ABDUL FAKI ABDUL MAJID v. THE STATE OF MAHARASHTRA AND ANOTHER
Case Details
44-criwp-1045-22 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1045 OF 2022 ABDUL FAKI ABDUL MAJID VERSUS THE STATE OF MAHARASHTRA AND ANOTHER Mr. S.V. Mundhe, Advocate for the Petitioner Mr. R.D. Sanap, APP for Respondent Nos.1 and 2/State .... …. CORAM : SHRIKANT D. KULKARNI, J. DATE : 26 SEPTEMBER 2022 PER COURT:- . Mr. Sanap, learned APP for the respondents/State seeks leave to place on record the affidavit-in-reply on behalf of the respondents/State. 2. Leave granted. The affidavit-in-reply filed on behalf of
Legal Reasoning
State across the Bar is accepted and taken on record. Mr. Sanap, learned APP provided the copy of the reply to Mr. Mundhe, learned counsel for the petitioner. The petition to proceed further. 3. Heard finally with the consent of both the sides at admission stage.. 1 of 7 44-criwp-1045-22 2 4. The petitioner has assailed the order of externment passed by the Deputy Commissioner of Police, Zone-1, Aurangabad City dated 20.04.2022 and confirmed by the appellate authority with modification to the extent of period of externment. 6. Heard Mr. Subhash Mundhe, learned counsel for the petitioner and Mr. Sanap, learned APP for the respondents/State. 7. Mr. Mundhe, learned counsel for the petitioner submitted that there was absolutely no sufficient material against the petitioner to initiate the action for externment. He invited my attention to the copy of externment order passed by the competent authority. He submitted that only three crimes are registered against the petitioner. Out of them, Crime No.526 of 2016 came to be registered at Kranti Chowk Police Station for the offences punishable under Section 307, 324, 504, 506, 34 of the Indian Penal Code which is of individual character because of hotel business rivalry. The petitioner is running hotel business and because of that hotel business, crime came to be registered at the instance of the opposite party. Crime No.317 of 2021 came to 2 of 7 44-criwp-1045-22 3 be registered at Vedant Nagar Police Station for the offences punishable under Sections 326, 324, 323, 504, 506, 120(B) of the Indian Penal Code is also of individual character because of flat dispute/property dispute. Crime No.85 of 2020 came to be registered for the offences punishable under Sections 188, 269, 270 of the Indian Penal Code at at Vedant Nagar Police Station during the Covid-19 pandemic for violation of covid norms. He submitted that there was no sufficient material against the petitioner to extern him. He cannot be termed as a dangerous person and nuisance to the society. The order passed by the competent authority and confirmed by the appellate authority are bad in law. It is a violation of fundamental right of the petitioner to move freely anywhere in the country as guaranteed under Article 21 of the Constitution of India. He, therefore submitted that the impugned order of externment passed by the externing authority and confirmed by the appellate authority are liable to be quashed and set aside. 8. Mr. Sanap, learned APP for the respondents/State supported the order of externment as well as the order passed by the appellate authority. He submitted that both the authorities after having subjective satisfaction was pleased 3 of 7 44-criwp-1045-22 4 to pass the order of externment. The appellate authority has reduce the period of externment to the extent of six months. There is no need to interfere in the impugned orders. 9. I have considered the submissions of both the sides. I have also gone through the externment order passed by the Deputy Commissioner of Police, Zone-1, Aurangabad City and the order passed by the appellate authority in externment appeal No. tk- dz- 2022 @ lkiz@ d{k&1 @ iksy&1@ gíikj @ flvkj&50 dated 21.07.2022. Perused the reply affidavit filed on behalf of the respondents/State. 10. Following is the material relied upon by the competent authority for initiating externment action against the petitioner. v- dz- iksyhl LVs’ku 1 dzkarhpkSd 2 osnkaruxj 3 osnkaruxj xqUgk dz- o dye 526@2016 dye 307] 324] 504] 506] 34 Hkknafo 317@2021 dye 326] 324] 323] 504] 506] 120 ¼c½ Hkknafo 85@2020 dye 188] 269] 270 Hkknafo nk[ky rkjh[k nks"kkjksi uacj DksVZ dsl uacj Lk|%fLFkrh 23@05@16 170@17 fnukad 15@7@17 vkjlhlh ua- 2801@17 U;k;izfo"B 23@12@21 riklkoj & & riklkoj 16@07@20 29@20 nukad 16@8@20 U;k;izfo"B ,llhlh ua- 7240@20 fnukad 11@9@20 4 of 7 44-criwp-1045-22 5 11. It can not be said to be sufficient material to extern the petitioner for a period of two years from the entire Aurangabad District. Crime No.256 of 2016 registered at Kranti Chowk Police Station is of the year 2016 and appears to be an individual nature. Crime No.317 of 2021 registered at Vedant Nagar Police Station is arising out of property dispute and third one registered at Vedant Naagar Police Station vide Crime No.85 of 2020 is during Covid-19 pandemic for violation of the covid norms. The petitioner cannot be branded as a dangerous man and nuisance to the
Decision
society in view of the above crimes registered against him. The Division Bench of this Court in writ petition No.3580 of 2012 (Coram: ) vide order dated 01.02.2017, has held in para No.5 as under: “ 5. It is settled principle that to pass externment order under Section 56(1)(a)(b) of the Bombay Police Act, the externing authority / Police Commissioner or the District Magistrate, as the case may be, must record his judicious satisfaction that :- 5 of 7 44-criwp-1045-22 6 The acts of the person are causing or (i) calculated to cause willful danger or harm to the person or property or that there are reasonable grounds that he is engaged or about to be engage in the commission of an offences under Chapters XVI and XVII I.P.C. And (ii) In the opinion of the officer, witnesses are not willing to come forward to give evidence and unless such an opinion is formed by the officer, he cannot pass the order for externment of the person” 12. If the criminal record of the present petitioner as shown in the chart is taken into consideration, he cannot be branded as a habitual criminal, particularly on the basis of pending three criminal cases. Out of which, one is for violation of Covid-19 norms. Mr. Mundhe, learned counsel for the petitioner relied upon the Government Resolution dated 20.09.2022, whereby the State has taken the decision to withdraw those cases. As such only two criminal cases are pending against the petitioner. The petitioner is yet to be convicted by any competent Court. 13. If Section 56 of the Maharashtra Police Act is taken into consideration, it provides that there must be alarm or harm to person or property or public at large and not to one or two individuals to form opinion against the proposed externee. 6 of 7 44-criwp-1045-22 7 14. In view of the above, it is clear that there is no sufficient material against the petitioner to extern him from the entire Aurangabad District for a period of two years. It is further revealed that the appellate authority after applying its mind, reduced the period of externment to the extent of six months. The impugned order of externment needs to be quashed and set aside, when there was no sufficient materiel against the petitioner as contemplated under Section 56 of the Maharashtra Police Act, 1951. 15. In the result, the petition succeeds. O R D E R (i) The criminal writ petition stands allowed. (ii) The impugned order of externment dated 20.04.2022 passed by the Deputy Commissioner of Police, Zone-1, Aurangabad and confirmed by the appellate authority vide order dated 21.07.2022 are hereby quashed and set aside. (iii) The criminal writ petition is accordingly disposed of. (iv) No order as to costs. S.P. Rane [ SHRIKANT D. KULKARNI ] JUDGE 7 of 7