BHIMRAO ASHRUJI MHASKE Vs. SUB DIVISIONAL MAGISTRATE DHULE

JUDGEMENT

(1.) THE Sub-Divisional Magistrate, Dhule Division issued notice dated September 8, 1986 to the petitioner in exercise of powers under Section 56 (bb) of the Bombay Police Act. 1951, calling upon to show cause why the petitioner should not be externed for a period of two years from the limits of Dhule District. The notice recites that some cases are filed against the petitioner and pending in Court and the petitioner is likely to commit breach of public order by propagating class struggle. The petitioner is challenging the legality of the notice.

(2.) MR. Rane, learned counsel appearing on behalf of the petitioner submitted that the Sub-Divisional Magistrate had no jurisdiction to issue the impugned notice on the grounds set out therein. The submission of the learned counsel is correct and we accept the same. Section 56 (bb) of the Police Act which was inserted by amendment in the year 1981, inter alia, prescribes that the Sub-Divisional Magistrate may order externment if there are reasonable grounds for believing that a person is acting or about to act in any manner prejudicial to the maintenance of public order. The expression "maintenance of public order" should be one as defined in the Maharashtra Prevention of Communal, Anti-social and other Dangerous Activities Act, 1981. The expression "acting in any manner prejudicial to the maintenance of public order" in accordance with Section 2 (a) (i) means propagating, promoting or attempting to create or otherwise functioning in such manner as to create feelings of enmity or hatred or disharmony on grounds of religion, race, caste, community or language of any person or class of persons. Mr. Rane is right in his submission that the action would not attract the provisions of Section 2 (a) (i) unless the attempt is based on the ground of religion, race, caste, community or language. In the present case, the petitioner is working in the tribal area for the betterment of tribal people and the struggle is obviously between the haves and have nots. Such class struggle is not based on the grounds of religion, race caste, community or language and therefore, it is impossible to suggest that the action of the petitioner even assuming it has created feelings of enmity or hatred or disharmony between class of persons would fall within the expression "acting in any manner prejudicial to the maintenance of public order" as defined under Section 2 (a) (i) of the Act. In our judgement, the impugned notice is clearly without jurisdiction.

(3.) THERE is also one more circumstance which cannot be ignored. The notice refers to several chapter cases filed against the petitioner. It is now well settled that chapter cases cannot be basis for exercise of powers under Section 56 of the Act. In our judgement the notice is wholly without jurisdiction and cannot be sustained. Accordingly, petition succeeds. Rule is made absolute and the impugned notice is quashed. Petition allowed.