Imaran S/O Manjoor Khan vs Sub Divisional Magistrate Saoner Th. Saoner Dist. Nagpur

This petition has been filed under Arts. 226 and 227 of the Constitution of India to challenge the legality of an order of externment passed against the petitioner under Section 56(1)(a), (b) of the Bombay Police Act, 1951, dated 12/12/2024, by the Sub-Divisional Magistrate, Saoner, Dist. Nagpur. The petitioner has been externed from the limits of Nagpur(Rural) and Nagpur(City) both, for a period of six months from the date of removal of the petitioner within three days from the date of the said order. He is further prohibited from entering the limits of the district for the said period.

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The Sub-Divisional Magistrate, considered all four offences committed in the years of 2016, 2023 and 2024 respectively, along with confidential statements of two anonymous witnesses “A” and “B” while passing the order of externment.

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The crimes are:-

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(i) C.R. No. 591/2016 under Sections 307, 147, 148, 149 of the Indian Penal Code read with Section 3/25 of the Arms Act

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and Section 135 of the Maharashtra Police Act, at Police Station, Khaparkheda, Dist. Nagpur.

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(ii) C.R. no. 432/2023 under Sections 143, 147, 148, 149, 504, 506 of the Indian Penal Code, at Police Station, Khaparkheda.

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(iii) C.R. no. 712/2023 under Sections 379, 34 of the Indian Penal Code at Police Station, Khaparkheda. (iv) C.R. no. 231/2024 under Sections 324, 504, 506, 34 of the Indian Penal Code at Police Station, Khaparkheda.

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Upon perusal of the proposal of externment, it appears that

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the petitioner in C.R. no. 591/2016, along with his associates (ten in number) beat Bahua alias Raju Suryawanshi, brother of the complainant with fists and blows and tried to hurt him grievously. The petitioner had possessed a firearm and the quarrel took place as a consequence of an old monetary dispute.

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In second crime, i.e., 432/2023, on 21/07/2023, the petitioner again with his accomplices filthily abused the complainant and gave him threats to kill, when he was returning home from an occasion in the night at around 11:00 P.M. In Crime no. 712/2023, the petitioner with the aid of his mates was found stealing the material required to generate electricity at the Thermal Power Plant, near the farm land of Mouza, D-point,

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Chankapur. While in C.R. no. 231/2024, as there was an altercation between the complainant and mother of the petitioner, he began abusing, when asked by the complainant the reason of doing so, the petitioner grabbed her by the hair and hit her, due to which her nose started bleeding. When the daughter of complainant came out to save her mother, the petitioner even hit her with brick, the daughter was bruised on hands and feet.

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The grounds on which the present petition has been assailed by the learned advocate of the petitioner are:

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(a) That, although the offences as mentioned in the impugned order are committed within the jurisdiction of Police Station, Khaparkheda and Parseoni, respondent no.1 committed grave error by externing the petitioner from the whole of Nagpur District.

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(b) That, the authorities travelled beyond the scope of Section 56 of the Bombay Police Act,1951 arrested the petitioner and took him to the State of Madhya Pradesh and directed him not to leave the jurisdiction of Pandhurna Police Station, which is in violation of Article 19(1)(d) of the Constitution of India.

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(c) As a reply to the show cause notice sent by Respondent no.4, the petitioner stated that C.R. no. 712/2023 is not against him and other matters are pending too, before the concerned Court.

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9. Learned advocate of the petitioner, Mr. Ghatte is challenging

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the action of the Police Station, Khaparkheda, claimed it as arbitrary in nature. He submitted that, Crime no.231/2024, is shown as registered with the Police Station, Parseoni, in the impugned order, however, in the show cause notice it is reflected to be committed within the jurisdiction of Police Station, Khaparkheda. It is further stated that there is no whisper that the authorities tried to approach people to record statements against the petitioner. In the present matter, the order is inconsistent with the provisions, i.e., Sections 56 and 59 of the Bombay Police Act, 1951. Therefore, the punishment of externment which deprived the petitioner from enjoyment of his fundamental right of freedom and movement is arbitrary and liable to quashed and set aside.

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Learned A.P.P. Mr. Damle, has relied upon the affidavit-inreply filed on behalf of the Respondents.

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He submitted that, a proposal was prepared for the externment of the present petitioner for a period of two years as there are various offences registered against the petitioner since 2016, out of which three offences are bodily/serious offences. The recent offence was committed by him on 27.07.2024.

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Mr. Damle argued that the petitioner's conduct and his

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lack of fear for the law, even after police action, no witnesses dare to testify against him in Court due to fear. The petitioner, within the jurisdiction of Khaparkheda Police Station, has been involved in activities such as theft, attempt to murder, unlawful assembly issuing death threats after abusing others, possessing illegal weapons, and obstructing roads while threatening individuals These actions of the petitioner disturb the public peace and order, eroding trust in the efficiency of the police department. It is evident that such behaviour could inspire other individuals to adopt similar criminal tendencies, leading to law and order issues in the Khaparkheda area. Despite preventive action taken against the petitioner, there has been no improvement in his behaviour. Furthermore, records indicate that in the near or distant future, the petitioner's actions may lead to further breaches of public peace and order and inspire others to turn to crime. Therefore, in

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the interest of maintaining public peace and order, it is deemed appropriate to extern the petitioner from Nagpur district.

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The externment order passed by the respondent No.2 is challenged before the Court. On perusal of the externment order, it appears that four offences are considered, which are committed in between 2016 to 2024. The petitioner was externed from Nagpur District. On perusal of the crimes, which are considered for passing the externment order, the crimes are committed at Khaparkheda. Show cause notice which is issued to the petitioner does not mention the details of the offence. Moreover, the material which is necessary to pass the externment order is not mentioned. Non-mentioning of the general nature of material in show cause notice invalidates such notice.

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There was no sufficient material before the authority to curtail his liberty enshrined under Article 19 of the Constitution of India. The offences are stale. The statement of the confidential witnesses are not even recorded by the authority. It is cursorily mentioned that nobody is ready to go before the authority to give the statement against the petitioner as they are afraid of the petitioner. On perusal of the show cause notice and the order of externment it appears that the mandatory provisions are not

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followed while passing the externment order. The details of the offence are not even mentioned in the order, which is passed on 12/12/2024.

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The learned counsel appearing for the petitioner has relied on the judgment of the this Court of Aurangabad Bench in Writ Petition 1190 of 2024 ( Deepak Kailas Aglave Vrs. The State of Maharashtra and ors. ), wherein this Court in paragraph No.6 of this judgment has observed as under:-

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“The Bombay High Court, in the case of Hussain @ Bantu Mohammad (supra), has reiterated the law laid down by the Hon’ble Supreme Court in Pandrinath Shridhar Ragnekar Vs. Deputy Commissioner of Police, State of Maharashtra, 1973 SCC 1 372. The Hon’ble Supreme Court in that case held that although section 56 makes a serious inroad on personal liberty, such restraints have to be suffered in the large interest of the society. An externee is entitled before the externment order is passed under Section 56 to know the material allegations against him and the general nature of those allegations. The externee is not to be informed of the specific particular related to the material allegations for the reason that full and complete disclosure of particulars, such as a requisite in an open prosecution, will frustrate the very purpose of the externment proceeding. Further, the case of Bhagubai Dullabhbai Bhandari Vs. District Magistrate Thana and others, AIR 1956 SC 585, was referred. In that case, it has been held that in order to attract the operation of Section 56 of the Act, the officer concerned himself

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has to satisfy himself that witnesses are not willing to come forward to give evidence in public. It is not necessary that all the witnesses must be found, thus unwilling to give evidence. The Court must ensure that the terms of Sections 56 and 59 are strictly complied with and that the slander safeguards that those provisions offer are made available to the proposed externee ”.

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This Court has summarised the requirement under Section

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56 of the Act. Not mentioning the general nature of material in a show cause notice invalidates such notice. It must mention the fact that the witnesses are not coming forward to give the evidence against the detenu in public for the reason of apprehension as regards to the safety to their person and property. The law is well settled that the in-camera statements of the witnesses should mention the specific details regarding the time, place, and month of the incident. If such statements are vague, the externment order should be considered invalid.

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17. It is also observed by this Court in the case of Deepak Kailas Aglave Vrs. The State of Maharashtra and ors. Supra in

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paragraph No.12 as under:-

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“12. The pronouncement of the Hon’ble Supreme Court and the Bombay High Court on section 56 of the Act would be summarized as follows;

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a) The show cause notice under section 59 of the Act should mention the details of crimes registered against the proposed externee.

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b) The show cause notice should disclose the facts that the witnesses are not willing to come forward to give the evidence against the proposed externee in public by reason of apprehension on their part as regards the safety of their person or property.

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c) The Authority should believe that there are reasonable grounds to form an opinion that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offences punishable under Chapters XII, XVI and XVII of the Indian Penal Code and abetment thereof.

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d) The principle of natural justice by granting fair hearing to such person shall be followed. e) There shall be live link and proximity in crime and the action of the externment. There should be no abnormal delay in passing externment orders from the last offence registered against him.

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f) The Authority shall be subjectively satisfied with the objective material.

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g) The cases registered and pending against such a person should not be stale and old.

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h) The orders should not be for excessive areas of externing such a person from larger areas and while passing such orders, the authority must assign the reasons for extering him beyond the area of operation.

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i) The authority can not consider the extraneous material which was not disclosed in the show cause notices.

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j) The camera statements of the witnesses should not be vague and identical. The order should reflect the application of mind”.

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On considering the above said requirement to pass the externment order, we have verified the order on the touch stone

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of above said requirements, which are not fulfilled.

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As the statements of witnesses are not recorded, there is no subjective satisfaction. The details are not given in the show - cause notice. The offences are committed in Khaparkheda village. The petitioner was externed from the entire Nagpur District. This Court in the case of Bhagwat Dadasaheb Landge and anr. Vs. State of Maharashtra and ors. reported in 2020(5) Mh.L.J.(Cri.)

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Mh.L.J has observed in para 25 as under:-

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“25. The impugned order shows that the petitioners’ activities are restricted to Rahata Police Station and they have been externed from the entire district. Full Bench of this Court in the case of Sumit s/o Ramkrishna Maraskolhe V/s. Deputy Commissioner of Police, Nagpur and Anr in Criminal Writ Petition No.1002 of 2017 has held as under :-

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“28. The discussion made so far would lead us to record our

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conclusions as follows :

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(i) The externment order directing externment of a person from a much larger area than the one of his illegal activities, must be based upon some material which provides an objective criteria to the authority for reaching a subjective satisfaction regarding the need for externing a person to an expansive area though it may not always directly or elaborately refer to that material in the order itself, as it all depends upon facts and circumstances of the case which need be vetted through the judicial process of drawing of legitimate inference following the law of Pandharinath and Sanjeev @ Brittoo (supra).

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(ii) The order of externment need not necessarily refer to the details of the material considered by it so as to show independently that larger or additional area chosen by it is intimately connected with the actual area of the activities of the externee due to improved or common means of transport and communication.

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(iii) Application of mind to the material present on record by the authority passing the externment order is necessary, but any refection of application of mind in the externment order in a specifc manner, as if to pass a reasoned order, would not be necessary. It would be enough if the order discloses that the subjective satisfaction has been reached by considering the material available on record and it would and should be a matter of legitimate inference that the authority, while considering materials to satisfy itself about the need for and extent of externment to be ordered, also considered all the options available to it and selected in it's wisdom the one which it thought to be most appropriate. This would also mean that authority, in this way, can select a larger area for being covered under it's externment order, as one of the options available to it, whether such larger area has within it contiguous or inter-connected or intimately connected pockets of areas or not.”

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This authority of this Court shows that reasons have to be assigned for passing an excessive order. When activities of the petitioners are restricted to Rahata police station, it was necessary on the part of the Externing Authority to assign reasons for externing the petitioners for an expansive area i.e. out of entire Ahmednagar District. In the absence of any reason, the

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order of externment cannot be sustained” .

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20. This Court in the case of Sheikh Munnu SheikhSalim Vs.

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Divisional Commissioner, Amavati and ors. reported in 2023

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ALL MR (Cri.) 1585. has observed as under:-

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“It is seen on perusal of the notice and order that most of the crimes committed by the petitioner were within the jurisdiction of Police Stations in Badnera and Amravati City. In view of this fact, the respondent no.2 was expected to record the reasons to warrant externment of the petitioner outside Amravatidistrict.The order passed by the respondent no.2 and confirmed by the respondent no.1, therefore, suffers from virus of excessiveness”.

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On perusal of record, all the offences which are considered

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for passing the detention order are committed in the jurisdiction of Khaparkheda Police Station and the externment order is passed taking into account the entire Nagpur District without giving any reason, therefore on this ground also the order of externment can not be sustained.

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Considering the observations made by this Court if the externment order is extensive and no reasons are mentioned in the notice issued by the authority which makes it cryptic and further there is no mention of recording of the statements of confidential witnesses, the order passed by the authority stands

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vitiated. Hence, the writ petition is allowed. The externment order dated 12/12/2024, passed by the Sub-Divisional Magistrate, Saoner, Dist. Nagpur stands quashed and set aside.

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Rule is made absolute in the above terms.

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(MRS.VRUSHALI V. JOSH I, J) (NITIN W. SAMBRE, J)

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Signed by: Kavita P Tayade Designation: PA To Honourable Judge Date: 03/05/2025 14:46:09

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Imaran S/O Manjoor Khan v. Sub Divisional Magistrate Saoner Th. Saoner Dist. Nagpur

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Imaran S/O Manjoor Khan v. Sub Divisional Magistrate Saoner Th. Saoner Dist. Nagpur

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