Allowed

Sharad S/O Vitthalrao Munde v. the State of Maharashtra and Others

Bombay HC19 Dec 2016WP/1461/2016

Case brief

AI extract

What is this about?

This criminal writ petition challenged an order of externment under Section 56 of the Maharashtra Police Act for lacking relevant facts and failing to record that witnesses feared to testify. The high court allowed the petition, quashing the order due to non-application of mind and lack of conformity with statutory mandates.

What did the court decide?

The writ petition is allowed. The order dated 21.09.2016 passed by respondent no.4 and the order dated 09.11.2016 passed by respondent no.2 are quashed and set aside.

Sharad S/O Vitthalrao Munde Vs the State of… — Civil Procedure and Limitation | Bombay HC (2016)

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1461.2016Cri.WP.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.1461 OF 2016

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Sharad s/o. Vithalrao Munde,
Age 39 years, Occ. Agri. & Social Work,
R/o. Sharda Nagar, Parali [Vaijnath],
Tal. Parali [Vaijnath], Dist.Beed

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PETITIONER

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VERSUS

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1. The State of Maharashtra Through Secretary, Home Department, Mantralaya, Mumbai.

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2. The Divisional Commissioner, Aurangabad.

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3. The Superintendent of Police, Beed, District Beed

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4. The Sub-Divisional Officer, Parali [Vaijnath], Tal.Parali [Vaijnath], District Beed

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5. The Police Inspector, Police Station, Parali [City], Tal. Parali [Vaijnath], Dist. Beed. RESPONDENTS

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...

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Mr.S.S.Thombre, Advocate for the Petitioner
Mr.P.S.Patil, Addl.P.P. for the Respondent /
State

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...

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CORAM: S.S.SHINDE &

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K.K.SONAWANE,JJ.

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Reserved on : 08.12.2016
 Pronounced on : 19.12.2016

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JUDGMENT: (Per S.S.Shinde, J.):

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1.Heard.

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2.Rule.Rulemadereturnable

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forthwith, and heard finally with the consent
of the parties.

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3.This Writ Petition is filed by the

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petitioner, under Articles 226 and 227 of the

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Constitution of India, questioning the legality, propriety and correctness of the impugned order dated 21^st September, 2016, passed by respondent no.4 in File No.2016 /

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MAG/Externment/CR-01 and also the order

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passed by the appellate Authority i.e.
respondent no.2 to the extent of confirming

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the order of externment of the petitioner

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from Beed District, vide order dated
09.11.2016 in Appeal No.125/2016.

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4.The learned counsel appearing for

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the petitioner submits that the order of
externment passed by respondent no.4 is
outcome of political vendetta inasmuch as the

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same is passed at the instance of the
Guardian Minister of Beed District so as to
ensure that the petitioner is not present in

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Parali [Vaijnath] Town during the period of
elections of the Municipal Council. It is
submitted that the FIR being Crime No.
273/2015 registered against the petitioner
for the offences punishable under Sections

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354 (A), 341 r/w. 34 of the Indian Penal Code

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and Section 25 [3] of the Arms Act is filed
at the instance of the Guardian Minister and
it is clear indication that the said FIR is

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registered with false allegation so as to
involve the petitioner only to gain political
mileage in the election of Municipal Council
Parali [Vaijnath]. It is submitted that the
petitioner was elected as a member of the

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Municipal Council, Parali [Vaijnath] for the
period from 2011 to 2016. He is also a
Director of the Agriculture Produce Market
Committee, Parali [Vaijnath] and he was also
group leader of the Nationalist Congress
Party.

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5. The order passed by respondent no.4
suffers from non-application of mind, same is
cryptic and unsustainable in law. It is
submitted that though the petitioner is
acquitted from 6 crimes after full-fledged
trial nevertheless without application of
mind the proposal was submitted by the
concerned Police Officer mentioning therein
those 6 crimes from which the petitioner
stands acquitted even before submitting
proposal for externment by the concerned
Police Officer. It is submitted that the
alleged activities of the petitioner are
within the jurisdiction of the Parali
Vaijnath Police Station in City area,

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however, the petitioner was externed by
respondent no.4 from Beed, Parbhani, Latur,
Osmanabad and Jalna Districts. Though the
Appellate Authority has modified the order
passed by respondent no.4 to the extent of
externing the petitioner from Parbhani,
Latur, Osmanabad and Jalna Districts,
nevertheless the Appellate Authority did not
properly appreciate the contention of the
petitioner that the order passed by
respondent no.4 stands vitiated due to non-
application of mind, and therefore, the said
should have been quashed in its entire by the

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Appellate Authority. It is submitted that
respondent no.4 did not follow the mandate of
provisions of Section 56 (1) (a) and (b) of

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the Maharashtra Police Act, inasmuch as there

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is no elaborate reference to the in-camera
statements, if any, recorded by respondent
no.4 Authority. Therefore, relying upon the

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pleadings/grounds taken in the Petition,

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annexures thereto and exposition of law by
the Division Bench of the Bombay High Court

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Bench at Aurangabad in the case of Iqbaluddin Ziauddin Pirzade Vs. The State of Maharashtra

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and Ors.¹ , and also the Division Bench of the

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Bombay High Court in the cases of Shafi and

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Saddam Shoukat Qureshi Vs. The Assistant

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Police Commissioner and others in Criminal

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Writ Petition No.2032 of 2016, decided on 11.08.2016, Yeshwant Damodar Patil Vs. Hemant

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Karkar, Dy. Commissioner of Police & another² , Imran Abdul Wahid Hasmi Vs. Deputy Commissioner of Police and others³ , Umar

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Mohamed Malbari Vs. K.P.Gaikwad, Dy. Commissioner of Police and another⁴ Ashfaq

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Vs. The State of Maharashtra⁵ and Syed Noman

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Hussaini Kausar Vs. The State of Maharashtra

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and the exposition of law by the Division
Bench of the Bombay High Court Bench at

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1 2015 (2) Bom.C.R. [Cri.] 464

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2 1989 (3) Bom.C.R. 240

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3 2016 [3] Bom.C.R. [Cri.] 642

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4 1988 Mh.L.J. 1034

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5 2015 All M.R.[Cri.] 1110

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Nagpur in the case of Sayeed Firoz Sayeed

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Noor Vs. State of Maharashtra ,⁶ and in the

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case of Balu Vs. The Divisional Magistrate, Pandharpur⁷ and submits that the Petition deserves to be allowed.

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6.On the other hand, the learned APP
appearing for the respondent – State relying
upon the original record submits that the
alleged activities of the petitioner and his
involvement in the commission of offences has

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been thoroughly considered by respondent
no.4. It is submitted that the witnesses were

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not coming forward to depose against the
petitioner, and therefore, after arriving at
subjective satisfaction on the basis of the
material collected by respondent no.4, the

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order of externment externing the petitioner

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from five Districts was passed by respondent

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no.4. The learned APP appearing for the

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respondent – State invites our attention to

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6 2016 [1] Bom.C.R. [Cri.] 270.

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7 1969 Mh.L.J. 387

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the various documents from the original
record and submits that the Writ Petition is
devoid of any merits and the same may be
rejected.

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7.We have carefully considered the
submissions of the learned counsel appearing
for the petitioner and the learned APP
appearing for the respondent – State. With

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their able assistance, we have also carefully
perused the pleadings and grounds taken in

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the Petition, annexures thereto, original
record made available for perusal by the
respondents and also the reported judgments

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cited across the Bar by the learned counsel
appearing for the petitioner. At the outset,
it would be apt to reproduce herein below the
provisions of Section 56 (1) (a) and (b) of
the Maharashtra Police Act reads thus:

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56.Removal of persons about to
commit offence

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(1) ....

(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or

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(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 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

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[Underlines are added]

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8.Upon careful perusal of the
aforesaid provisions, an order of externment

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can be passed against a person whose
movements or acts are causing or calculated
to cause alarm, danger or harm to person or
property as 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 as
provided in clause (b). 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 XII, or Chapter XVI,
or Chapter XVII of the Indian Penal Code.
But in addition to the above, the concerned
Officer,whoisdealingexternment
proceedings, should be of the opinion that
the witnesses are not willing to come forward
to give evidence in public against such
person by reason of apprehension on their

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part as regards the safety of their person or
property.

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9.We have carefully perused the order
passed by respondent no.4 from the original
record, it appears that respondent no.4 had
made reference to the proposal submitted by
the Police Inspector, Parli City Police
Station. In the said proposal, there is
mention of 7 offences. Those crimes numbers
are also mentioned in the show cause notice
issued to the petitioner. Which are as under:

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1]Crime No.45/2000 registered with
Parli Gramin Police Station, for the
offences punishable under Section 147,
148, 149, 324 of the IPC.

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2]Crime No.62/2001 registered with
Parali City Police Station, for the
offences punishable under Sections 325,
504, 506, 34 of the IPC.

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3]Crime No.84/2004 registered with
Parali City Police Station, for the

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offences punishable under Sections 143,
147, 307 of the IPC and Section 25 [3] of
the Indian Arms Act.

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4]Crime No.184/2005 registered with
Ambajogai City Police Station for the
offences punishable under Sections 147,
148, 354, 452, 323 of the Indian Penal
Code.

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5]Crime No.32/2006 registered with
Ambajogai City Police Station for the
offences punishable under Sections 307,
147, 148, 149, 323 of the IPC and Section
135 of the Bombay Police Act.

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6]Crime No.186/2009 registered with
Parali Gramin Police Station, for the
offences punishable under Sections 279,
457, 504, 506, 34 of the IPC and Sections
5 and 7 of the Indian Arms Act.

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7]Crime No.273/2015 registered with
Parali City Police Station for the
offences punishable under Sections 354
[A], 341, 34 of the Indian Penal Code and
Section 25 [3] of the Indian Arms Act.

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10.Pursuant to the show-cause notice

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issued to the petitioner, the petitioner did
file reply stating therein that out of 7
offences, 6 offences mentioned at serial nos.
1 to 6, he is already acquitted by the
Competent court even before initiating
proposal of his externment by the Police
Officer, Parali City Police Station. The
petitioner has also placed on record copies
of the judgment and order passed by the

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concerned Court in those cases. While passing
the impugned order, respondent no.4 did
consider the contention of the petitioner

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that the petitioner is acquitted from the
offences mentioned at serial nos. 1 to 6,
however, in the impugned judgment, it is
stated that the petitioner though acquitted

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from the offences mentioned at serial nos.1

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to 5, he is a habitual offender and his
activities are dangerous to the public which
are likely to cause fear in the minds of the

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people and ultimately his activities would
lead to breach of peace and security of the
citizens. Therefore, it clearly emerges that
respondent no.4 did not consider assertion of
the petitioner, which was supported by the
copy of the judgment and order placed on
record that the petitioner stands acquitted
from the crime No.186/2009 [mentioned at
serial no.6] registered with Parali Gramin
Police Station for the offences punishable
under Sections 279, 457, 504, 506, 34 of the
Indian Penal Code and Sections 5 and 7 of the
Indian Arms Act.

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11.Upon careful perusal of the

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discussion in the order passed by the
respondent no.4, there is no discussion in

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the said order as to how the offences
registered from the year 2000 till 2009 are
relevant for the purpose of passing the
impugned order. In fact, from those alleged
offences the petitioner stands acquitted even

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prior to initiating proposal for externment

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by the Police Officer, therefore, there is no

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live link between the said offences from
which the petitioner stands acquitted and the

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impugned order passed by respondent no.4. Be

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that as it may, there is no discussion in the
impugned order passed by respondent no.4 that

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as a matter of fact he recorded in-camera statements of the witnesses and they deposed about the alleged illegal activities of the petitioner. The Division Bench of the Bombay High Court [at Principal seat] in the case of Yeshwant Damodar Patil [cited supra] had

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occasioned to consider the scope of
provisions of Section 56 [1] [a] and [b] and
also the mandate of provisions of Section 59
of the Bombay Police Act. It would be gainful
to reproduce herein below para 3 of the said
judgment:

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3. Section 56 (i) of the Bombay Police Act visualises three

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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 section 56 (i) of the Act. An order of externment can be passed against a person whose movements or acts are

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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 section 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

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punishable under Chapter XII, of Chapter XVI, or Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause (b) of section 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.

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[Underlines added]

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12.The aforementioned provisions make

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it abundantly clear that in order to fulfill
mandate of the provisions of Section 56 (1)
(b), the designated officer has to record his
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.

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13.Yet in another exposition of law in
the case of Balu Vs. The Divisional
Magistrate, Pandharpur [cited supra], while
appreciating the facts involved in that case,
this Court held that extending the area of
externment not only outside Pandharpur Taluka
but to the Districts of Solapur, Pune and
Satara is illegal since the alleged
activities against the petitioner therein, as
stated in the show cause notice, were
confined to the Pandharpur City.

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14.As already observed in the foregoing
paragraphs, it does not appear from the
discussion in the order passed by respondent
no.4 that, as a matter of fact he recorded
in-camera statements of the witnesses and

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before passing the impugned order of
externment, he formed opinion that the
witnesses are not willing to come forward to

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give evidence in public against the
petitioner. It further appears that there is

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no discussion in the impugned order why the
externment of the petitioner is necessary
from Parbhani, Latur, Osmanabad and Jalna
Districts when the alleged activities /
offences against the petitioner being Crime
No.273/2015 is registered with the Parali
City Police Station.

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15.In the light of the discussion in

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the foregoing paragraphs, an inevitable
conclusion can be drawn that the Police
Inspector, Parali City Police Station while
submitting the proposal of externment of the
petitioner, in spite of his acquittal by the
competent court, from the offences mentioned
at serial nos.1 to 6 did mention the said
offences in the said proposal submitted to
respondent no.4. It shows non application of

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mind of the concerned Police Officer at the

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time of initiation of proposal for externment

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of the petitioner. Respondent no.4 though
made a casual reference to the reply filed by

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the petitioner making reference of crimes
mentioned at serial nos.1 to 5, nevertheless

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did not take into consideration the
contention of the petitioner that even the
petitioner stands acquitted from the offence,
which is mentioned at serial no.6 i.e. Crime

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No.186/2009 even before initiating the
proposal of his externment.

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16.It is true that the Appellate

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Authority modified the order passed by the

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respondent no. 4 inasmuch as the order of
externment is confined to the limits of Beed
District. However, the Appellate Authority

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had not taken into consideration the
contention of the petitioner that while
passing the impugned order, the mandate of
provisions of Section 56 (1) (b) has not been

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adhered to/followed by respondent no.4.
Therefore, we are of the considered view that

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the impugned order passed by respondent no.4
is not in conformity with the mandate of the

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provisions of Section 56 (1) (b) of the
Maharashtra Police Act and also suffers from
non assigning the detail reasons and hence
call for interference under extra ordinary
writ jurisdiction. Hence the following order:

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ORDER

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i)The Writ Petition is allowed. The
order dated 21.09.2016 passed by
respondent no.4 and the order dated
09.11.2016 passed by respondent no.2
stand quashed and set aside.

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ii)Rule made absolute in the above
terms. The Writ Petition stands
disposed of. No order as to costs.

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Sd/- Sd/-
 [K.K.SONAWANE] [S.S.SHINDE]
 JUDGE JUDGE

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DDC

Sharad S/O Vitthalrao Munde v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Sharad S/O Vitthalrao Munde v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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