Quashed

Prabhakar @ Bablu Ashok Polkam v. the State of Maharashtra and Ors.

Bombay HC4 Aug 2021WP/1774/2021

Case brief

AI extract

What is this about?

This criminal writ petition challenged an order of externment passed against the petitioner for two years, relying on irrelevant material and non-application of mind by the authority, citing Section 56 of the Maharashtra Police Act, 1951. The High Court held the satisfaction vitiated by irrelevant considerations and quashed the order.

What did the court decide?

The impugned order of the Divisional Commissioner and the externment order dated 5th January, 2021, by the Deputy Commissioner of Police, stand quashed and set aside.

Prabhakar @ Bablu Ashok Polkam Vs the State of… — Civil Procedure and Limitation | Bombay HC (2021)

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CRIWP1774-2021.DOC

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Santosh

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO. 1774 OF 2021

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Prabhakar @ Bablu Ashok Polkam Age : 48 years, Occu. Service, R/at : 119, Darga V Asahat, Khadki, Pune. ...Petitioner

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Versus

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State of Maharashtra

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Through Khadki Police Station

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Divisional Commissioner, Pune Region, Pune.

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3 . The Commissioner of Police, Pune.

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... Respondents

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Mr. Rahul S. Kadam, i/b Mr. Akshay R. Kapadia, for the Petitioner.

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Mr. Deepak Thakre, PP a/w Mr. S. R. Shinde, APP for the State/Respondents.

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CORAM: S. S. SHINDE & N. J. JAMADAR, JJ. RESERVED ON: 24^th JUNE, 2021. PRONOUNCED ON: 4^th AUGUST, 2021.

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JUDGMENT:- PER : N. J. JAMADAR, J.

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Rule. Rule made returnable forthwith and, with the

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consent of the Counsels for the parties, heard fnally.

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The challenge in this petition is to an order dated 1^st April,

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2021, passed by the Divisional Commissioner, Pune, in Appeal No.EA-19 of 2021, under Section 60 of the Maharashtra Police

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Act, 1951, (“the Act, 1951”), whereby the appeal preferred by the

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CRIWP1774-2021.DOC

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petitioner came to be dismissed by confrming the order of externment dated 5^th January, 2021, passed by the Deputy Commissioner of Police, Zone-IV, Pune city, under Section 56(1) (a) (b) of the Act, 1951.

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Shorn of unnecessary details the background facts leading to this petition can be stated as under:

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( a ) In view of the criminal antecedents of the petitioner, he was externed by an order dated 22^nd August, 2014, for the period of two years. Yet, it did not deter the petitioner from again indulging in the offences punishable under Chapter XVI and XVII of the Indian Penal Code, 1860 (“the Penal Code”) and, therefore, in the month of August- 2020 an externment proceeding was again initiated against the petitioner at the instance of Khadki police. A show cause notice was issued on 4^th September, 2020; the petitioner gave a reply thereto on 12^th October, 2020.

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( b ) After providing an effective opportunity of hearing and considering the material arrayed against the petitioner, including the cases registered against the petitioner since last externment and the statements of witnesses recorded incamera, who were not willing to give evidence against the petitioner in public on account of fear of reprisal, the Deputy

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CRIWP1774-2021.DOC

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Commissioner of Police was persuaded to record a subjective satisfaction that in order to prevent the petitioner from acting in a manner which would cause alarm, danger or harm to the person or property and commission of offences involving force or violence or the offences punishable under Chapter XVI and XVII of the Penal Code, the petitioner was required to be externed from the limits of Pune City Police Commissionerate area, Pimpri Chinchwad Commisionerate area and Pune District for two years. Thus, the petitioner was externed by order dated 5^th January, 2021.

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( c ) The petitioner assailed the aforesaid externment order in an appeal before the Divisional Commissioner. By the impugned order, the Divisional Commissioner dismissed the appeal holding, inter alia, that no fault can be found with the subjective satisfaction arrived at by the appropriate authority.

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( d ) Being further aggrieved and dissatisfed, the petitioner has invoked the writ jurisdiction of this Court, principally on the ground that the subjective satisfaction arrived at by the appropriate authority is vitiated by consideration of irrelevant material and non-application of mind. The order of externment is, therefore, unsustainable.

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CRIWP1774-2021.DOC

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We have heard Mr. Kadam, the learned Counsel for the petitioner and Mr. Thakre, the learned PP for the State. With the assistance of the learned Counsels, we have perused the material on record including the original record made available by the learned Public Prosecutor.

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The material which weighed with the appropriate authority in passing the externment order can be classifed in two parts. One, the cases registered against the petitioner, which indicated the propensity of the petitioner to cause alarm, danger or harm to persons or property and engage in the commission of offences affecting human body and property. Two, the prejudicial acts and conduct of the petitioner as borne out by the statements of witnesses, recorded in-camera, who were not willing to come forward to give evidence in public against the petitioner on account of the rein of terror created by the petitioner.

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The appropriate authority took into account the following

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cases registered against the petitioner:

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Sr. No.	Police Station	CR No. and Sections	Court Case No.	Present Status
1.	Khadki	3068/15, Section 142 of Mumbai Police Act.	SCC 30/2016	Pending.
2.	Khadki	44/19, Sections 324, 323, 504 of IPC.	RCC 370/2019	Pending.
3.	Khadki	80/19, Section 447 of IPC and Section 3 of the Maharashtra Prevention of Defacement of Property Act, 1995.	SCC 1482/2019	Pending.

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CRIWP1774-2021.DOC

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Confdential statement of two witnesses, referred to and relied upon by the appropriate authority, refect a particular modus operendi of the petitioner. Witnesses ‘A’ and ‘B’ alleged that the petitioner gave threat to them of reporting their alleged illegal activities and extorted money for not reporting them to the concerned authorities.

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In the context of the aforesaid material, Mr. Kadam, the learned Counsel for the petitioner, submitted that neither of the aforesaid sets of material furnishes a sustainable ground for action under Section 56(1)(a)(b) of the Act, 1951. It was strenuously urged that the offence punishable under Section 142 of the Act, 1951 (Sr. No.1, in the table extracted above) could not have been taken into account at all. In respect of SCC No.1482 of 2019 (Sr.No.3) for the offence punishable under Sections 447 (though one of the offences against property under Chapter XVII of the Penal Code), Mr. Kadam urged that the circumstances in which the said offence was allegedly committed could not have been lost sight of. Inviting the attention of the Court to the narration of facts in respect of CR No.80 of 2019, Mr. Kadam submitted with a degree of vehemence that the petitioner was arraigned therein for the reason that some persons unauthorisedly displayed fex posters

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CRIWP1774-2021.DOC

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wishing birthday to the petitioner on the hoarding erected by Sign Post India Private Limited and thereby committed criminal trespass and defaced the public property.

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Mr. Kadam would further urge that, in effect, the action was initiated against the petitioner on the basis of CR No.44 of 2019 (Sr.No.2), for the offences punishable under Sections 323, 324 and 504 of the Penal Code. It was submitted that, having regard to the narration of facts, in the said FIR, which unmistakably indicate that the said offence arose out of a personal dispute, invocation of the provisions which impinge upon the cherished personal liberty of the petitioner was totally uncalled for.

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As regards the confdential statements of the witnesses, Mr. Kadam made an endeavour to demonstrate that the statements of witnesses, as indicated in the show cause notice dated 4^th September, 2020, were bald and bereft of material particulars. In the absence of the day, date and time of the alleged occurrences, those statements could not have been taken into account to arrive at the satisfaction that the acts of the petitioner had caused alarm or danger to persons.

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To bolster up this submission, Mr. Kadam placed a strong reliance on a Division Bench judgment of this Court in the case

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CRIWP1774-2021.DOC

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of Abdul Kadir Razzque Beg vs. Sub-Divisional Magistrate Nasik

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and others¹ , wherein it was enunciated that while setting out the charges against the person concerned against whom action was proposed under Section 56 of the Act, 1951, it was essential that the time, date and the place of the nature of incident etc. should be circumscribed within such reasonable limits that it would be possible for the person concerned to adequately meet those charges.

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The controversy sought to be raised by Mr. Kadam is settled by a decision of the Supreme Court in the case of Pandharinath Shridhar Rangnekar vs. Dy. Commr. Of Police, The State of Maharashtra² , wherein the nature and extent of disclosure which ought to be made so as to facilitate the proposed externee to show cause thereagainst was illuminatingly postulated. The observations of the Supreme Court in paragraph 9 are instructive and thus extracted below:

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“ 9 . These provisions show that the reasons which necessitate or justify the passing of an externment order arise out of extraordinary circumstances. An order of externment can be passed under clause (a) or (b) of Section 56, and only if, the authority concerned is satisfed that witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety of their person or property. A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding. If

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1 1991 Mh.L.J. 474.

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2 (1973) 1 SCC 372.

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CRIWP1774-2021.DOC

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the show-cause notice were to furnish to the proposed externee concrete data like specifc dates of incidents or the names of persons involved in those incidents, it would be easy enough to fx the identity of those who out of fear of injury to their person or property are unwilling to depose in public. There is a brand of lawless element in society which is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence. And legal evidence is impossible to obtain, because out of fear of reprisals witnesses are unwilling to depose in public. That explains why Section 59 of the Act imposes but a limited obligation on that authorities to inform the proposed externee, “of the general nature of the material allegations against him.” That obligation fxes the limits of the co-relative right of the proposed externee. He is entitled, before an order of externment is passed under Section 56, to know the material allegations against him and the general nature of those allegations. He is not entitled to be informed of specifc particulars relating to the material allegations.”

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(emphasis supplied)

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The Supreme Court has postulated in clear and explicit terms that Section 59 of the Act imposes the limited obligation on the authority to inform the proposed externee, “of the general nature of the material allegations against him.” He is not entitled to be informed of specifc particulars relating to the material allegations lest the very purpose of protecting the identity of the persons would be frustrated. In the backdrop of this legal position, we are not persuaded to agree with the submission on behalf of the petitioner that the absence of specifc particulars as to the day, date and time of the incidents in the gist of the statements of witnesses, recorded in-camera, renders the order passed by the appropriate authority legally unsustainable.

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CRIWP1774-2021.DOC

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This leads us to the pivotal question, whether the cases registered against the petitioner bring the acts and conduct of the petitioner within the tentacles of Section 56(1)(a) and (b) of the Act, 1951. The learned Public Prosecutor could not join the issue that the offence punishable under Section 142 of the Act (Serial no.1) could not have been taken into account. As is evident, the said offence was registered against the petitioner for contravention of the externment order passed against him on 22^nd August, 2014. The third case, arising out of CR No.80 of 2019, for the offences punishable under Section 447 and Section 3 of the Maharashtra Prevention of Defacement of Property Act, 1995 also appears to have arisen in the peculiar facts. It hardly refects upon a conduct which has the propensity to cause alarm or danger. This leaves RCC No.370 of 2019, arising out of CR No.44/2019 as the only thread to which the impugned action hangs in balance.

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We have perused the narration of facts in respect of the said case. It transpires that the said incident which occured on 15^th January, 2019 was a sequel to the occurrence dated 13^th January, 2019, wherein the petitioner had reported the conduct of the brother of the frst informant (in CR No.44 of 2019) to the police. Thus on 15^th January, 2019 the said frst informant went

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CRIWP1774-2021.DOC

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to the house of the petitioner to inquire with the petitioner about the incident the day before and an altercation ensued, wherein the petitioner allegedly assaulted the frst informant by means of a blade. The sequence of events and the nature of occurrence speak in volumes. In the least, the incident occurred as the frst informant approached the petitioner to remonstrate the lodging of the report against his brother the day before. The aforesaid nature of the occurrence hardly brings the acts and conduct of the petitioner within the ambit of the prejudicial activity which Section 56 of the Act, 1951 envisages to prohibit.

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It would be contextually relevant to note that the statements of confdential witnesses, even if taken at par, do not refect upon the propensity of the petitioner to engage in bodily offences or the offences against the property. What those statements reveal is the tendency of the petitioner to question the alleged unlawful activities in the course of lawful avocations. From the perusal of the impugned order and the material on record we gather an impression that the authorities have found the petitioner to be an inconvenient person to deal with. Resort to the provisions which infringe the personal property is, however, not the justifable response thereto.

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CRIWP1774-2021.DOC

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Lastly, it is interesting to note that the assertions in the show cause notice that the complaints have been lodged against the petitioner at Khadak police station by various persons from 18^th January, 2019 to 3^rd July, 2020 that the petitioner allegedly threatened them, work out the retribution of the claim of the sponsoring authority that the persons are not willing to come forward to make complaints against the petitioner and give evidence in public.

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The conspectus of aforesaid consideration is that the subjective satisfaction arrived at by the appropriate authority to extern the petitioner is vitiated by consideration of irrelevant material and thus deserves to be interfered with in exercise of judicial review. Constitutionally guaranteed personal liberty and freedom of movement could not have been curtailed on the basis of such material. Externment order is therefore liable to be quashed and set aside. Resultantly, the petition deserves to be allowed.

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Hence, the following order:

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: ORDER :

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(i) The petition stands allowed.

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(ii) The impugned order passed by the Divisional Commissioner, dated 1^st April, 2021, in Appeal 11/12

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CRIWP1774-2021.DOC

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No.EA-19 of 2021 and the externment order, dated

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5^th January, 2021, passed by the Deputy Commissioner of Police, Zone-IV, Mumbai, stand quashed and set aside.

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( iii ) It is clarifed that the observations made hereinabove are for the limited purpose of determination of the legality and validity of the impugned order and they may not be construed as expression of opinion on the merits of the cases registered against the petitioner, and the competent Court seized with those cases shall decide the same on their own merits uninfuenced by the aforesaid observations.

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Rule made absolute in aforesaid terms.

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[N. J. JAMADAR, J.] [S. S. SHINDE, J.]

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Prabhakar @ Bablu Ashok Polkam v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Prabhakar @ Bablu Ashok Polkam v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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