High Court
Legal Reasoning
1 59-24-CrWP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.59 OF 2024Sayyad Mohsin Sayyad KamroddinAge 34 Years Occ. LabourerR/o Ganesh Nagar, at Post MahurDist. Nanded.… PetitionerVersus1.Superintendent of Police, Nanded.2.Police Station Mahur, Dist. Nanded.3.Sub-divisional Police Officer, (SDPO)Sub division Mahur, Dist. Nanded.…Respondents….Mr. Abid R. Shaikh, Advocate for PetitionerMr. A.R. Kale, APP for Respondent Nos.1 to 3 – State ….CRIMINAL WRIT PETITION NO.27 OF 2024Shaik Sajjad S/o. Shaikh Aziz,Age: 27 years, Occ.: Business and Social Work,R/o.: Mominpura, Mahur,Dist. Nanded… PetitionerVersus1.The State of Maharashtra,Through its Secretary,Home Department,Mantralaya, Mumbai.2.The Divisional Commissioner,Office of Divisional Commissioner,Aurangabad.3.The Superintendent of Police,Police Superintendent Office,Nanded.4.The Sub Divisional Police Officer,Sub Division, Mahur,Dist. Nanded.SVH
Legal Reasoning
2 59-24-CrWP.odt5.Police Inspector,Police Station, MahurDist. Nanded.…Respondents….Mr. Saeed S. Shaikh, Advocate for PetitionerMr. A.R. Kale, APP for Respondents – State …. CORAM : NITIN B. SURYAWANSHI, J. DATE : 09th FEBRUARY, 2024ORDER : 1.By these writ petitions filed under Article 226 and 227 ofthe Constitution of India, petitioners challenge orders dated04/12/2023, passed by Divisional Commissioner, Aurangabad, andorders dated 14/09/2023, passed by Superintendent of Police,Nanded, thereby externing petitioners from Nanded District for aperiod of six months.2.Police Inspector, Mahur Police Station, Nanded, initiatedproposal for externment of petitioners, as petitioner Shaik SajjadS/o. Shaikh Aziz is involved in following crimes registered withMahur Police Station:-(1)C.R. No.114/20217, for offence punishable under Sections 143, 147, 149 of IPC and Section 188 of Maharashtra Police Act(2)C.R. No.51/2018, for offence punishable under Sections 294, 504, 506 r/w 34 of IPC(3)C.R. No.56/2019, for offence punishable under Sections 323, 143, 147, 148, 149, 504 of IPC and Section 135 of Maharashtra Police ActSVH 3 59-24-CrWP.odt(4)C.R. No.41/2022, for offence punishable under Sections 323, 324, 504, 506, 143, 147, 148, 149, 342 of IPC(5)C.R. No.69/2023, for offence punishable under Sections 323, 504, 143, 147, 149 of IPC and Sections 3(1)(r) and (s), 3(2)(a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.Against petitioner Sayyad Mohsin Sayyad Kamroddin, followingcrimes are registered at same police station:-(1)C.R. No.56/2019, for offence punishable under Sections 323, 143, 147, 148, 149, 504 of IPC and Section 135 of Maharashtra Police Act(2)C.R. No.141/2021, for offence punishable under Section 12(A) of Maharashtra Prevention of Gambling Act(3)C.R. No.41/2022, for offence punishable under Sections 323, 324, 504, 506, 143, 147, 148, 149, 342 of IPC(4)C.R. No.97/2022, for offence punishable under Sections 4, 5, 12(A) of Maharashtra Prevention of Gambling Act(5)C.R. No.69/2023, for offence punishable under Sections 323, 504, 143, 147, 149 of IPC and Sections 3(1)(r) and (s), 3(2)(a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.3.In the proposal, reliance is also placed on confidentialin-camera statements of two witnesses. Sub-Divisional PoliceOfficer, Mahur, conducted necessary inquiry and issued show-causenotices dated 11/08/2023 to petitioners. Both petitioners replied thenotices on 22/08/2023. Sub-Divisional Police Officer then sentSVH 4 59-24-CrWP.odtexternment proposal of petitioners to Superintendent of Police,Nanded. Notices dated 09/09/2023 as to why petitioners should notbe externed from Nanded District, were issued to petitioners bySuperintendent of Police. Petitioners replied the said notices on13/09/2023. Superintendent of Police passed impugned externmentorders on 14/09/2023, thereby externing petitioners from NandedDistrict for a period of six months. Petitioners unsuccessfullychallenged the impugned orders by filing appeals before DivisionalCommissioner.4.Heard learned advocates for petitioners and learned APPfor respondents – State. Perused the record and affidavit-in-repliesfiled by Police Inspector, Mahur Police Station, Dist. Nanded.5.Learned advocates for petitioners submitted that in theoffence registered against petitioners, there are almost 16 accusedpersons, however, selective action of externment is taken onlyagainst petitioners. In-camera statements which were relied uponwhile externing petitioners, were not supplied to petitioners. Thoughthe said ground was taken in appeals, appellate authority has failedto consider the said ground. All the offences registered againstpetitioners are allegedly committed in Mahur Taluka, however,petitioners are externed from entire Nanded District.6.Learned APP by relying on affidavit-in-replies filed bySVH 5 59-24-CrWP.odtPolice Inspector, Mahur Police Station, supported the impugnedorders. He submitted that in-camera statements were supplied topetitioners along with show-cause notices and taking intoconsideration offences registered against petitioners it was thoughtnecessary to extern petitioners from Nanded District. In fact, theproposal was given for externing petitioners for a period of twoyears, however, petitioners were externed only for a period of sixmonths. Therefore, such order cannot be said to be excessive. He,therefore, submitted that there is no merit in the challenge raisedby petitioners and the impugned orders may not be interfered with.He also made available original record of the externmentproceedings.7.First ground of challenge of petitioners is that copies ofin-camera statements were not supplied to them along with theshow-cause notices. Perusal of record shows that first show causenotice was issued to petitioners on 17/07/2023, there is noreference of in-camera statements in the said notice. Thereafter,second notice dated 11/08/2023 is issued to petitioners. Said noticeonly refers to earlier notice dated 17/07/2023 and states that 26days period is lapsed since issuance of notice dated 17/07/2023 andpetitioners have not submitted their reply and therefore, one moreopportunity is being given to petitioners to submit their reply, andpetitioners were asked to remain present on 18/08/2023. Even thisSVH 6 59-24-CrWP.odtnotice does not refer to in-camera statements.8.Learned APP by relying on signatures of petitioners atthe bottom of said notice dated 11/08/2023, submitted that in-camera statements were supplied to petitioners along with show-cause notices dated 11/08/2023. Police Inspector, Mahur PoliceStation, in his affidavit-in-replies has also stated the same. It is notpossible to accept the said contention as neither show-causenotices dated 17/07/2023 nor notices dated 11/08/2023 refer to thein-camera statements. Therefore, this stand of Police Inspector,Mahur Police Station, that in-camera statements were supplied topetitioners along with notices dated 11/08/2023, appears to beafterthought.9.Though petitioners had specifically taken the saidground in appeals preferred before Divisional Commissioner, withoutadverting to said ground, Divisional Commissioner has dismissedthe appeals filed by petitioners. Appellate orders, therefore, sufferfrom non-application of mind. In fact it was the duty of PoliceInspector, Mahur Police Station, to state substance of in-camerastatements in the notices, in order to give fair and reasonableopportunity to petitioners who were proposed to be externed.Petitioners had right to know the material relied upon against themand should have been given opportunity to make effectiverepresentation against the material relied upon by externingSVH 7 59-24-CrWP.odtauthority. There is also merit in submission of petitioners thatselective action is taken against them.10.In Abasaheb Balasaheb Warkhede Vs. The State ofMaharashtra and Others, 2022 ALL M.R. (Cri) 1541, this Courthas held,“18.Had the action of externment been initiatedagainst the petitioner under some other provision ofthe Bombay Police Act, then the case would have beendifferent, however, to justify passing of the order ofexternment under Section 55 of the said Act, there hasto be material on record to show involvement inactions along with gang members or body of persons,which were continuous and collective offences by allthe gang members. Such material is not available inthe present case.”11.In Ahammad Mainuddin Shaikh Vs. State ofMaharashtra and Another, 2013(4) Bom.C.R. (Cri) 559, it isheld that Section 55 of the Maharashtra Police Act, would beapplicable only when the persons are seen to be acting as membersof the gang or body of persons and it is only then that action underSection 55 can be taken and it is to be taken against all themembers and not only against few of them selectively. In the casein hand, externing authority has selectively initiated action ofexternment against petitioners. Other gang members have beenspared for the reasons best known to the externing authority.12.For the aforestated reasons impugned orders sufferfrom vice of arbitrariness. Extraneous material is considered by theSVH 8 59-24-CrWP.odtexterning authority and appellate authority. Therefore, both theimpugned orders cannot sustain. Hence, the following order :ORDER(I)Both the writ petitions are allowed.(II)The externment orders dated 14/09/2023, passed bySuperintendent of Police, Nanded, for externing petitionersfrom Nanded District for a period of 06 months and the ordersdated 04/12/2023 passed by Divisional Commissioner ofChhatrapati Sambhaji Nagar, confirming said orders, arequashed and set aside. (NITIN B. SURYAWANSHI, J.)SVH