Allowed

Dnyaneshwar Madhav Malve v. the Divisional Commissioner and Others

Bombay HC1 Aug 2017WP/872/2017

Case brief

AI extract

What is this about?

This writ petition challenged an order of externment passed under Section 56 of the Maharashtra Police Act. The High Court allowed the petition, holding that the order was unsustainable due to non-compliance with statutory requirements regarding reasons for witness apprehension and because the externment area was excessive.

What did the court decide?

The Criminal Writ Petition was allowed in terms of prayer clause (B) and the impugned orders were set aside.

Dnyaneshwar Madhav Malve Vs the Divisional… — Writ and Judicial Review | Bombay HC (2017)

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crwp872.17

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 872 OF 2017

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Dnyaneshwer Madhav Malve..Petitioner
Age. 43 years, Occ. Agri.,
Permanent R/o. A/o. Kolpewadi,
Tq. Kopargaon, Dist. Ahmednagar
At present R/o. C/o.
Mangesh Madhav Malve
Sheetal Nagar, Satara parisar,
Ekta Swarup Apartment,
Flat No.4, Aurangabad.

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	`Versus`
`1)`	`The Divisional Commissioner` `..` `Respondents` `Nashik Division, Nashik.`
`2)`	`The Sub-Divisional Police Officer,` `Shirdi Division, Shirdi,` `Tq. Rahata, Dist. Ahmednagar.`
`3)`	`The Sub-Divisional Magistrate,` `Shirdi Division, Shirdi,` `Tq. Rahata, Dist. Ahmednagar.`
`Mr.` `Mr.`	`K.B. Borde Patil, Advocate for the petitioner.` `M.M. Nerlikar, A.P.P. for respondents/State.`
	`CORAM : S.S.SHINDE &` `S.M.GAVHANE,JJ.` `DATED :` `01.08.2017`

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( 2 ) crwp872.17

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ORAL JUDGMENT [PER : S.S. SHINDE,J.] :-

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1.Rule. Rule made returnable forthwith and heard

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finally with the consent of the parties.

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2.At the outset learned Counsel appearing for the
petitioner makes oral prayer to correct designation of
respondent No.3 in the cause title of the memo of
petition. The prayer is granted. The amendment be
carried out forthwith.

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3.This petition takes an exception to the order
dated 28.04.2017 passed by the Divisional Commissioner,
Nashik in Externment Appeal No.24 of 2017, thereby
confirming the order passed by respondent No.3. It is

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not necessary to make reference to the facts in greater
length stated in the petition. Suffice it to say that
the petitioner assailed the order passed by respondent

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No.3 which is confirmed by respondent No.1 principally on
two grounds. Firstly, the order is excessive in as much

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as though the alleged offences which are mentioned in the

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show-cause notice issued by respondent No.3 are

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registered at Kopargaon Police Station, however, the
petitioner is externed from the boundaries of Kopargaon,

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Rahata, Shrirampur, Sangamner Talukas (Tahsil) of

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Ahmednagar District; Yeola, Sinnar and Niphad Talukas of
Nashik District and Vaijapur Taluka of Aurangabad

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District. It is submitted that respondent Nos.1 and 2

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have not assigned any reasons in the impugned order why

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the externment of the petitioner is necessary from

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aforementioned Talukas of Nashik and Aurangabad

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Districts. He further submits that since the order

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passed by respondent No.3 is taking recourse to the
provisions of section 56(1)(a)(b), of the Maharashtra

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Police Act [for short “the said Act”]; there is no

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compliance of mandate of section 56 (1)(b) of the Act, in
as much as, though there is reference to the statement of

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witnesses recorded in camera by respondent No.2,

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respondent No.3, did not form opinion that witnesses are

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not willing to come forward to give evidence in public

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against such person by reason of apprehension on their
part as regards the safety of their person or property.
It is submitted that when the Sub-Divisional Magistrate
is empowered to deal with the proceedings under the
provisions of Section 56(1)(a)(b) of the Act, said
Officer is supposed to apply his mind to the material
before him and in particular the statements of witnesses,
so as to form opinion that the witnesses are not willing
to come forward to give evidence against the proposed
externee in public by reason of apprehension on their
part as regards the safety of their person or property.
Therefore, learned Counsel appearing for the petitioner,
relying upon grounds taken in the petition and annexures
thereto, submits that the petition deserves to be
allowed.

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4.On the other hand, learned APP appearing for the

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respondents relying upon section 59 of the said Act
submits that there is no provision in law that only the
Sub-Divisional Magistrate has to issue notice. In his

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submission the Sub-Divisional Police Officer i.e.

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respondent No.2 is competent authority, who had issued
notice to the petitioner and therefore, there is
compliance of the mandate of Section 56(1)(b) of the said
Act. He submits that pursuant to the notice issued by
respondent No.2, the petitioner filed reply and
thereafter considering the reply of the petitioner,

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proposal was forwarded to respondent No.3 by respondent
No.2 so as to take the externment proceeding at its
logical end. He submits that notice given by respondent
No.2 contains the general nature of material allegations

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against the petitioner and also reference is made to the

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in-camera statements of the witnesses verified by the
Sub-Divisional Police Officer and recorded by Police

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Inspector at the time of forwarding the proposal for
externment of the petitioner from the aforementioned
three Districts. He submits that even, the contents of

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the notice issued by respondent No.3 on 02.04.2016
(Exh.”D” - page 22 of the compilation of writ petition)

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would make it clear that, there is reference in the said

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notice to the proceedings initiated and notice issued by
the Sub-Divisional Police Officer. Therefore, in his
submission, even though in the notice issued by the
respondent No.3, there is no mention about the fact that
the statements of the witnesses have been recorded in-

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camera and they have deposed that the witnesses are not
willing to come forward to give evidence against the
petitioner i.e. proposed externee, in public by reason of
apprehension on their part as regards the safety of their
person or property, it cannot be said that, there is non-
compliance of mandate of Section 56(1)(b) of the Act. He
submits that respondent Nos.1 and 3 have assigned
sufficient reasons, why externment of the petitioner is
warranted from not only Kopargaon, Rahata, Shrirampur,
Sangamner Talukas of Ahmednagar District but also from
adjacent two Districts i.e. some Talukas of Nashik and
Aurangabad.

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5.We have given careful consideration to the

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submissions of learned Counsel appearing for the

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( 7 ) crwp872.17

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petitioner and learned APP appearing for the respondents.

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With their able assistance we have carefully perused the
grounds taken in the petition and annexures thereto, the
reasons assigned by respondent Nos.1 and 3 in the
impugned order and also relevant provisions and the
judgments cited across the bar by the learned Counsel
appearing for the petitioner and also learned APP for the

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State. At the outset, it would be apt to reproduce
herein below the provisions of section 56(1)(a)(b) of the
said Act, which reads as under :-

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“ 56. Removal of persons about to commit offence.

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(1)Whenever it shall appear in Greater Bombay and
other areas for which a Commissioner has been
appointed under Sec. 7 to the Commissioner and in
other area or areas to which State Government may,
by notification in the Official Gazette, extend the
provisions of this section, to the District
Magistrate, or the Sub-Divisional Magistrate
empowered by the State Government in that behalf-

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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
(XLV of 1860), or in the abetment of any such

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( 8 ) crwp872.17

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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
x x x x x”

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6.The Division Bench of this Court in the case of

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Yashwant Damodar Patil Vs. Hemant Karkare, Deputy
Commissioner of Police, Thane & Anr., 1989 Mh.L.J.1111,

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had occasion to consider the scope of section 56 (1)(a)

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(b) of the said Act. Para 3 from the said judgment reads
as under :-

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“3. Section 56(1) 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 analyze the two
situations which are covered by Clauses (a) and
(b) of section 56(1) 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(1) of the Act. An order of externment
can also be passed against a person if that

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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(1)
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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7. Upon reading para 3 from the said judgment, it

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is abundantly clear that the order of externment can be
passed against a person if there are reasonable grounds
believing that such person is engaged or about to be
engaged in commission of offence involving force or
violence under Chapter XII or Chapter XVI or Chapter XVII

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of the Indian Penal Code. This is so provided in the
later part of clause (b) of section 56(1) of the Act. But

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it is not enough that these conditions alone are
satisfied. In addition to this, the designated officer

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should be of the opinion that witnesses are not willing
to come forward to give evidence in public against such

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

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8.Admittedly, in the notice which was issued by
respondent No.3 i.e. Sub-Divisional Magistrate, Shirdi,
there is no mention about the general nature of material
allegations against the petitioner, that the witnesses
are not willing to come forward to give evidence against
him in public by reason of apprehension on their part as
regards safety of their person or property. It is true
that it is not necessary for the concerned authority to
mention the names of such witnesses or time of the
incidentoranyothermaterialparticulars.
Nevertheless, in view of ratio laid down by the Supreme
Court in the case of Pandharinath Shridhar Rangnekar Vs.

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Dy. Commissioner of Police, State of Maharashtra, AIR

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1973 SC 630, the proposed externee is entitled to know
the general nature of the material allegations against
him. Therefore, the contention of learned APP appearing
for the State that the notice issued by respondent No.2

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makes mention that in-camera statements of the witnesses

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have been recorded and they 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, and said compliance
is sufficient, would run contrary to the legislative
intent as reflected under the provisions of Section 56(1)

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(b) of the said Act. The Designated officer who
exercises powers under section 56 of the Act is the

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Officer, who ultimately passes the order of an externment
under the said Act. Said officer has to form his opinion
that witnesses are not willing to come forward to give

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

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person or property. It is not a mechanical process. He

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has to apply his mind and then pass the appropriate
order. If the order of an externment is passed against a

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person, his fundamental right to move from one place to

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another or the right to reside at a particular place of

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his choice, gets curtailed. Therefore, the legislative

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intent while enacting provisions of Section 156(1)(b) of
the Act is crystal clear that the concerned officer who

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is ultimate authority to pass the order of the
externment, shall form his opinion by applying his mind
to facts of the case and material placed before him, and

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after verifying the statements of the witnesses, shall
form his opinion that the witnesses are not willing to

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come forward against the proposed externee to depose in
public by reason of apprehension on their part as regards

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the safety of their person or property. As already
observed, said compliance is not an empty formality and
the said officer is bound to strictly adhere to the
provisions of section 56 (1)(b) of the said Act.

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9.Upon carefully considering the reasons assigned

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by respondent Nos.1 and 3, an externment of the
petitioner from Yeola, Sinnar and Niphad Talukas of
Nashik District and Vaijapur Taluka of Aurangabad
District, there are no any specific reasons are assigned,

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or it is not discussed that some of the offences

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mentioned in the order are in relation to such unlawful
activities of the petitioner, which have been registered
in the Police Stations situated in aforesaid Talukas from
the Nashik and Aurangabad Districts. It is not necessary

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for us to elaborate the reasons. Suffice it to say that

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the orders passed by respondent Nos.1 and 3 are not
legally sustainable for two reasons. Firstly, there is no
compliance of mandate of provision of Section 56(1)(b) of
the said Act and secondly, the order of externment is
excessive.

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10.In that view of the matter, petition succeeds,

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the Criminal Writ Petition is allowed in terms of prayer
clause (B). Rule made absolute in above terms. No order
as to costs.

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[S.M.GAVHANE,J.] [S.S. SHINDE,J.]

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snk/2017/AUG17/ crwp872.17

Dnyaneshwar Madhav Malve v. the Divisional Commissioner and Others

Case brief

What is this about?

What did the court decide?

Dnyaneshwar Madhav Malve v. the Divisional Commissioner and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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