Allowed

Santosh Madanlal Agarwal v. Divisional Commissioner, Nagpur, Old Secretary Building, Samj Kalyan Office Rd,Nagpur and 2

Bombay HC28 Aug 2024WP/398/2024

Case brief

AI extract

What is this about?

The High Court of Nagpur allowed a writ petition quashing an order of externment. The Court held that the order relied on stale crimes, acquitted cases, and unverified confidential witness statements, creating major lacunae affecting the authority's subjective satisfaction and denying the petitioner a fair opportunity to address relevant material.

What did the court decide?

The petition allowing quashing of the order of externment dated 29.2.2024 and its confirmation dated 10.4.2024 was allowed; the orders were quashed and set aside.

Santosh Madanlal Agarwal Vs Divisional Commissioner… — Property and Title | Bombay HC (2024)

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2024:BHC-NAG:10354

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24.WP.398.2024.Judgment.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR.

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CRIMINAL WRIT PETITION NO. 398 OF 2024

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PETITIONER : Santosh Madanlal Agarwal, Aged : 53, Occu: Business, R/o. At Post Saatgaon, Salekasa, District Gondia.

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//VERSUS//

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RESPONDENTS : 1. Divisional Commissioner, Nagpur, Old Secretary Building, Samaj Kalyan Office Road, Civil Lines, Nagpur, Maharashtra – 440001.

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Collector and Sub Divisional Magistrate, Deori, Dist. Gondia.

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State of Maharashtra, through Police Station Officer, Police Station Salekasa, Dist. Gondia.

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************************************************************** Mr. I.A. Fidvi, Advocate for the Petitioner. Ms. M. R. Kavimandan, APP for Respondent Nos.1 to 3.

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CORAM : G. A. SANAP, J. DATED : 28th AUGUST , 2024.

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ORAL JUDGMENT

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. Rule. Rule made returnable forthwith. The petition is

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heard finally with the consent of the learned advocates for the parties.

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02] The petitioner has questioned the correctness of the order dated 10^th April, 2024, passed by respondent No.1Divisional Commissioner, Nagpur, whereby respondent No.1Divisional Commissioner dismissed the appeal filed by the petitioner and confirmed the order of externment of the petitioner dated 29^th February, 2024, passed by respondent No.2-Sub Divisional Magistrate, Deori. Respondent No.2 invoked the provisions of Section 56 sub-section (1), clauses (a) and (b) of the Maharashtra Police Act, 1951 (for short, “the Act of 1951”) to pass an order of externment of the petitioner and thereby directed the petitioner to remove himself outside the limits of Gondia district for a period of two months from the date of the order. Respondent No.2, in order to arrive at a subjective satisfaction to pass the order of externment of the petitioner, has relied upon seven crimes registered against the petitioner at Salekasa Police Station. The crime chart is as follows:

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Sr. No.	Police Station	Crime No.	Section	Case status
1.	Salekasa	02/2005	379, 186, 506, 34 of IPC	Acquitted
2.		11/2005	183, 356, 332, 504 of IPC	Acquitted
3.	Slk	11/2006	342, 294, 506, 323 of IPC	Acquitted
4.	aeasa	106/2013	353, 504, 506 of IPC	Pendingin court
5.		15/2014	353, 294, 504, 506, 34 IPC	Pendingin court
6.	Deori	14/2023	353, 392, 186, 427, 294,	Pendingin court

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24.WP.398.2024.Judgment.odt

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			506, 34 of IPC
7.	Salekasa	365/2023	353, 506, 34 of IPC	Under police
				investigation

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03] Respondent No.2, as can be seen from the contents of the order, conducted the necessary inquiry. The show cause notice was issued to the petitioner. Respondent No.2, on the basis of the material collected during the course of inquiry and on granting an opportunity of hearing to the petitioner, found that it was a fit case to order the externment of the petitioner as above.

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04] The petitioner, being aggrieved by this order dated 29^th February, 2024, passed by respondent No.2, filed an appeal before respondent No.1-Divisional Commissioner, Nagpur. Respondent No.1 recorded a finding that the subjective satisfaction arrived at by respondent No.2 was on the basis of the relevant material. Respondent No.2 agreed with the findings of respondent No.2 and rejected the appeal.

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05] I have heard Mr. I. A. Fidvi, learned advocate for the petitioner and Ms. M. R. Kavimandan, learned APP for respondent Nos.1 to 3. Perused the record and proceedings.

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06] Learned advocate for the petitioner took me through the record and proceedings and submitted that, at the behest of the relatives of the petitioner, this malicious action was initiated against him. There has been a dispute with regard to the land between the petitioner and his relatives. It is pointed out that the Authorities have been taking side of the opponents of the petitioner and extending all sorts of trouble to him. It is also pointed out that he has been dispossessed from his land in connivance with the government servants and the crimes, which have been registered against him in the year 2023, are the offshoots of the said dispute.

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07] Learned advocate submitted that perusal of the record would show that there is no objective material on record to arrive at a subjective satisfaction, as has been recorded by respondent Nos.1 and 2. Learned advocate further submitted that the substance of the statements of the confidential witnesses was neither stated in the notice nor discussed in the order. Learned advocate submitted that thereby the opportunity to meet the proceeding initiated against him has been denied to him. Learned advocate submitted that, in the show cause notice dated 27^th December, 2023, three crimes, in which he had been acquitted, were relied upon. It is further pointed out that the crimes at serial

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Nos.6 and 7 of the notice were against some other person with the name of the petitioner. Learned advocate submitted that the crimes at serial Nos.4 and 5 were of the years 2013-2014, respectively. It is submitted that those are the stale crimes and, as such, could not have been relied upon at all. Learned advocate submitted that such an action makes an inroad on the fundamental right of the movement of a person and therefore cannot be passed mechanically. Learned advocate submitted that the period of externment was of two months and it has expired long back. Learned advocate submitted that even though the externment period has expired, this proceeding, which was initiated without any substance, would act as a stigma on him, and therefore, to remove this stigma, it is necessary to decide it on merits.

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08] Learned APP submitted that two crimes committed in

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the year 2023 were fresh crimes on the date of the issuance of notice. Learned APP submitted that these crimes were registered against the petitioner because he had used the criminal force against the public servant. Learned APP submitted that during the course of the preliminary enquiry, the statements of the confidential witnesses were recorded. Learned APP has taken me through those statements. Learned APP submitted that merely

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because of citing some crimes in which the petitioner had been acquitted by itself would not be a defect in the initial proceeding. Learned APP submitted that though the proposal of externment was for two years, the Authorities, by applying judicious mind, have ordered his externment for a period of two months only.

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09] It is to be noted that the notice issued by respondent No.2 was replied by the petitioner. The petitioner has placed on record the side of his story. He has contended that he has not committed any act, which would fall within the dragnet of Section 56 sub-section (1), clauses (a) and (b) of the Act of 1951, and therefore initiation of the proceeding at all was not warranted. It is to be noted that for the purpose of passing the order of externment, reliance cannot be placed on the stale crimes as well as the crimes in which the externee is already acquitted. If such crimes are relied upon, then, in my view, it may reflect upon the ultimate subjective satisfaction recorded by the Authority in the order. The subjective satisfaction arrived at by the Authority for passing an order of externment has to be considered in the totality of the material placed on record. If the material, which is not relevant for the purpose of passing the externment order, is relied upon, then it can cause a dent to the very subjective satisfaction arrived at.

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24.WP.398.2024.Judgment.odt

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Similarly, such a material can create a problem for the externee to deal with it appropriately. It can create a confusion in his mind. Such a material can deny him an opportunity to meet such a material properly. Similarly, such material can prejudice the mind of authority while passing the order.

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10] I have perused the statements of the confidential witnesses. Perusal of those statements would show that those statements were not verified by respondent No.2. The statements were recorded by P. I., Police Station Salekasa, during the course of the inquiry. It is to be noted that the statements of the independent witnesses are necessary to make out the basic ingredients of clause (a) of Section 156(1). It must be demonstrated on the basis of the material that the activities of the concerned person are causing threat to the person or property of any person or to the public. The activities must be found to be intended to cause alarm to the public or to a particular section of society. The petitioner has pointed out that he has challenged the crime registered against him by the police in connivance with his opponents. He has placed on record the order passed by this Court, whereby the filing of the chargesheet in the said crime has been stayed. It is further seen that, in the said petition, he has joined the police officers as the

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respondents. It is further evident on perusal of the record that the substance of the statements of the confidential witnesses was neither stated in the notice nor in the order. The statements were not properly verified.

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11] It is to be noted that such an action cannot be initiated unless and until the Authority is satisfied that it is really warranted. In this case, there is a scope to conclude that in the absence of cogent and concrete material, the very subjective satisfaction recorded by the Authorities was sufficiently dented. The Authorities concerned must approach such a subject independently. There shall not be any malice on the part of the Authority. The exercise of the powers must be independent and not under the influence of any other person or the opponent of the person sought to be externed.

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12] In this case, the petitioner has placed on record sufficient material to justify his contention. The stale crimes have been relied upon. Two crimes, which have been registered against the petitioner, are of the year 2023. It is his contention that these crimes are the outcome of the dispute between him and his

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opponents. It is his contention that, since he was tried to be dispossessed, he made a sincere effort to protect his possession. In my view, these two crimes at serial Nos.6 and 7 would not be sufficient to make out a case for his externment. The material on record is not sufficient to support the contention of the respondents that the order of externment was passed after recording the subjective satisfaction on the basis of the objective material. In my view, there are major lacunae in this proceeding. The lacunae are sufficient to create a doubt.

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13] It is seen that the order of externment has outlived its life. In my view, merely because of this, the petition cannot be disposed of as having been rendered infructuous. The order of externment may entail prejudicial consequences to the petitioner. In such a case, while examining the order of externment, if the Court is satisfied that the order suffers from patent defects and lacunae, then it can be set aside. The similar question fell for consideration of the Division Bench of this Court at Principal Seat in Writ Petition No.2093/2021 [Mohseen Mohammed Sallem Nadaf Vs. D.C.P., Zone Solapur City, Solapur, decided on 6^th July, 2021] . The Division Bench has held that though the order has outlived its life, it needs to be examined so that the order does not

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24.WP.398.2024.Judgment.odt

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entail prejudicial consequences to the petitioner. In my view, therefore, I conclude that the order passed by respondent No.2 as well as respondent No.1 cannot be sustained. The orders are liable to be set aside.

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14] Accordingly, the writ petition is allowed .

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i] The order dated 29^th February, 2024, passed by respondent No.2, externing the petitioner from Gondia District for a period of two months, and the order dated 10^th April, 2024, passed by respondent No.1, confirming the said order of externment, are quashed and set side.

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ii] Rule is made absolute in the aforesaid terms. The petition stands disposed of.

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Vijay

Santosh Madanlal Agarwal v. Divisional Commissioner, Nagpur, Old Secretary Building, Samj Kalyan Office Rd,Nagpur and 2

Case brief

What is this about?

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Santosh Madanlal Agarwal v. Divisional Commissioner, Nagpur, Old Secretary Building, Samj Kalyan Office Rd,Nagpur and 2

Case brief

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