Allowed

Vishwambhar S/O Jyotiram Sawant v. the State of Maharashtra and Others

Bombay HC22 Feb 2017WP/182/2017

Case brief

AI extract

What is this about?

This writ petition challenged the externment orders passed against the petitioner from Latur and Nanded districts. The High Court held that the orders were illegal as the authorities failed to form the requisite opinion that witnesses were unwilling to testify and did not apply their mind to the pending cases before quashing the orders.

What did the court decide?

The writ petition was allowed and the impugned orders of externment dated 15th September 2016 and 28th December 2016 were quashed and set aside.

Vishwambhar S/O Jyotiram Sawant Vs the State of… — Criminal Trial and Appeal | Bombay HC (2017)

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182.17WP(1).odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.182 OF 2017

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Vishwambhar S/o Jyotiram Sawant
Age : 66 years, Occ : Agri.,
R/o Bolegaon, Tq. Chakur,
Dist. Latur.

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PETITIONER

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VERSUS

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

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2. The Superintendent of Police, Latur, Tq. & Dist. Latur.

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3. The Sub-Divisional Magistrate, Ahmedpur, Tq. Ahmedpur, Dist. Latur.

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RESPONDENTS

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...

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Mr.T.M. Venjane, Advocate for the Petitioner
Mrs.P.V. Diggikar, APP for respondents.

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...

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CORAM: S.S.SHINDE &

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 K.K.SONAWANE,JJ.

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 DATE : 22nd February, 2017.

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

1. Heard.

182.17WP(1).odt

2. Rule. Rule made returnable

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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
petitioner, under Articles 226 and 227 of the
Constitution of India, questioning the
legality, propriety and correctness of the
order dated 15th September, 2016 passed by the
Sub-Divisional Magistrate, Ahmedpur in Case
No.2016/MMG/CR-01 and the order dated 28th
December, 2016 passed by the Divisional
Commissioner, Aurangabad in 2016/S.P./Pole-
1/C.R.-123, externing the petitioner from
Latur and Nanded Districts.

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4.The petitioner has assailed the
impugned orders on the following grounds:

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i)The impugned orders passed by
the Ld. Lower Authorities are wrong,
erroneous and against the sound

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182.17WP(1).odt

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principles of natural justice,
equity and procedure and therefore,
are liable to be quashed and set
aside.

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ii)Both the Authorities have not
considered the relevant documentary
record in its prospective sense,
which are related with the
compensation of acquired land of the
petitioner and dispute is pending
before the Revenue authorities.

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iii)The Sub Divisional Magistrate
passed impugned order without
hearing to the petitioner and
violated the principles of natural
justice.

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iv)The Sub Divisional Magistrate,
has not mentioned the details in the
notice dated 03/12/2015, about the
externment proceeding against the
petitioner.

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v)The petitioner is pilgrim and
of religious nature. The petitioner
is reading `Gita' everyday. The
petitioner is doing agriculture work
in his own field. There is standing
crops in the field of the
petitioner. The petitioner is the

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182.17WP(1).odt

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only earning member in his family.
Due to the impugned orders, the
family of the petitioner would be
put on starvation. All these aspect
have not been considered by both the
Authorities.

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vi)While initiating the externment
proceeding, the authorities have to
keep in mind the personal liberty
guaranteed under Article 21, which
is a sacrosanct and there must be
compelling necessity to extern the
subject.

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vii)The externment order passed by
the lower authority is after 16
months of the alleged offence, which
is not permissible. There is no past
instance of conviction record of the
present petitioner. The petitioner
is not habitual offender and only
because of criminal cases pending,
thatcannotbegroundfor

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externment. The offences which are
registeredshowsthat,the
petitionerisnotdangerous
criminal.

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viii)Both the lower authorities
have not considered that, there is

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no instance of misuse or abuse of
bail orders granted by the Ld. Lower
Courts.

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ix)That, if the externment

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order implemented, that may result
in reaching harsh consequences for
externee and the family of the
petitioner is depending upon him for
their livelihood.

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X)There is no single complaint
against the petitioner by the
villagers, where the petitioner is
residing.

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5.Therefore,relyinguponthe

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

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6.On the other hand, the learned

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A.P.P. appearing for the respondent – State,

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relying upon the reasons assigned in the
impugned orders and also original record
submits that, the Petition is devoid of

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merits and the same may be rejected.

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182.17WP(1).odt

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7.We have carefully considered the

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submissions of the learned counsel appearing

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for the petitioner and the learned APP
appearing for the respondent – State. With

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their able assistance, we have also carefully

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perused the pleadings and grounds taken in
the Petition, annexures thereto, original

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record made available for perusal by the
respondents and also the reported judgments
cited across the Bar by the learned counsel
appearing for the petitioner. At the outset,

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it would be apt to reproduce herein below the
provisions of Section 56 (1) (b) of the
Maharashtra Police Act which reads thus:

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56.Removal of persons about to commit offence

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(1) ....

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(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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182.17WP(1).odt

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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

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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

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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,

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or Chapter XVII of the Indian Penal Code.
But in addition to the above, the concerned
Officer, who is dealing with externment
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
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.3 from the original

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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 two offences.
Those crime numbers are also mentioned in the
show cause notice issued to the petitioner,
which are as under:

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1]Crime No.32/2014 registered with
Chakur Police Station, for the offence
punishable under Section 353, 506, 34 of
Indian Penal Code.

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2]Crime No.60/2015 registered with
Chakur Police Station, for the offence
punishable under Sections 353, 332, 504,
506, 34 of Indian Penal Code.

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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 the
petitioner has been falsely implicated in the
said crimes and the crimes which have been
registered against the petitioner are pending

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for adjudication. It is further stated that,

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he has every hope that, he will be acquitted
from the said offences.

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11.Upon careful perusal of the

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discussion in the order passed by respondent
no.3, there is no discussion in the said
order as to how the offences which have been
registered against the petitioner are
relevant for the purpose of passing the
impugned order externing the petitioner from
two districts i.e. Nanded and Latur. In fact,
from those alleged offences it appears that,
they are pending for adjudication, therefore,

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there is no live link between the said
offences and the impugned order passed by
respondent no.3. Be that as it may, there is

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no discussion in the impugned order passed by
respondent no.3 that as a matter of fact he
recorded in-camera statements of the
witnesses and they deposed about the alleged
illegal activities of the petitioner.

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182.17WP(1).odt

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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 & another1had

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occasion 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 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

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a person whose movements or acts are

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

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182.17WP(1).odt

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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 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

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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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13.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

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

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14.Yet in another exposition of law in
the case ofBalu Vs. The Divisional
Magistrate, Pandharpur2, while appreciating

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the facts involved in that case, this Court

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held that extending the area of externment
not only outside Pandharpur Taluka but to the

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Districts of Solapur, Pune and Satara is 2 1969 Mh.L.J. 387

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182.17WP(1).odt

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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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15.As already observed in the foregoing
paragraphs, it does not appear from the
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 Nanded District
when the alleged activities/offences against

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the petitioner being Crime No.32/2014 and
Crime No.60/2015 is registered with Chakur
Police Station.

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16.In the light of the discussion in

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the foregoing paragraphs, an inevitable

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conclusion can be drawn that there was non
application of mind of the concerned Police
Officer at the time of initiation of proposal
forexternmentofthepetitioner.
Respondent no.3 though made a casual
reference to the reply filed by the
petitioner making reference of crimes
mentioned at serial nos.1 and 2, nevertheless

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did not take into consideration the
contention raised in the said reply.

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17.So also the Appellate Authority i.e.

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Divisional Commissioner, Aurangabad 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 adhered

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to/followed by respondent no.3 and has

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confirmed the order passed by respondent no.3
externing the petitioner from Nanded and

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Latur districts. Therefore, we are of the
considered view that the impugned order
passed by the Divisional Commissioner,
Aurangabad and the respondent no.3 are not in
conformity with the mandate of the provisions
of Section 56 (1) (b) of the Maharashtra
Police Act and also suffer from non assigning
the detailed 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 15thSeptember, 2016
passedbytheSub-Divisional
Magistrate,AhmedpurinCase
No.2016/MMG/CR-01 and the order
dated 28th December, 2016 passed by
theDivisionalCommissioner,
Aurangabad in 2016/S.P./Pole-1/C.R.-
123, externing the petitioner from

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Latur and Nanded Districts stand
quashed and set aside.
ii)Rule made absolute in the above
terms. The Writ Petition stands
disposed of. No order as to costs.

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 [K.K.SONAWANE] [S.S.SHINDE]
 JUDGE JUDGE

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SGA

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Vishwambhar S/O Jyotiram Sawant v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Vishwambhar S/O Jyotiram Sawant 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

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