Writ Petition No. 412 of 2022 · Bombay High Court
Case Details
1 Cri.WP.412-414 of 2022.odt THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.412 OF 2022 Shoab Shaikh Aslam, Age- 24 years, Occu.- Labour, R/o. Ghatroad, Aksanagar Chalisgaon, Dist. Jalgaon. … Petitioner Versus 1. 2. The Divisional Commissioner, Nashik Division, Nashik. The Superintendent, Police Superintendent Office, Jalgaon, Dist. Jalgaon. … Respondents Mr. Shaikh Mazhar A. Jahagirdar, Advocate for Petitioner. Mr. S. P. Deshmukh, APP for Respondents/State. … … AND CRIMINAL WRIT PETITION NO.413 OF 2022 1. 2. Sultan Shaikh Raheman, Age- 26 years, Occu.- Labour, R/o. Near Milan Pav Bakery, Opposite to Railway Station, Masjid, Chalisgaon, Dist. Jalgaon. Wajidkhan Sabirkhan, Age- 26 years, Occu.- Labour, R/o. Nagadroad, Near Water Tank, Chalisgaon, Dist. Jalgaon. … Petitioners 2 Cri.WP.412-414 of 2022.odt Versus 1. 2. The Divisional Commissioner, Nashik Division, Nashik. The Superintendent, Police Superintendent Office, Jalgaon, Dist. Jalgaon. … Respondents
Legal Reasoning
Mr. Shaikh Mazhar A. Jahagirdar, Advocate for Petitioners. Mr. G. O. Wattamwar, APP for Respondents/State. … … AND CRIMINAL WRIT PETITION NO.414 OF 2022 Nadimkhan Sabirkhan, Age- 27 years, Occu.- Labour, R/o. Nagadroad, Zopadpatti, Chalisgaon, Dist. Jalgaon. Versus 1. 2. The Divisional Commissioner, Nashik Division, Nashik. The Superintendent, Police Superintendent Office, Jalgaon, Dist. Jalgaon. … Petitioner … Respondents … Mr. Shaikh Mazhar A. Jahagirdar, Advocate for Petitioners. Mr. P. G. Borade, APP for Respondents/State. … 3 Cri.WP.412-414 of 2022.odt CORAM : SHRIKANT D. KULKARNI, J. RESERVED ON : 28th July, 2022. PRONOUNCED ON : 21st September, 2022. J U D G M E N T : . Rule. Rule made returnable forthwith. Heard finally with consent of both the sides for final disposal at admission stage. 2 These petitions have been filed under Articles 226 and 227 of the Constitution of India to challenge the legality of order of externment passed against the respective petitioners under Section 55 of the Maharashtra Police Act, 1951 (hereinafter referred to as the “said Act” for the sake of convenience) by the Superintendent of Police, Jalgaon and confirmed in appeal by the Divisional Commissioner, Nashik with small modification to the extent of area of externment. 3 The facts giving rise to these petitions in narrow compass are as under: The Superintendent of Police, Jalgaon issued show- 4 Cri.WP.412-414 of 2022.odt cause-notice to the respective petitioners under Section 55 of the said Act alleging that they are running a gang and their criminal activities are dangerous to the public at large. The show-cause-notice dated 5th February, 2021 was issued against the following five persons : 1 2 3 Haidarali Asifali Saiyyad Nadimkhan Sabirkhan (petitioner in Criminal Writ Petition No.414 of 2022) Chief of the gang Member of the gang Sultan Shaikh Raheman (petitioner in Criminal Writ Petition No.413 of 2022) Member of the gang 4 Wajidkhan Sabirkhan (petitioner in Criminal Writ Member of the gang Petition No.413 of 2022) 5 Shoab Shaikh Aslam (petitioner in Criminal Writ Petition No.412 of 2022) Member of the gang 4 The petitioners failed to file their response to the show- cause-notice. The Superintendent of Police after taking into consideration the criminal record of the present petitioners, was pleased to issue order of externment dated 4th August, 2021 thereby externing the present petitioners from Jalgaon and Nashik districts for a period of two years. The petitioners had filed respective appeals before the appellate authority and raised various grounds. The appellate authority was pleased to maintain the order of externment passed by the District Superintendent of Police with modification restricting their externment to Taluka Chalisgaon, District Jalgaon and 5 Cri.WP.412-414 of 2022.odt Taluka Malegaon, District Nashik. 5 In the above background, the respective petitioners are before this Court. 6 Heard Mr. Mazhar Jahagirdar, learned counsel for the respective petitioners, Mr. S. P. Deshmukh, learned APP for the respondents / State in Criminal Writ Petition No.412 of 2022, Mr. G. O. Wattamwar, learned APP for the respondents / State in Criminal Writ Petition No.413 of 2022 and Mr. P. G. Borade, learned APP for the respondents / State in Criminal Writ Petition No.414 of 2022. 7 Mr. Jahagirdar, learned counsel for the petitioners vehemently submitted that the show-cause-notice was issued by the Superintendent of Police, Jalgaon against in all five persons dated 5th February, 2021. In the said show-cause-notice, one Haidarali Asifali Saiyyad, resident of Hudco Colony, Chalisgaon, was shown as chief of the gang and the present petitioners were shown as members of the gang. He pointed out that the externment order was passed against the present petitioners. No externment order came to be passed against Haidarali Asifali Saiyyad, who was stated to be chief of the gang. He invited my attention to the order of externment dated 6 Cri.WP.412-414 of 2022.odt 4th August, 2021 and submitted that Nadimkhan (petitioner in Criminal Writ Petition No.414 of 2022) is shown as chief of the gang. He vehemently submitted that such selective approach is not permissible under the law. He has placed his reliance in case of Ahammad Mainuddin Shaikh Vs. State of Maharashtra & Anr., 2013 ALL MR (Cri) 3804. By taking help of above said citation, Mr. Jahagirdar, learned counsel for the petitioners forcefully submitted that action is mandatory against all members of the gang including chief of the gang and no discretion is left with the externing authority in view of Section 55 of the said Act. He, therefore, submitted that the impugned order is bad in law and liable to be quashed and set aside. 8 Mr. Jahagirdar, learned counsel for the petitioners submitted that though the alleged criminal activities of the present petitioners were restricted to Chalisgaon Tahsil, they have been externed from entire Jalgaon and Nashik districts. The order is excessive in the eye of law. The externing authority has passed such order of externment without taking into consideration the facts of the case. He submitted that the externment order passed by the Superintendent of Police, Jalgaon is bad in law. He has placed his reliance in case of Balu Shivling Dombe Vs. The Divisional Magistrate, Pandharpur and another, 1969 Cri. L. J. 1341 (Bombay). 7 Cri.WP.412-414 of 2022.odt 9 Mr. Deshmukh, Mr. Wattamwar and Mr. Borade, learned APPs for the respondents / State in the respective petitions submitted that the order of externment passed by the competent authority is valid in the eye of law. There are no defects. The competent authority has taken into consideration the facts of the case, criminal background of these petitioners and after following the principles of natural justice, pleased to pass the order of externment. The appellate authority has also considered all these aspects and modified the order of externment to the extent of Taluka Chalisgaon, District Jalgaon and Taluka Malegaon, District Nashik. 10 The learned APPs for the respondents / State submitted that the competent authority has jurisdiction to pass order of externment beyond district or districts in order to prevent criminal activities. They submitted that after having subjective satisfaction, the competent authority has externed the petitioners and there is no legal defect. The learned APPs have placed their reliance on the decision of Full Bench of this Court in case of Sumit s/o Ramkrishna Maraskolhe Vs. Deputy Commissioner of Police Zone-1, Nagpur and another, 2019 (2) Mh.L.J. 745. The learned APPs submitted that no merits in the petitions filed by the respective petitioners. 8 Cri.WP.412-414 of 2022.odt 11 I have considered the submissions of both the sides. I have also studied the impugned order of externment as well as the order passed by the appellate authority. Perused the original file of externment and in-camera statements made available by the learned APPs for the respondents / State. 12 First I shall deal with the point of area of jurisdiction raised by Mr. Jahagirdar, learned counsel for the petitioners by placing reliance in case of Balu Shivling Dombe (supra). In view of recent decision of the Full Bench of this Court in case of Sumit s/o Ramkrishna Maraskolhe (supra), the competent authority has jurisdiction to extend the order of externment beyond district or districts. It is held by the Full Bench of this Court that application of mind by the competent authority and subjective satisfaction are important. Only because externment order of a person from a much larger area than the one of his illegal activities, cannot be said to be defective in the eye of law. However, subjective satisfaction and application of mind are important. Having regard to the legal position made clear by the Full Bench of this Court in case of Sumit s/o Ramkrishna Maraskolhe (supra), I do not find any merit in the submissions of Mr. Jahagirdar, learned counsel for the petitioners. 9 Cri.WP.412-414 of 2022.odt Moreover, the area of externment is reduced by the appellate authority to the extent of Taluka Chalisgaon, District Jalgaon and Taluka Malegaon, District Nashik. 13 Let me deal with another point about selective approach of the externment authority while initiating externment action against the present petitioners. On going through the show-cause-notice issued by the Superintendent of Police, Jalgaon dated 5th February, 2021, it would reveal that the externment authority has issued show- cause-notice against the present petitioners and one Haidarali Asifali Saiyyad, who was stated to be chief of the gang. 14 It is, therefore, clear that the show-cause-notice was issued by the competent authority against in all five persons including chief of the gang. On perusing the externment order passed by the competent authority dated 4th August, 2021, it would reveal that the externment authority has passed the order of externment against the present petitioners. No externment action has been taken against the so-called chief of the gang Haidarali Asifali Saiyyad. In the externment order dated 4th August, 2021, Nadimkhan (petitioner in Criminal Writ Petition No.414 of 2022) has been shown as chief of the gang and remaining petitioners are shown as members of the gang. 10 Cri.WP.412-414 of 2022.odt On going through the impugned order of externment, it would reveal that no reasons are assigned by the externing authority as to why externment action was dropped against Haidarali Asifali Saiyyad, who was chief of the gang. The Superintendent of Police cannot take such selective decision. It is not permissible under Section 55 of the said Act. The Division Bench of this Court has made clear the said legal position in case of Ahammad Mainuddin Shaikh (supra), wherein the Division Bench has observed in paragraph Nos.8 and 9 as under: “8. Section 55 of the Act deals with dispersal of gangs and bodies of persons. It reads as under :- “55. Dispersal of gangs and bodies of persons.- Whenever it shall appear in Greater Bombay and in other areas in which a Commissioner is appointed under Section 7 to the Commissioner and in a district to the District Magistrate, the Sub-Divisional Magistrate or the Superintendent empowered by the State government in that behalf, that the movement or encampment of any gang or body of persons in the area in his charge is causing or is calculated to cause danger or alarm or reasonable suspicion that unlawful designs are entertained by such gang or body or by members thereof, such officer may, by notification addressed to the persons appearing to be the leaders or chief men of such 11 Cri.WP.412-414 of 2022.odt gang or body and published by beat of drum or otherwise as such officer thinks fit, direct the members of such gang or body so to conduct themselves as shall seem necessary in order to prevent violence and alarm or disperse and each of them to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts, or any part thereof, contiguous thereto within such time as such officer shall prescribe, and not to enter area (for the areas and such contiguous districts, or part thereof as the case may be,) or return to the place from which each of them was directed to remove himself.” Upon a careful reading of this section, it becomes clear that, whenever it appears to the competent authority that the movement or encampment of any gang or body of persons in the area under his charge is causing or is calculated to cause danger or alarm or reasonable suspicion that unlawful designs are entertained by such gang or body of persons or by its members, such officer may by notification addressed to the leaders or chief men of such gang or body of persons and suitably published, issue two types of directions. The first direction is about regulating of conduct of such gang or body of persons in a manner prescribed in the direction in order to prevent violence and alarm. Such direction, in the alternative, can also be in the form of an order for dispersal of members of such gang or body of persons. The second direction which follows the first one, is about removal of each of the 12 Cri.WP.412-414 of 2022.odt members of the gang or body of persons outside the area within the local limits of jurisdiction of the competent authority. In suitable cases, the order of removal can also be from district or it’s parts or together with contiguous districts or parts thereof. This second direction, in order to be reasonable, has to be passed for a definite period of time. In the entire section, there is common thread of participation by all and collective action against all that holds together all it’s parts. The section starts with gang or body of persons, sails through the dangerous impressions that the movement or encampment of gang or body of persons creates and ends with a direction of removal passed against each of the members of the gang or body of persons. This common thread is the essence of Section 55 and that is the mandate of the legislature. In other words, Section 55 would be applicable only when the persons are seen to be acting as members of the gang or body of persons and it is only then that action under Section 55 of the Act can be taken and which is to be taken against all members and not only a few of them selectively. 9. It may not be out of place to mention here that, in the case of Suraj Ramsing Bire & ors. v/s State of Maharashtra & ors., Writ Petition No.3572 of 2010 with Writ Petition No.3573 of 2010, decided on 7th January, 2011, learned Single Judge of this Court has taken a view that for invoking the provisions of Section 55 of Bombay Police Act, it has to be shown that persons are acting as gang or body of persons. This view commends to us.” 13 Cri.WP.412-414 of 2022.odt 15 It is, therefore, clear that by way of show-cause-notice action was proposed to be taken under Section 55 of the said Act against in all five persons by referring to their criminal record as chief of the gang and members of the gang, but Haidarali Asifali Saiyyad, who was stated to be chief of the gang, has been left out without assigning any reason in the order of externment. Such discrimination between members of the gang is not permissible in law, particularly, when collective criminal activity is alleged on their part by arraigning at least some of them, as accused along with the petitioner. Section 55 of the said Act contemplates a collective action against the gang or body of persons and, therefore, the final direction that is required to be issued in terms of this section, would also have to be necessarily against each of the members of the gang and not against one or a few of them on selective basis. On this ground, I find that the impugned order of externment is absolutely illegal and cannot be sustained in law. The appellate authority has also not considered all these aspects and only reduced the area of externment. 16 In the result, the petitions need to be allowed and the impugned orders are liable to be quashed and set aside. Hence, the following order is passed: 14
Decision
O R D E R Cri.WP.412-414 of 2022.odt I. The Criminal Writ Petition Nos.412, 413 and 414 of 2022 stand allowed. II. The impugned order of externment passed by the Superintendent of Police, Jalgaon / competent authority dated 4th August, 2021 and confirmed by the appellate authority / Divisional Commissioner, Nashik Division, Nashik, in Externment Appeal No.96 of 2021 vide order dated 18th February, 2022, are hereby quashed and set aside. III. Rule is made absolute in above terms. IV. No order as to costs. V. The petitions are accordingly disposed of. nga [ SHRIKANT D. KULKARNI, J. ]