High Court
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1 Cri WP 138.25IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 138 OF 2025Tausif Rafik Shaikh,Age : 31 Years, Occu. : Driver atNagarparishad Shahada,R/o Abdul Hamid Chowk,Shahada, Dist. Nandurbar... PetitionerVersus1.The State of Maharashtra,Through Secretary Ministry of HomeDepartment, Mantralaya,Mumbai – 32.2.The Sub Divisional Officer &Sub Divisional Magistrate,Shahada, Dist. NandurbarO/a SDO/SDM Office, Shahada,Dist. Nandurbar.3.The Sub Divisional Officer Shahada Sub Division, Dist. NandurbarO/a Dondaicha Road, Shahada, Dist. Nandurbar.4.The Divisional Commissioner,Nashik Division, Nashik... RespondentsShri Quadri Tabrezuddin Rahimuddin, Advocate for the Petitioner.Mrs. Ashlesha S. Deshmukh, A.G.P. for the Respondent Nos. 1 to4.CORAM :SHAILESH P. BRAHME, J. DATE :27TH MARCH, 2025. 2 Cri WP 138.25JUDGMENT :-.Rule. Rule is made returnable forthwith. Heard both sidesfinally with their consent at the admission stage. 2.This petition is directed against order dated 23.10.2024passed by the respondent No. 2/Sub Divisional Officer, Shahadaand order dated 22.01.2025 passed by the respondent No.4/Divisional Commissioner confirming order of externment.Petitioner stands externed for two years from Nandurbar districtby the impugned orders. The respondents undertook theproceedings of externment U/Sec. 56 of the Maharashtra PoliceAct (for the sake of brevity and convenience hereafter referred asto the “said Act”) on the basis of following material :Sr.No.Crime numberand police stationOffices punishableA.269/2017,Shahada PoliceStationU/Sec. 307, 353, 332, 333, 395, 436 ofthe I. P. Code r/w Sec. 6 and 4 of thePrevention of Damage to PublicProperties Act a/w Sec. 37(1)(3) and135 of the Maharashtra Police Act.B.270/2017 ShahadaPolice StationU/Sec. 307, 395, 436, 129(B) and 427 ofthe I. P. Code r/w Sec. 37(1)(3) and 135of the Maharashtra Police Act.C.430/2023 ShahadaPolice StationU/Sec. 354, 354(A), 354(D), 341 and323 of the I. P. Code.D.In camera statements of two witnesses3.Considering the activities of the petitioner, concernedpolice station officer forwarded proposal on 14.03.2024, whichwas referred to the respondent No. 2/Sub Divisional Officer for
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3 Cri WP 138.25inquiry. A report was submitted on 27.04.2024. Thereafter,petitioner was issued with show cause notice on 22.04.2024,which he replied on 27.04.2024. Thereafter order of externmentwas passed removing him for two years from entire Nandurbardistrict. Being aggrieved, he preferred appeal U/Sec. 60 of theAct, which is dismissed on 22.01.2025.3.Petitioner is found to have been indulging into the illegalactivities like offences against woman, causing loss to the publicproperty, obstructing the public servants. He is recorded to beundeterred by the preventive action.4.Learned counsel for the petitioner submits that thesubjective satisfaction is defective. There is no cogent materialagainst him to resort to the proceedings of externment. There isno live link between the offences pitted against him and theimpugned action. It is further submitted that in camerastatements of two witnesses recorded by the authorities wereneither supplied to him, nor mentioned in the show cause notice.It is further submitted that the last offence pitted against himwas in counter blast to his complaint. It is submitted that thereare number of accused persons involved in the offences pittedagainst him, which were registered in the year 2017. Learnedcounsel would submit that no reasons are assigned for externinghim for maximum period and from entire Nandurbar district,when activities were confined to Shahada.5.Learned counsel for the petitioner relies on followingjudgments of the Supreme Court, Division Bench and learned 4 Cri WP 138.25Single Judge of this Court :IDeepak Laxman Dongre Vs. State of Maharashtra and others reported in (2023) 4 SCC 707.IIJudgment dated 27.08.2012 in Criminal Writ Petition No. 1406 of 2011 in the matter of Subhash Jethu Patil Vs. State of Maharashtra and another.IIIJudgment dated 06.03.2018 in Criminal Writ Petition No. 922 of 2017 in the matter of Ajay @ Golu Shyam Solanki Vs. State of Maharashtra and another.IVJudgment dated 22.06.2018 in Criminal Writ Petition No. 448 of 2018 in the matter of Yasin Khan Masum Khan Multani Vs. State of Maharashtra and others.VJudgment dated 21.09.2021 in Criminal Writ Petition No. 2744 of 2021 in the matter of Satyawan Pandurang Thale Vs. State of Maharashtra and another.VIJudgment dated 17.12.2018 in Criminal Writ Petition No. 883 of 2018 in the matter of Jitesh Chanduji Khatri Vs. State of Maharashtra and another.VIIJudgment dated 06.02.2018 in Criminal Writ Petition No. 32 of 2018 in the matter of Avinash Prakash Chavan Vs. State of Maharashtra and another.VIIIJudgment dated 12.04.2018 in Criminal Writ Petition No. 239 of 2018 in the matter of Kamalkishor Pusaram Bang Vs. The Superintendent of Police, Jalna and others.IXJudgment dated 25.09.2017 in Criminal Writ Petition No. 703 of 2017 in the matter of Sayyed Jafar Sayyed Nasir Vs.The Divisional Commissioner, Amravati and another. 5 Cri WP 138.25XJudgment dated 19.01.2024 in Writ Petition No. 2805 of 2023 in the matter of Imtiyaz Hussain Sayyad Vs. The State of Maharashtra and others.XIJudgment dated 20.09.2006 in Criminal Writ Petition No. 389 of 2006 in the matter of Hamid Kha Rahim Kha Pathan Vs. State of Maharashtra and another.6.Per contra, learned Assistant Public Prosecutor wouldsupport the impugned orders. She tenders on record originalpapers. She makes submissions on the basis of affidavit in reply.It is submitted that by extending due opportunity of hearing,supplying relevant papers and by following the procedure orderexterning the petitioner has been passed. It is submitted thatthere was no need to supply the statements as those areconfidential. It is submitted that there is cogent material againstthe petitioner and both the authorities below arrived atsubjective satisfaction in a lawful manner. Considering gravityof the activities, the authorities thought it fit to extern him formaximum period and from entire Nandurbar district. It issubmitted that even the preventive action could not deter thepetitioner.7.I have considered rival submissions of the parties. I havegone through the pleadings as well as original papers tenderedby the respondents. Impugned action is founded on threeoffences, out of which first two were registered in the year 2017and last one was registered on 17.07.2023. The last offence isunder investigation and charge sheet is yet to be filed. 6 Cri WP 138.258.The show cause notice dated 22.04.2024 does not refer to incamera statements of two witnesses, only a vague reference ismade that against the illegal activities of the petitioner, peopledo not dare to come forward for giving evidence. The extracts ofin camera statements are not reflected from both the orders,albeit, only there is reference that confidential statements of thewitnesses were recorded and they were in sealed envelop.Pertinently, even the original police papers also do not containthose statements and the verification thereof by the competentauthority. This Court is not in a position to ascertain as to whatare the contents of the statements or as to whether there wasproper verification of those statements. Though confidential, theymust form part of record by concealing the identity of thewitnesses. A reasonable doubt is created for the subjectivesatisfaction.9.The petitioner had no opportunity to know the contents ofin camera statements. The externee is bound to know as towhether the statements contain material particulars of the actsalleged against him, the nature of the allegations and theprobability of the contents. In both the impugned orders thecontents are not reproduced. I am of the considered view thatserious prejudice is caused to the petitioner. A useful referencecan be made to the ratio laid down by the Division Bench of thisCourt in the matters of kamalkishor Bang Vs. The Superintendent of Policein Criminal Writ Petition No. 239 of 2018 and Sayyed Jafar Sayyed Nasir Vs.The Divisional Commissioner in Cri. W. P. No. 703 of 2017, which mandatesthat confidential statements are bound to be supplied. 7 Cri WP 138.2510.The last offence pitted against the petitioner wasregistered on 27.07.2023. Earlier offences were registered in theyear 2017. After the last offence, the proposal was submitted on14.03.2024, after considerable gap of seven months. The originalpapers show that offence bearing Cr. No. 269/2017 wasregistered against forty persons and offence bearing Cr. No.270/2017 was registered against number of persons including thepetitioner. It is difficult to make out a particular roleattributable to the petitioner. The Trial in respect of both theoffenes is under way. In between 2017 to 2023, no offence wasregistered against the petitioner. In this backdrop the findingthat the petitioner is in habit of committing the offences of riot,murder, unlawful assembly and causing loss to the publicproperty is unsustainable. There is no adequate material to takeextreme action against the petitioner.11.The last offence of Cr. No. 430/2023 is U/Sec. 354, 354(A),354(D), 341 and 323 of the I. P. Code. It is individual centricoffence and it is under investigation. Unless charge sheet isfiled, it cannot be held that the petitioner is involved in offencesagainst woman. The finding that he indulges in the offenceagainst woman is misconceived. Learned counsel for thepetitioner has rightly referred to the judgment of the CoordinateBench dated 19.01.2024 in Criminal Writ Petition No. 2805of 2023 in the matter of Imtiyaz Hussain Sayyad Vs. Stateof Maharashtra that an offence which is under investigationcannot be pitted in such a proceeding. 8 Cri WP 138.2512.It transpires from record that on grossly inadequatematerial, authorities have drawn conclusion that the petitioneris habitual, his activities are detrimental to the public servants,public properties and he has established terror in the minds. Itis rightly submitted by the petitioner that there is no live linkbetween the offences pitted against him. The subjectivesatisfaction is defective, rather it is perverse. A reliance isrightly placed on the judgment of the Division Bench of thisCourt dated 21.09.2021 in Criminal Writ Petition No. 2744of 2021 in the matter of Satyawan Pandurang Thale Vs.State of Maharashtra and another.13.Both the authorities below failed to assign reasons forfollowing two material aspects.(i)Imposing maximum period of externment of two years;(ii)Externing him from entire Nandurbar district.It is submitted by the learned A. P. P. that consideringseriousness of the activities and the material available againstthe petitioner, the authorities have come to the conclusion toextern him for two years from entire Nandurbar district. I havealready recorded that the material pitted against the petitioneris inadequate and subjective satisfaction is faulty. Therefore,maximum period of externment is uncalled for. The activitiespitted against the petitioner are confined to Shahada. Even theoffences are registered in the Police Station of Shahada. There is 9 Cri WP 138.25nothing on record to show that his activities were cascadingeffect in the entire Nandurbar district. Therefore, on that countalso order of externment is liable to be quashed. I am fortified inmy view by the ratio laid down by the Supreme Court in thematter of Deepak Laxman Dongre Vs. State of Maharashtra andothers reported in (2023) 4 SCC 707 and the judgment of thecoordinate Bench in the matter of Imtiyaz Hussain SayyadVs. State of Maharashtra (supra).14.For the reasons stated above, I find it difficult to maintainboth the impugned orders. I, therefore, pass following order.O R D E Ra) The order dated 23.10.2024 passed by RespondentNo.-2/SubDivisional Officer Shahada in CaseNo.Foujdari/Kavi/406/2-24 and order dated 22.01.2025 passed byDivisional Commissioner,Nashik in Externment Appeal No.148of 2024 are quashed and set-aside. b) The petitioner shall be at liberty to enjoy his statutory andconstitutional rights without there being any area restrictions. c) Rule is made absolute in above terms. [ SHAILESH P. BRAHME, J. ]bsb/March 25