Allowed

Zumbar S/O Goroba Kadam v. the State of Maharashtra and Others

Bombay HC2 Feb 2017WP/21/2017

Case brief

AI extract

What is this about?

The High Court Constitutional Bench allowed this criminal writ petition seeking quashing of externment orders under the Maharashtra Police Act. The Court held that the Sub Divisional Officer failed to record the mandatory opinion required under Section 56(1)(b) regarding witnesses' apprehension. Consequently, the appellate order was also set aside for non-application of mind to statutory mandates.

What did the court decide?

The petition is allowed; the impugned orders dated 28.12.2016 and 07.10.2016 passing externment are quashed and set aside. Rule made absolute.

Zumbar S/O Goroba Kadam Vs the State of… — Civil Procedure and Limitation | Bombay HC (2017)

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21.2017Cri.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.21 OF 2017

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Zumbar s/o. Goroba Kadam,
Age 68 Years, Occu. Labour,
R/o.Alani, Tq. and Dist.
Osmanabad.

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 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.G.J.Kore, Advocate for the Petitioner
Ms.Preeti V. Diggikar, 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.Rulemadereturnable

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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-127 passed
by the Ld.Divisional Commissioner
Aurangabadandorderdated
07/10/2016 passed by the Sub
Divisional Officer Osmanabad in
proceeding No.2016/Penal/CR-108 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 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

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considered by the authorities that only three
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 complaint against the Sarpanch
namely Arun Appasaheb Veer and only to give
counter blow to the crime registered by the
present petitioner the false case is filed by
the complainant namely Arun Appasaheb Veer.
It is submitted that the petitioner is
working as labourer.

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5.It is further submitted that the

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present petitioner is of 68 years old and
suffering from old age problem and his
economical condition is very bad. The
petitioner is doing social work and due to
the said work, the complainant in crime No.

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52/2015 got annoyed. With an intention to
stop the social activities initiated by the
petitioner, false cases were filed against
him by the complainants. It is submitted that
the alleged offences registered against the
present petitioner are false one and the same
are registered only to give counter blast to
the complaints filed against the complainants
abouttheirillegalactivityand

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misappropriation of government funds and
land. It is submitted that the expression
‘alarm, danger or harm to person or property
must be held to refer to the alarm, danger or

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harm to person or property of the public at
large and not of one or two individual
amongst the public. However, in the present

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case in both the cases, the complainant is
one and the same. It is submitted that except

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three crimes, no any other crime is
registered against the present petitioner.
Therefore, the learned counsel appearing for

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the petitioner submits that, the petition may
be allowed.

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6.On the other hand, the learned APP
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
with the provisions of Section 56 [1] [a] of
the Maharashtra Police Act, 1951 and also

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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
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,
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

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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

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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

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about to be engaged in the commission of an

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offence involving force or violence as
provided in clause (b). An order of
externment can also be passed against a

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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, or Chapter XVI,
or Chapter XVII of the Indian Penal Code.
But in addition to the above, the concerned
Officer,whoisdealingexternment

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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

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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

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

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property.

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10.The Division Bench of the Bombay

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High Court [at Principal seat] in the case of Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police & another¹ 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 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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1 1989 [3] Bom.C.R. 240

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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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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
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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12.Yet in another exposition of law in

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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
not only outside Pandharpur Taluka but to the

2 1969 Mh.L.J. 387

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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
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

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from Latur District and Ausa Taluka in Latur

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District, Barshi in Solapur District, North
Solapur, South Solapur when the alleged
activities / offences against the petitioner

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are registered with the Osmanabad Gramin

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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
has not followed the mandate of the
provisions of Section 56 [1] [b] of the
Maharashtra Police Act. There is non
application of mind of respondent no.3
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

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and restricted it’s implementation to the

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Osmanabad District nevertheless did not
consider that respondent no.3 has not adhered
to the provisions of Section 56 [1] [b] of

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the Maharashtra Police Act, 1951. In the

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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-127
passedbytheDivisional
Commissioner, Aurangabad and the
order dated 07.10.2016 passed by the
Sub Divisional Officer, Osmanabad in
proceeding No. 2016/Penal/CR-108
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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 [K.K.SONAWANE] [S.S.SHINDE]
 JUDGE JUDGE

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DDC

Zumbar S/O Goroba Kadam v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Zumbar S/O Goroba Kadam 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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