High Court

Legal Reasoning

( 1 )913 cri wp 1697.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1697 OF 2024Vitthal Punjahari Jadhav,Age : 28 years, Occ : Agriculture,R/o. Taklibhan, Tq. Shrirampur,Dist. Ahmednagar....PETITIONERV/s.1.The Divisional Commissioner,Nashik Division, Nashik.2.The Sub-Divisional Magistrate,Shrirampur Division, Shrirampur,Tq.Shrirampur, Dist. Ahmednagar.3.The Externing Authority i.e.The Superintendent of Police,Ahmednagar, Dist. Ahmednagar.4.The Police Inspector,Taluka Police Station Shrirampur,Tq.Shrirampur, Dist. Ahmednagar....RESPONDENTS.....Mr. Y.G. Birajdar h/f. Sachin S. Deshmukh & Majit S. Shaikh,Advocate for the PetitionerMr. K.K. Naik, APP for the Respondent Nos.1 to 4..…CORAM : Y.G. KHOBRAGADE, J.RESERVED ON :12.02.2025 PRONOUNCED ON :05.03.2025JUDGMENT:-1.Rule. Rule made returnable forthwith. With the consent of bothsides, heard finally. ( 2 )913 cri wp 1697.24.odt2.The Petitioner, has invoked jurisdiction of this Court under Article226 and 227 of the Constitution of India and takes exception to the order dated29.07.2024, passed by the Respondent No.1 Divisional Commissioner, Nashik,in Externment Appeal No.68 of 2024 under Section 60 of the MaharashtraPolice Act, thereby upholding the order of externment passed by theRespondent No.2 on 01.03.2024, whereby the Petitioner has been externedfrom the entire Taluka of Shrirampur, Rahuri, Newasa and Rahata of DistrictAhmednagar for a period of one year.3.Facts giving rise to the present petition are that, the Petitioner wasserved with the notice dated 05.12.2022 under Section 59 of the MaharashtraPolice Act, issued by the Respondent No.2 and thereby called upon him tosubmit the cause as to why he should not be externed from the entireAhmednagar District for a period of two years because of registration offollowing crimes which are as under:Sr.No.Police StationCrime Nos. & SectionsDate ofregistration ofCrimesPresent position1.ShrirampurTaluka PoliceStationI-315/2019 u/s. 307, 353,332, 323, 504, 506 of IPC &u/s. 4/25 of Arms Act & u/s.37(1), 135 of the MaharashtraPolice ActInvestigation inprogress2.ShrirampurTaluka PoliceStation316/2019 u/s. 307, 327, 452,323, 427, 504, 506 of IPC &u/s. 4/25 of the Arms Act &u/s. 37(1), 135 ofMaharashtra Police Act &Trial pending /sub-judice ( 3 )913 cri wp 1697.24.odtu/s.3(2) (va) of SC & STPrevention of Atrocities Act3.ShrirampurTaluka PoliceStation99/2020 u/s. 506, 188, 144,of IPC and u/s. 4/26 of theArms ActTrial pending /sub-judice4.ShrirampurTaluka PoliceStation77/2022 u/s. 324, 323, 504,506 of IPCTrial pending /sub-judice5.ShrirampurTaluka PoliceStation281/2023 u/s. 384, 427, 323,506 r/w S.34 of IPCTrial pending /sub-judiceProhibitory action1.ShrirampurCity PoliceStationChapter Case No.05/2022u/s. 110 (a) (e) (g) of Cr.P.C.On 21.03.2022, the Petitioner hadfurnished a bond ensuring that hewill maintain peace for a periodof two years4.On 27.03.2023, the Petitioner submitted his reply and claimed thathe is a social worker and agitated for grievances of the general public. He helpsthe poor and needy people to protect their rights but due to political rivalry theopposite group out of jealousy of his popularity in the society, hence, falsecrimes registered against him. Therefore, the Police Authority falsely implicatedhim in criminal cases. He is enlarged on bail in all the crimes described in theabove tabular form. Therefore, proposed action of his externment from theentire Taluka of Shrirampur, Rahuri, Newasa and Rahata of DistrictAhmednagar is illegal and bad in law.5.On 01.03.2024, the Respondent No.2 passed an order and therebyexterned the Petitioner from entire Taluka of Shrirampur, Rahuri, Newasa and ( 4 )913 cri wp 1697.24.odtRahata of District Ahmednagar for a period of one year though the externingauthority did not assign satisfactory reasons about causing harm, alarm anddanger to the life and property of the people in the said areas.6.Being aggrieved by said order dated 01.03.2024, the Petitionerpreferred the Appeal under Section 60 of the Maharashtra Police Act before theRespondent No.1, Divisional Commissioner, Nashik. On 29.07.2024, theRespondent No.1 passed the impugned order and affirmed the order ofexternment passed by the Respondent No.2 on 01.03.2024.7.The learned counsel appearing for the Petitioner canvassed that,both the Respondent/Authorities have failed to appreciate material available onrecord in a proper perspective manner and arrived at an erroneous finding.The Petitioner is a social activist and is always helpful to the poor and needypeople and agitates for their grievances. Therefore, the Petitioner’s politicalrivals group made false allegations and implicated the Petitioner in false crimes.8.The learned counsel appearing for the Petitioner further canvassedthat, the order of Externing Authority is based upon such material as is notsufficient to record a satisfaction under Section 55 & 56 of the MaharashtraPolice Act, 1951. It is submitted that the material relied upon by theRespondent/ Authorities is not sufficient to satisfy ingredients to invoke theprovisions of Section 55 & 56 of the Maharashtra Police Act, 1951 because ( 5 )913 cri wp 1697.24.odttrials of four Crimes are sub-judice and investigation in one crime is underprogress as per show cause notice. The offences in which the Petitioner isshown involved are not of serious nature and do not fall within the meaning ofgangs and bodies of persons stated in the notice. Therefore, considering theregistration of stale crimes and the fact that the Petitioner was released on bailin all these cases, there is no necessity to extern the Petitioner from entireTaluka of Shrirampur, Rahuri, Newasa and Rahata of District Ahmednagar for aperiod of one year without giving elaborate reasons. Therefore, prayed forquashing and setting aside the orders dated 01.03.2024 and 29.07.2024 passedby the Respondent Nos. 1 & 2-Authorities. In support of these submissions thelearned counsel appearing for the Petitioner relied on Imtiyaz Hussain SayyadVs. State of Maharashtra; AIR Online 2024 Bom. 84.9.Per contra, the learned APP canvassed that, there is no infirmity inthe order of externment. The Respondent No.2- Sub-Divisional Magistrate,Shrirampur submitted a proposal for the externment of the Petitioner from theentire Ahmednagar District for a period of two years. The Respondent No.4 wasappointed as an Inquiry Officer. The Respondent No.4 issued notices dated16.09.2022, 27.09.2022, 07.10.2022 and 23.09.2023 to the Petitioner.Thereafter, the Respondent No.4 submitted his report dated 28.11.2022 withthe Respondent No.2/SDM and Respondent No.2/SDM recommendedexternment of the Petitioner from entire Ahmednagar district for a period of ( 6 )913 cri wp 1697.24.odttwo years. The Petitioner appeared before the Respondent No.2/Sub-DivisionalMagistrate, Shrirampur and submitted his written statement on 27.02.2023.The Respondent No.2 passed an order dated 01.02.2024 after providingopportunity of hearing to the Petitioner and externed the Petitioner from entireTaluka of Shrirampur, Rahuri, Newasa and Rahata of District Ahmednagar for aperiod of one year.10.The learned APP further submitted that all five crimes registeredagainst the Petitioner are of serious nature. The Petitioner has criminalantecedents as he has indulged in criminal activities and is a habitual offenderfor committing serious offences such as attempt to commit murder, givingthreats to law abiding and peace loving citizens of the locality, extortion,causing grievous hurt and committing mischief against property.11.The learned APP further canvassed that, on 13.08.2019 a CrimeNo.315/2019 registered against the Petitioner for the offences u/s 307, 353,332, 143, 147, 149, 323, 504 and 506 of IPC and u/s. 4/25 of the Arms andu/s. 38(1)(3) of the Maharashtra Police Act. In the said crime, the petitionerwas found while formation of unlawful assembly in village Taklibhan withwooden sticks & sword and the mob attempted to kill the police officer, whenhe was discharging his official duty. The Petitioner has played an active role incommission of said offence against a Police officer. The Petitioner has againcommitted the crime by forming an unlawful assembly by entering into the ( 7 )913 cri wp 1697.24.odtshop of one Avinash Kamble and forcibly snatched cash from the drawer of thetable at the point of sword and caused hurt to the family members of thevictim. So also, the Petitioner issued life threats to the victim and his family andabused them based on caste. Another Crime No. 99/2020 is registered againstthe Petitioner for issuance of threats to kill one villager in public place.Another Crime No.77/2022, is registered against the Petitioner and hisassociates for assaulting the Informant when he was sleeping and causedgrievous hurt and issued life threat. Though preventive action was initiatedagainst the Petitioner under Case No.05/2022 u/s. 110 of the Cr.P.C., butdespite preventive action, the Petitioner did not desist from committingdangerous activities. The citizens residing within the jurisdiction of Shrirampurand adjoining areas remain under constant fear and terror of the Petitioner. ThePetitioner’s activities have become hazardous and prejudicial for maintaininglaw and order in and around Shrirampur.12.The learned APP further canvassed that, the illegal activities of thePetitioner are showing ascending order and taking into consideration theobjective materials produced on record, the Respondent No.2/SDM,Shrirampur recorded his subjective satisfaction and rightly passed the order ofexternment. The Petitioner is a weapon wielding gangster indulged in criminalactivities which fall under Chapter XVI & XVII of IPC and SC & ST Act. Evenduring the pendency of the externment proceeding, the Petitioner has ( 8 )913 cri wp 1697.24.odtrepeatedly committed the offences of extortion, causing hurt, committingmischief and by issuing life threats to the citizens in their locality for whichCrime No.I-0281/2023 dated 07.06.2023 and Crime No.I-0486/2023 dated24.09.2023 are registered. Not only this but recently even after the externmentorder dated 01.03.2024 is passed, the Petitioner has committed a cognizableoffence by forming an unlawful assembly and committed crime of causing hurtand giving threats for which Crime No.I-0128/2024 has been registered atShrirampur Taluka Police Station for the offence u/s. 143, 147, 149, 323, 504,506 of the I.P.C. Even after passing of externment order dated 01.03.2024 three(3) non-cognizable offences are registered against the Petitioner vizI) NCR No.0589/2024 U/s. 352, 351(2) and 351(3) of the BNS, 2023 registered withShrirampur Taluka Police Station on 26.08.2024. ii) NCR No.0656/2024 U/s.352, 351(2) and 351(3) of the BNS, 2023 registered with Shrirampur TalukaPolice Station on 21.09.2024. iii) NCR No.0678/2024 U/s. 115(2), 352, 351(2)and 351(3) of the BNS, 2023 registered with Shrirampur Taluka Police Stationon 04.10.2024.13.The learned APP further canvassed that, during confidentialinquiry, the SDPO Shrirampur Division opined that, due to the Petitioner's fearnobody dares to give statement openly against him. On the assurance about notdisclosing their names and identity and their names would be kept secret, theSDPO recorded in-camera statements of Witness-A and Witness-B and satisfied ( 9 )913 cri wp 1697.24.odtthat, the Petitioner is a dangerous person and due to his fear, no one dare to fileany complaint and no one deposed against him. So also, there is a live linkbetween the registration of crimes and the proposal submitted to the office ofthe Respondent No.2 for externment of the Petitioner. Since, movement of thePetitioner in all Talukas of Ahmednagar district are dangerous to the life andproperties of the citizens, therefore, the Respondent Authorities have rightlypassed the order of externment, which is on administrative ground, hence,impugned order does not suffer from any illegality, hence, prayed for dismissalof the petition.14.Having regard to the submissions canvassed on behalf of both thesides, I have gone through the petition paper book. Since the RespondentAuthorities have taken recourse of Sec. 56 of the Maharashtra Police Act,therefore, it is necessary to reproduce the same which reads as under:“56. Removal of persons about to commit offence. Whenever it shall appearin Greater Bombay and other areas for which a Commissioner has beenappointed under Sec. 7 to the Commissioner and in other area or areas towhich State Government may, by notification in the Official Gazette, extendthe provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf- (a) that the movements or acts of any person are causing orcalculated to cause alarm, danger or harm to person or property, or(b) that there are reasonable grounds for believing that such personis engaged or is about to be engaged in the commission of an offenceinvolving force or violence or an offence punishable under Chapters XII,XVI, or XVII of the Indian Penal Code, or in the abetment of any suchoffence, and when in the opinion of such officer witnesses are not willing tocome forward to give evidence in public against such person by reason ofapprehension on their part as regards the safety of their person or property; ( 10 )913 cri wp 1697.24.odt (bb) that there are reasonable grounds for believing that such personis acting or is about to act (1) in any manner prejudicial to the maintenanceof public order as defined in the Maharashtra Prevention of Communal,Antisocial and other Dangerous Activities Act, 1980, or (2) in any mannerprejudicial to the maintenance of supplies of commodities essential of thecommunity as defined in the Explanation to sub-section (1) of Section 3 ofthe Prevention of Blackmarketing and Maintenance of Supplies of EssentialCommodities Act, 1980, or(c) that an outbreak of epidemic disease is likely to result from thecontinued residence of an immigrant, the said officer may, by an order inwriting duly served on him or by beat of drum or other wise as he thinks fit,direct such person or immigrant so to conduct himself as shall seemnecessary in order to prevent violence and alarm or such prejudicial act, orthe outbreak or spread of such disease or [notwithstanding anythingcontained in this Act or any other law for the time being in force, to removehimself outside such area or areas in the State of Maharashtra (whetherwithin the local limits of his jurisdiction of the officer or not and whethercontiguous or not), by such route, and within such time as the officer mayspecify and not to enter or return to the area or areas specified (hereinafterreferred to as " the specified area or area") from which he was directed toremove himself.]”15.On plain reading of Section 56 it appears that, if any person'smovements or acts are causing or are calculated to cause alarm, danger orharm to person or property and there are reasonable grounds to believe thatsuch person is engaged or is about to engage in the commission of an offenceinvolving force or violence or an offence punishable under Chapters XII, XVI, orXVII of the Indian Penal Code, or in the abetment of any such offence, and ifthe concerned officer believes that act of such person is likely to disturb thepeace in the society, the District Magistrate or Sub Divisional Magistrate are ( 11 )913 cri wp 1697.24.odtempowered to remove such person from any specified area or areas for thespecific period.16.In Deepak Laxman Dongre V/s. State of Maharashtra andOrs.;2022 LiveLaw (SC) 93, it is held that, to invoke the said provisions theremust be objective material on record based on which the Competent Authoritymust record its subjective satisfaction. It is further observed in cited case that,even if multiple offences have been registered against an individual that byitself is not sufficient to pass an order of externment. Moreover, there must besatisfactory material on record to indicate the reasonable apprehension of thewitnesses of their safety and for that reason they are not coming forward togive statement against the externee.17.In Imtiyaz Hussain Sayyad-Vs-State of Maharashtra & Ors., citedsupra, it is held that, the Externing Authority is required to satisfy therequirements of the class of cases stipulated by clause (b) and also to considerthe crimes which were under investigation and charge-sheet had not been filed.It is trite, the crimes which are still under investigation cannot be taken intoconsideration as depending upon the outcome of the investigation, theinvestigating agency may or may not send the accused for trial.18.No doubt, in the case of N.C.T. of Delhi and Anr. V/s. Sanjeevalias Bittoo; AIR 2005 SC 2080, the Hon’ble Apex Court has held that, the ( 12 )913 cri wp 1697.24.odtCourts should be slow while interfering in the matters relating toadministrative functions unless decision is tainted by any vulnerability likeillegality, irrationality and procedural impropriety. Keeping in mind theguidelines laid down by the Hon’ble Apex Court, the impugned orders havebeen considered in the facts and circumstances of the case.19.Reverting back to the case in hand, it prima facie appears that, theRespondent No.2-Sub-Divisional Magistrate submitted the proposal dated27.02.2023 in respect of externment of the Petitioner from entire AhmednagarDistrict for a period of two years. The Petitioner appeared before theRespondent No.2-SDM and put-forth his grievances. After hearing the Petitionerat length and after following due procedure of law, the Respondent No.2 passedthe order of externment on 01.03.2024 and externed the Petitioner from entireTalukas of Shrirampur, Rahuri, Newasa and Rahata of Ahmednagar District fora period of one year.20.In a confidential inquiry conducted by SDPO Division, it wasrevealed that, due to the Petitioner's fear nobody dares to give a statementopenly against the Petitioner. During confidential inquiry, the SDPO ShrirampurDivision opined that, due to the Petitioner's fear nobody dares to give statementopenly against the Petitioner but after giving assurance about not disclosingtheir names and identity,, the SDPO recorded in-camera statements of Witness-A and Witness-B and satisfied that, the Petitioner is a dangerous person and ( 13 )913 cri wp 1697.24.odtdue to his fear, no one dares to file any complaint and no one deposed againsthim. The material placed on record appears about existence of live linkbetween the registration of crimes and proposal of externment of the petitionersubmitted with the Respondent No.2. As per the statements of witness A & Bactivities of the Petitioner are dangerous to the citizens and their propertiesand due to the Petitioner’s fear, no one could dare to file any complaint againsthim. 21.On perusal of record it appears that, in all five crimes and onechapter case is registered against the Petitioner. Crime No.315/2019 dated13.08.2019 was registered against the Petitioner and his associates underSection 307, 353, 332, 143, 147, 149, 323, 504 and 506 of IPC and u/s. 4/25of the Arms and u/s. 38(1)(3) of the Maharashtra Police Act for formation ofunlawful assembly with wooden sticks and sword. So also, attempt was madeto kill the Police officer while discharging official duty and the Petitioner playedactive role while committing said crime. In another instance again thePetitioner committed a crime by forming an unlawful assembly by entering intoshop of one Avinash Kamble and forcibly taken cash from the table drawer bypointing sword and caused hurt to the family members of the victim. ThePetitioner also issued life threats and abused based on the caste of the victim.Another Crime No.99/2020 is registered against the petitioner for issuing life toone villager in public place. Another Crime No.77/2022 is registered against ( 14 )913 cri wp 1697.24.odtthe Petitioner and his associates for assaulting the Informant when he wassleeping and caused grievous hurt. Irrespective of the above crimes registeredagainst the petitioner again preventive action was initiated against thePetitioner under chapter Case No.05/2022 u/s. 110 of the Cr.P.C.. Not only thisbut even after the externment order dated 01.03.2024 is passed again followingnon-cognizable offences are registered against the Petitioner viz. i) NCR No.0589/2024 U/s. 352, 351(2) and 351(3) of the BNS, 2023 registered withShrirampur Taluka Police Station on 26.08.2024. ii) NCR No.0656/2024 U/s.352, 351(2) and 351(3) of the BNS, 2023 registered with Shrirampur TalukaPolice Station on 21.09.2024. iii) NCR No.0678/2024 U/s. 115(2), 352, 351(2)and 351(3) of the BNS, 2023 registered with Shrirampur Taluka Police Stationon 04.10.2024. Therefore, the conduct of the Petitioner appears to behazardous to the people in the society, danger to the property, which amountsto disturbing the peace, hence, no leniency can be shown to Petitioner.22.It is not out of place to mention here that, the externment ordercame to be passed by relying upon clauses (a) and (b) of Section 56 sub-section(1) of the Act of 1951, it mandatorily provides that the acts and movements ofany person must be causing or calculated to cause alarm, danger or harm toperson or property. As per clause (b) the ground requires that, the CompetentAuthority must satisfy that, the material must establish the existence ofreasonable grounds for believing that person sought to be externed is engaged ( 15 )913 cri wp 1697.24.odtor is about to be engaged in the commission of an offence involving force orviolence or an offence punishable under Chapters XII, XVI or XVII of the IndianPenal Code, or abetment of any such offence. The second part of clause (b),which is required to be read with the first part, clearly provides that thecompetent authority empowered to pass an order should form an opinion thatthe witnesses are not willing to come forward to give evidence in public againstsuch person, only because of an apprehension on their part as regards safety oftheir person or property. The conjoint reading of clauses (a) and (b) would,therefore, show that in arriving at subjective satisfaction as to the grounds,there must be objective material on record before the authority and the samemust be considered in accordance with law. 23.Certainly, the people residing in the jurisdiction of Shrirampur andadjoining areas remain under constant fear and terror of the Petitioner and thePetitioner’s activities have become hazardous. Indeed, in the case at hand, theRespondents/Authorities have rightly arrived at a subjective satisfaction asthere is cogent objective material on record against the Petitioner and he hasrightly been externed from entire Taluka of Shrirampur, Rahuri, Newasa andRahata of Ahmednagar District for a period of one year.24.In the light of the aforesaid reasons, I am satisfied that theRespondent/Authorities have rightly exercised their power within theparameters of Section 56 of the Act, and no interference by this Court is ( 16 )913 cri wp 1697.24.odtwarranted. There is sufficient material to extern the Petitioner which isapparent in the orders of externment. Therefore, in my considered view, thepresent petition deserves to be dismissed and hence it is dismissed. 25.Accordingly, Rule is discharged. [Y.G. KHOBRAGADE, J.]mub