Allowed

Ananda S/O. Budha Hatkar v. the State of Maharashtra and Others

Bombay HC6 Aug 2018WP/477/2018

Case brief

AI extract

What is this about?

This criminal writ petition challenged an order of externment from Jalgaon District passed against the petitioner under the Maharashtra Police Act, 1951. The court found that authorities failed to consider past acquittals and did not establish a live link between current proceedings and older offenses. Consequently, the court held the order was casual and violated natural justice.

What did the court decide?

The impugned order of externment passed by Respondent No.3 and confirmed by Respondent No.2 was quashed and set aside. The rule is made absolute.

Ananda S/O. Budha Hatkar Vs the State of… — Pension and Retirement Benefits | Bombay HC (2018)

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477.18Cri.WP

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.477 OF 2018

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Ananda s/o.Budha Hatkar,
Age 26 Years, Occ. Labour
R/o. Vitthal Nagar, Jalgaon,
Tq. & Dist. Jalgaon. .. PETITIONER

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VERSUS

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1. State of Maharashtra Through Principal Secretary Home Ministry, Mumbai

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2. Addl. Commissioner Nashik Division, Nashik

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3. SubDivisional Police Magistrate Jalgaon Sub Division, Jalgaon

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4. SubDivisional Police Officer Jalgaon Sub Division, Jalgaon

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.. RESPONDENTS

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...

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Mr.S.D.Hiwrekar, Advocate for the petitioner
Mr.Y.G.Gujrathi, APP for the Respondent/State

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...

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CORAM: S.S.SHINDE &
 V.K.JADHAV,JJ.

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Reserved on : 01.08.2018
 Pronounced on : 06.08.2018

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JUDGMENT: [Per S.S.Shinde, J.]:

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1]Heard. Rule. Rule made returnable

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forthwith, and heard finally with the consent
of the parties.

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477.18Cri.WP

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2]This Petition is filed with the

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following prayer:

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B)By issuing appropriate writ, orders
or direction the impugned order of
externment passed by Respondent no3
on 231117 and further confirmed in
appeal by respondent no2 on
05022018 may kindly be quashed and
set aside.

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3]It is the case of the petitioner

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that the parents of the petitioner are active

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in politics and also doing the social work.
The father of the petitioner was a Municipal

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Councilor. Due to political enmity, the
complaints have been filed against the father
of the petitioner. The petitioner has also

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been falsely implicated in the alleged

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complaints. On the basis of aforesaid
complaints,respondentno.4submitted

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proposal to respondent no.3, thereby

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proposing to extern the petitioner from
Jalgaon District. Thereafter, on 14.09.2017,

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477.18Cri.WP

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respondent no.3 issued show cause notice
under Section 56 [1] [a] of the Maharashtra
Police Act, 1951 [for short ‘Act of 1951’] to

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thepetitioner,andtherebycalled
explanation from the petitioner. On

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12.10.2017, the petitioner filed his reply to

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the said show cause notice.

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4]It is further the case of the

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petitioner that respondent no.3, without
considering the reply filed by the

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petitioner, has passed the order of
externment on 23.11.2017, thereby externing

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the petitioner from Jalgaon District for a

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period of two years. Being aggrieved by the

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said order, the petitioner filed an Appeal

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before the Divisional Commissioner, Nashik

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Division, Nashik. However, by order dated

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05.02.2018, the Divisional Commissioner,
Nashik Division, Nashik, has confirmed the

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order passed by respondent no.3 dated

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23.11.2017. Hence this Petition.

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477.18Cri.WP

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5]Learned counsel appearing for the

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petitioner submits that the respondent
authorities has not followed the principles
of natural justice, while passing the
impugned orders. The impugned orders are
excessive. The impugned orders are passed
only on the basis of police report and

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without verifying the material particulars.
The respondent authorities failed to follow

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legal procedure as per the provisions of

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Sections 55, 56 to 59 of the Act of 1951. It
is submitted that there is no mention in the
impugned orders that the activities of the

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petitioner are dangerous to the public.

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There is no mention in the impugned orders
that the witnesses are not coming forward to

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give evidence against him due to fear of the
petitioner to their person or property. The
reply filed by the petitioner is not
considered by the respondent authorities,
while passing the impugned orders. The

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477.18Cri.WP

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petitioner has been acquitted in some of the
criminal cases. This aspect has not been
considered by the respondent authorities. It
is submitted that based on the present
alleged cognizable offence, earlier the
petitioner was externed from 5 Districts by
order dated 27.02.2011. Against the said

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order, the petitioner did file the Criminal
Writ Petition No.1132/2011 [Ananda s/o. Budha
Hatkar Vs. The State of Maharashtra & Ors.]
before the High Court, and by order dated 10th
January, 2013, the High Court was pleased to
quash and set aside the order dated
27.02.2011, impugned in the said Petition.

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In support of the aforesaid
contentions, the petitioner has placed
reliance on the exposition of law in the
cases of Ganesh Balasaheb Changle Vs. Dy.
Commissioner of Police, Nashik & others1,

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Sunil Mani Shetty Vs. Dy. Commissioner of

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12014 [1] Mh.L.J.[Cri.] 653

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477.18Cri.WP

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Police & Ors.2, Sayeed Firoz s/o.Sayeed Noor
Vs. The State of Maharashtra3 and in the case
of Rahul s/o.Suresh Hatkar Vs. The State of

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Maharashtra & others in Criminal Writ

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Petition No.517 of 2018, decided on 24th July,
2018.

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appearing for the respondentState submits

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that the respondent authorities, after
adhering to the procedure prescribed under

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the provisions of Section 56 and 59 of the
Act of 1951, have passed the reasoned orders
and petitioner has been rightly externed from

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the boundaries of Jalgaon District. The
learned counsel invites our attention to the
reasons assigned in the impugned orders, and

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also original record in relation to the
externment proceedings of the petitioner and
submits that the Petition may be rejected.

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2 2014 [2] Bom.C.R. [Cri.] 503

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3 2016 ALL MR [Cri.] 3410

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477.18Cri.WP

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7]We have heard the learned counsel

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appearing for the petitioner and learned APP
appearing for the respondentState. With
their able assistance, we have perused the
pleadings in the Petition, grounds taken
therein, annexures thereto, and also the
original record in relation to the externment
proceedings of the petitioner. It appears
that the petitioner was externed from 4
Districts in the year 2011. However, the said
order was assailed by the petitioner.

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The learned Single Judge [Coram :
K.U.Chandiwal, J.] allowed the Writ Petition

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No.1132/2011 [Ananda s/o.Budha Hatkar Vs. The
State of Maharashtra & others] with connected
Writ Petition No.1127/2011, and thereby

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quashed and set aside the order of an

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externment, externing the petitioner from
Jalgaon, Buldhana, Aurangabad and Dhule

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Districts for a period of two years. While
passing the said order, it appears that the

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477.18Cri.WP

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concerned Authority placed reliance upon the
various offences registered against the
petitioner prior to the issuance of the said
externment order. Upon careful perusal of the
impugned orders, it is abundantly clear that
even in the present externment proceedings
the Authorities have placed reliance upon the
offences registered against the petitioner
prior to the Year 2011. In some of the
offences the petitioner has been acquitted,
however, there is no conscious application of
mind on the part of the authorities to
consider the effect of acquittal of the

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petitioner from some of the said offences,
which are enlisted in the chart mentioned in
the impugned orders.

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8]Be that as it may, the respondents

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have not demonstrated the live link between

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the externment proceedings initiated against
the petitioner and offences registered

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against him in between the year 2002 and

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477.18Cri.WP

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2014. Though, the order of an externment has
been passed, taking recourse to the

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provisions of Section 56 [1] [b] of the Act
of 1951, nevertheless the gist of the
statements of the witnesses recorded in
camera have not been mentioned in the
impugned orders. It is true that it is not
necessary to mention the names of the
witnesses whose statements have been recorded
in camera, nevertheless what is stated by the
said witnesses, at least in brief in relation
to alleged activities of proposed detenu,
deserves to be mentioned in the order of an

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externment. If the material placed on record
and also the original record is considered in
its entirety, we are of the opinion that an

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externmentproceedingsconductedby

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respondent nos.3 and 4 appears to have been
caused in a casual manner and not strictly in
accordance with the procedure established.
When the order of an externment is passed and

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477.18Cri.WP

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concern person is externed from the

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particular area, his/her fundamental right to
reside at the place of his/her choice or move
as per his/her desire gets curtailed, and
therefore, the concerned authorities are
bound to strictly adhere to the procedure.
The law mandates that the concerned
authorities should scrupulously follow the
relevant provisions and procedure.

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9]In the light of discussion in

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foregoing paragraphs, we are of the opinion
that the impugned orders passed by respondent
no.3 and confirmed by respondent no.2

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deserves to be quashed and set aside, and
accordingly same stands quashed and set
aside. Rule is made absolute in terms of
prayer clause “B” of the Petition. The Writ
Petition stands disposed of accordingly.

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DDC

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 [V.K.JADHAV] [S.S.SHINDE]
 JUDGE JUDGE

Ananda S/O. Budha Hatkar v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Ananda S/O. Budha Hatkar 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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