Allowed

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

Bombay HC19 Jan 2017WP/1564/2016

Case brief

AI extract

What is this about?

Criminal Writ Petition filed to quash an externment order and the underlying proceedings. The High Court held that the lower authority failed to record subjective satisfaction about witness safety as mandated by the Maharashtra Police Act, 1951, and allowed the petition.

What did the court decide?

The impugned order dated 29-10-2016 and consequent proceedings in Externment Appeal No. 39 of 2016 were quashed.

Kanifnath S/O Radhakishan Popalghat Vs the State of… — Writ and Judicial Review | Bombay HC (2017)

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1 Cri.WP-1564-16

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 1564 OF 2016

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Kanifnath Radhakishan Popalghat Age: 32 yrs. Occu. Business and Social Work, R/o Supa, Tq. Partner, Dist. Ahmednagar, at present residing at C/o Shamrao Jagannath Thorat, Prabha - Shankar Niwas, Datta Nagar Wadaki, Tq. Haveli, Dist. Pune ...PETITIONER

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versus

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The State of Maharashtra Through Principal Secretary Home Department, Maharashtra State, Mantralaya, Mumbai -32

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The Divisional Commissioner, Nashik Division, Nashik.

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The Sub-Divisional Police Officer, Shrigonda – Parner Division, Ahmednagar, Dist. Ahmednagar. ...RESPONDENTS

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Mr. N. V. Gaware, Advocate for Petitioner Mr. D. R. Kale, APP for Respondents

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CORAM : S.S. SHINDE AND K.K. SONAWANE, JJ.

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DATED : 19^th JANUARY, 2017.

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JUDGEMENT :- ( Per: S.S. Shinde, J.)

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Rule. Rule made returnable forthwith. Heard finally, with consent of the learned counsel for the parties.

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This petition is filed with following prayer:

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“B. Quash and set aside the impugned order dated 29-10-2016 passed by respondent No. 2 - Divisional Commissioner, Nashik Division Nashik, in Externment Appeal No. 39 of 2016 and consequently said proceedings

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2 Cri.WP-1564-16

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may kindly be allowed into and for that purpose issue necessary orders.”

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The learned counsel appearing for the petitioner invites our attention to the show cause notice and submits that no specific ground has been set out in the show cause notice, therefore, on that ground alone entire proceedings based upon said show cause notice stands vitiated. He further submits that mandate of provisions of Section 56 (1) (a) (b) of the Maharashtra Police Act, 1951 (for short “Act of 1951”) has not been adhered too by the authority, while issuing show cause notice and also passing the order by respondent No. 3.

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It is submitted that though respondent No. 2 Divisional Commissioner, Nashik Division, Nashik has modified the order passed by respondent No. 3 and confined the implementation and execution of the order of the externment to the extent of village Supa, nevertheless other legal aspects which were agitated by the petitioner before said authority have not been properly considered. He further invites our attention to the reasoning part of the order passed by respondent No. 3 and submits that, as a matter of fact, there is no reference in the said order to the effect that in camera statements of the witnesses were recorded or subjective satisfaction was reached by respondent No. 3 to the effect that witnesses are not coming forward to give evidence against the petitioner in public by reason of apprehension on their part as regards the safety of their person or property.

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The learned counsel appearing for the petitioner has placed reliance on the judgment in the case of Yeshwant Damodar Patil Vs.

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3 Cri.WP-1564-16

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Hemant Karkare, Dy Commissioner of Police and another reported in 1989 (3) Bom. C.R. 240, in particular, conclusion reached by the Division Bench of this court, in paragraph No. 3 and also paragraphs No. 10 and 11 of the said judgment. He further relying upon the pleadings and grounds raised in the memo of petition annexures thereto, the provisions of Section 56(1)(a)(b) of the Act of 1951, also ratio in the case of Yeshwant Damodar Patil (Supra) and in the case of Ayub Yusuf Mansuri Vs. Sub-Divisional Magistrate, Nandurbar and others reported in 1986(1) Bom. C.R. 144 submits that the petition deserves to be allowed.

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The learned APP relying upon the reasons assigned by respondents No. 2 and 3 in the impugned orders submits that said reasoning are inconsonance with the material brought on record by the authorities. An authorities have exercised their jurisdiction within permissible limit. They have not exceeded their jurisdiction or orders impugned in this petition are not passed without jurisdiction, therefore, the petition may be rejected.

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We have carefully heard the submissions advanced by the learned counsel appearing for the parties and with their able assistance perused the pleadings, grounds raised in the memo of petition, annexures thereto and reasons assigned by respondents No. 2 and 3 in their respective judgments and orders and also provisions of section 56(1)(a) (b) and sections 58 and 59 of the Act of 1951. Upon careful perusal of the show cause notice and order passed by respondent No. 2, it is not mentioned that, as a matter of fact, respondent No. 3 was subjectively satisfied that witnesses are not coming forward to give

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4 Cri.WP-1564-16

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evidence against the petitioner in public by reason of apprehension on their part as regards the safety of their person or property.

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During the course of hearing, the learned APP appearing for respondents has pointed out the original record containing statements of the witnesses recorded in camera and provided to the petitioner, and submitted that it should be inferred that respondent No. 3 reached to subjective satisfaction that witnesses are not willing to come forward to give evidence against the petitioner in public by reason of apprehension on their part as regards the safety of their person or property. Said submission cannot be accepted for the simple reason that the respondent No. 3 has not recorded his satisfaction in his judgment.

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In the facts of the case of Yeshwant Damodar Patil (Supra), while explaining the scope and real purport of the provisions of section 56(1) (a)(b) of the Act of 1951, and procedure to be followed by the authority under section 59 of the Act of 1951, in paragraph No. 3, it is held that:

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“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 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

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5 Cri.WP-1564-16

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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 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 or their person or property.

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Respondent No. 3 in his order dated 10-02-2016 has assigned the following reasons, while passing the order of externment, which reads thus:

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“miyC/k dkxniPkko:u vls fnlqu ;srs dh] rlsp rks ljkbZr xqUgsxkj vkgs rks dks.kR;kgh lekt dR;kr lgHkkxh gks.;kph 'kD;rk ukdkjr ;sr ukgh rjh lkeusokyk ;kaP;k vfLrRokeqGs dks.krkgh /kksdk fuekZ.k >kysyk ukgh vlk [kqyk izLrkohr gn~nikj ble ;kaP;k ofdykauh ek÷;k leksj dsysyk vkgs- lkeusokyk ;kaP;k fo:/n nk[ky vlysys 1 xqUgk gs U;k;izfo”B vkgs o 1 xqUgk iksfyl riklkoj vkgs rlsp 4 xqUgs vn[kyik«k vlysus ;ko:u lkeusokyk g;kpk lrr xqUgsxkjh izoRrheqGs R;keqGs ;k loZ dkj.kko:u iksfyl vf/kdkjh ;kauh izLrkohr gnnikj blekfo:/n eqacbZ iksfyl dk;nk 1951 ps dye 56 ¼1½ v½ c½ vUo;s lknj dsysyk izLrko gk gnnikj dj.kslkBh ;ksX; okVr vkgs- Eg.kqu eh mifoHkkxh; naMkf/kdkjh Jhxkasnk ikjusj Hkkx v-uxj fu;ksthr gnnikj ble dkfuQukFk mQZ dkU;k jk/kkfdlu iksiG?kV] jklqik] rk- ikjusj ;kus dsysys xqUgs gs ikjusj rkyqD;krhy gnnhrhy vlqu R;kps fo:/n izyafcr xqUg;kpkgh fu.kZ; vn;ki >kysyk ukgh- r;keqGs R;kpkgh fopkj ;sFks dj.ks vko';d vkgs Eg.kqu eh mifoHkkxh; naMkf/kdkjh Jhxksank ikjusj mifoHkkx v-uxj [kkyhyizek.ks vkns'k ikjhr djhr vkgs-”

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Upon careful perusal of reasons assigned by respondent No. 3 in his order dated 10-02-2016, in the light of the observations of the Division Bench of this court in paragraph No. 3 of judgment in the case of Yeshwant Damodar Patil (Supra), it is abundantly clear that, respondent No. 3 did not record subjective satisfaction or reached to the definite conclusion that due to fear of the petitioner the witnesses

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6 Cri.WP-1564-16

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are not coming forward to give evidence against the petitioner in public by reason of apprehension on their part as regards the safety or their person or property. The reasons assigned by the authority also suffers from not demonstrating the live link between the offences relied upon in the show cause notice and the order passed by authority externing the petitioner from the territorial limits of Ahmednagar District.

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It is not necessary for us to lengthen the judgment. Suffice it to say that respondent No. 3 did not adhere to the mandate of section 56(1)(a) (b) of the Act of 1951. Though the appellate authority modified the order of respondent No. 3 and confined the effect and implementation of the order passed by respondent No. 3 to village Supa, nevertheless aforesaid legal aspects have not been considered by respondent No. 2 and to that effect there are no reasons assigned in his order.

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In that view of the matter, we are inclined to allow this petition. Hence, petition stands allowed in terms of prayer clause “B”. Rule is made absolute accordingly. Writ petition stands disposed of.

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Sd/-

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Sd/-

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[ K. K. SONAWANE, J. ] [ S.S. SHINDE, J.]

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MTK

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

Case brief

What is this about?

What did the court decide?

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

Case brief

What is this about?

What did the court decide?

What the court decided

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