Quashed

Rauf Khan Wahab Khan Patel v. the State of Maharashtra

Bombay HC23 Jul 2018WP/541/2018

Case brief

AI extract

What is this about?

This court quashed an impugned order of externment passed by the Divisional Commissioner. The High Court held that the appellate authority failed to discuss witness statements and ignored the petitioner's bail status and pending cases, thereby violating principles of natural justice.

What did the court decide?

Impugned order dated 3rd March 2018 quashed; appeal restored to reporter for fresh consideration within eight weeks; externment order stayed pending appeal decision.

Rauf Khan Wahab Khan Patel Vs the State… — Constitutional and Fundamental Rights | Bombay HC (2018)

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541.18WP.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.541 OF 2018

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Rauf Khan Wahab Khan Patel
Age : 42 years, Occ : Agriculture,
R/o Near Renukamata Kaman,
Beed Bye-Pass Road,
Satara Parisar, Aurangabad.

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PETITIONER

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VERSUS

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The State of Maharashtra RESPONDENT

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...

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Mr.Akshay Kulkarni a/w Mr.Kuldeep Kahalekar
holding for Mr. N.S. Ghanekar, Advocate for
the Petitioner

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Mr.Y.G. Gujrathi, APP for Respondent/State.

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...

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Reserved on : 18.07.2018
 Pronounced on : 23.07.2018

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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

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of the parties.

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3.This Petition is filed praying
therein to quash and set aside the order

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dated 3rdMarch, 2018, passed by the
DivisionalCommissioner,Aurangabad,
dismissing the appeal and confirming the
order dated 16th November, 2017 passed by the
Deputy Commissioner, Division-2 Aurangabad,
externing the petitioner from Aurangabad
district for two years.

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4.The background facts for filing the
present Petition, as disclosed in the memo of
Petition, in brief are as under:

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It is the case of the petitioner

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that the Assistant Commissioner of Police,
Aurangabad issued show-cause notice to the
petitioner on 18th/21stSeptember, 2017,

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stating therein that as to why the petitioner
should not be externed from Aurangabad city

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and adjoining districts for two years. In the

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541.18WP.odt

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said notice it has been mentioned that, there

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are three matters pending against the
petitioner. As there was delay in filing the
reply to the show-cause notice, the office of
the Authority, was not accepting the reply of
the petitioner, hence the petitioner was
required to send the reply by Speed Post on
9th October, 2017 to the show-cause notice,
explaining the background in which the false
offences have been registered against the
petitioner.Thereafter,theAssistant
Commissioner of Police, Aurangabad forwarded
the externment proposal of the petitioner to
theDeputyCommissionerofPolice,
Aurangabad, without affording an opportunity
of hearing to the petitioner and without
following principles of natural justice.

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5.It is the case of the petitioner

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that, the Deputy Commissioner of Police,
Aurangabad issued show-cause notice under

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Section 59 of the Maharashtra Police Act,
1951 to the petitioner on 17th October, 2017.
The petitioner filed application on 25th
October, 2017 for allowing him to engage an
Advocate to represent his case, however, no
orders have been passed on the said
application by the Authority.

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6.It is the case of the petitioner

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that, the Deputy Commissioner of Police,
Division-2 Aurangabad without considering the
case of the petitioner issued externment

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order on 16thNovember, 2017, thereby

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externing the petitioner from Aurangabad
district for a period of two years.
Thereafter, the petitioner filed appeal
bearing No. Externment/CR-169 before the
Divisional Commissioner, Aurangabad, which

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came to be dismissed by an order dated 3rd
March, 2018, thereby confirming the order of
externment passed by the Deputy Commissioner

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of Police, Division-2 Aurangabad. Hence this
Writ Petition.

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7.Learned counsel appearing for the
petitioner invites our attention to the
documents placed on record and submits that,
as far as the Crime No.518 of 2016 registered

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with Satara Police Station, for offences
punishable under Sections 323, 504, 506, 34
of the Indian Penal Code (IPC), under
Sections 3 and 25 of the Indian Arms Act and
under section 3(i)(x) of the Scheduled Castes
and Scheduled Tribes (Prevention of

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Atrocities) Act dated 13th December, 2016 is
concerned, the informant Rahul Namdeo Sirsath
has included the names of the petitioner, his

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father, brother and son, and all of them have

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been released on anticipatory bail by
Sessions Judge, Aurangabad on 21st December,
2016 and 28th December, 2016 respectively. It

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is submitted that, the incident in the said

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crime is alleged to have taken place in

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December, 2016 and on the basis of the said
offence, an externment order is passed in
November, 2017, which is illegal. So also the
allegations made in the said crime were
general in nature and that was not involving

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the public at large, and there was no
question of breach of peace and tranquility.

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8.Learned counsel submits that, as far

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as Crime No.688 of 2015 registered with
Krantichowk Police Station for the offences
punishable under Sections 363, 364-A, 397 of

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the IPC and under sections 3 and 5 of the
Indian Arms Act by one Tausif Deshmukh is
concerned, the said crime is outcome of a

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civil dispute and money transaction in
between the petitioner and Tausif Deshmukh.

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The petitioner had given him hand loan by
cash and said Tausif has given the cheques
for the said transaction, and the said

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cheques were dishonoured, in turn the

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complaint under Section 138 of the Negotiable
Instruments Act came to be filed, which is
pending for adjudication. The registration of
Crime by Tausif Deshmukh is clearly outcome
of money dispute. This incident is of the
year 2015 and the said incident is considered
for passing the externment order against the
petitioner in the year 2017.

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9.Learned counsel submits that, the
petitioner was having civil dispute in

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respect of his property at village Nagapur,

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Tq. Gangapur, Dist. Aurangabad in respect of
Gut No.20 with Suleman Bandu Tayde and
others. The Civil Court has granted orders in

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favour of the petitioner. So also the High

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Court has also granted bail to the
petitioner. It is submitted that, the offence

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under section 307 of the IPC is of the year
2014 and therefore, that incident cannot be

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considered by the authorities to extern the
petitioner in the year 2017. It is submitted
that, all criminal matters are pending before

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the competent courts and the petitioner is
not convicted in any matter. The presence of
the petitioner is also required even to
attend the Court dates and to make
preparation for his defence. This material
aspect has not been considered by the
externing authority or the appellate
authority, while passing the impugned order.

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10.Learned counsel further submits

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that, there is no evidence to show that the
witnesses are not coming forward to give
evidence in public against the petitioner by

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reason of apprehension on their part as

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regards the safety of their person or
property. So also there is no evidence to
show that the movement or act of petitioner
were causing danger or harm to person or

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property. The Authorities below have not
considered the fact that there are no
reasonable grounds for believing that the
petitioner is engaged or is about to be
engaged in commission of any offence
involving force or violence. The order of
externment is passed mechanically without
following due procedure of law and without
giving proper opportunity of hearing.
Therefore, the externment order is not
legally sustainable and requires interference
by this Court. The Authorities below have not
taken into consideration the fact that, the
crimes which have been registered against the
petitioner are subjudice before the

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respective Courts and the petitioner will be

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required to attend the dates of the said

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cases. In support of his aforesaid
contentions, he pressed into service the

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exposition of law in the cases of Hanuman

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Rajaram Mhatre V/s The State of Maharashtra¹ , 1 2013 ALL MR (Cri) 1646

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541.18WP.odt

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Praful Bhausaheb Yadav V/s K.K. Pathak and others² and Akas Madhukar Patil (Rajput) V/s The State of Maharashtra and others³ . Therefore, he submits that the Petition may be allowed.

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11.On the other hand, the learned APP
appearing for the respondent – State relying
upon the original record and also the
affidavit-in-reply filed by the Respondent

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submits that both the authorities have
considered the material collected during the
course of enquiry and also three pending
offences against the petitioner. In-camera
statements of the witnesses have also been
recorded, and they have deposed that, the
witnesses are not coming forward to give
evidence in public against the petitioner by

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reason of apprehension on their part as

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regards the safety of their person or

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2 2013(3) Bom.C.R.(Cri.) 65

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3 2018(1) Bom.C.R.(Cri.) 456

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property. It is submitted that, the mandate
of Section 56(1)(a)(b) of the Maharashtra

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Police Act has been met, and therefore, the
Writ Petition is devoid of any merits and the
same may be rejected.

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12.We have given careful consideration
to the submissions advanced by learned
counsel appearing for the petitioner and
learnedAPPappearingforthe

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Respondent/State. We have also carefully
perused the reasons assigned by the
authorities in the impugned orders. It

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appears that, though the petitioner examined

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the witnesses in support of his contentions

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in the written statement, nevertheless there

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is no discussion about the contentions of the
witnesses. Though the authorities have
mentioned in the impugned orders that they
have seen the statements of the witnesses,
nevertheless it was necessary at least to

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discuss in brief about what the witnesses

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have stated. The valuable remedy of appeal is
available to the externee and once the appeal
is filed, the appellate authority is obliged
to consider the case of the externee on the
facts as well as on law. To brand a person
habitual criminal, it is necessary to find

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out his past record. In the present case,
both the authorities have not considered the
fact that, the petitioner is not convicted in

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any of the criminal cases registered against
him. It appears that, in pending criminal
cases, he is enlarged on bail by the trial

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Court and also the High Court respectively.
There is no material brought on record by the
respondent that liberty granted in favour of

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the petitioner has been misused by him. All
this contentions raised by the petitioner
ought to have been considered by both the
authorities, and to that effect at least
there should have been discussion in the

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order passed by the appellate authority. Learned counsel appearing for thepetitioner is right in placing reliance on the ratio laid down in the cases of Hanuman Rajaram Mhatre , Praful Bhausaheb Yadav and Akas

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Madhukar Patil (Rajput) (supra).

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13.In that view of the matter, we are
of the opinion that the order passed by the
appellate authority deserves to be quashed
and set aside and the appeal filed by the
petitioner is required to be restored to its
original file so as to consider the same
afresh, by the appellate authority, on the
facts as well as on law.

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14.In the result, the impugned order

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dated 3rdMarch, 2018, passed by the

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Divisional Commissioner, Aurangabad is
quashed and set aside. The appeal filed by
the petitioner before the said authority is

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restored to its original file. The appellate
authority is directed to decide the said
appealafresh,uninfluencedbythe

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observations made herein above on the facts
as well as on law, and after summoning the
original record in relation to the
proceedings of externment of the petitioner,
as expeditiously as possible and preferably,
within eight weeks from today.

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The petitioner to appear before the
Divisional Commissioner, Aurangabad on 30th
July, 2018. The said Authority can proceed

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with the hearing of the appeal on the said
date or may fix the next date for hearing of
the appeal.

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Till the appeal is heard and decided
by the Divisional Commissioner, Aurangabad,
the order dated 16th November, 2017 passed by
theDeputyCommissioner,Division-2

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Aurangabad shall remain stayed. As a result,
the petitioner would be entitled to enter
within the limits of Aurangabad district. The
said order shall remain in force till the
appeal is decided by the Divisional
Commissioner, Aurangabad afresh.

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We issue the note of caution to the
petitioner that he shall not indulge into any
illegal activities once he enters into
Aurangabad city.

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sga/

Rauf Khan Wahab Khan Patel v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Rauf Khan Wahab Khan Patel v. the State of Maharashtra

Case brief

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