AKASH RAMESH MAHTO v. THE STATE OF MAHARAS...

Magistrate, Ramtek, District Nagpur thereby externing the petitioner for a period of six months from the entire district. The Superintendent of Police, Nagpur District (Rural), Nagpur had submitted an externment proposal dated 30.10.2024 under the Police Station Kanhan Pipri, Tahsil Parshivni, District Nagpur against the proposal of externee i.e. present petitioner under Section 56(1)(b) of the Maharashtra Police Act, 1951 for a term of 2 years ousting him from Nagpur (City) and Nagpur District Rural to the present respondent No.1-Sub-Divisional Magistrate, Ramtek. The proposed externee is a resident of Mouja Kanhan Pipri, Tahsil Parshivni, District Nagpur and is a fearless and daring criminal. He has committed crimes like murder, robbery, attempt to murder, aggravated theft, possession of firearms, sand theft and bodily offences. Total 10 crimes are registered against the petitioner at Police Station, Kanhan. The preventive action was taken against him but there was no improvement in the behaviour of the petitioner. Even after taking the preventive action he had committed the offences and, therefore, the order

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was passed to extern him form the Nagpur District Rural and Urban.

3. The learned Advocate for the petitioner has contended that the show cause notice as well as the order is passed without any satisfaction expressed by the victims and witnesses were not willing to come-forward to make a compliant or lodge a report against the petitioner. Though the petitioner was acquitted in 6 offences out of 10, said offences are also considered while passing the externment order. Hence he has prayed to quash and set aside the impugned order passed by the authority.

4. Learned A.P.P. has submitted that in order to maintain law and order and public peace in the area and to prevent injury and danger to the life and property of the people it was necessary to extern the petitioner from the limits of Nagpur district. According to him, the petitioner is habitual of committing repeated crimes and, therefore, the recurrence of

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crimes cannot be ruled out. Hence he has prayed to dismiss the petition.

5. Heard both sides and perused the record.

6. On perusal of the order and the notices issued under Section 56(1)(b) of the Maharashtra Police Act it appears that in the notice there is no whisper that the witnesses are not willing to come-forward to give evidence in public against said person by reason of apprehension to them as regards the safety of their persons or property. In order dated 10.12.2024 cursorily it is mentioned that the witnesses are not ready to come-forward to give evidence in Court and not to disclose the names of the witnesses. The statements of confidential witnesses "A" and "B"

are not mentioned in the order even the copies of the statements are not provided to the petitioner.

7. On perusal of said statements it appears that there is

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no subjective satisfaction about the witnesses not willing to come- forward to give evidence against the petitioner in public.

8. Learned Advocate for the petitioner has relied on the judgment of this Court in the case of Ajay @ Golu Shyam Solanki V/s. State of Maharashtra and another reported in 2019 ALL MR (Cri) 702 particularly para 3 which reads thus:-

"Petition deserves to be allowed on a very short ground. Perusal of Section 56 of the Maharashtra Police Act, would reveal that, when jurisdiction is sought to be exercised under Section 56(1)(B), it is necessary that, the authority exercising its jurisdiction should arrive at subjective satisfaction that a person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer 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."

9. As there is no whisper in the notices issued under Section 56(3) of the Act and in the order of detention, it is

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cursorily mentioned about unwillingness of the witnesses, it is not sufficient for arriving the subjective satisfaction.

10. The authority has relied on 10 offences which are committed by the petitioner. On perusal of the reply filed by the petitioner and the documents filed on record it seen that out of 10 offences the petitioner is acquitted in 6 offences which is not considered while passing the externment order. Though it is mentioned by the petitioner in his reply that he is acquitted in said 6 offences it is not considered while passing the externment order. The petitioner has relied on the judgment of this Court in the case of Bibansingh S/o Dalsingh Bawari and others V/s. The State of Maharashtra and another reported in 2014 ALL MR (Cri) 3655 wherein reliance is placed by this Court on the judgment in the case of Abdul Kadir Razzague Beg V/s. The Sub-Divisional Magistrate, Nasik and others reported in 1991 Cri. L.J. 1725 wherein it is observed that the externment order is set aside by the Division Bench of this Court only on the ground that the said order is passed totally ignoring the fact of acquittal of serious

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charges under Indian Penal Code by the Court. It was held by this Court that the impugned orders were suffering from non-application of mind and hence they were liable to be set aside. In the instant case also, though the petitioner was acquitted in 6 offences out of 10, the same was not considered by the respondent authority. Hence the impugned order passed by the respondent authority is quashed and set aside.

(MRS.VRUSHALI V. JOSHI, J.) (NITIN W. SAMBRE, J.)

Tambaskar.

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