High Court of Bombay

Zumbar v. State of Maharashtra and Ors.

MANU/MH/0104/2017

02.02.2017

Criminal

Designated officer dealing externment proceedings has to record opinion that, witnesses not willing to give evidence in public

Instant Petition filed for quashing and setting aside of impugned orders passed by Ld. Divisional Commissioner, Aurangabad and Sub Divisional Officer, Osmanabad. Petitioner submitted that Sub Divisional Officer ought to have considered that offences registered against present petitioner are not serious one or against the society or dangerous to the public at large. It ought to have been considered by authorities that only three offences are registered against present petitioner and same are registered only to pressurize present Petitioner.

As per Section56(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. But in addition to the above, concerned Officer, who is dealing with 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 the safety of their person or property.

Authority has not recorded subjective satisfaction and formed opinion that , witnesses are not willing to come forward to give evidence in public against Petitioner by reason of apprehension on their part as regards the safety of their person or property. Division Bench of the Bombay High Court [at Principal seat] in case of Yeshwant Damodar Patil Vs. Hemant Karkar, Deputy Commissioner of Police & another had occasioned to consider the scope of provisions of Section 56[1][a] and [b] and also mandate of provisions of Section 59 of the Bombay Police Act. 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.

It does not appear from discussion in order passed by Respondent no.3 that, as a matter of fact ,he recorded in-¬camera statements of witnesses and before passing impugned order of externment, he formed opinion that witnesses are not willing to come forward to give evidence in public against Petitioner. There is no discussion in impugned order why externment of Petitioner is necessary from Latur District and Ausa Taluka in Latur District, Barshi in Solapur District, North Solapur, South Solapur when alleged activities/offences against the petitioner are registered with Osmanabad Gramin Police Station, Osmanabad.

Respondent No.3 has not followed mandate of provisions of Section 56 [1] [b] of Maharashtra Police Act. There is non-application of mind of Respondent No. 3 as he has not adverted to specific grounds in show cause notice and also did not adhere to mandate of provisions of Section 56 [1] [b] of Maharashtra Police Act, 1951.Appellate Authority, though, modified order passed by Respondent no.3 and restricted it’s implementation to Osmanabad District nevertheless did not consider that Respondent No. 3 has not adhered to provisions of Section 56 [1] [b] of Maharashtra Police Act, 1951. High Court allowed petition and quashed impugned order.

Relevant

Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police & another

Tags : Proceedings Externment Validity

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