Police Act; Pankaj Prakash Shimpi Vs. Dy. Commissioner of Police [Bombay High Court, 10-10-2016]

Maharashtra Police Act, 1951 – Section 56 – Externment Proceedings – no witnesses are coming forward to depose against the Petitioner in public – It is not necessary to disclose as to how the externing authority has arrived at subjective satisfaction and to disclose the details in respect of such subjective satisfaction. It was also not necessary to mention as to why the authority has arrived at such satisfaction when cases are pending against the Petitioner in the Court of law.

Externment

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CORAM : NARESH H. PATIL AND PRAKASH D. NAIK, JJ.

10th October 2016

CRIMINAL WRIT PETITION NO.2742 OF 2016

Pankaj Prakash Shimpi, Age 26 years, R/o.15, Sai Sankul, Anand Nagar, Kamat Wade, Nashik Petitioner versus 1. The Deputy Commissioner of Police, Zone-II, Nashik City. 2. The Divisional Commissioner, Nashik Division, Nashik. 3. The State of Maharashtra, through Secretary, Home Department, Government of Maharashtra. Respondents Mr.Udaynath Tripathi, Advocate for Petitioner. Mrs.M.M.Deshmukh, Assistant Public Prosecutor, for Respondents- State.

JUDGMENT

Prakash D. Naik, J.

1. Rule. Rule is made returnable forthwith. Learned Assistant Public Prosecutor waives service for Respondents-State. Taken up for hearing with the consent of parties.

2. Petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India and takes exception to the externment proceedings initiated against him.

3. Factual matrix of the facts, which are relevant to address the issues, involved in this petition are as follows :

(a) It was proposed to initiate externment proceedings against the Petitioner under

Section 56 of Maharashtra Police Act, 1951

(hereinafter referred to as “the said Act” for the sake of brevity). The Assistant Commissioner of Police, Division-III, Nashik issued a show cause notice under Section 59 of the said Act to the Petitioner on 13 November 2015. In pursuant to the said notice, Petitioner was afforded an opportunity to tender his explanation and documents in support of his defence;

(b) The Assistant Commissioner of Police forwarded his report to the Deputy Commissioner of Police, Zone-II, Nashik City. On scrutinizing the said report, the said authority also issued a notice dated 31 December 2015 to the Petitioner. In the said notice, a reference was made to the inquiry conducted by the Assistant Commissioner of Police on issuance of the show cause notice issued to the Petitioner under Section 59 of the said Act;

(c) In the notice dated 31 December 2015, it was stated that the Petitioner had committed several acts and offences and his acts and movements are causing harm, alarm and danger to the life and property of the citizens in the enumerated areas and that on account of his terror, the witnesses are not willing to come forward to depose against him openly. The notice made reference to C.R.No.412 of 2009 registered with Ambad Police Station under Section 379 of Indian Penal Code (`IPC’). The notice also specifies the role played by the Petitioner in the said offence. The notice further refers to C.R. No.420 of 2009 registered with the same police station for offence under Section 302 of IPC and specifies the overt act of the Petitioner in the said crime. The notice also made a reference to C.R.No.270 of 2014 registered with same police station for offfence under Sections 399 and 402 of IPC and C.R.No.205 of 2015 for offences under Sections 452, 504, 506, 427 read with Section 34 of IPC. In respect to the said offences also, the overt acts attributed to the Petitioner have been spelt out in the notice. The said notice further gave reference of the statements of witnesses-A and B, which were recorded in-camera on 25 October 2015, and also discloses the details of the incident referred to by the said witnesses;

(d) The Deputy Commissioner of Police, Zone-II, Nashik City thereafter proceeded to issue an order of externment dated 25 January 2016 under Section 56(1)(a)(b) of the said Act. The order made a reference to the offences reflected in the notice dated 31 December 2015, except C.R.No.420 of 2009. The order also refers to the statements of two witnesses which were recorded in-camera. The order clarified that the Petitioner has been acquitted in C.R.No.420 of 2009 and hence material relating to the said offence has not been taken into consideration for the purpose of issuing the said order of externment;

(e) In the order of externment, it is mentioned that the externing authority is satisfied that the acts and movements of the externee are causing harm, alarm and danger to the life and property of the people residing in Ambad and Nashik City and that it is necessary to initiate the externment proceedings against him. It is also recorded that on account of terror created by the Petitioner, no witnesses are coming forward to depose against the Petitioner in public. The Petitioner was directed to remove himself from the area of Nashik City Police Commissionerate and Nashik Rural District for a period of one year;

(f) Petitioner challenged the said order of externment by preferring an appeal before the Divisional Commissioner, Nashik Division, Nashik. The appellate authority rejected the said appeal vide order dated 29 April 2016.

4. Mr.Tripathi, learned counsel appearing for the Petitioner, made following submissions :

(i) There is non application of mind while issuing the order of externment;

(ii) The impugned order is based on stale cases which defeats the purpose of order of externment;

(iii) Petitioner has been acquitted in connection with C.R.No.420 of 2009 which was registered under Section 302 of IPC in which witnesses had deposed before the Court, which belies the satisfaction of the externing authority that the witnesses are not willing to come forward to depose against the Petitioner;

(iv) Criminal cases referred to in the order of externment are pending in the Court of law and, therefore, there is no material to come to the subjective satisfaction that the witnesses in relation to said cases are not willing to depose against the Petitioner, which would vitiate the externment proceedings;

(v) The order directing externment should show existence of material warranting an order of externment; and

(vi) The order must disclose the material on the basis of which externing authority has recorded satisfaction that witnesses are not willing to come forward to depose against the externee in public.

5. Learned counsel for Petitioner relied upon following decisions in support of his submissions :