Sanjay vs State of Maharashtra and Others

A.M. Badar, J.—Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel appearing for both the parties.

Proceedings for externment of the applicant from Gadchiroli District for two years initiated vide Istegasha No. 2/2014 under Section 56 (1) of the Maharashtra Police Act, 1951 at the instance of Police Station Officer, Police Station, Gadchiroli has been challenged in the instant application.

Mrs. P.S. Chaudhari, the learned Counsel holding for Advocate Shri Abhay Sambre for the applicant has submitted that earlier proceedings for externment of the applicant vide Case No. 5/2011 has culminated into rejection of the said proposal by the learned Sub Divisional Magistrate vide order dated 25.5.2013. However, soon thereafter another proceedings impugned in the instant application are initiated by respondent Nos. 3 and 4 with mala fide intention to harass the applicant. She further argued that a show-cause-notice received by the applicant under Section 56 (1) of the Maharashtra Police Act, 1951 depicts total non-application of mind on the part of respondent No. 2 - Sub Divisional Magistrate as the said authority has blindly accepted the report submitted by respondent No. 3 - Sub Divisional Police Officer recommending externment of the applicant only because some cases under the Maharashtra Prohibition Act, 1949 are pending against him. According to the submission of the learned Counsel for the applicant, even the chart of offences allegedly registered against the applicant is depicting incorrect factual position and therefore, the externment proceedings need to be quashed and set aside on count of non-application of mind. Mrs. P.S. Chaudhari, the learned Counsel for the applicant further argued that the impugned proceedings for externment of the applicant are initiated only for the reason that offences under the Maharashtra Prohibition Act are pending against the applicant. By placing reliance on the decision of this Court in the case of Ashok Kashinath Kale Vs. Ravindra Jadhav and Another, (1983) 2 BomCR 763 she contended that registration of offences or conviction under the Maharashtra Prohibition Act is not at all relevant for initiation of proceedings for externment. Hence, according to the learned Counsel for the applicant, the impugned proceedings are nothing but abuse of process of law and therefore, need to be quashed and set aside.

Mrs. K.S. Joshi, the learned Additional Public Prosecutor opposing the contention raised by the applicant has submitted that proceedings for externment of the applicant were necessitated as the authorities found that there are reasonable grounds for believing that the applicant is engaged or is about to be engaged in commission of an offence involving force or violation as well as the offences punishable under Chapter XII, XIV and XVII of the Indian Penal Code, apart from the fact that it is apprehended that the applicant is acting or is about to act in a manner prejudicial to the maintenance of public order. Hence, according to the learned Additional Public Prosecutor, the proceedings under Section 56 of the Maharashtra Police Act, 1951 were initiated against the applicant. As the proceedings are at the initial stage and no final order came to be passed, the same cannot be challenged.

We have carefully perused the record of externment proceedings made available at the time of hearing by the learned Additional Public Prosecutor so also the pleadings of the parties. The applicant has resorted to the provisions of Section 482 of the Code of Criminal Procedure for seeking quashment of the externment proceedings. It is well settled that the inherent powers under Section 482 of the Code of Criminal Procedure are exercised either to prevent abuse of process of Court or otherwise to secure the ends of justice. These powers to be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

In the case in hand as seen from the record and proceedings, on 14.2.2014, a proposal for externment of the applicant from Gadchiroli District as well as from the adjoining District of Gadchiroli for a period of two years was submitted by the Police Station, Gadchiroli by contending that in all nine offences under the Maharashtra Prohibition Act were registered against the applicant and that despite registration of so many offences after releasing on bail, the applicant continues to indulge in business of selling illicit liquor in Gadchiroli District. On receipt of the said proposal, respondent No. 2 - Sub Divisional Magistrate, Gadchiroli forwarded the same to respondent No. 3 - Sub Divisional Police Officer for necessary enquiry and report. On 9.4.2014, respondent No. 3 - Sub-Divisional Police Officer submitted a report to respondent No. 2 - Sub Divisional Magistrate. It is contended in the said report that the applicant indulged in sale of illicit liquor at Gadchiroli District where there is total prohibition. It is further reported that despite registration of offences there is no change in behaviour of the applicant and there are chances of poisoning due to spurious liquor. Respondent No. 3 - Sub Divisional Police Officer further reported that for maintaining law and order in Parliamentary and State Assembly Polls, it is necessary to extern the applicant.

On receipt of this report from the Sub Divisional Police Officer, by show-cause-notice dated 9.9.2014 under Section 56 (1) of the Maharashtra Police Act, 1951, respondent No. 2 - Sub Divisional Magistrate directed the applicant to show cause as to why he should not be externed from Gadchiroli District for two years. The applicant was asked to furnish his written statement and to appear before him on 12.9.2014. By this show-cause-notice, the applicant was informed that the Sub Divisional Police Officer has furnished enquiry report on 9.4.2014 informing that in all nine offences are registered against the applicant out of which six are pending investigation. It was further informed by this show-cause-notice that there is a terror of the applicant in public at large and there is possibility of commission of cognizable offence by him. With these reasons, the applicant was asked to show cause as to why he should not be externed from Gadchiroli District for a period of two years. The applicant was also furnished with a chart showing details of offences registered against him and the stage of criminal cases registered in pursuant to registration of those offences.

The applicant has placed on record the chart furnished to him by respondent in respect of the offences registered against him. The said chart is also available on record of externment proceedings. Careful perusal of this chart at Annexure - 2 produced by the applicant shows that in all nine offences are shown to have been registered against the applicant under various Sections of the Maharashtra Prohibition Act, 1949. The chart at Annexure - 2 further shows that the applicant came to be acquitted in three criminal cases whereas two offences are shown to be pending investigation. The applicant is shown to have been acquitted so far as Crime Nos. 6648/2007, 6546/2008 and 6217/2011 are concerned. This factual position is disputed by the applicant for contending that the matter is being dealt with in very casual manner by respondents. The applicant has furnished the chart at Annexure-3 showing the correct position in respect of offences registered against him. According to the applicant, he came to be acquitted in total eight criminal cases out of nine criminal cases registered against him. This position is not at all disputed by respondents. It is thus seen from the chart at Annexure - 3 that out of nine criminal cases registered under the Maharashtra Prohibition Act, 1949, the applicant is acquitted in eight cases. Thus, even the criminal cases in which the applicant was acquitted were considered while issuing final show-cause-notice to the applicant proposing his externment. The non-application of mind by respondent as such is writ large as the matter is dealt with in most casual manner and without verifying the facts regarding acquittal of the applicant in eight out of nine criminal cases registered against him.

The proceedings initiated for externing the applicant from Gadchiroli District for a period of two years appear to have been commenced with a mala fide intention as the report of the Sub Divisional Police Officer shows that externment of the applicant is necessary for maintaining law and order in Parliamentary and State Assembly Polls. At this juncture, it is apposite to note that similar proceedings were initiated against the applicant vide Externment Case No. 5/2011 at the instance of the Police Station Officer, Gadchiroli. The order passed in that proceedings by respondent No. 2 - Sub Divisional Magistrate is at Annexure - 4. It is seen therefrom that the proceedings for externment of the applicant were initiated for a reason that in all five offences under the Maharashtra Prohibition Act, 1949 were registered against the applicant. While rejecting the said proposal for externment of the applicant on 25.5.2013, the Sub Divisional Magistrate has relied on the judgment of this Court in the case of Ashok Kashinath Kale (Supra) and held that the registration of offences under the Maharashtra Prohibition Act, 1949 or conviction thereunder cannot be a relevant factor for taking decision regarding externment. This Court in paragraph No. 3 of the judgment in the case of Ashok Kashinath Kale (Supra) has held thus:--

"3. We have already observed as to under what circumstances an externment order can be passed under section 56 (a) or 56 (b). A mere reading of the relevant provisions of section 56 would show that the convictions under the Bombay Prohibition Act or the pending criminal cases under that Act would not be relevant while taking a decision as to whether the petitioner''s case would fall under section 56 (a) or 56 (b). Shri Chitnis, therefore, contended that there is an order which is based on irrelevant data or irrelevant matter and that on that count the order should be set aside. He drew our attention to an unreported decision of this Court (Coram : Tarkunde and Shah, JJ.) in Special Criminal Application No. 511 of 1982 decided on 23rd January, 1963. In that case, one of the allegations made against the externees was that he indulged in the commission of offences under the Bombay Prohibition Act. The Division Bench held that the conviction or pending criminal cases under the Bombay Prohibition Act would undoubtedly be foreign to section 56. In view of this the petition succeeds and hence, we pass the following order :

The rule is made absolute by quashing the impugned externment order dated 12.4.1983 (Exh.''E'') to the petition."

The said judgment is also followed in unreported judgment of this Court in Criminal Writ Petition No. 520/2012 between Prashant s/o Shashikant Mandal...Versus...State of Maharashtra Through the Secretary Department of Home Mantralaya, Mumbai and others decided on 4.2.2013. It is, thus, clear that the very foundation on which the respondents were trying to build-up superstructure for externing the applicant has lost as the pendency of criminal cases or conviction thereunder in cases arising out of the Maharashtra Prohibition Act, 1949 would not be relevant while taking a decision as to whether the case of the applicant would fall under Section 56 (a) or 56 (b) of the Maharashtra Police Act, 1951. It is, thus, seen that in the instant case the respondents have considered irrelevant material and data for initiation of externment proceedings and the same cannot be allowed to be continued as the same is nothing but abuse of process of law. While initiation of second proceeding respondents authorities have totally lost sight of the fact that first proposal for externment of the applicant on very same ground came to be rejected by respondent No. 2 - Sub Divisional Magistrate. Still without any application of mind the second proposal came to be submitted within a short period of time with some grounds seeking externment of the applicant. Respondents cannot be allowed to resort to such tactics for depriving the citizen of his most cherished right of liberty. As such, the application deserves to be allowed with the following order.

ORDER

The criminal application is allowed. The impugned show-cause-notice bearing No. C.C. No. 3/2014 - 56(1) BPA dated 9.9.2014 issued by respondent No. 2 - Sub Divisional Magistrate, Gadchiroli asking the applicant to show cause as to why he should not be externed from Gadchiroli District for two years as well as the proceedings for externment of the applicant are quashed and set aside.

Rule is made absolute in the above terms.