High Court
Legal Reasoning
Cri.W.P.No.1540/2023:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1540 OF 2023Sachin @ Sambhaji Nanasaheb ChauguleAge 43 years, Occu. Automobile BatteryDealer, R/o Asasne Vasti, Shirdi SakuriShiv Road, At Shirdi, Tq. Rahata,District Ahmednagar… PETITIONERVERSUS1)The State of Maharashtrathrough the Principal Secretary,Home Department, Mantralaya, Bombay – 32 (Copy to be served on Public Prosecutor, High Court of Bombay, Bench at Aurangabad)2)The Sub-Divisional Police Officer (SDPO),Shirdi Division, Shirdi, Tq. Rahata, Dist. Ahmednagar. 3)Sub-Divisional Magistrate,Shirdi, At Shirdi, Tq. Rahata,Dist. Ahmednagar 4)The Hon’ble Minister for Revenue &Dairy, Mantralaya, Bombay – 32 … RESPONDENTS.......Mr. V.R. Dhorde, Advocate with Mr. S.P. Nimbalkar, Advocate for petitioner Mr. A.R. Kale, A.P.P. for respondents – State ....… CORAM : R.G. AVACHAT ANDSANJAY A. DESHMUKH, JJ.DATE : 11th DECEMBER, 2023
Legal Reasoning
Cri.W.P.No.1540/2023:: 2 ::ORAL JUDGMENT (PER SANJAY A. DESHMUKH, J.) : This Writ Petition is directed against the show-cause-notice dated 15/7/2023, issued by learned Sub-DivisionalMagistrate, Shirdi Sub-Division, District Ahmednagar under Section56(1)(A)(B) of the Maharashtra Police Act, for taking necessaryaction for externment of the petitioner for a period of two years fromAhmednagar, Nasik, Aurangabad and Pune districts.2.Learned counsel for the petitioner pointed out that,earlier a similar show-cause-notice dated 15/7/2022 was issued tothe petitioner, in which three crimes bearing (1) N.C. No.376/2016for offence punishable under Section 427 of the Indian Penal Code,1860 (for short IPC) (2) C.R. No.59/2017 for the offence punishableunder Sections 143, 147, 341, 427 read with 34 of the IPC, andSection 7 of the Criminal Law Amendment Act and (3) ChapterCase No.53/2017 under Section 110(a), (g) of the Code of CriminalProcedure, 1973 (for short Cr.P.C.) were considered and lastly itwas held that the petitioner cannot be externed. The learnedcounsel further pointed out the impugned show-cause-notice dated15/7/2023, in which those three crimes as well as two more Crimesbearing (1) C.R. No.234/2018 for the offence punishable underSections 143, 145, 147, 148, 149 of the IPC and Section 37(1)(3) ofthe Maharashtra Police Act and (2) C.R. No.398/2023 for the Cri.W.P.No.1540/2023:: 3 ::offence punishable under Sections 353, 323, 143, 147, 149 of theIPC are considered. From the cases arising out of C.R.Nos.173/2018, 160/2018, 176/2018 and 234/2018 the petitioner isacquitted. Learned counsel for the petitioner pointed out that, C.R.No.398/2023, which is registered about the incident dated26/8/2022, the alleged crime is registered after four months, whichis relied upon while issuing a show-cause-notice. Learned counselfurther pointed out statements of secret witnesses who are referredit in the show-cause-notice at Pages 51 and 52 of the Paper Bookthat they have not specifically stated the date and time as to whenthe petitioner threatened them. Lastly the learned counsel for thepetitioner submitted that the action of issuing of notice by therespondent No.2 is malicious, illegal and unsustainable. He,therefore, prayed to quash the impugned show-cause-notice. Insupport of his contentions, he is relying upon the followingauthorities :-(1)Dnyaneshwar s/o Sopan Gite Vs. State of Maharashtra2020 All M.R. (Cri) 3353, in which it is held that there must bematerial to justify the application of Section 56 of the Act.(2)Asif Gulam Rasool Patel Vs. R.B. Gavit & anr.2000 All M.R. 942, in which law is laid down by this Court thatif there is no material to establish proximity in the commissionof earlier crime and issuance of notice under Section 59 of the Maharashtra Police Act, 1950, it has to be quashed. 3.Learned A.P.P. for the State strongly opposed the
Decision
Cri.W.P.No.1540/2023:: 4 ::application and pointed out the affidavit-in-reply and the groundsthat equally efficacious remedy of appeal to the DivisionalCommissioner under Section 60 of the Maharashtra Police Act isavailable. He submitted that, the question of law and order was onanvil, hence the legal action of issuing the show-cause-notice istaken. The notice contains all the reasons with supportive material.He submitted to dismiss the Writ Petition.4.Perused the impugned notice and the documents reliedupon by the both sides.5. Section 56 of the Maharashtra Police Act reads asunder : “56.Removal of persons about to commitoffence : (1)Whenever it shall appear in Greater Bombayand other areas for which a Commissioner has beenappointed under Section 7 to the Commissioner andin other area or areas to which the StateGovernment may, by notification in the officialGazette, extend the provisions of this Section, to theDistrict Magistrate, or the Sub-DivisionalMagistrate empowered by the State Government inthat behalf –(a)that the movements or acts of any person arecausing or calculated to cause alarm, danger orharm to person or property or (b)that there are reasonable grounds for Cri.W.P.No.1540/2023:: 5 ::believing that such person is engaged or is about tobe engaged in the commission of an offenceinvolving force or violence or an offence punishableunder Chapters XII, XVI or XVII of the IndianPenal Code, or in the abetment of any such offenceand when in the opinion of such officer witnessesare not willing to come forward to give evidence inpublic against such person by reason ofapprehension on their part as regards the safety oftheir person or property, or (bb)that there are reasonable grounds forbelieving that such person is acting or is about to act(1) in any manner prejudicial to the maintenance ofpublic order as defined in the MaharashtraPrevention of Communal, Antisocial and OtherDangerous Activities Act, 1980 or (2) in anymanner prejudicial to the maintenance of suppliesof commodities essential to the community asdefined in the Explanation to sub-section (1) ofSection 3 of the Prevention of Blackmarketing andMaintenance of Supplies of Essential CommoditiesAct, 1980, or (c)that an outbreak of epidemic disease is likelyto result from the continued residence of animmigrant, the said officer may, by an order inwriting duly served on him or by beat of drum orotherwise as he thinks fit direct such person orimmigrant so to conduct himself as shall seemnecessary in order to prevent violence and alarm orsuch prejudicial act, or the outbreak or spread ofsuch disease or notwithstanding anything containedin this Act or any other law for the time being inforce, to remove himself outside such area or areasin the State of Maharashtra (whether within thelocal limits of the jurisdiction of the officer or notand whether contiguous or not), by such route, andwithin such time, as the officer may specify and notto enter or return to the area or areas specified(hereinafter referred to as “the specified area or Cri.W.P.No.1540/2023:: 6 ::areas”) from which he was directed to removehimself.(2)An officer directing any person under sub-section (1) to remove himself from any specifiedarea or areas in the State may further direct suchperson that during the period the order made againsthim is in force, as and when he resides in any otherareas in the State, he shall report his place ofresidence to the officer in-charge of the nearestpolice station once in every month, even if there beno change in his address. The said officer may alsodirect that, during the said period, as and when hegoes away from the State, he shall, within ten daysfrom the date of his departure from the State send areport in writing to the said officer, either by post orotherwise, of the date of his departure, and as andwhen he comes back to the State he shall, within tendays, from the date of his arrival in the State, reportthe date of his arrival to the officer in-charge of thepolice station nearest to the place where he may bestaying.”6. Sub-clause (b) of Section 56 of the Act requires thatthere must be reasonable grounds for believing that prospectivedefence is engaged or is about to be engaged in the commission ofan offence involving force or violence or an offence punishableunder Chapters XII, XVI or XVII etc. of the IPC.7.In this case, the earlier notice is compared with theimpugned notice, then it reveals that, those three crimes were alsoconsidered while issuing the impugned notice. Admittedly, thepetitioner is acquitted from Crime Nos.160/2018, 176/2018 and Cri.W.P.No.1540/2023:: 7 ::234/2018 of Shirdi Police Station. The last crime which is reliedupon by the respondent No.2 was registered about the incidentwhich had taken place on 26/8/2022, of which the crime wasregistered in the year 2023. Thus, the notice does not establishproximity of crimes with the proposed detention action According tothat crime, it is alleged that, the petitioner along with his colleaguewent to the gate of Saibaba temple and entered into the queue ofthe persons standing for Darshan forcefully and obstruction wascaused to the public. 8.The statements of confidential witnesses are vague innature and not specific as to when the petitioner had threatenedthem. On such insufficient material against this petitioner, therespondent No.2 arrived at a conclusion to issue the show-cause-notice for action of externment. Those allegations are notestablishing the essential ingredients of Section 56(b) of theMaharashtra Police Act. 9.Considering the ratio laid down in the case ofDnyaneshwar Gite (supra), the Writ Petition is maintainable againstimpugned notice even though equally efficacious remedy isavailable under Section 60 of the Maharashtra Police Act.Therefore, the arguments of learned A.P.P. is not acceptable in thisregard. The impugned notice is illegal and not sustainable in the Cri.W.P.No.1540/2023:: 8 ::eye of law. The petition deserves to be allowed and the same isallowed in terms of prayer clause (B).(SANJAY A. DESHMUKH, J.) (R.G. AVACHAT, J.) fmp/-