Pitale Colony, Nagapur, Tq. And Dist. Ahmednagar v. 1. The State of Maharashtra Through Secretary, Ministry of Home Department, Mantralaya Mumbai -32
Case Details
901-crwp-566-22 (+3) Jt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.566 OF 2022 Sagar Raosaheb Chote Age : 22 years, Occu.: Labor, R/o. : Pitale Colony, Nagapur, Tq. And Dist. Ahmednagar. Versus 1. The State of Maharashtra Through Secretary, Ministry of Home Department, Mantralaya Mumbai -32. 2. Superintendent of Police, Ahmednagar, Dist. Ahmednagar. 3. The Police Inspector, M.I.D.C. Police Station, Ahmednagar, Dist. Ahmednagar AND … Petitioner … Respondents CRIMINAL WRIT PETITION NO.568 OF 2022 Ajmuddin @ Noora Gulab Sayyad, Age : 30 years, Occu.: Labor, R/o. : Gajanan Colony, Nagapur, Tq. And Dist. Ahmednagar. Versus 1. The State of Maharashtra Through Secretary, Ministry of Home Department, Mantralaya Mumbai -32. 2. Superintendent of Police, Ahmednagar, Dist. Ahmednagar. 3. The Police Inspector, M.I.D.C. Police Station, Ahmednagar, Dist. Ahmednagar AND … Petitioner … Respondents 1 of 15 901-crwp-566-22 (+3) Jt 2 CRIMINAL WRIT PETITION NO.569 OF 2022 Sandip Ashok Kasar, Age : 26 years, Occu.: Service, R/o. : Wadgaon Gupta, Tq. And Dist. Ahmednagar. Versus 1. The State of Maharashtra Through Secretary, Ministry of Home Department, Mantralaya Mumbai -32. 2. Superintendent of Police, Ahmednagar, Dist. Ahmednagar. 3. The Police Inspector, M.I.D.C. Police Station, Ahmednagar, Dist. Ahmednagar … Petitioner … Respondents ….
Legal Reasoning
upon earlier decision of the Division Bench of this Court in criminal writ petition No.638 of 2021 which has made observations that, “there must be sufficient material to show that the petitioners are indulged in the criminal activities as a group or a gang, in view of Section 55 of the Maharashtra Police Act, 1951 19. The Division Bench of this Court in Criminal writ petition No.1448 of 2021 vide order dated 07.04.2022, has made the similar observations. 20. Having regard to the legal position made clear by the Division Bench of this Court, and on perusing Section 55 of the Maharashtra Police Act, 1951, which relates to dispersal of gangs and bodies of persons, it reveals that the main requirement for attracting Section 55 of the Act is that the criminal cases against the gang or group of persons must be 11 of 15 901-crwp-566-22 (+3) Jt 12 collective in nature and the same should be not be individualistic in nature. There must be record, which may indicate that the petitioners are involved in criminal activities as a member of the gang. Section 55 of the Act can only be invoked if the ingredients are present. 21 On going through the impugned order, and the original file made available by the learned APPs, it would reveal that there is no sufficient material against the petitioners to invoke Section 55 of the Act. Merely showing one of the petitioner as a Chief of the gang and remaining as members of the gang in the show cause notice and in the externment order, would not be sufficient to attract Section 55 of the Act. If the criminal cases registered against the respective petitioners as shown in the chart are carefully considered, except two criminal cases, remaining all are of individual nature. The material relied upon by the authority did not make out any case against the petitioners as a member or chief of gang or a body of a persons merely on the basis of two crimes referred above, cannot be said to be sufficient material to brand them as gang members or chief of the gang. 12 of 15 901-crwp-566-22 (+3) Jt 13 22. Moreover, there is also no live link between the offences registered against the respective petitioners in the externing proceedings. It appears after perusal of the original record that first crime came to be registered against one of the petitioner Sagar Raosaheb Chothe in the year 2013, and thereafter, certain crimes till 2016. After the gap of four years, one crime No. 1013 of 2020 seems to have been registered at M.I.D.C. Police Station against all the petitioners. As such, there is no live link and proximity between the registration of the said offences and initiation of the present externment proceedings. 23. The following conditions need to be satisfied in view of the decision in case of Mohan and another vs. Superintendent of Police and others reported in (2001) 2 Bom CR (Cri) 232. “(i) There must be a satisfaction regarding existence of a gang or body of persons in the subject area, which is engaged in continuous criminal activity. 13 of 15 901-crwp-566-22 (+3) Jt 14 (ii) There must be noticed either movement or encampment of such gang or body of criminals in a manner as would cause or is calculated to cause danger or alarm or reasonable suspicion that unlawful designs are entertained by such a gang or body of persons or members of such body.” 24. After going through the impugned order of externment, it is noticed that there is no finding recorded therein that present petitioners had formed a gang or group or body of persons engaged in continuous criminal activity so as to cause alarm or danger to the public at large. There is an error while recording subjective satisfaction for an action of externment. 25.
Arguments
Mr. G.R. Syed, Advocate for the Petitioners in all Cri. WPs. Mr. S.P. Deshmukh, APP for the Respondents / State in Cri.WPs/566/2022 and 568/2022. Mr. B.G. Borade, APP for the Respondents in Cri.WP/569/2022 …. CORAM : SHRIKANT D. KULKARNI, J. RESERVED ON : 10 AUGUST, 2022 PRONOUNCED ON : 26 SEPTEMBER, 2022 JUDGMENT :- . Heard finally with consent of both the sides at admission stage. 2. The petitioners, by way of their respective petitions have challenged the legality and correctness of the order of externment passed by the Superintendent of Police, 2 of 15 901-crwp-566-22 (+3) Jt 3 Ahmednagar dated 25.08.2021 and confirmed in respective externment appeals by the Divisional Commissioner, Nashik Division, Nashik by invoking writ jurisdiction. 3. The Assistant Police Inspector, M.I.D.C. Police Station, Ahmednagar submitted a proposal for externment against the present petitioners by taking into consideration their criminal activities as members of the gang. The Superintendent of Police issued show cause notice against the petitioners and called upon their response. The Superintendent of Police, Ahmednagar after taken into consideration the say filed by the respective petitioners and considering the criminal record of the petitioners was pleased to extern the petitioners from the entire Ahmednagar District for a period of 18 months vide order dated 25.08.2021. 4. Feeling dissatisfied by the order of externment passed by the Superintendent of Police, Ahmednagar, the petitioners have filed their externment appeals before the appellate authority. The appellate authority/Divisional Commissioner, 3 of 15 901-crwp-566-22 (+3) Jt 4 Nashik was pleased to dismissed the appeals and upheld the order of externment passed against the petitioners. 5. In the above background, the petitioners are before this Court by way of their respective petitions. 6. Heard Mr. G.R. Syed, learned counsel for the respective petitioners. Mr. S.P. Deshmukh, learned APP for the respondents in criminal writ petition Nos.566 of 2022 and 568 of 2022, and Mr. P.B. Borade, learned APP for the respondents/State in criminal writ petition No.569 of 2022. 7. Mr. G.R. Syed, learned counsel for the petitioners vehemently submitted that the criminal record relied upon by both the authorities was not at all sufficient to pass externment order against the petitioners. He submitted that out of ten crimes registered against the petitioners, they have been acquitted in six criminal cases by the competent Court. He submitted that the remaining crimes registered at M.I.D.C. Police Station and Tophkhana Police Station, Ahmednagar and charge-sheet filed therein are pending before the respective Courts for adjudication. He submitted 4 of 15 901-crwp-566-22 (+3) Jt 5 that except crime No.1013 of 2020 registered at M.I.D.C. Police Station, Ahmednagar and Crime No. 77 of 2014 registered with the same police station, the offences are of an individual nature. The petitioner Sagar Chothe has been acquitted in Crime No. 77 of 2014 registered at M.I.D.C. Police Station, Ahmednagar. He submitted that there is no material to show that the petitioners are running criminal syndicate by way of gang. They have not committed alleged offences collectively or as a member of a gang. They are not danger to the society. He, therefore submitted that the impugned order of externment passed by the Superintendent of Police, Ahmednagar and confirmed by the appellate authority are bad in law. 8. Mr. Syed further submitted that the oldest crime registered against the petitioner Sagar Chothe is of 2012 (Crime No. 78 of 2012), wherein he has been acquitted. After 2015, no crime has been registered against the petitioner as a member of the gang. In the year 2020, Crime No.1013 of 2020 came to be registered at M.I.D.C. Police Station, Ahmednagar, which is also of false nature only with a view to implicate the petitioners. 5 of 15 901-crwp-566-22 (+3) Jt 6 9. Mr. Syed, learned counsel for the petitioners submitted that the externment order came to be passed against the petitioners on flimsy grounds. A person cannot be denied his fundamental right to reside anywhere in the country or to move freely throughout the country. He has placed reliance in case of Rahmat Khan @ Rammu Bismillah Vs. Deputy Commissioner of Police [Criminal Appeal No.912/2021 dated 25.08.2021 (Supreme Court)]. Mr. Syed also placed his reliance on the following decisions of the Division Bench of this Court at Aurangabad in support of his submissions. (i) Kamalkishor Pusaram Bang Vs. The Superintendent of Police reported in 2018 (4) Mh.LJ (Cri.) 402. (ii) Shaikh Abdul Rasheed Abdul Razaque Kasai Vs. The State of Maharashtra and others [Criminal Writ Petition No.268 of 2022 with connected criminal writ petitions dated 26.04.2022]. (iii) Farukh Khan @ Pappu Zahir Khan Qureshi and others Vs. The State of Maharashtra [Criminal writ petition No.1448 of 2021] 10. By taking help of the above said citations, Mr Syed urged to allow the petitions. 6 of 15 901-crwp-566-22 (+3) Jt 7 11. Mr. S.P Deshmukh and Mr. Borade, learned APPs for the respondents/State in respective petitions supported the impugned order of externment passed by the Superintendent of Police as well as the decision rendered by the appellate authority. Both of them took me through the criminal record of the petitioners. They submitted that the petitioners are running criminal syndicate. They are involved in serious offences. In all ten criminal cases have been registered against the petitioners at M.I.D.C. Police Station and Tophkhana Police Station at Ahmednagar. The externing authority, after taking into consideration the criminal record of the respective petitioners, in camera statements of two witnesses, and considering the say filed by the respective petitioners arrived at a conclusion to extern the petitioners from Ahmednagar District for the period of 18 months. That exercise was completed after having subjective satisfaction. The appellate authority has also considered all these aspects and rightly dismissed the appeal. 12. They submitted that Ajmuddin @ Noora Gulab Sayyad (petitioner in Cri. writ petition No.568 of 2022) is stated to be the head of the gang and remaining petitioners are the 7 of 15 901-crwp-566-22 (+3) Jt 8 members of the gang. This gang is making terror in the society. The witness are not coming forward to record their statements. They are not coming forward to file F.I.R. against the petitioners in view of their terror. Both of them submitted that there is no legal defect in the order of externment passed by the competent authority and confirmed by the appellate authority. No interference is required. All the petitions are liable to be dismissed. 13. I have considered the submissions of learned counsel for the petitioners and the learned APPs for the respondents/ State. I have also gone through the copy of externment order passed by the Superintendent of Police,Ahmednagar vide order dated 25.08.2021, copy of the decision rendered by the appellate authority/Divisional Commissioner, Nashik in externment appeals, two in camera statements, and the original file made available by the APPs. 14. The following criminal record of the respective petitioners is relied upon by the externing authority to initiate externment proceedings. 8 of 15 901-crwp-566-22 (+3) Jt 9 v- dz- 1 iksyhl LVs’ku xqUgk dz- Hkk-n-fo- dye xqUº;krhy vkjksihaph ukos ‘ksjk ,e-vk;-Mh-lh- 1013@2020 Hkknfo dye 395] 354] 452] 337] 324] 323] 327] 427] 143] 147] 148] 149] 504] 506 1- vteqíhu mQZ wuqjk xqykc lS¸ln 2- d¸;qe vdcj lS¸ln 3- lafni v’kksd dklkj 4- lkxj jkolkgsc pksFks riklkoj 2 ,e-vk;-Mh-lh- 47@2015 Hkknfo dye 143] 148] 149] 436] eqiksdkd 37 ¼1½ ¼3½] 135 1- vteqíhu mQZ wuqjk xqykc lS¸ln 2- lafni v’kksd dklkj U;k;izfo"B 3 ,e-vk;-Mh-lh- 4 ,e-vk;-Mh-lh- 189@2011 Hkknfo dye 324] 323] 504] 506] 34 126@2013 Hkknfo dye 143] 147] 323] 504] 506] vtktdkd 3¼1½ ¼10½ o 3 ¼1½ ¼7½ 1- lafni v’kksd dklkj funksZ"k 1- lafni v’kksd dklkj funksZ"k 5 ,e-vk;-Mh-lh- 229@2014 Hkknfo dye 324] 323] 504] 506] 34 1- lafni v’kksd dklkj funksZ"k 6 rksQ[kkuk 316@2015 Hkknfo dye 143] 147] 148] 149] 323] 504] 506] 34 1- lkxj jkolkgsc pksFks U;k;izfo"B 7 ,e-vk;-Mh-lh- 304@2016 Hkknfo dye 323] 324] 504] 506] 34 1- lafni v’kksd dklkj U;k;izfo"B 8 ,e-vk;-Mh-lh- 77@2014 Hkknfo dye 394] 1- lkxj jkolkgsc pksFks 9 ,e-vk;-Mh-lh- 86@2013 34 Hkknfo dye 325] 323] 504] 506] 34 1- lkxj jkolkgsc pksFks 10 ,e-vk;-Mh-lh- 78@2012 Hkknfo dye 324] 323] 504] 506] 1- lkxj jkolkgsc pksFks funksZ"k funksZ"k funksZ"k 9 of 15 901-crwp-566-22 (+3) Jt 10 15. Having regard to the details giving in the above said chart pertaining to the respective petitioners, crimes registered against the petitioners and result of the case, it would be clear that the respective petitioners have been acquitted in six crimes out of ten. Only four criminal cases are pending against the respective petitioners. 16. In case of Rahmat Khan @ Rammu Bismillah Vs. Deputy Commissioner of Police (supra), the Hon’ble Supreme Court held that, “the externment order affects the fundamental right of a person. A person cannot be denied his fundamental right to reside anywhere in the country or move freely throughout the country. The externment order cannot be passed on flimsy grounds”. 17. In case of Kamalkishor Pusaram Bang Vs. The Superintendent of Police (supra), the Division Bench of this Court (Aurangabad Bench) has held that, “if action of externment is to be initiated against the gang, it should be against all members of the gang. The selective approach is not permissible. If, there is no reference of in-camera 10 of 15 901-crwp-566-22 (+3) Jt 11 statements in show cause notice so as to enable the petitioner to file his reply, those cannot be used against the petitioner”. 18. The Division Bench of this Court in Criminal writ petition No.268 of 2022 with connected petitions, by relying
Decision
In view of the above factual scenario, and in view of requirements provided under Section 55 of the Maharashtra Police Act, 1951, the externing authority has failed to satisfy both the requirements coupled with other grounds. Therefore, the impugned order of externment passed by the externing authority and confirmed by the appellate authority need to be quashed and set aside. 14 of 15 901-crwp-566-22 (+3) Jt 15 26. In the result, all the petitions succeed. O R D E R (i) The criminal writ petition Nos. 566 of 2022, 568 of 2022 and 569 of 2022 stand allowed in terms of prayer clause “12 (A)” of the respective petitions. (ii) All criminal writ petitions are accordingly disposed of. (iii) No order as to costs. [ SHRIKANT D. KULKARNI ] JUDGE S.P. Rane 15 of 15