High Court
Legal Reasoning
wp-615-2024.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 615 OF 20241.Hitesh Santosh ShindeAge- 23 years, Occupation- Education,R/o. Shanipeth Chaughule plot,Kanchan Nagar, Jalgoan,Ta. & Dist. Jalgaon.2. Santosh @ Jango Ramesh ShindeAge- 45 years, Occupation- Nil3. Akash @ Nagtodya Sanjay MaratheAge- 22 years, Occupation- Nil4. Sumit @ Golya Sanjay MaratheAge- 27 years, Occupation-Nil5. Sanjay Devchand MaratheAge- 50 years, Occupation-NilAll are R/o. Shanipeth Chaughule plot,Kanchan Nagar, Jalgoan,Ta. & Dist. Jalgaon...PetitionersVERSUS1.The Divisional CommissionerNashik Division Nashik.2.The Superintendent of Police,Division Jalgaon, Dist. Jalgaon.3.The Sub-Divisional MagistrateJalgoan, Dist- Jalgoan.4.The Police Inspector,Shanipeth Police Station,Jalgaon, Dist. Jalgaon...Respondents...Advocate for Petitioners : Mr. Atul M. Pawar h/f Mr. Bhausaheb S.DeshmukhAPP for Respondents/State : Mr. A.S. Shinde... wp-615-2024.odt(2) CORAM : S.G. MEHARE, J. RESERVED ON : AUGUST 13, 2024 PRONOUNCED ON : SEPTEMBER 2, 2024JUDGMENT :-1.Rule. The rule is made returnable forthwith and thepetition was heard finally with the consent of the respective counsels.2.The petitioner has impugned the externment order ofSuperintendent of Police, Jalgaon dated 25.11.2023 passed inOutward No.7019/Stagusha/Haddparaadesh/2023 and the order ofthe Divisional Commissioner Nashik passed in Haddpar AppealNo.110/2023 dated 13.03.2024.3. The Police Inspector, Local Crime Branch Jalgaon, hadplaced a proposal of externment of the petitioner and the members ofhis gang under Section 55 of the Maharashtra Police Act (‘The Act’ forshort). The Superintendent of Police sent the proposal to the SubDivisional Police Officer (S.D.P.O. for short) Jalgaon for inquiry. TheSDPO issued the show cause notices to the petitioner. They havesubmitted their explanation on 13.07.2023. The SDPO placed theproposal before the Superintendent of Police Jalgaon in the month ofAugust, 2023 to extern the applicant and his gang members for twoyears from Jalgaon District.4.The Superintendent of Police Jalgaon again issued a showcause notice to the petitioner. All the externees filed their joint reply. wp-615-2024.odt(3)In sum and substance, their explanation was that they were falselyimplicated in the crime. All the externees were the joint familymembers even then a false notice of forming a gang was issued. Theshow-cause notice is illegal. Before issuing the notice, no inquiry wasdone. They have made allegations against one PSI PradeepChandelgar, that he was asking for a bribe to them for not takingserious action against them in a crime registered against them for theoffence punishable under Section 307 of the Indian Penal Code. Itwas a quarrel between two groups. The opposite party had alsocaused the injury to his father by chopper. Even then, the said PSIregistered the crime under Section 324 of IPC instead of Section 327or 307 of the Indian Penal Code. He was asking for ransom to them.He was also asking bribe for not filing the chapter case against them.The police were taking action at the instance of one Mahesh GovindaChoudhary. On his instance Crime No.44 of 2023 was registered forattempt to commit murder and forming an unlawful assembly. Thefalse evidence was created against them. They had no any gang.Therefore, it cannot be said that they were causing or calculated tocause danger or alarm or reasonable suspicion that unlawful designsare entertained by them. There was no satisfactory material beforethe authority to take stringent action under Section 55 of the Act.The petitioner no.1 is deliberately shown as the leader of the gang.
Legal Reasoning
wp-615-2024.odt(4)5.The learned counsel for the petitioners vehemently arguedthat both authorities did not apply the mind. The impugned orderwas passed after five months. That shows that there was no link andproximity in registering the crimes and passing the externmentorders. Only one offence was registered against them. Two offenceswere registered against petitioner no.2 However, he was acquitted inthat crime after the show cause notice. The camera statement of thewitnesses were not examined. However, wrong findings regarding thecamera witnesses were recorded. To bolster his arguments, he reliedon the case of Iqbaluddin Ziauddin Pirzade Vs. The State ofMaharashtra and others, 2015 ALL MR (Cri) 2298.6.Per contra, the learned APP argued that Section 55 of theAct has been complied with. All the petitioners were committingcrime by forming a gang. To form a gang, it is not essential that agang member should be from different families. Petitioner no.2 wasacquitted after the show cause notice. Hence, the impugned ordercannot be said to be illegal. There was objective material to recordthe subjective satisfaction. Both orders are free from illegalities.7.To initiate an action against an offender under Section 55of the Act, the authority passing the externment order should satisfythat there were communality of the actions of several persons jointtogether. Section 55 would be applicable only when the persons seemto be acting as members of the gang or body of persons, and it is only wp-615-2024.odt(5)then that action under Section 55 of the Act can be taken and when itis to be taken, it must be taken against all members and not only afew of them selectively. Section 59 of the Act provides for a showcause notice to be served upon the proposed externee informing themin writing the general nature of material allegations against them. Ifthe proposed externee bona fide seeks leave to lead the evidence andsuch application is not vexation or delaying the proceeding, theapplication for recording the evidence should be accepted. 8.The record of the proceeding produced before the Courtincludes the show cause notice of the Superintendent of Police. Theshow cause notice given the details of five crimes of the year 2019,2021 and 2023. Out of five crimes, in two crimes registered in 2020and 2023, all petitioners were the accused. However, a crimeregistered in 2019 was only against Petitioner Hitesh and crimeregistered in 2020 was similarly registered against petitioner Aakash.In a notice, it was mentioned that all the petitioners forming a gangcaused danger to the property or the residents of Jalgaon City. Theyalways disturb the law and order and create terror by committing thecrime against the properties. 9.The show cause notice was silent about not coming of thewitnesses forward to give the evidence in public against them due toapprehension to their life and property. However, the Superintendentof Police while passing the impugned order has observed that the wp-615-2024.odt(6)petitioners by gang spreading the terror in Jalgaon City as well asnearby area. They did not respond to the preventive actions. 10.The first question to be answered is whether the familymembers constitute a gang as required under Section 55 of the Act.The term ‘gang’ has not been defined in the Act. The dictionarymeaning of the term ‘gang’ is to join together with other people inorder to act against somebody. As per the Oxford Advanced LearnersDictionary 8th Edition the term ‘gang’ means an organized group ofcriminals (ii) a group of young people who spend a lot of timetogether and often cause trouble and fight against other groups (iii)an organized group of workers or prisoners. As per Wikipedia, theterm ‘gang’ means is a group or society of associates, friends ormembers of the family with a defined leadership and internalorganization that identifies with or claims control over territory in acommunity and engages, either individually or collectively in illegaland possibly violent, behavior, with such behavior often constituting aform of organized crime (extracted from Google). 11. From the above dictionary meaning of the term ‘gang’ itcould be understood that gang is a group of criminals. Therefore, itcannot be separated from the definition of family members. Theillegal activities of such persons either individually or collectivelyshould be considered while understanding the term gang used inSection 55 of the Bombay Police Act. The separate and individual acts wp-615-2024.odt(7)not committed collectively may not amount the gang. But if suchillegal acts are committed, separately or collectively, with the commonintention or the object, those are the illegal acts committed by a gang.Considering the dictionary meaning of the term ‘gang’, the Court doesnot find substance in the argument of the learned counsel for thepetitioners that family members could be said to be a gang and noaction under Section 55 of the Act could be initiated against them. 12.The learned counsel for the petitioners argued that afterthe show cause notice, it is not necessary to appear before theinquiring officer in person with the witnesses and furnish the suretybond. It was not a legal requirement. But the inquiring officer, toimpress the higher authority, has recorded the finding after showcause, the petitioners did not appear before him with surety andwitnesses and they have furnished their submissions through theregistered post. 13.Section 59(2) of the Act provides that the authority orthe officer proceeding under sub-section (1) may for the purpose ofsecuring the attendance of any person against whom any order isproposed to be made under Sections 55, 56, 57 or 57(a), pass asecurity bond with or without securities for such attendance duringthe inquiry. If the person fails to the pass security bond as required orfails to appear before the officer or authority during the inquiry, itshall be lawful to the officer or authority to proceed with the inquiry, wp-615-2024.odt(8)and thereupon such order as was proposed to be passed against himmay be passed. Sub-section (2) reflects that the officer or authorityproceeding under sub-section (1) may direct such person to furnishsuch bond with or without sureties only for the purpose of securingthe attendance of such person. The consequences of failure to appearin person and furnishing bond do not take away the defence of such aperson. The authority may proceed with the inquiry on the basis ofmaterial available before it. Therefore, it cannot be said that theinquiring officer recorded observation of not appearing in person andfurnishing security bonds to influence the higher authority. It was justthe finding of the fact of non-appearance and not furnishing thesecurity bond by the petitioners. However, the authority hasconsidered the written submissions/explanations and recorded thefinding that the explanation was extraneous and irrelevant.14. The record reveals that the first offence against thepetitioners were jointly registered in 2020 and thereafter 2023. Therest of the offences registered against the petitioner Hitesh andAakash were of 2019, 2020 and 2021. The authority did not have thematerial to show that those individualistic crimes were committed bythe members of the gang to their knowledge. In a crime of 2023, thecounter crime was registered. So far as the body offence against allregistered in 2020, it seems that thereafter till 2023, no offences assuch were registered against the petitioners. wp-615-2024.odt(9)15.The law is well settled that the authority exercisingpower under Section 55 of the Act should record the subjectivesatisfaction at such activity to form the basis that the act could causeany danger, alarm, or reasonable suspicion that unlawful designs areentertained by such gangs or body or members thereof. Invoking hispowers, there must be objective material on record on the basis ofwhich the competent authority must record its subjective satisfactionthat the movement or the encamped movement of a gang or body ofa person is causing or is calculated to cause danger or alarm orreasonable suspicion that unlawful designs are entertained by suchgang or body or by members thereof. There should be live link andproximity in the registration of crime and the initiation of the action.The crimes jointly registered against the petitioners appearsindividualistic and not affecting the danger to the common man ortheir property. Both orders are silent about the effect of the crimesregistered against the particular persons. Both authorities did notmention the conclusion of the chapter cases. The chapter cases alsodo not show that those were registered against all petitioners jointly.Those actions were individualistic filed in 2011 then 2020 and 2022.The Divisional Commissioner Nashik in the impugned orderconsidered the extraneous material about recording the camerastatement of the witnesses which was neither mentioned in the showcause notice nor the order of the Superintendent of Police. Therefore, wp-615-2024.odt(10)it could be said the opportunity to explain the statement of suchwitnesses was not granted to the petitioners. Recording such findingshow non-application of mind. 16.After examining the material and the impugned orders,the Court is of the view that there was no objective material to recordthe subjective satisfaction that the movements or the encampment ofthe alleged gang of the petitioners were causing or calculated to causedanger or alarm of reasonable suspicion that the gang or any memberthereof entertaining the unlawful designs. Apart from that, there wasno objective material to believe that the movement of the petitionerswas causing any danger to the person or their property. There alsoappears to be no live link and proximity in registering the crime andinitiating the externment proceeding against them,. Therefore, theimpugned orders warrant interference. Hence, the following order :ORDER(I)The writ petition is allowed.(II) Both impugned orders are quashed and set aside.(III) The rule is made absolute in the above terms. (IV)Record and proceedings be returned to the learned APP (S.G. MEHARE, J.)Mujaheed//