Dismissed

Nilesh @ Banya Suresh Daware v. the State of Maharashtra and Anr.

Bombay HC30 Sept 2021WP/3190/2021

Case brief

AI extract

What is this about?

This criminal writ petition challenged the order of externment passed against the petitioner under the Maharashtra Police Act. The High Court, examining the show-cause notice and subsequent orders, held that the requirements of the Act were met and the petitioner was heard. The writ petition was consequently rejected.

What did the court decide?

The writ petition stands rejected.

Nilesh @ Banya Suresh Daware Vs the State of… — Service and Employment | Bombay HC (2021)

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BHAGYAWANT TATYARAO PUNDE

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Digitally signed by BHAGYAWANT TATYARAO PUNDE Date: 2021.09.30 14:39:27 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 3190 OF 2021

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Nilesh @ Banya Suresh Daware ...Petitioner

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Versus

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The State of Maharashtra & Ors. ...Respondents

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Mr. Rahul S. Kadam i/by. Mr. Akshay Kapadia for Petitioner.

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Mr. J.P. Yagnik, APP for State.

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CORAM : S. S. SHINDE & N. J. JAMADAR, JJ.

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RESERVED ON : 28^th SEPTEMBER, 2021. PRONOUNCED ON: 30^th SEPTEMBER, 2021.

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ORDER:

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Being aggrieved and dissatisfed by the orders dated 12.08.2021 passed by Respondent No. 2 and order dated 12^th September, 2020 passed by Respondent No. 3 bearing Externment order No. 21 of 2020, this petition is fled.

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It is the case of the petitioner that on 21^st May, 2020 notice under Section 59 of the Bombay Police Act (“said Act”) was issued to the petitioner whereby he was called upon to show cause, why an action under Section 56 (1) (a) (b) of the Maharashtra Police

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Act should not be initiated against him. The Petitioner fled reply to said notice. It is the case of the petitioner that without taking into consideration the reply fled by the petitioner to the said show cause notice, the Respondent No. 2 passed the impugned order of externment on 12^th September, 2020. Being aggrieved by order dated 12^th September, 2020, the petitioner preferred an appeal under Section 60 before the Respondent No. 2 i.e. Divisional Commissioner, Pune Region, Pune along with the stay application. However, according to the procedure the appellate authority without taking into consideration the appeal memo and the submission made by the petitioner, by order dated 12^th August, 2021 had modifed the original order of externment and externed the petitioner from talukas of Pune district i.e. Khed, Maval, Mulshi, Bhor, Haveli, Shirur and Pimpri-Chinchwad.

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It is submitted by the learned counsel for the petitioner that there was delay in issuing notice to the petitioner inasmuch as the last offence registered against the petitioner was in the month of January 2020 and notice was issued to the petitioner on 21^st May, 2020. In the notice issued to the petitioner there was no mention that the witnesses are not coming forward to depose against the petitioner due to fear to their person and property, which is the

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basic requirement for passing an order of externment. Even in the said order there is mention about Section 56(1)(a), however, there is no notice as such given that the petitioner’s activities are causing harm, alarm and danger to the public property or the persons. Therefore, the order passed under Section 56 (1) (a) and (b) is not legally sustainable. It is submitted that even if it is presumed that the order under Section 56(b), still there is no formation of opinion based on the material that the activities of the petitioner are causing danger to the public life and property and witnesses are not coming forward to depose against the petitioner. While passing the impugned order, said stale offences alleged to have been committed in between 2018 – 2020 have been taken into consideration. It is submitted that the said offences cannot be made basis for passing the impugned order. It is submitted that extraneous material has been taken into consideration by the externinig authority which did not form the part of notice and the same is in violation of Section 59 of the said Act. The principles of natural justice have not been followed by the externing authority while passing the order of externment. Therefore, the learned counsel for the petitioner submits that the impugned orders are liable to be quashed and set aside.

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On the other hand, Mr. Yagnik, the learned APP appearing for respondent-State invites attention of this Court to the contents of notice and submits that gist of the allegations and incamera statements of witnesses has been mentioned in the notice issued under Section 59 of the said Act. It is submitted that the externing authority has recorded the in-camera statements of witnesses and after perusing the material on record reached to the conclusion that the petitioner deserves to be externed from Pune district and Pune City and accordingly after taking into consideration three offences registered against the petitioner and incamera statements of witnesses “A” and “B” passed an order of externment.

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We have given careful consideration to the rival submissions. With the able assistance of learned counsel for the petitioner and learned APP for State, we have perused the pleadings and grounds in the petition, annexures thereto, contents of notice issued to the petitioner, reasons assigned in the impugned orders and also other documents made available for perusal of this Court.

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Upon careful perusal of contents of the notice issued under Section 59 of the said Act, it is abundantly clear that it is clearly mentioned about pending offences against the petitioner

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which would fall under Chapter XVI and XVII of IPC. There is also mention about gist of the in-camera statements of witnesses “A” and “B”. It is also mentioned that witnesses are not coming forward to depose against the petitioner due to fear to their person and property.

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Upon perusal of the impugned orders passed by the externing authority, the said authority has made reference to the notices given to the petitioner, so also three offences pending against the petitioner and contents of the in-camera statements of witnesses and after arriving at subjective satisfaction the externing authority has passed an order of externment. The three offences which are registered against the Petitioner are (i) C.R. No. 218/2018 registered with Vakad Police Station for the offences punishable under Section 307, 232, 506, 141, 143, 147, 148, 149 of IPC, Section 4(25) of Arms Act and Section 37(1)(3) read with Section 135 and 302 of Maharashtra Police Act, (ii) C.R. No. 38/2020 registered with Vakad Police Station for the offences punishable under Section 324, 143, 144, 148, 149, 506(2), 427 of IPC and (iii) C.R. No. 222/2020 registered with Vakad Police Station for the offences punishable under Section 37(1)(3) read with Section 135 of Maharashtra Police Act and Section 4(25) of Arms Act. The aforesaid three offences

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registered against the petitioner are fall under Chapter XVI and XVII of IPC.

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The contention of learned counsel for the petitioner that, in the show cause notice it is not mentioned that activities of petitioner are causing harm, alarm, danger to the person or property and therefore, the order of externment deserves to be quashed, has no substance. Under Section 56 (1) (a) of the said Act it is suffcient if the movements or activities of any person are causing harm, alarm, danger to the person or property. Upon perusal of contents of show cause notices, we are satisfed that, gist of allegations against the petitioner has been mentioned with a view to give an opportunity to the petitioner to fle his reply to said show cause notices.

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It appears that frst show cause notice was issued to the petitioner on 21^st May, 2020. Thereafter again notice was issued on 1^st August, 2020, as already observed the contents of both the notices met the requirement under the relevant procedure. The Petitioner was granted opportunity to reply the said notices and also he was heard before passing the order of externment.

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In the light of discussion hereinabove and after taking overall view of the matter, in our opinion the requirements/mandate of Section 56 (1) (a) and (b) of the said Act are fulflled/met. Therefore, there is no substance in the contention of learned counsel appearing for the petitioner. Hence, the writ petition stands rejected.

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( N. J. JAMADAR, J.)

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Bhagyawant Punde

Nilesh @ Banya Suresh Daware v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Nilesh @ Banya Suresh Daware v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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