Allowed

Manoj S/O. Prakash Lokhande v. the State of Maharashtra and Others

Bombay HC20 Nov 2019WP/1432/2019

Case brief

AI extract

What is this about?

In a criminal writ petition, the High Court of Bombay Bench at Aurangabad quashed an order of externment issued under the Maharashtra Police Act. The court held the order was arbitrary and excessive as it covered districts beyond the proposal and lacked subjective satisfaction. The appellate order was also quashed for being cryptic.

What did the court decide?

Orders dated 15.12.2018 and 19.07.2019 quashed and set aside in terms of prayer clauses (B) and (C).

Manoj S/O. Prakash Lokhande Vs the… — Constitutional and Fundamental Rights | Bombay HC (2019)

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( 1 ) crwp1432.19

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 1432 OF 2019

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Mano	j s/o. Prakash Lokhande ..	Petitioner
Age. R/o.	22 years, Occ. Driver, KolharBk,
Tal.	Rahata, Dist. Ahmednagar.
	Versus
1.	The State of Maharashtra .. Through Principal Secretary, Home Department, Mantralaya, Mumbai – 32.	Respondents
2.	The Divisional Commissioner, Nashik.
3.	The Sub-Divisional Magistrate, Shirdi Division, Shirdi.
4.	The Sub-Divisional Police Officer, Shirdi Sub-Division, Shirdi, Dist. Ahmednagar.
Mr. Mr.	A.B. Jagtap, Advocate for the petitioner. R.D. Sanap, APP for the respondent/State.

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CORAM : T.V. NALAWADE & S.M.GAVHANE,JJ. DATED : 20.11.2019

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( 2 ) crwp1432.19

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ORAL JUDGMENT : [PER : S.M. GAVHANE,J.] :-

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. Rule. Rule made returnable forthwith. Heard finally with the consent of learned Counsels appearing for the parties.

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By this petition, the petitioner has prayed to quash and set aside order dated 15.12.2018 passed by respondent No.3-Sub-Divisional Magistrate, Shirdi

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Division, Shirdi, directing externment of the petitioner passed by him in exercise of powers vested in him under sections 56(1)(a) and (b) of the Maharashtra Police Act (for short “the Act”), in terms of prayer caluse (C) and to quash and set aside the order dated 19.07.2019 passed by respondent No.2 – Divisional Commissioner, Nashik, appellate authority under section 60 of the said Act, confirming the order of externment dated 15.12.2018 passed by respondent No.3 in terms of prayer clause (B) of the petition.

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Facts giving rise to this petition, in short,

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are that the Superintendent of Police, Ahmednagar, sent proposal to respondent No.3- Sub-Divisional Magistrate, Shirdi to extern the petitioner as per sections 56(1)(a) and (b) of the Act from Rahuri, Rahata and Shrirampur talukas of Ahmednagar district, stating that there is danger to the public peace by the petitioner and there was possibility of repeating the offence by him. Upon the said proposal, respondent No.3 directed respondent No.4 – the Sub-Divisional Police Officer, Shirdi to conduct an enquiry in the matter and to submit report in the light of provisions under section 59(1) of the Act. It appears that thereupon respondent No.4 issued show-cause notice on 15.06.2018 to the petitioner. Said notice was replied on 02.07.2018 by the petitioner. It appears that upon enquiry respondent No.4-Sub-Divisional Police Officer, Shirdi submitted report to respondent No.3- Sub Divisional Magistrate, Shirdi, stating that four crimes were registered in Loni Police Station against the petitioner i.e. two crimes in 2015, one crime in 2018 and

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one non-cognizible case. The cases in respect of all the crimes were pending. Thus, on considering the report of respondent No.4, respondent No.3 issued notice dated 13.08.2018 (Exh. “A”) to the petitioner to show cause why action as proposed by the Superintendent of Police, Ahmednagar to extern him should not be taken against him and he was called upon to reply said notice of the said authority till 27.08.2018 at 11.00 am. By the said notice, he was informed that respondent No.3-authority had thought it fit to extern the petitioner from Rahuri, Rahata and Shrirampur talukas of Ahmednagar district for a period of two years. Thereafter, respondent No.3 passed the impugned order dated 15.12.2018 externing the petitioner from Ahmednagar district, Sinnar, Niphad and Yeola talukas of Nashik district and Vaijapur taluka of Aurangabad district, within 24 hours of receipt of said order for a period of two years. For ready reference, the operative part of the said order dated 15.12.2018 passed by respondent No.3 is reproduced as under :-

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3- rlsp rks tj egkjk"Vª jkT;kP;k ckgsj T;k osGsl tkbZy rsOgk tk.ksP;k rkj[ksiklwu 10 fnolkaP;k vkr R;kcnny ys[kh iksLVkus vxj le{k Lor% jgkr vlysY;k toGP;k iksfyl LVs’ku e/khy vf/kdk&;kl dGokos o R;kus egkjk"Vª jkT;kr ijr vkysY;k rkj[ksiklwu 10 fnolkaps vkr R;k cnny fjiksVZ rks T;k Hkkxkr jgkr vlsy R;k toGhy gn~nhrhy iksfyl LVs’kuP;k vf/kdk&;kdMs n;kok-

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. The aforesaid order dated 15.12.2018 was

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challenged by the petitioner before respondent No.2 – Divisional Commissioner, Nashik, under section 60 of the Act and respondent No.2 dismissed the said appeal by impugned order dated 19.07.2019. Therefore, the petitioner is before this Court to quash and set aside the orders of the aforesaid both the authorities.

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Mr. Jagtap, learned Counsel for the petitioner submitted that the petitioner is respectable person engaged in social service/work. The political rivals of the petitioner on account of growing popularity of the petitioner started creating hurdles in order to harass the petitioner. The petitioner filed detailed say to the notice issued to him by the authorities, but said authorities did not consider the say filed by the petitioner. Both the authorities have not considered the

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fact that there is no evidence to show that the

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petitioner is having criminal record and that no criminal activities are done by the petitioner in the areas of talukas and districts, from where he has been externed by

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respondent No.3 by order dated 15.12.2018. It is submitted that the notice dated 13.08.2018 issued by respondent No.3 is illegal. By the said notice, externment of the petitioner was proposed from three talukas i.e. Rahuri, Rahata and Shrirampur of Ahmednagar district for a period of two years, but while passing the

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order dated 15.12.2018, respondent No.3 – authority has externed the petitioner from the entire Ahmednagar district, three talukas of Nashik district and one taluka of Aurangabad district, as referred earlier in detail and as such according to learned counsel, said order dated 15.12.2018 passed by respondent No.3 suffers from voice of excessive externment and therefore, it is liable to be set aside. Learned counsel further submitted that by impugned order dated 19.07.2019, respondent No.2 – appellate authority confirmed the order passed by respondent No.3 by cryptic order by dismissing the appeal of the petitioner. It is submitted that no proper opportunity of hearing was given to the petitioner. Thus, learned counsel for the petitioner has prayed to set aside both impugned orders by allowing the petition.

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Learned Counsel for the petitioner to support

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his submissions, relied upon the following decisions :-

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(i) Ajij Babu Khan Pathan Vs. State of Maharashtra & Ors., 2019 DGLS (Bom) 256. (ii) Nisar @ Nigro Bashir Ahmed Khan Vs.

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Dy. Commissioner of Police and Ors., 2013(3) Bom.C.R. (Cri) 566.

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(iii) Satish Sagun Korgaonkar & Anr. Vs. State of Maharashtra & Ors., 2014(3) Bom.C.R. (Cri.) 176.

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. In the case of Nisar @ Nigro (Supra), the

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alleged illegal activities were committed within Shivaji Nagar Police Station. The petitioner was externed from

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Greater Bombay, New Bombay, Thane and Raigad districts. It was held that the externing authority has exercised

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powers excessively and arbitrarily and the order

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externing the petitioner was quashed holding that the impugned order is excessive and it cannot sustain in law.

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Mr. R.D. Sanap, learned APP, on the other hand,

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supported the impugned orders submitting that in all four

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crimes as mentioned in the show-cause notice dated 13.08.2018 have been registered against the petitioner

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and therefore considering the proposal to extern the petitioner, sent by the District Superintendent of

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Police, Ahmednagar to respondent No. 3- Sub-Divisional

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Magistrate, said authority has rightly externed the petitioner by order dated 15.12.2018 and that the same has been rightly confirmed by dismissing the appeal by order dated 19.07.2019 by respondent No.2 – appellate authority. Learned APP, however, fairly conceded that as per the aforementioned notice, proposal was sent to respondent No.3 to extern the petitioner from three talukas of Ahmednagar district and while passing the impugned order, respondent No.3 has externed the petitioner from entire Ahmednagar district, three talukas of Nashik district and one taluka of Aurangabad district, as mentioned in the order dated 15.12.2018 referred earlier in detail. He submitted that only after giving opportunity of hearing to the petitioner both the impugned orders were passed and thus, there is no ground to interfere with the said orders in the writ jurisdiction by this Court. Thus, he claimed to dismiss the petition.

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We have carefully considered the submissions

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made by learned Counsel appearing for the petitioner and learned APP for the respondents. So also we have considered the documents produced by the petitioner and respondents as well as reply of the respondent/State.

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There is no dispute that the petitioner is resident of Kolhar Bk., Tal. Rahta, Dist. Ahmednagar. The petitioner also does not dispute the fact that crime No.9 of 2015 for the offence punishable under section 392 r/w section 34 of the IPC, Crime No. 91 of 2015 for the offence punishable under section 394 read with section 34 of the IPC, Crime No.5 of 2018 for the offences punishable under sections 143, 147, 149, 153, 337, 427, 506 as well as N.C. Register No.438 of 2017 for the offence punishable under sections 323, 504 and 506 of the IPC have been registered against him in Loni Police Station. There also appears no dispute that the proceedings arising out of these crimes and especially arising out of first three crimes are pending in the Court.

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On perusal of show-cause notice dated 13.08.2018 issued by respondent No.3-Sub Divisional Magistrate to the petitioner on the basis of proposal sent to him by the District Superintendent of Police to take action of externing the petitioner from Rahuri, Rahata and Shrirampaur talukas of Ahmednagar district and after enquiry contemplated under section 59(1) of the Act by respondent No.4-Sub-Divisional Police Officer, Shirdi, respondent No.3 had come to the conclusion that action as above to extern the petitioner for a period of two years was necessary. It appears that respondent No.3 had arrived at above conclusion for issuing show cause notice to the petitioner on the basis of four crimes referred earlier registered against the petitioner. It is pertinent to note that out of the offences alleged against the petitioner, the first two crimes registered in 2015 are under section 392 and 394 of the IPC and as per crime registered in 2018 referred earlier, offences

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alleged are under sections 353, 337, 143, 147, 149, 427

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and 506 of the IPC. Said offences are not relating to

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damage to public property or said offences are not against the public at large, so as to say that there would be danger to the public by the petitioner, if he is not externed. Moreover, it is not the case of the respondents that the petitioner has been convicted in any of the crimes registered in 2015 or 2018. Therefore, it cannot be said that the petitioner was repeatedly committing similar offence and therefore it was necessary to extern him. Therefore, there is no substance in the contention of the respondents’ notice dated 13.08.2018 that there was possibility of repeating the crimes by the petitioner. Therefore, the apprehension expressed by respondent No.3 in the said notice regarding possibility of committing same offence by the petitioner is not well founded or proper. Therefore, we are of the view that mere registration of the crimes as referred earlier against the petitioner is only Loni Police Station of Rahata taluka is not sufficient ground to extern the petitioner.

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Perusal of the impugned order dated 15.12.2018 passed by respondent No.3 shows that said order was passed referring aforementioned four crimes registered against the petitioner and as referred earlier in detail by the said order, the petitioner was externed from entire Ahmednagar district, Sinnar, Niphad and Yeola talukas of Nashik district and Vaijapur taluka of Aurangabad district for a period of two years. The reasons of externing the petitioner from all these places are given in the last paragraph of said order. Said reasons are that border of Yeola, Sinnar and Niphad talukas in Nashik district is 15 to 30 km and border of Vijapur taluka in Aurangabad district is 25 km from Ahmednagar district and therefore even though the petitioner does not stay in these three talukas of Nashik district and Vaijapur taluka of Aurangabad district, he would do his activities and there would be no prohibition to his criminal activities and therefore he needs to be externed from above said three talukas of Nashik district

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and one taluka of Aurangabad district. Thus, the reasons

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given by respondent No.3 are not porper, since there is nothing on record that the District Superintendent of Police of Ahmednagar in his proposal proposed externment of the petitioner from aforementioned three talukas in Nashik district and Vaijapur taluka of Aurangabad district. On the contrary, as per the alleged proposal of the District Superintendent of Police to extern the petitioner, proposal was sent to extern the petitioner from Rahuri, Rahata and Shrirampaur, only these three talukas of Ahmednagar district and there is no mention of other talukas in Ahmednagar district and talukas in Nashik or Aurangbad district. Therefore, the order of respondent No.3-Sub-Divisional Magistrate of externment of the petitioner from entire Ahmednagar district, three talukas of Nashik district and one taluka of Aurangabad, is in excessive and without recording subjective satisfaction for externing the petitioner from the said places, in the light of decision of this Court in the case of Nisar (Supra).

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There is no dispute that the petitioner had challenged order dated 15.12.2018 of respondent No.3 before respondent No.2 – Commissioner under section 60 of the Act by appeal. Said appeal was dismissed by the impugned order dated 19.07.2019 (Exh. “D”). Perusal of this order of respondent No.2 – Appellate Authority it is seen that said order is cryptic. No reasons are given by the appellate authority for confirming the order of respondent No.3. This order does not show that the appellate authority – respondent No.2 has even considered the show cause notice dated 13.08.2018, which depicts that the Superintendent of Police of Ahmednagar had sent proposal to respondent No.3 to extern the petitioner only from three talukas i.e. Rahata, Rahuri and Shrirampur of Ahmednagar district, but while passing the order dated 15.12.2018, respondent No.3 externed the petitioner from entire Ahmednagar district, aforementioned three talukas of Nashik district and one taluka of Aurangabad district. Thus, the impugned orders show that both the authorities

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did not apply mind while passing the orders. Another aspect to be noted is that the offences referred earlier registered against the petitioner have been registered in Loni police station. No offence was registered in Rahuri, Rahata and Shrirampur police station. Therefore, this aspect was also required to be considered by the authorities before passing the impugned orders.

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For all the reasons discussed above, on perusal of facts of present case, when the crimes registered against the petitioners are confined to Loni police station, the impugned order of respondent No.3 externing the petitioner from entire Ahmednagar district, Sinnar, Niphad and Yeola talukas of Nashik district and Vaijapur taluka of Aurangabad district for two years is certainly arbitrary and excessive and passed without reference to the purpose of externment. For the same reasons, the order passed by respondent No.2 – appellate authority dated 19.07.2019 is also illegal and excessive. Therefore, both the impugned orders cannot sustain in law

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and they are liable to be quashed and set aside as

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claimed by the petitioner.

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In view of above, the petition is allowed.

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Relief is granted to the petitioner in terms of prayer clauses (B) and (C). Rule is made absolute accordingly.

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snk/2019/nov19/crwp1432.19

Manoj S/O. Prakash Lokhande v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Manoj S/O. Prakash Lokhande v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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