Allowed

Sopan Satappa Kore v. the State of Maharashtra and Others

Bombay HC2 Feb 2017WP/20/2017

Case brief

AI extract

What is this about?

This bench allowed a Writ Petition challenging orders of externment passed against a petitioner. The court held that the Sub-Divisional Officer failed to record the mandatory subjective satisfaction regarding witness apprehension as required by Section 56(1)(b) of the Maharashtra Police Act, 1951, rendering the orders illegal and requiring their quashing.

What did the court decide?

The orders dated 28.12.2016 and 07.10.2016 passed by the Divisional Commissioner and Sub-Divisional Officer respectively are quashed and set aside.

Sopan Satappa Kore Vs the State of Maharashtra and Others — Quashing and FIR | Bombay HC (2017)

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20.2017 Cri.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.20 OF 2017

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Sopan Satappa Kore,
Age 46 Years, Occu. Agri.
R/o.Alani, Tq. and Dist.
Osmanabad. PETITIONER

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VERSUS

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

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2. The Additional Commissioner, Commissioner Office, Aurangabad.

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3. The Sub Divisional Officer, Sub Divisional Office, Osmanabad. RESPONDENTS

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...

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Mr.N.B.Khandare,Advocateholdingfor
Mr.G.J.Kore, Advocate for the Petitioner
Mr.S.G.Karlekar, APP for the Respondent /
State

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...

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K.K.SONAWANE,JJ.

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Reserved on : 31.01.2017
 Pronounced on : 02.02.2017

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

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1.Heard.

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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 Petition is filed with the
following prayer clause:

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B]By issuing the writ of certiorari or
any other writ, order or direction
like in nature the impugned order
dated 28/12/2016 in proceeding No.
2016/SAPR/EXTERNMENT/CR-126 passed
by the Ld.Divisional Commissioner
AurangabadAndorderdated
07/10/2016 passed by the Sub
Divisional Officer Osmanabad in
proceeding No.2016/Penal/CR-109 may
kindly be quash and set aside.

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4.The learned counsel appearing for
the petitioner submits that the Sub

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Divisional Officer ought to have considered

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that both the offences registered against the

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present petitioner are not serious one or
against the society or dangerous to the

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public at large. It ought to have been
considered by the authorities that only two
offences are registered against the present
petitioner and the same are registered only
to pressurize the present petitioner.
Respondent no.3 did not take into
consideration that as the present petitioner
had filed several complaints against both the
complainants and only to give counter blow to
the crime registered by the present
petitioner the false cases are filed by the
complainants. It is submitted that the
petitioner is the farmer and no one is there
to do agricultural work.

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5.It is further submitted that the

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petitioner is doing social work and due to
the said work, the complainant in crime No.
39/2016 and complainant in Crime No.24/2013
got annoyed. With an intention to stop the
socialactivitiesinitiatedbythe

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petitioner, false cases were filed against

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him by the complainants. It is submitted that

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the alleged offences registered against the
present petitioner are false one and the same
are registered only to give counter blast to
the cases filed by the present petitioner
against complainants. It is submitted that

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the expression ‘alarm, danger or harm to
person or property of the public at large and
not of one or two individual amongst the
public. However, in the present case in both

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the cases, the complainant is one and the
same. It is submitted that except two crimes,
no any other crime is registered against the
present petitioner. Therefore, the learned
counsel appearing for the petitioner submits
that, the petition may be allowed.

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6.On the other hand, the learned APP

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appearing for the respondent – State relying
upon the original record and also the reasons
assigned by respondent nos.2 and 3 in the
impugned orders submit that the orders passed

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by respondent nos.2 and 3 are in conformity

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with the provisions of Section 56 [1] [a] [b]
of the Maharashtra Police Act, 1951 and also
keeping in view the documents collected
during the course of enquiry by the
respondent no.3.

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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
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) (a) and (b) of
the Maharashtra Police Act, 1951 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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(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
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
reasons assigned by respondent no.3 while
passing the order of externment of the
petitioner and we find that the said
authority has not recorded subjective
satisfaction and formed opinion that the
witnesses are not willing to come forward to
give evidence in public against the
petitioner by reason of apprehension on their
part as regards the safety of their person or
property.

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10. 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

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provisions of Section 56 [1] [a] and [b] and

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also the mandate of provisions of Section 59 1 1989 [3] Bom.C.R. 240

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of the Bombay Police Act. It would be gainful

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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,

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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

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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.

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[Underlines added] 11. 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

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

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

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not only outside Pandharpur Taluka but to the

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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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13. 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 2 1969 Mh.L.J. 387

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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
no discussion in the impugned order why the
externment of the petitioner is necessary
from Latur District and Ausa Taluka in Latur
District, Barshi in Solapur District, North

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Solapur, South Solapur when the alleged
activities / offences against the petitioner
are registered with the Osmanabad Gramin
Police Station, Osmanabad.

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14.In the light of discussion in the
foregoingparagraphs,aninevitable

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conclusion can be drawn that respondent no.3

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has not followed the mandate of the

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provisions of Section 56 [1] [b] of the
Maharashtra Police Act. There is non
application of mind of respondent no.3

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inasmuch as he has not adverted to the
specific grounds in the show cause notice and
also did not adhere to the mandate of the
provisions of Section 56 [1] [b] of the
Maharashtra Police Act, 1951.

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15.The Appellate Authority, though,
modified the order passed by respondent no.3
and restricted it’s implementation to the
Osmanabad District nevertheless did not
consider that respondent no.3 has not adhered

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to the provisions of Section 56 [1] [b] of
the Maharashtra Police Act, 1951. In the
light of the discussion hereinabove, we pass
the following order:

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ORDER

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i)The Writ Petition is allowed. The
order dated 28.12.2016 in proceeding
No.2016 / SAPR / EXTERNMENT / CR-126
passedbytheDivisional
Commissioner, Aurangabad and the

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order dated 07.10.2016 passed by the
Sub Divisional Officer, Osmanabad in
proceeding No. 2016 / Penal / CR-109
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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DDC

Sopan Satappa Kore v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Sopan Satappa Kore v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

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