Aurangabad v. The State of Maharashtra Through Divisional Commissioner, Aurangabad. The Deputy Commissioner of Police, Aurangabad
Case Details
1 JUDGMENT IN WP 1482-21 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1482 OF 2021 Feroz Ahmed Khan Iqbal Ahmed Khan, Age : 34 years, Occu.: Social Worker, R/o.: F. K. Valley, Plot No.4 and 7, Damdi Mahal, Aurangabad, At present : Naygaon, Tal.: Phulambri, District : Aurangabad. .... PETITIONER 1. 2. 3. 4. VERSUS The State of Maharashtra Through Divisional Commissioner, Aurangabad. The Deputy Commissioner of Police, Aurangabad. Assistant Commissioner of Police, City Department, Aurangabad. Police Inspector, City Chowk Police Station, Aurangabad. ... RESPONDENTS ..... Advocate for Petitioner : Mr. Chaitanya C. Deshpande APP for Respondents-State : Mr. M. M. Nerlikar …. CORAM : V. K. JADHAV AND SANDIPKUMAR C. MORE, JJ. RESERVED ON PRONOUNCED ON .... : 09/02/2022 : 09/03/2022 2 JUDGMENT IN WP 1482-21 JUDGMENT : (Per : Sandipkumar C. More, J.) : 1. Rule. Rule made returnable forthwith. By consent, heard fnally at admission stage. 2. The petitioner has fled this petition for quashing and setting aside the order dated 16/08/20221 passed by present respondent no.2 as well as the judgment and order dated 29/11/2021 passed by respondent no.1 Divisional Commissioner, Aurangabad in Externment Appeal No. 60 of 2021. Under both the orders, the petitioner has been externed from Aurangabad City for a period of one year. 3.
Facts
Background facts are as under : The petitioner claims himself as a peace loving citizen of India and permanent resident of F. K. Valley, Plot No.4 and 7, Damdi Mahal, Taluka and District Aurangabad. He was served with notice dated 30/03/2019 issued by present respondent no.3 i.e. Assistant Commissioner of Police, City Department, Aurangabad under Section 59 of the Maharashtra Police Act, 1951 in respect of externment proposal No.19-1191. However, respondent no.3 then again issued similar notice to the petitioner dated 12/04/2021 in 3 JUDGMENT IN WP 1482-21 respect of the proposal No. 2021-1692 for the same reason mentioning therein that in view of the crimes mentioned therein why the petitioner should not be externed from Aurangabad city and District as well as Jalna District in view of the Section 56(1)(a)(b) of the Maharashtra Police Act. To the said notice dated 12/042021 the petitioner fled his reply dated 25/05/2021 and clarifed that as to how he was falsely implicated in the crimes mentioned in the notice. Thereafter, on the basis of report of respondent no.3, respondent no.2 i.e. Deputy Commissioner of Police, Aurangabad issued notice to the petitioner dated 03/06/2021 under Section 59 of the Maharashtra Police Act and then passed order dated 16/08/2021 and thereby externed the petitioner for one year from entire Aurangabad City. The petitioner then preferred an Appeal No.60 of 2021 before Divisional Commissioner, Aurangabad as per the provision under Section 60 of the Maharashtra Police Act, but the Divisional Commissioner, Aurangabad was pleased to dismiss the said appeal under judgment and order dated 29/11/2021 and confrmed the earlier order dated 16/08/2021 passed by respondent no.2. 4. Learned counsel for the petitioner submits that both the impugned orders are prima facie erroneous and illegal since old 4 JUDGMENT IN WP 1482-21 crimes against the petitioner, were in fact considered for his externment. He further pointed out that in the year, 2010 also the petitioner was externed but this court in Criminal Writ Petition No.1009 of 2010 under order dated 19/04/2011 had set aside the
Legal Reasoning
in view of the observations made in judgment of this court in the case of Lalookhan Haideralikhan vs M.M. Kamble, Special Executive, reported in 1996 Cr.L.J. 801, if the cases are pending and there is no conviction in any case, the person cannot be said to be the habitual offender and therefore, cannot be externed. Learned counsel for the petitioner further submits that most of the crimes registered against the petitioner, have resulted into acquittal in respect of its trials. Moreover, principle of natural justice is also violated while passing the impugned orders. Besides the oral submissions, the learned counsel for the petitioner also relied on following judgments. I). Criminal Writ Petition No. 699 of 2019 (Dnyaneshwar Sopan Gite vs. The State of Maharashtra and others; II) Criminal Writ Petition No. 567 of 2019 (Prashant Mahadeorao Bodakhe vs. The State of Maharashtra and others; III) Criminal Writ Petition No.612 of 2020 (Mohan Damoddar Raut and another vs. The Superintendent of Police, Akola, and others; 5 JUDGMENT IN WP 1482-21 IV) Criminal Writ Petition No. 5234 of 2019 (Asif Amin Kadari vs. The Divisional Commissioner, Nashik); V) Criminal Writ Petition No. 959 of 2015 (Nitin @ Babloo s/o Bhagwant Gade vs. Deputy Commissioner of Police and others; VI) Criminal Writ Petition No.1429 of 2010 (Smt. Gulshan Arif Tase vs. Sub-Divisional Magistrate, Thane Division, Thane) and VII) Criminal Appeal No.912 of 2021 (Special Leave Petition (CRL.) No. 1676 of 2021) (Rahmat Khan @ Rammu Bismillah vs. Deputy Commissioner of Police." 5. On the contrary, the learned APP strongly opposed the petition and supported the impugned orders on the ground that even though the petitioner was initially externed in the year, 2010 observing that his presence in the Aurangabad District was harmful to the public at large but after getting the said order set aside in this court the petitioner again started indulging in serious criminal activities. Learned APP further submits that even before passing the order dated 29/11/2021 or the earlier order dated 16/08/2021 both the authorities have mentioned that the earlier proposal of externment of the year, 2019 was in fact kept in abeyance for giving one more chance to the petitioner. As such, the learned APP submits that the present petition is liable to be dismissed. 6 JUDGMENT IN WP 1482-21 6. It is signifcant to note that though the notice dated 30/03/2019 under Section 59 of the Maharashtra Police Act was issued to the petitioner but it was not acted upon. On the contrary, the externment of the petitioner has been caused in view of the proceeding initiated under notice dated 12/04/2021. On perusal of the notice dated 12/04/2021, it is evident that there is reference of earlier crimes registered against the petitioner during the period from the year, 2007 till 2010. However, it is also mentioned in the notice that in view of those crimes the petitioner was earlier externed from Aurangabad District for a period of two years. As such, the said crimes registered in the aforesaid period, have not been considered while passing the two orders. Further, both the impugned orders clearly reveal the fact that as there was only one crime registered against the present petitioner, his earlier proposal of externment proposed in the year, 2019 was kept in abeyance with intention to give one more chance of reformation to the petitioner. However, it appears that during the period from 2018 to 2020 following crimes have been registered against the present petitioner and trials in respect of the same, are pending in the concerned court. 7 JUDGMENT IN WP 1482-21 Sr. No. Police Station Crime No. and Sections 1. Krantichowk Crime No.171/2018, under Sections 307, 353, 332, 323, 143, 147, 148, 149, 427, 435 of IPC and under Section 4/25 of Arms Act Charge sheet No. Present status Subjudice 109 of 2018 dated 14.08.2018 2. Jinsi 3. Jinsi 4 Jinsi Crime No. 438 of 2019, under Sections 452, 323, 504, 506 and 427 read with 34 of IPC Crime No. 456 of 2019, under Sections 143, 323, 504 and 506 of IPC Crime No. 64 of 2020, under Sections 336, 143, 323, 504 and 506 of IPC 124 of 2020, dated 16/09/2020 143 of 2020, dated 12/10/2020 150 of 2020, dated 20/10/2020 Subjudice Subjudice Subjudice In fact, these crimes along with in-camera statements of witnesses, are considered by both the authorities before the impugned orders. On going through the nature of aforesaid crimes, it appears that there are four cognizable offences of serious nature in the concerned police station of Aurangabad City, which are suffcient to show that how the petitioner has created deterrence in the mind of public at large. Moreover, the in-camera statements of two witnesses indicate that the petitioner is involved in serious criminal activities involving extortion and offences relating to human 8 JUDGMENT IN WP 1482-21 body. Though the petitioner contended in his reply before the authorities that he was a social worker and the aforesaid crimes have been falsely registered against him only on account of civil dispute, but the said fact is yet to be proved. 7. Learned counsel for the petitioner heavily relied upon the aforesaid judgments, wherein scope of Section 56(1)(a)(b) of the Act is discussed. We would like to reproduce Section 56(1)(a)(b) of the Maharashtra Police Act, which reads as under : “56. Removal of persons about to commit offence : (1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under Section 7 to the Commissioner and in other area of areas to which the State Government may, be notifcation in the Offcial Gazette, extend the 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 or calculated to cause alarm, danger or harm to person or property or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the Commission of an offence involving force or violence or an offence punishable 9 JUDGMENT IN WP 1482-21 under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such offcer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or ” Further this court (Coram : T. V.Nalawade and K. K. Sonawane, JJ.) under order dated 10/06/2019 in Criminal Writ Petition No. 699 of 2019 has observed in para No. 30 as below : "30. The aforesaid discussion shows that both the police and the offcer empowered to pass externment order need to act very cautiously in such matters. From the law developed already on this point and the discussion made above, some requirements for externment order and the effects of not complying the requirements can be given and they are as under :- (i) There should be material to justify the application of section 56 of the Act even at the time of issuance of show cause notice. (ii) Before issuing show cause notice, the offcer empowered in that regard needs to consider the material made available by police to ascertain as to whether the material is suffcient for prima facie satisfaction. He should also get satisfed that the material is really in existence and the offcer is not expected to act on the word, report of the police offcer. That degree of 10 JUDGMENT IN WP 1482-21 satisfaction needs to appear in show cause notice. In other words, the opinion of the offcer as mentioned in section 56 of the Act needs to be on the basis of material. Both show cause notice and the fnal order need to show that this way, there was application of mind. (iii) If there is error in show cause notice like absence of material, but such material is mentioned in show cause notice, that circumstance will be suffcient to set aside the order of externment. Similarly, if the material could not have been considered under section 56 of the Act, the externment order cannot sustain in law. Absence of material even at the time of issuance of notice, but mentioning some material affects the right of hearing of proposed externee as ordinarily he does not get suffcient time to collect the material of aforesaid nature to refute the allegations made in show cause notice. Similarly, absence of material or mentioning the material which could not have been used for such proceeding in show cause notice creates a probability of malice. (iv) The material allegations and general nature of such allegations need to be informed in show cause notice. Only specifc particulars which will fx the identity of witnesses, who are unwilling to depose in public against proposed externee are not to be made available to the proposed externee. All other particulars which can be used by proposed externee to show that the degree of satisfaction cannot be attended by the offcer concerned need to be given to the proposed externee. The proposed externee has right to know all such other material as 11 JUDGMENT IN WP 1482-21 that right is a part of principles of natural justice and order involves the aforesaid fundamental rights of proposed externee. (v) If the order of externment is proposed on the grounds mentioned in section 56(1)(a) of the Act, there need to be many acts of proposed externee available for consideration and these acts must have already caused or there must be probability of causing alarm, danger etc. to person or property in future from the proposed externee. Such activity must be in respect of public order. (vi) If the proposed externment is on the ground given in section 56(1)(b), both the conditions like proposed externee was engaged or was about to engage in commission of offence as mentioned in this ground and further formation of the opinion by the offcer that the witnesses are not willing to come forward to give evidence against such person as mentioned in this ground need to be satisfed and fulfllment of only one condition is not suffcient. There should be subjective satisfaction on both the requirements and further, the offences need to have relation with public order. (vii) There should be material for forming opinion at the time of issuing show cause notice that externment order needs to be made in respect of a particular area, may be entire district or part of district and area contiguous to particular district or part of district and that needs to be refected in show cause notice. Only reason that the particular area is contiguous area will not be suffcient to 12 JUDGMENT IN WP 1482-21 cover that contiguous area in externment order. Possibility of activity in that area on the basis of material needs to be made out for subjective satisfaction. (viii) On the basis of nature of material available, the hearing as mentioned in section 59 of the Act needs to be given to proposed externee and in respect of those allegations opportunity needs to be given to the proposed externee to refute the allegations. (ix) In the externment order, there may not be detail reasons, but mentioning of the material on the basis of which the order is made needs to be there." 8. On going through the aforesaid observations, it appears that there must be some material to justify the application of Section 56 of the Act since beginning i.e. at the time of issuance of show cause notice. Moreover, it also appears that there should be material on record for forming opinion at the time of issuing show cause notice that the externment order needs to be made in respect of declared area. Moreover, it is not required for the authorities to give detail reasons but the material on the basis of which the order is made needs to be there. Further, similar observations are also there in Criminal Writ Petition No. 567 of 2019 passed by the same Coram, wherein it is observed that there need to be many acts of proposed externee available for consideration and these acts must have already caused or there must be probability of causing alarm, 13 JUDGMENT IN WP 1482-21 danger etc., to person or property in future from the proposed externee. Such activity must be in respect of public order. Further it has also to be seen whether the impugned orders of externment are passed on subjective satisfaction in respect of the material on record by the concerned authorities. 9. In the light of the aforesaid observations, if we peruse the notice dated 12/04/2021 and both the impugned orders, it appears that crimes mentioned in the notice dated 12/04/2021 are serious in nature. It is extremely important to note that while passing both the impugned orders the concerned authorities have observed that the then Senior Police Inspector had submitted the proposal for externment against the petitioner vide O.W. No. 330/2019, dated 19/03/2019, however, at that time there was only one case pending against the petitioner and therefore respondent no.3 at the relevant time had come to conclusion that it was not proper to extern the petitioner on the basis of single crime and was of the opinion to give the petitioner one more chance for reformation. Thus, the said proposal was kept in abeyance for observing the future conduct of the petitioner. The orders further indicate that even if the earlier proposal was kept in abeyance, three crimes of serious nature were registered thereafter against the petitioner as mentioned in the 14 JUDGMENT IN WP 1482-21 notice as well as in the impugned orders. Moreover, the in-camera statements of two witnesses also indicate as to how the public at large is having deterrence in their mind due to the criminal activities of the petitioner. Further, it is signifcant to note that previously also the petitioner was externed from Aurangabad District due to his criminal activities. Admittedly, the petitioner at the relevant time by fling writ petition in this court, got quashed the said externment order. But it is pertinent to note that thereafter also the petitioner indulged in to dangerous criminal activities and invited the present similar orders. As such, it is clearly evident that there is no improvement in the conduct of the petitioner even after the previous order of externment. There appears proper compliance of the related provisions of Section 56(1)(a)(b) of the Maharashtra Police Act. 10. Further, on perusal of both the impugned orders, it is also evident that there is suffcient material before the concerned authorities for their subjective satisfaction for the externment of the petitioner. Therefore, considering all these aspects, we are of the opinion that the judgments relied upon by the learned counsel for the petitioner, are not helpful in the instant case. On the contrary, both the impugned orders appear to be passed by appropriate consideration of the material on record against the petitioner with 15 JUDGMENT IN WP 1482-21 subjective satisfaction. In view of the same, we are not inclined to interfere with those impugned orders considering the conduct of the petitioner as discussed above. Hence, we pass the following order.
Arguments
said order. Learned counsel for the petitioner further submits that
Decision
O R D E R I) Criminal writ petition is hereby dismissed and disposed of accordingly. II) Rule stands discharged accordingly. (SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.) vsm/-