Quashed

Abhijit S/O. Pratap Rathod v. the State of Maharashtra and Others

Bombay HC24 Jan 2019WP/1206/2018

Case brief

AI extract

What is this about?

This High Court quashed orders of externment passed under the Maharashtra Police Act, 1951. The judgment held that the authorities failed to assign reasons for extending the ban to an adjoining district and did not form a definitive opinion on witness apprehension as mandated by the statute.

What did the court decide?

Impugned orders dated 25th September, 2017, and 23rd March, 2018, quashed and set aside. Rule made absolute.

Abhijit S/O. Pratap Rathod Vs the State… — Constitutional and Fundamental Rights | Bombay HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.1206 OF 2018

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Abhijit S/o Pratap Rathod
Age-30 years, Occ : Labour,
R/o Mandavi, Tq. Kinwat,
Dist. Nanded
Presently temporary
R/o-at Khadkeshwar, Aurangabad.

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PETITIONER

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VERSUS

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1. The State of Maharashtra Through its Principal Secretary, Home Department, Mantralaya, Mumbai-32.

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2. The Divisional Commissioner, Aurangabad, Divisional Commissioner Office, Aurangabad.

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3. Sub-Divisional Magistrate, Kinwat, Tq. Kinwat, Dist. Nanded.

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4. Deputy Superintendent of Police, Tq. Mahur, Dist. Nanded.

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5. Police Inspector, Mandvi Police Station, Tq. Kinwat, Dist. Nanded.

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 RESPONDENTS

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...

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Mr.Abid R. Shaikh, Advocate for the
Petitioner

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Mr.K.S. Hoke Patil, APP for Respondent Nos.1
to 5 – State.

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CORAM: S.S.SHINDE &

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R.G. AVACHAT,JJ.

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Reserved on : 22.01.2019
 Pronounced on :24.01.2019

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

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Rule.Rulemadereturnable

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

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2.This Petition takes exception to the
impugned order of externment dated 25th
September, 2017 passed by Respondent No.3,
and confirmed by Respondent No.2, vide order
dated 23rd March, 2018, thereby externing the
petitioner from Nanded and Yawatmal districts
for a period of one year.

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3.It is the case of the petitioner

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that the petitioner is a labourer and doing
labour work. On 15th September, 2017, the

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petitioner received the show-cause notice,
thereby intimating him to remain present
before Respondent No.3 on 25th September,
2017, on account of externment proceedings
initiated by Respondent Nos.4 and 5 under
Section 56(b) of the Maharashtra Police Act,
1951. Respondent No.3 thereafter without
giving any opportunity of hearing to the
petitioner, has passed the impugned order
dated 25th September, 2017, thereby externing
the petitioner from Nanded and Yawatmal
districts for a period of one year. The
petitioner therefore filed appeal before
Respondent No.2 challenging the order dated
25th September, 2017 passed by Respondent
No.3. Respondent No.2 vide its order dated
23rd March, 2018, has dismissed the appeal
filed by the petitioner and confirmed the
order dated 25th September, 2017, passed by
Respondent No.3. Hence this Writ Petition.

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4.Learned counsel appearing for the

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petitioner submits that though the petitioner
is acquitted of from some of the offences
which are mentioned in the impugned orders,
both the authorities have not considered the
said acquittal, and treated the said offences
as pending. It is submitted that though there
is casual reference to in-camera statements

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of the witnesses, however, there is no
discussion in both the orders. It is further
submitted that the order of externment of the
petitioner from Yawatmal district is
excessive, in as much as, all the offences
registered against the petitioner are with
MandviPoliceStation,Tq.Kinwat,
Dist.Nanded. Learned counsel invites our
attention to the grounds taken in the
Petition, annexures thereto and submits that
the Petition deserves to be allowed.

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5.On the other hand, learned A.P.P.
appearing for the respondent/State, relying
upon the reasons assigned in the impugned
orders, submits that both the authorities
have kept in view the record of the
petitioner and also the material collected
during the course of enquiry and passed the
impugned orders.

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6.We have given careful consideration

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to the rival submissions advanced by learned
counsel appearing for the petitioner, and
learned APP appearing for the respondent/
State. With their able assistance, we have
carefully perused the grounds taken in the
petition and annexures thereto.

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7.We have carefully perused the

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reasons assigned in the orders passed by the

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Sub-Divisional Magistrate and also by the
Divisional Commissioner. Though there is a
casual reference to in-camera statements
recorded, nevertheless it is not clear what
those witnesses have stated. The Respondents
have also not made available original record
for perusal of this Court, inspite of
sufficient time granted to them. Therefore,
the allegations/contentions made in the
Petition by the petitioner remained
uncontraverted. It was incumbent upon both
the authorities, at least, to refer to the
gist of such statements of the witnesses
recorded in-camera. It is true that the names
of the witnesses need not be disclosed, but
the authorities ought to have treated those
names as “A”, “B”, “C” etc. However, mere
causal reference to such statements is not
keeping inconformity with the relevant
procedure.

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8.Secondly, both the authorities have

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not seriously considered the effect of
acquittal of the petitioner from some of the
alleged offences, which are mentioned in the
impugned orders. It appears from the copies
of the judgments placed on record by the
petitioner that even before initiating the
externmentproceedingsagainstthe

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petitioner, he was acquitted of from some of
the offences. However, it appears from the
discussion in the impugned orders that those
offences have been considered/treated as
pending against the petitioner.

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9.Thirdly, there is no strict

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compliance of mandate of provisions of
Section 56(1)(b) of the Maharashtra Police
Act. Fourthly, there is no discussion in the
impugned orders about, why the externment of

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the petitioner from Yevatmal district is
necessary. It is true that if there is
material surfaced on record during the course
of enquiry and externment of the proposed
externee is necessary from the revenue
boundaries of the adjoining districts, the
authorities can pass such orders, however,
the authorities are legally obliged to assign
reasons for such externment from the
adjoining districts. It appears that all the
offences are registered with Mandvi Police
Station, which situates in Nanded district.

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10. The Supreme Court in the case of Pandharinath Shridhar Rangnekar Vs. Dy.Commissioner of Police, State of Maharashtra¹ , held that, proposed externee is entitled, before an order of externment is passed under Section 56, to know the material allegations against him and general nature of

1 AIR 1973 SC 630

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those allegations.

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11.At this juncture, it would be apt to

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make reference to the provisions of Section
56(1)(a)(b) of the Maharashtra Police Act,
1951, which 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

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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

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[Underlines are added]

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12.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

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provided in clause (b). An order of

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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

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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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Keeping in view the above legal
position, it was incumbent upon respondent
no.3, who dealt with an externment
proceedings, to arrive at the opinion that
the witnesses are not willing to come forward

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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

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property.

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13. 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 & another² had occasion to consider the scope of provisions of Section 56 [1] [a] and [b] 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

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2 1989 (3) Bom.C.R. 240

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(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 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

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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]

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14.In the present case also Respondent

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No.3 has not arrived at the definite
opinion/subjective satisfaction 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. Upon careful perusal of the

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offences registered against the petitioner,

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it is abundantly clear that all offences have

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been registered at Mandvi Police Station,
Taluka Kinwat, District Nanded. Upon careful
perusal of the discussion in the impugned
order of respondent no.3, there are no
specific reasons assigned for the externment
of the petitioner from Yawatmal district.

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15.In that view of the matter, we are

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of the considered view that, the impugned
orders passed by respondent nos.2 and 3
cannot legally sustain, hence those orders
are quashed and set aside. Rule is made
absolute on above terms. The petition stands
disposed of accordingly. No order as to
costs.

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[R.G. AVACHAT] [S.S.SHINDE] JUDGE JUDGE

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sga/-

Abhijit S/O. Pratap Rathod v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Abhijit S/O. Pratap Rathod 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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