High Court of Bombay

Sharad v. State of Maharashtra and Ors.

MANU/MH/2695/2016

19.12.2016

Criminal

Officer dealing externment proceedings against person has to record his opinion that witnesses not willing to give evidence in public against that person

In order to fulfill mandate of Section 56 (1) (b) of Maharashtra Police Act, designated officer dealing externment proceedings has to record his opinion that witnesses are not willing to come forward to give evidence in public Present Writ Petition is filed by Petitioner questioning legality, propriety and correctness of impugned order passed by Respondent No.4 in File No.2016 / MAG/Externment/CR¬01 and also order passed by Appellate Authority i.e. Respondent No.2 to extent of confirming order of externment of Petitioner from Beed District. Petitioner submitted that, order of externment passed by Respondent no.4 is outcome of political vendetta as same is passed at instance of Guardian Minister of Beed District so as to ensure that, Petitioner is not present in Parali [Vaijnath] Town during period of elections of Municipal Council. Further, FIR registered against Petitioner for offences punishable under Sections 354 (A), 341 r/w. 34 of Indian Penal Code, 1860 and Section 25 [3] of Arms Act is filed at instance of Guardian Minister and is clear indication that said FIR is registered with false allegation so as to involve Petitioner only to gain political mileage in election of Municipal Council Parali [Vaijnath]. It is submitted that Petitioner was elected as a member of Municipal Council, Parali [Vaijnath] for period from 2011 to 2016.

As per Section 56 (1) (a) and (b) of Maharashtra Police Act,1951, an order of externment can be passed against a person whose movements or acts are causing or calculated to cause alarm, danger or harm to person or property as provided in clause (a). Order of externment can also be passed against a person, if there are reasonable grounds for believing that such a person is engaged or is about to be engaged in commission of an offence involving force or violence as provided in clause (b). An order of externment can also be passed against a person, if that person is engaged or about to be engaged in commission of an offence punishable under Chapter XII, or Chapter XVI, or Chapter XVII of Indian Penal Code. Concerned Officer, who is dealing externment proceedings, should be of 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 safety of their person or property.

While passing impugned order, Respondent no.4 did consider contention of Petitioner that, Petitioner is acquitted from offences however, in impugned judgment, it is stated that, Petitioner though acquitted from offences, he is a habitual offender and his activities are dangerous to public which are likely to cause fear in minds of people and ultimately his activities would lead to breach of peace and security of citizens. Therefore, it clearly emerges that, Respondent no.4 did not consider assertion of Petitioner, which was supported by copy of judgment and order placed on record that, Petitioner stands acquitted from crime registered with Parali Gramin Police Station for offences punishable under Sections 279, 457, 504, 506, 34 of Indian Penal Code and Sections 5 and 7 of Indian Arms Act.

In order passed by Respondent No.4, there is no discussion in said order as to how offences registered from year 2000 till 2009 are relevant for purpose of passing impugned order. In fact, from those alleged offences Petitioner stands acquitted even prior to initiating proposal for externment by Police Officer, therefore, there is no live link between said offences from which Petitioner stands acquitted and impugned order passed by Respondent no.4.

There is no discussion in impugned order passed by Respondent No. 4 that, as a matter of fact he recorded in-camera statements of witnesses and they deposed about alleged illegal activities of Petitioner. In order to fulfill mandate of provisions of Section 56 (1) (b), 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.

Police Inspector, while submitting proposal of externment of Petitioner, in spite of his acquittal by Competent Court from offences had mentioned said offences in the proposal submitted to Respondent no.4. It shows non-application of mind of concerned Police Officer at time of initiation of proposal for externment of Petitioner. Appellate Authority had not taken into consideration contention of Petitioner that while passing impugned order, mandate of provisions of Section 56 (1) (b) of Maharashtra Police Act, 1951 has not been adhered to/followed by Respondent No.4. Therefore, impugned order passed by Respondent no.4 is not in conformity with mandate of provisions of Section 56 (1) (b) of Maharashtra Police Act and also suffers from non-assigning detail reasons and therefore impugned order was set aside.

Relevant

Section 56 (1) (a) and (b) of Maharashtra Police Act, 1951

Tags : Proceedings Externment Validity

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