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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH
S.S. SHINDE & K.K. SONAWANE, JJ.
Vishwambhar S/o Jyotiram Sawant – Petitioner
Versus
The State of Maharashtra, through its Secretary, Home Department – Respondent
Criminal Writ Petition No. 182 of 2017
Decided On : 22-02-2017
Upon careful perusal of the discussion in the order passed by respondent No. 3, there is no discussion in the said order as to how the offences which have been registered against the petitioner are relevant for the purpose of passing the impugned order externing the petitioner from two districts i.e. Nanded and Latur. In fact, from those alleged offences it appears that, they are pending for adjudication, therefore, there is no live link between the said offences and the impugned order passed by respondent No. 3. Be that as it may, there is no discussion in the impugned order passed by respondent No. 3 that as a matter of fact he recorded in-camera statements of the witnesses and they deposed about the alleged illegal activities of the petitioner.
It abundantly clear that in order to fulfil mandate of the provisions of Section 56(1)(b), the designated officer has to record his opinion that 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.
Yet in another exposition of law in the case of Balu v. Divisional Magistrate, Pandharpur, 1969 Mh LJ 387, while appreciating the facts involved in that case, the Court held that extending the area of externment not only outside Pandharpur Taluka but to the Districts of Solapur, Pune and Satara is illegal since the alleged activities against the petitioner therein, as stated in the show-cause notice, were confined to the Pandharpur City.
It does not appear from the discussion in the order passed by respondent No. 3 that, as a matter of fact he recorded in-camera statements of the witnesses and before passing the order of externment, he formed opinion that the witnesses are not willing to come forward to give evidence in public against the petitioner. It further appears that there is no discussion in the impugned order why the externment of the petitioner is necessary from Nanded District when the alleged activities/offences against the petitioner being Crime No. 32/2014 and Crime No. 60/2015 is registered with Chakur Police Station.
S.S. SHINDE, J.
1. Heard.
2. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.
3. This Writ Petition is filed by the petitioner, under Articles 226 and 227 of the Constitution of India, questioning the legality, propriety and correctness of the order dated 15th September, 2016 passed by the Sub-Divisional Magistrate, Ahmedpur in Case No. 2016/MMG/CR-01 and the order dated 28th December, 2016 passed by the Divisional Commissioner, Aurangabad in 2016/S.P./Pole-1/C.R.-123, externing the petitioner from Latur and Nanded Districts.
4. The petitioner has assailed the impugned orders on the following grounds:
(i) The impugned orders passed by the Ld. Lower Authorities are wrong, erroneous and against the sound principles of natural justice, equity and procedure and therefore, are liable to be quashed and set aside.
(ii) Both the Authorities have not considered the relevant documentary record in its prospective sense, which are related with the compensation of acquired land of the petitioner and dispute is pending before the Revenue authorities.
(iii) The Sub-Divisional Magistrate passed impugned order without hearing to the petitioner and violated the principles of natural justice.
(iv) The Sub Divisional Magistrate, has not mentioned the details in the notice dated 03.12.2015, about the externment proceeding against the petitioner.
(v) The petitioner is pilgrim and of religious nature. The petitioner is reading 'Gita' everyday. The petitioner is doing agriculture work in his own field. There is standing crops in the field of the petitioner. The petitioner is the only earning member in his family. Due to the impugned orders, the family of the petitioner would be put on starvation. All these aspect have not been considered by both the Authorities.
(vi) While initiating the externment proceeding, the authorities have to keep in mind the personal liberty guaranteed under Article 21, which is a sacrosanct and there must be compelling necessity to extern the subject.
(vii) The externment order passed by the lower authority is after 16 months of the alleged offence, which is not permissible. There is no past instance of conviction record of the present petitioner. The petitioner is not habitual offender and only because of criminal cases pending, that cannot be ground for externment. The offences which are registered shows that, the petitioner is not dangerous criminal.
(viii) Both the lower authorities have not considered that, there is no instance of misuse or abuse of bail orders granted by the Ld. Lower Courts.
(ix) That, if the externment order implemented, that may result in reaching harsh consequences for externee and the family of the petitioner is depending upon him for their livelihood.
(x) There is no single complaint against the petitioner by the villagers, where the petitioner is residing.
5. Therefore, relying upon the aforementioned grounds, the learned counsel appearing for the petitioner submits that, the petition deserves to be allowed.
6. On the other hand, the learned A.P.P. appearing for the respondent-State, relying upon the reasons assigned in the impugned orders and also original record submits that, the Petition is devoid of merits and the same may be rejected.
7. We have carefully considered the submissions of the learned counsel appearing for the petitioner and the learned APP appearing for the respondent-State. With their able assistance, we have also carefully perused the pleadings and grounds taken in the Petition, annexure thereto, original record made available for perusal by the respondents and also the reported judgments cited across the Bar by the learned counsel appearing for the petitioner. At the outset, it would be apt to reproduce herein below the provisions of Section 56 (1) (b) of the Maharashtra Police Act which reads thus:
56. Removal of persons about to commit offence
(1)…..
(a) that the movements or acts of any person are causing or calculated to cause alarm, danger
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