externment passed by the respondent No.2 and confirmed in appeal by respondent No.1 deserves to be quashed and set aside. 6. Learned APP submitted that even if it is assumed that the four crimes in which the petitioner was acquitted were taken into consideration, the same could not be a basis to discard the remaining three crimes. Learned APP submitted that remaining three crimes registered against the petitioner and relied upon by the respondents are sufficient to justify the order. 6. Learned APP submitted that even if it is assumed that the four crimes in which the petitioner was acquitted were taken into consideration, the same could not be a basis to discard the remaining three crimes. Learned APP submitted that remaining three crimes registered against the petitioner and relied upon by the respondents are sufficient to justify the order. Learned APP further submitted that the statements of the confidential witnesses are sufficient to reflect upon the dangerous nature of the petitioner and over all threat at the behest of the petitioner to the public peace and tranquility. 7. In order to appreciate the rival submissions I have gone through the record and proceedings and also the provisions of Sec. 56(1)(a) & (b) of the Act of 1951. The record of the externment proceeding has been placed on record. I have gone through the same. The externment order was passed by relying upon the provisions of Sec. 56 of the Act of 1951. It would be necessary to reproduce the said Sec. . Sec. 56 reads thus: " 56. The record of the externment proceeding has been placed on record. I have gone through the same. The externment order was passed by relying upon the provisions of Sec. 56 of the Act of 1951. It would be necessary to reproduce the said Sec. . Sec. 56 reads thus: " 56. Removal of person about to commit offence:- (1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under Sec. 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 Sec. , to the District Magistrate, or the SubDivisional 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 an offence punishable under chapter 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, (bb) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Antisocial and other Dangerous Activities Act, 1980, or (2) in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in the Explanation to sub-sec. (1) of Sec. 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or other wise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm [ or such prejudicial act] or the outbreak or spread of such disease or [notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the Officer or not and whether contiguous or not), by such route, and within such time as the officer may specify and not to enter or return to the said area or areas specified (hereinafter referred to as "the specified area or areas") from which he was directed to remove himself]. (2) An Officer directing any person under sub-sec. (1) to remove himself from any specified area or areas in the State may further direct such person that during the period the order made against him is in force, as and when he resides in any other areas in the State, he shall report his place of residence to the officer incharge of the nearest police station once in every month, even if there be no chance in his address. The said officer may also direct that, during the said period, as and when he goes away from the State, he shall, within ten days from the date of his departure from the State send a report in writing to the said officer, either by post or otherwise, of the date of his departure, and as and when he comes back to the State he shall, within ten days, from the date of his arrival in the State, report the date of his arrival to the officer incharge of the police station nearest to the place where he may be staying." 8. It is not out of place to mention that against the petitioner, the externment order came to be passed by relying upon clauses (a) and (b) of Sec. 56 sub-sec. It is not out of place to mention that against the petitioner, the externment order came to be passed by relying upon clauses (a) and (b) of Sec. 56 sub-sec. (1) of the Act of 1951. The ground under clause (a) provides that the movements or acts of any person must be causing or calculated to cause alarm, danger or harm to person or property. The ground under clause (b), requires that on the basis of the material it must be established that there are reasonable grounds for believing that person sought to be externed is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, or abetment of any such offence. The second part of clause (b), which is required to be read with first part, clearly provides that the competent authority empowered to pass an order should form an opinion that the witnesses are not willing to come forward to give evidence in public against such person, only because of an apprehension on their part as regards safety of their person or property. The conjoint reading of clauses (a) and (b) would, therefore, show that in arriving at subjective satisfaction as to the grounds, there must be objective material on record before the authority and the same must be considered in accordance with law. 9. Before proceeding to the merits of the arguments, at this stage, it would be necessary to consider the law laid down by the Hon'ble Apex Court in the case of Deepak s/o Laxman Dongre .vs. State of Maharashtra and others, 2022 ALL.M.R.(Cri.)761(S.C.). In this case the Hon'ble Supreme Court has considered the decision in the case of Pandharinath Shridhar Rangnekar .vs. Dy. Commissioner of Police, State of Maharashtra, (1973) 1 SCC 372 . On consideration of this decision, it is held that the reasons which necessitate or justify passing of an extraordinary order of externment arise out of extraordinary circumstances. It is held that, therefore, strict compliance of Sec. 59 of the Act of 1951 is required to be made. It is further held that the order of externment deprives the citizen of his fundamental right of free movement throughout the territory of India. It is held that, therefore, strict compliance of Sec. 59 of the Act of 1951 is required to be made. It is further held that the order of externment deprives the citizen of his fundamental right of free movement throughout the territory of India. The order of externment in fact prevents the person even from staying in his own house along with his family members during subsistence of the externment order. It is, therefore, held that the subjective satisfaction must be arrived at on the basis of the objective material. 10. In order to consider applicability of the proposition to the facts of the case on hand, it would be necessary to go through the show cause notice and the material relied upon in the show cause notice, which ultimately converged into the order of externment thereby recording subjective satisfaction on the basis of the said material. 11. The important point in this petition is with regard to the consideration of the crimes in which the petitioner was acquitted to record the subjective satisfaction. In the notice, the offences in which he was acquitted were relied upon. The petitioner gave a reply to this notice. In the reply, he has categorically stated that he has been acquitted in four crimes. In the reply, he provided the particulars of those crimes. The respondent No.2 despite having knowledge of this fact, at least on the basis of the reply, relied upon those crimes in the externment order to record his subjective satisfaction. It is further seen that this fact was specifically pleaded in the appeal memo, before the respondent No.1. The respondent No.1, though, took note of this fact has not deliberated upon it in the order. In my view, this is very vital circumstance in favour of the applicant. In order to justify the reliance on these crimes, the learned APP submitted that the respondent No.2 had no reason to know that he was acquitted in those crimes. In my view, this submission is self-contradictory to the subjective satisfaction, recorded in the externment order. This submission would indicate that the respondent No.2 was not supposed to make an inquiry whether the cases are pending or the cases have been disposed of. It is to be noted that in all the crimes, the petitioner was released on bail. In my view, this submission is self-contradictory to the subjective satisfaction, recorded in the externment order. This submission would indicate that the respondent No.2 was not supposed to make an inquiry whether the cases are pending or the cases have been disposed of. It is to be noted that in all the crimes, the petitioner was released on bail. The respondent No.2 was, therefore, required to make a thorough inquiry and that too by perusing the bail orders in those matters, to come to a definite conclusion that the activities of the petitioner are in all respect covered by Sec. 56(1)(b). The reliance upon the crimes in which the petitioner was acquitted would indicate that the inquiry was flawed. It needs to be emphasized that the subjective satisfaction for passing such an order must be arrived at on the basis of the objective material. In the present case, the material, which could not have been taken into consideration at all, has been stated to be objective material to arrive at subjective satisfaction. On this ground also the satisfaction recorded is substantially dented. 12. After excluding the four crimes in which he was acquitted, the only three crimes at Serial No.4, 6 and 7 registered at Nandgaon Peth, Frezarpura and Tiosa (Rural) Police Stations being Crime Nos.108 of 2018, 74 of 2019 and 196 of 2020 respectively were available for being considered by the respondent No.2 to form an opinion to proceed further against the petitioner under Sec. 56 of the Act of 1951. It is to be noted that these crimes are also stale crimes. The same could not have been taken into consideration at all. The show cause notice is dtd. 24/3/2022. The crimes at Serial Nos. 4, 6 and 7 were registered in the year 2018, 2019 and 2020 respectively. It is, therefore, apparent that the respondent No.2 took into consideration a crime, which was registered two years prior to the issuance of notice. All the three crimes apart from being stale crimes for this purpose, would also not be sufficient to establish the live link for passing the impugned order. The live link in this case was, therefore, completely snapped. In my view, therefore, based on these crimes alone, the order of externment was not at all justified. 13. All the three crimes apart from being stale crimes for this purpose, would also not be sufficient to establish the live link for passing the impugned order. The live link in this case was, therefore, completely snapped. In my view, therefore, based on these crimes alone, the order of externment was not at all justified. 13. Perusal of the show cause notice as well as the order passed by the respondent No.2 would indicate that two chapter cases under Sec. 110 of the Code of Criminal Procedure, 1971 were initiated against him. The first case is bearing No.49/2021 and the second case is bearing No.59/2021. At the conclusion of such proceeding, the party concerned is called upon by the Executive Magistrate to execute a bond for good behaviour. The duration of such a bond is normally for a period of six months. The show cause notice as well as the order of externment is silent with regard to the execution of bond for good behaviour. The show cause notice as well as the order is silent on the point whether there was breach of the undertaking and conditions of the bond executed in those proceedings. The bond is executed in the proceeding, which is of preventive nature. This aspect has not been considered and appropriately dealt with by respondent Nos.1 and 2. 14. The next important aspect is with regard to the reliance on the statement of the confidential witnesses. The main grievance of the petitioner is that the substance of the statement of the confidential witnesses was not set out in the show cause notice and therefore, the opportunity to effectively deal with the same was denied to him. In order to satisfy myself about this aspect I have gone through the statements of the confidential witnesses and the notice issued by the respondent No.2. Perusal of the notice would show that the substance of these statements was not even briefly set out in the notice. In the reply, filed by the petitioner to the said notice he had contended that there was no complaint either from his neighbors or the people residing in his vicinity about his conduct, behavior and threat to society at large. Further perusal of the statements would show that the statements were not properly verified. The endorsement made with regard to the verification of the statements are cryptic. Further perusal of the statements would show that the statements were not properly verified. The endorsement made with regard to the verification of the statements are cryptic. Therefore, on this ground also the submission is fully justified. 15. It is to be noted that this order passed by the respondent No.2 and confirmed by the respondent No.1 suffers from the virus of excessiveness. The order of externment apart from making inroads on the personal liberty guaranteed under the Constitution of India, makes the said person live separate from his family members. Similarly, the externment order can deprive the said person of his livelihood. In the given case, depending upon the financial position of the person, it can make the dependents of the said person to starve. Therefore, in order to justify the externment for a maximum period of two years, the Authority is required to consider the objective material to record subjective satisfaction on all points. In this case, I am constrained to observe that the order passed by the respondent No.2 is woefully silent on all these points. The respondent No.2 has not recorded the reasons to order the externment of the petitioner for a period of two years and that too from the entire Amravati District. It is seen on perusal of the notice and order that most of the crimes committed by the petitioner were within the jurisdiction of Police Stations in Amravati City. 16. In my considered opinion, therefore, the order passed by the respondent No.2 and confirmed by the respondent No.1 suffers from the virus of excessiveness. The law laid down on the point in the cases of Shaikh Mukhtyar S/o Mustafa Shaikh Vs. State of Maharashtra and Others,2017 ALL.M.R. (cri.)268. and Bhagwat Dadasaheb Landge and Another Vs. State of Maharashtra and Others, 2020 (5) Mh.L.J. (Cri.)546. would, therefore, equally apply in this case. It is to be noted that the excessive nature of the order on both the counts is one of the factors, which would weigh in favour of the petitioner. The order of externment, making a direct inroads on the fundamental right of movement, must, therefore, pass all the legal tests. In this case, the order passed by the respondent No.2 and confirmed by the respondent No.1 do not pass the said test. The order of externment, making a direct inroads on the fundamental right of movement, must, therefore, pass all the legal tests. In this case, the order passed by the respondent No.2 and confirmed by the respondent No.1 do not pass the said test. It is to be noted that the respondent No.1 despite being confronted with the factual position vis-a-vis the acquittal of the petitioner in four crimes, confirmed the said order. Perusal of the order of the respondent No.1 would show that the respondent No.1 has recorded factual submissions, but failed to sufficiently deal with the same. Therefore, in my view, this order is not sustainable. 17. Accordingly, the writ petition is allowed. 18. The order dtd. 5/4/2022 passed by the respondent No.2-Deputy Commissioner of Police, Zone-1 Amravati City externing the petitioner from Amravati District for a period of two years and the order dtd. 29/9/2022 passed by the respondent No.2-Divisional Commissioner of Amravati confirming the said order of externment are quashed and set aside. 19. Rule is made absolute in above terms. The writ petition stands disposed of.