Allowed

Balaji S/O Ganpati Chame v. the State of Maharashtra and Others

Bombay HC13 Jan 2017WP/1547/2016

Case brief

AI extract

What is this about?

This court quashed an order of externment under the Maharashtra Police Act. The judgment found that the impugned order failed to record in-camera witness statements as mandated by Section 56(1)(b), ignored the petitioner's acquittals in three offenses, and extended the externment area improperly.

What did the court decide?

The petition is allowed. The impugned externment orders dated 25.11.2016 and 06.09.2016 are quashed and set aside. Rule made absolute.

Balaji S/O Ganpati Chame Vs the State of Maharashtra and… — Landlord and Tenant | Bombay HC (2017)

¶1

1547.2016Cri.WP.odt

¶2

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶4

CRIMINAL WRIT PETITION NO.1547 OF 2016

¶5

Balaji s/o. Ganpati Chame,
Age: 45 years, Occu.: Agril.,
R/o. Selu, Tq. Ausa, Dist.Latur
Presently R/o. C/o. Mahesh
Pandurang Yenge, Naregaon,
Tq. Haveli, Dist. Pune.

¶6

PETITIONER

¶7

VERSUS

¶8

1. The State of Maharashtra, Through its Secretary, Home Department, Mantralaya, Mumbai – 32.

¶9

2. The Divisional Commissioner, Aurangabad Division, Aurangabad.

¶10

3. The Sub Divisional Magistrate, Ausa-Renapur, Dist. Latur.

¶11

4. The Sub Divisional Police Officer, Ausa, Tq.Ausa, Dist.Latur.

¶12

RESPONDENTS

¶13

...

¶14

Mr.A.N.Irpatgire, Advocate holding for
Mr.V.D.Godbharle, for the Petitioner
Mr.S.G.Karlekar,APP for respondent nos.1 to
4.

¶15

Mr.Shrikant Y.Patil, Advocate assist to P.P.

¶16

...

¶17

CORAM: S.S.SHINDE &

¶18

 K.K.SONAWANE,JJ.

¶19

Reserved on : 10.01.2017
 Pronounced on : 13.01.2017

¶20

1547.2016Cri.WP.odt

¶21

¶22

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

¶23

1.Heard.

¶24

2.Rule.Rulemadereturnable

¶25

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

¶26

3.This Writ Petition is filed by the

¶27

petitioner, under Articles 226 and 227 of the
Constitution of India, questioning the
legality, propriety and correctness of the
order dated 25.11.2016 passed by respondent
no.2 in Appeal No. Pra.Kra. 2016/Sapra/Pol-1/

¶28

Haddpar/CR-118, thereby partly allowing the
appeal of the petitioner restricting the
externment order to the area of Latur

¶29

District, and also against the externment
order dated 06.09.2016 passed by respondent
no.3, externing the petitioner from Latur and
Osmanabad District.

¶30

1547.2016Cri.WP.odt

¶31

¶32

4.The petitioner has assailed the

¶33

impugned orders on the following grounds:

¶34

i)The proposal submitted by the
Sub-Divisional Police Officer and
Enquiry Officer, Sub Division, Ausa,
wherein out of 4 offences mentioned
on the date of filing such proposal,
the petitioner was already acquitted
from 3 offences.

¶35

ii)The copies of the proposal
submitted by the said authority and
also other documents were not given
to the petitioner as a result the
petitioner could not properly defend
himself.

¶36

iii)Respondent no.3 hurriedly
passed the order of externment in
absence of the advocate of the
petitioner and thereby principles of
natural justice have been violated.

¶37

iv)Respondent nos.2 and 3 did
not take into consideration that,
out of 4 offences mentioned in the
show cause notice, the petitioner

¶38

1547.2016Cri.WP.odt

¶39

¶40

was already acquitted from 3
offences.
v)Theorderpassedby
respondent no.3 was excessive
inasmuch as the petitioner was
externed from Latur and Osmanabad
District, however, the alleged
offences in the show cause notice
wereregisteredwithinthe
jurisdiction of the Latur District.

¶41

vi)Inordertosatisfy
requirement of the provisions of
Section 56 (1) (a) (b) of the
Maharashtra Police Act, respondent
no.3 did not record in-camera
statements of the witnesses.

¶42

vii)One of the reasons assigned
in the order of externment that, the
petitioner is creating law and order
situation by spreading communal
hatred is dehors the grounds
mentioned in the show cause notice.
The notice was issued under Section
56 (1) (a) (b) of the Maharashtra
Police Act, however, the aforesaid
reason assigned would attract

¶43

1547.2016Cri.WP.odt

¶44

¶45

ingredients of Section 56 1(bb) of
the Maharashtra Police Act.

¶46

viii)ThoughtheAppellate
Authority modified the order passed
by respondent no.3 and confined to
the Ausa Police Station, situate in
Latur District nevertheless the
legal aspects raised by the
petitioner have not been properly
consideredbytheAppellate
Authority.

¶47

ix)The reply filed by the
petitioner to the show cause notice
before respondent no.3, was not
considered by respondent no.3 while
passing the order of externment.

¶48

5.Therefore,relyinguponthe

¶49

aforementioned grounds, the learned counsel
appearing for the petitioner submits that,
the petition deserves to be allowed.

¶50

6.On the other hand, the learned
counsel appearing for the respondent – State,
assisted by Advocate Mr.S.Y.Patil relying

¶51

1547.2016Cri.WP.odt

¶52

¶53

upon the reasons assigned in the impugned
orders and also original record submits that,
the Writ Petition is devoid of merits and the
same may be rejected.

¶54

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
their able assistance, we have also carefully
perused the pleadings and grounds taken in
the Petition, annexures thereto, original

¶55

record made available for perusal by the
respondents and also the reported judgments
cited across the Bar by the learned counsel

¶56

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 which reads thus:

¶57

56.Removal of persons about to
commit offence

1547.2016Cri.WP.odt

(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

¶62

(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

¶63

[Underlines are added]

¶64

8.Upon careful perusal of the

¶65

aforesaid provisions, an order of externment

¶66

1547.2016Cri.WP.odt

¶67

¶68

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

¶69

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

¶70

punishable under Chapter XII, or Chapter XVI,
or Chapter XVII of the Indian Penal Code.
But in addition to the above, the concerned

¶71

Officer, who is dealing with externment
proceedings, should be of the opinion that

¶72

the witnesses are not willing to come forward

¶73

to give evidence in public against such
person by reason of apprehension on their

¶74

1547.2016Cri.WP.odt

¶75

¶76

part as regards the safety of their person or
property.

¶77

9.We have carefully perused the order
passed by respondent no.3 from the original
record, it appears that respondent no.3 had
made reference to the proposal submitted by
the concerned Police Officer. In the said
proposal, there is mention of 4 offences.
Those crimes numbers are also mentioned in

¶78

the show cause notice issued to the
petitioner. Which are as under:

¶79

1]Crime No.6080/2012 registered with
Ausa Police Station, for the offence
punishable under Section 65 (a) (e) of
the Maharashtra Police Act.

¶80

2]Crime No.6004/2013 registered with
Ausa Police Station, for the offence
punishable under Sections 65 (a) (e) of
the Maharashtra Police Act.

¶81

3]Crime No.6038/2013 registered with
Ausa Police Station, for the offence

¶82

1547.2016Cri.WP.odt

¶83

¶84

punishable under Section 65 (a) (e) of
the Maharashtra Police Act.

¶85

4]Crime No.169/2015 registered with
Ausa Police Station for the offences
punishable under Sections 307, 326, 143,
147, 148 and 149 of the Indian Penal
Code, under section 135 of the
Maharashtra Police Act and under section
3/25 of the Indian Arms Act.

¶86

10.Pursuant to the show-cause notice

¶87

issued to the petitioner, the petitioner did
file reply stating therein that out of said
four offences, offences mentioned at serial

¶88

nos.1 to 3, he is already acquitted by the
Competent court even before initiating

¶89

proposal of his externment by the concerned

¶90

Police Officer. The petitioner has also
placed on record copies of the judgment and
orders passed by the concerned Court in those
cases. While passing the impugned order,

¶91

respondent no.3 adverted to the contention of
the petitioner that the petitioner is

¶92

1547.2016Cri.WP.odt

¶93

¶94

acquitted from the offences mentioned at
serial nos. 1 to 3, however, in the impugned
judgment, it is stated that the petitioner is
acquitted from the offences mentioned at
serial nos.1 and 2, however, other two crimes
at serial nos.3 and 4 are pending.
Therefore, it clearly emerges that respondent
no.3 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 even
from the crime No.6038/2013 [mentioned at
serial no.3] registered with Ausa Police
Station for the offences punishable under
Section 65 (a) (e) of the Maharashtra Police
Act.

¶95

11.Upon careful perusal of the

¶96

discussion in the orders passed by the
respondent no.3, there is no discussion in
the said order as to how the offences
registered from the year 2012 till 2015 are

¶97

¶98

1547.2016Cri.WP.odt

¶99

relevant for the purpose of passing the
impugned order. In fact, from those alleged
offences the petitioner stands acquitted even
prior to initiating proposal for externment
by the Police Officer, therefore, there is no
live link between the said offences from
which the petitioner stands acquitted and the

¶100

impugned order passed by respondent no.3. Be
that as it may, there is no discussion in the
impugned order passed by respondent no.3 that

¶101

as a matter of fact he recorded in-camera
statements of the witnesses and they deposed
about the alleged illegal activities of the
petitioner.

¶102

12. The Division Bench of the Bombay High Court [at Principal seat] in the case of Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police & another¹ had occasioned to consider the scope of provisions of Section 56 [1] [a] and [b] and

¶103

1 1989 (3) Bom.C.R. 240

¶104

1547.2016Cri.WP.odt

¶105

¶106

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:

¶107

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

¶108

alarm, danger or harm to person or property. That is what is provided

¶109

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

¶110

1547.2016Cri.WP.odt

¶111

¶112

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 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.

¶113

[Underlines added]

¶114

13.The aforementioned provisions make
it abundantly clear that in order to fulfill

¶115

1547.2016Cri.WP.odt

¶116

¶117

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

¶118

on their part as regards the safety of their
person or property.

¶119

14. Yet in another exposition of law in the case of Balu Vs. The Divisional

¶120

Magistrate, Pandharpur² , while appreciating

¶121

the facts involved in that case, this Court
held that extending the area of externment

¶122

not only outside Pandharpur Taluka but to the

¶123

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.

¶124

15. As already observed in the foregoing paragraphs, it does not appear from the 2 1969 Mh.L.J. 387

¶125

1547.2016Cri.WP.odt

¶126

¶127

discussion in the order passed by respondent
no.3 that, as a matter of fact he recorded
in-camera statements of the witnesses and
before passing the order of externment, he
formed opinion that the witnesses are not
willing to come forward to give evidence in
public against the petitioner. It further
appears that there is no discussion in the
impugned order why the externment of the
petitioner is necessary from Osmanabad
District when the alleged activities/offences
against the petitioner being Crime No.
169/2015 is registered with the Ausa Police
Station.

¶128

16.In the light of the discussion in
the foregoing paragraphs, an inevitable

¶129

conclusion can be drawn that there was non
application of mind of the concerned Police
Officer at the time of initiation of proposal

¶130

for externment of the petitioner inasmuch as

¶131

though the petitioner was already acquitted

¶132

1547.2016Cri.WP.odt

¶133

¶134

from the three offences mentioned at serial

¶135

nos.1 to 3, it was shown in the said proposal
thatsaidoffencesarepending.

¶136

Respondent no.3 though made a casual
reference to the reply filed by the
petitioner making reference of crimes
mentioned at serial nos.1 to 3, nevertheless

¶137

did not take into consideration the
contention of the petitioner that even the
petitioner stands acquitted from the offence,

¶138

which is mentioned at serial no.3 i.e. Crime

¶139

No.6038/2013 even before initiating the
proposal of his externment.

¶140

17.It is true that the Appellate

¶141

Authority modified the order passed by the
respondent no. 3 inasmuch as the order of
externment is confined to the limits of Latur
District. However, the Appellate Authority

¶142

had not taken into consideration the

¶143

contention of the petitioner that while
passing the impugned order, the mandate of

¶144

1547.2016Cri.WP.odt

¶145

¶146

provisions of Section 56 (1) (b) has not been
adhered to/followed by respondent no.3.
Therefore, we are of the considered view that

¶147

the impugned order passed by respondent no.2
is not in conformity with the mandate of the
provisions of Section 56 (1) (b) of the
Maharashtra Police Act and also suffers from
non assigning the detailed reasons and hence
call for interference under extra ordinary
writ jurisdiction. Hence the following order:

¶148

ORDER

¶149

i)The Writ Petition is allowed. The
order dated 25.11.2016 passed by
respondent no.2 to the extent of
confirming the order of externment
from the Latur District passed by
the respondent no.3, and also the

¶150

order dated 06.09.2016 passed by
respondent no.3 stand quashed and
set aside.

¶151

1547.2016Cri.WP.odt

¶152

¶153

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

¶154

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

¶155

DDC

Balaji S/O Ganpati Chame v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Balaji S/O Ganpati Chame 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

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Devidas S/O Sukhdeo Ghate and Other Vs the State of Maharshtra and Anr.

Sharad S/O Trambak Chavan Vs the State of Maharashtra

Mr. Damodar Rambhau Gulhane Vs the State of Maharashtra

Radha @ Ashtha Vitthaql Takaras Vs the State of Mah

Girish S/O Upendra Karhade and Other Vs the State of Maharashtra and Anr.

Kanifnath S/O Radhakishan Popalghat Vs the State of Maharashtra and Others