Jalna.......Mr. Parag v. Barde h
Legal Reasoning
{1} cwp174-24.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.174 OF 2024Shivaji Shantaram Shejul PETITIONERAge – 42, Occ – AgricultureR/o Sawargaon HadapTaluka and District- JalnaVERSUS1.The Divisional Commissioner RESPONDENTSChh Sambhajinagar, Taluka and District Chh. Sambhajinagar2.Sub Divisional Magistrate, JalnaTaluka and District – Jalna3.Superintendent of Police, JalnaTaluka and District – Jalna4.Police Inspector, Police Station MaujpuriTaluka and District – Jalna.......Mr. Parag V. Barde h/f Mr. P. S. Mantri, Advocate for petitionersMr. A. R. Kale, APP for respondent - State ....…WITHCRIMINAL APPLICATION NO. 1265 OF 2024INCRIMINAL WRIT PETITION NO.174 OF 2024Ramesh Shriram Yadnyekar (Joshi) APPLICANTVERSUSShivaji Shantaram Shejul and Others RESPONDENTS....…Mr. Aniruddha A. Nimbalkar, Advocate for applicant Mr. Parag V. Barde h/f Mr. P. S. Mantri, Advocate for R-1Mr. R. B. Dhaware, APP for respondent - State ....… [CORAM : NITIN B. SURYAWANSHI, J.] RESERVED ON : 21 st MARCH, 2024 {2} cwp174-24.docPRONOUNCED ON : 2 nd APRIL, 2024 JUDGMENT :1.Rule. Rule made returnable forthwith and heard finally withconsent of learned advocates for the parties. 2.This petition, filed under Article 226 and 227 of theConstitution of India, challenges order of externment passedagainst petitioner, by Sub Divisional Magistrate, Jalna on 27thSeptember, 2023, thereby externing petitioner from Jalna andAurangabad districts for a period of two years. Petitionerchallenged said order by filing appeal before DivisionalCommissioner. By order dated 22nd December, 2023, the appealfiled by petitioner was partly allowed and petitioner is externedonly from Jalna district for a period of two years. Both theseorders are impugned in the present petition.3.Heard learned advocate for petitioner and learned APP forthe State. Perused the papers of investigation.4.Learned advocate for petitioner, by relying on “DeepakLaxman Dongare V/s State of Maharashtra and Others”2022 (2) Mh.L.J. (Cri) 155, submits that only on the basis oftwo crimes, externment proceedings are initiated againstpetitioner. Last offence is of the year 2022 and hence there is nolive link. Offences registered against petitioner are out of political {3} cwp174-24.docrivalry and petitioner has not breached any condition of bailorders. In-camera statements were not provided to petitioner. Allthe offences registered against petitioner are at Maujpuri policestation of Jalna city. Hence, it was not necessary to externpetitioner from entire Jalna district, that too for a period of twoyears, this order is excessive. There is no subjective satisfactionrecorded by the externing authority while passing the impugnedorder.5.Learned APP, by relying on the affidavit in reply filed byrespondent No.4, supported the impugned orders. He submitsthat by exhaustive order, the Sub Divisional Magistrate hasexterned the petitioner from Jalna and Chhatrapati SambhajiNagar districts for a period of 2 years. Before passing of the saidorder, report of the Sub Divisional Police Officer was called,petitioner was heard and reply filed by petitioner was not foundsatisfactory and hence externment order was rightly passed bythe Sub Divisional Magistrate. In view of registration of CrimeNos. 63 of 2022 and 64 of 2022, there is live link for passing theexternment order. Several non cognizable offences and Chaptercases are registered against petitioner. Petitioner is continuouslyindulging in unlawful activities and, therefore, he was required tobe externed. Learned APP distinguished the citation relied on bypetitioner, stating that a reasoned order is passed by the
Decision
{4} cwp174-24.docexterning authority and hence the said citation is not applicableto the facts of the present case. He further submits that theground of non supply of in camera statements, was neitherraised by petitioner before the externing authority, nor beforethe appellate authority and not even in the writ petition.Therefore, there is no substance in the said ground. He,therefore, submits that impugned orders are not liable to be setaside.6.Perusal of papers of investigation indicates that AssistantPolice Inspector, Maujpuri Police station submitted proposal tothe Sub Divisional Officer for externment of petitioner on 17thFebruary, 2023, wherein following 6 offences were mentioned -S.NPOLICESTATIONCR NO & SectionsChargeSheetnumberPresentstatus1Maujpuri281/2009 u/s 143, 147, 149, 326m325m 323m 504, 506 of IPC and 135of Maharashtra Police Act129/2010dated26/06/2010Acquitted2Maujpui63/2022 u/s 307, 326, 324, 341, 337,338, 327, 143, 147, 148, 149, 504,427 IPC and 135 Maharashtra PoliceAct145/2022dated28/12/2022Sub Judice3Maujpuri64/2022 u/s 353, 332, 143, 144, 145,147, 148, 149, 160 IPC and 135 ofMaharashtra Police Act125/2022dated22/10/2022Sub judice4MaujpuriN. C. No. 88/2022 u/s 506 and 507 ofIPC02/03/2022--5MaujpuriN.C.No. 182/2022 u/s 507 34 of IPC01/05.2022--6MujpuriN.C. No.183/2022 u/s 507, 34 of IPC01/05.2022-- {5} cwp174-24.doc7.In spite of registration of above offences, since petitionercontinued to indulge in criminal activities, following preventiveaction was taken against him:i.Maujpuri Police Station Chapter Case No. 44 of 2022under section 107 of the Criminal Procedure Code,dated 5th March, 2022ii.Maujpuri Police Station Chapter Case No.6 of 2022under section 110 of the Criminal Procedure Code,dated 29th March, 2022.8.In camera statements of two witnesses are referred in thesaid proposal. It is further stated in the proposal that petitionerhas created terror in Ram Nagar Sugar Factory and adjoiningareas, as he is in a habit of committing bodily offences. Citizensare feeling unsafe because of the criminal activities of thepetitioner. People are not ready to give statement againstpetitioner, because of the terror created by him. Hence, it isnecessary to extern petitioner from Chhatrapati Sambhaji Nagarand Jalna districts for a period of 2 years, under section 56 (1) (b)of the Maharashtra Police Act.9.On receipt of the said proposal, the Superintendent ofPolice, Jalna, by office order dated 5th April, 2023 issued undersection 59 (1) of the Maharashtra Police Act, authorized SubDivisional Police Officer, Partur to conduct an inquiry in the {6} cwp174-24.docexternment proceedings. Sub Divisional Police Officer, by noticedated 12th April, 2023, called upon the petitioner to show causeas to why he should not be externed. The notice was served onthe petitioner on 5th May, 2023. Petitioner replied the said noticeon 17th May, 2023. After conducting inquiry and givingopportunity of hearing to the petitioner, the Sub Divisional PoliceOfficer recommended the externment proposal, stating thatpetitioner is a ferocious person, habitual criminal and is involvedin number of crimes like – member of unlawful assembly, rioting,voluntarily causing hurt, intentional insult with intent to provokebreach of peace, criminal intimidation, attempt to murder,voluntarily causing hurt by dangerous weapons, unlawfulrestraint, causing hurt by act endangering life or personal safetyof others, causing grievous hurt by endangering life or personalsafety of others, assault or criminal force to deter public servantfrom discharge of his duties, criminal intimidation by anonymouscommunication, etc.10. After receipt of report of inquiry officer / Sub DivisionalPolice Officer, a show cause notice was issued to the petitionerby the competent authority / Sub Divisional Magistrate on 9thJune, 2023. Petitioner appeared on 10th August, 2023 andsubmitted his written say, stating that without any reason,intentionally false cases are registered against him, he is {7} cwp174-24.docacquitted in the cases registered against him in the year 2009and in other cases registered against him. In Crime Nos. 63 of2022 and 64 of 2022, petitioner was granted anticipatory bailand requested to drop the proceedings.11.Sub Divisional Magistrate found that cases registeredagainst the petitioner in the years 2009 and 2022 are underChapters II, VII, XVI, XVII and XXII of the Indian Penal Code andthe petitioner is a history sheeter. The Sub Divisional Magistratehas found that inquiry is conducted by the Sub Divisional PoliceOfficer, by following section 59 (1) of the Maharashtra Police Act.The Sub Divisional Magistrate, after considering the record, hascome to a conclusion that petitioner is liable to be externed fromJalna and Aurangabad districts for a period of two years.12.Petitioner challenged the said order under section 60 of theMaharashtra Police Act, before the Divisional Commissioner,Aurangabad, by filing Appeal No. 116 of 2023. The appeal ispartly allowed and the petitioner is externed only from Jalnadistrict for a period of two years.13.Perusal of record indicates that petitioner has not raisedthe ground of non supply of in camera statements to him, eitherbefore the Sub Divisional Police Officer, competent authority /Sub Divisional Magistrate or in the appeal filed before the {8} cwp174-24.docDivisional Commissioner. Even in the present writ petition memo,no such ground is raised by the petitioner. Therefore, there is nomerit in the argument of the petitioner that in camerastatements were not supplied to him and the same appears to bean afterthought stand taken by the petitioner.14.There appears material available on record justifying theexternment order. The Sub Divisional Magistrate, - respondentNo.2, has recorded subjective satisfaction on the basis ofobjective material available on record, to the effect thatmovements or acts of petitioner are causing or calculated tocause alarm, danger or harm to the person or property of public.Material on record against petitioner was sufficient forrespondent No.2 for believing that petitioner is engaged or isabout to be engaged in commission of offence involving force orviolence or offence punishable under Chapters XVI and XVII ofthe Indian Penal Code. The impugned order reflects that the SubDivisional Magistrate has taken into consideration the materialplaced on record, on the basis of which the impugned order ofexternment is passed.15.It also appears from the record that witnesses are notwilling to come forward to give statement against petitioner byreason of apprehension on their part as regards their safety or {9} cwp174-24.docsafety of their property. Subjective satisfaction is therefore,rightly recorded by the externing authority. Therefore, on thisissue the decision “Deepak Laxman Dongare” (supra) doesnot help the petitioner.16.The order, externing petitioner from Chhatrapati SambhajiNagar and Jalna districts was excessive and the same is rightlymodified by appellate authority, by restricting externment orderto Jalna district only. Though all the offences are registeredagainst petitioner at Maujpuri Police Station and all the offencesare committed by petitioner within Ramnagar Sugar Factory andadjoining areas, fact remains that Ramnagar Sugar factory issituated in Jalna Taluka. Thus, it is contagious to Jalna district. Inspite of taking preventive action against petitioner, the samecould not produce desired effect of preventing petitioner fromindulging in criminal activities. Therefore, externment order ofpetitioner from Jalna district is justified in the facts of the presentcase.17.However, the impugned order does not indicate thatrespondent No.2 has recorded subjective satisfaction on thebasis of material on record that externment should be formaximum permissible period of two years. No reasons areassigned as to why externment should be for a maximum {10} cwp174-24.docpermissible period of two years. The impugned order, therefore,amounts to imposing unreasonable restrictions on thefundamental rights guaranteed under clause (d) of Article 19 (1)of the Constitution of India as the same is excessive, the it needsto be curtailed. (vide “Deepak V/s State of Maharashtra andOthers” 2022 (2) Mlj (Cri) 155)18.Resultantly, writ petition is partly allowed. Impugned orderdated 27th September, 2023 passed by Sub Divisional Magistrate,Jalna is modified as follows:“Petitioner shall be externed from Jalna District for a periodof one year from the date of service of externment order on thepetitioner.”19.Rule is made absolute to above extent, with no order as tocosts.20.In view of disposal of the Criminal Writ Petition, CriminalApplication No.1265 of 2024 is also disposed of. [NITIN B. SURYAWANSHI]JUDGE drp/cwp174-24.doc