KESHAV RAMA NACHARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In Criminal Application No, 388 of 1978 the petitioner Keshav Rama Nachare is challenging the order of convic tion and sentence passed by the learned Metropolitan Magistrate, 30th Court, Vikhroli, Bombay Police Act and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 100/ or in default to suffer further rigorous imprisonment for two months, whereas in Criminal Application No. 1279 of 1978 the petitioner is challeging the externment order itself issued by the Deputy Commissioner of Police under section 57 of the Bombay Police Act dated 16th of March 1978 externing him from the local limits of Greater Bombay as well as from Thane district. As the conviction of the petitioner accused is based upon the breach of externment order passed by the Deputy Commissioner of Police dated 16th of March 1978 where by he is externed outside the limits of Greater Bombay and Thane district for a period of two years, it will be worth while to scrutinise the legality and validity of the said order before Criminal Revision Application No. 388 of 1978 and the conviction recorded by the learned Magistrate under section 142 of the Bombay Police Act is taken for consideration.

(2.) Mr. Chittur, learned Counsel (appointed) for the accused petitioner has contened before us that the petitioner is being externed by exercising the powers under section 57 of the Act from time to time i. e. at least from 1973 itself. As soon as he came out of jail, this fresh order is passed on 16th of March 1978 and, therefore, according to him these orders are being passed by the authorities concerned mechanically without any application of mind, and without any fresh date, obviously on the basis of old and out dated material. He also contended that it appears that the Deputy Commissioner of police has passed the order dated 16th March 1978 on the basis of old convictions for which already an extrenment order was passed. According to Mr. Chittur in the absence of any new or fresh material on the basis of which subjective satisfaction could be arrived at that a person is likely to again engage himself in the commission of an offence similar to that for which he was convicted, it was not open for the Deputy Commissioner of Police to have passed the fresh order on 16th March 1978. In support of his contention Mr. Chittur has relied upon the decision of this Court in Nabukhan Mohammad Hussein Khan vs. S. Rammurthi 73 Bom. L. R 442, the decision of the Supreme Court in the State of Bombay vs. Vishnu Ramchandra 63 Bom. L. R. 427 and the decision of this Court in State vs. Vishnu Ramchandra 63 Bom L. R. 615 as well as the subsequent decision of the Supreme Court in pandharinath Suridhar Ranganekar vs. the State of Maharashtra AIR 1073 SC 630. It is not possible for us to accept this contention, From the record made available to us by Mr. Baraday. learned Public prosecutor it is quite obvious that on 31st of January 1978 the Police staff of Vikhroli Police Station while patrolling along a housing colony at Ghatkopar noticed the petitioner moving in a suspicious manner and found him feeling the locks of the closed doors with the obvions intention to commit theft. When he was accosted, he failed to give any satisfactory account of himself and, therefore, he was arrested under section 41 of the Code of Criminal procedure. It also appears from the record that he has to his credit as many as 12 convictions for the offences punishable under section 380 and 457 of the Indian Penal Code. It also appears from the record that not only this but he was also convicted six times previously for the offence punishable under section 142 of the Bombay Police Act. By issuing a show cause notice as contemplated under section 59 of the Bombay police Act he was given an opportunity to put forward his case. It appears from his statement recorded before the Assistant Commissioner of Police that he has not disputed the facts alleged against him. He had only prayed that he should be given a chance. Thus the fact that on 31st of January 1978 he was found moving in a suspicious manner and was also found felling the locks of the closed doors is not disputed by the petitioner. In these circumstances it cannot be said that the externment order dated 16th March 1978 is merely based on the previous convictions and there was no new material before the authorities concerned from which a reasonable inference could be drawn that he was likely to again engage himself in the commission of and o'fence similar to that for which he was convicted. In this view of the matter in our opinion it cannot be said that the order passed by the Deputy Commissioner of Police was either passed in colourable or malafide exercise of the power or was not based on any material,

(3.) It is pertinent to note that the petitioner himself has never challenged the said order. He has not chosen to file any appeal against the order passed by the Deputy Commissioner of Police though the said right is conferred upon him by section 60 of the Act, Only when he came to be convicted under section 142 of the Bombay Police Act has chosen to challenge the initial order. In these circumstances, in our opinion, It cannot be said that order passed under section 57 of the Bombay Police Act was either ab initio void or without jurisdiction.