High Court
Legal Reasoning
1669.2023WP-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD902 CRIMINAL WRIT PETITION NO. 1669 OF 2023Ajay S/o. Ghansham BarandwalAge: 35 years, Occu.: LabourR/o: Mochi Galli, Infront of Sant TukaramHostel, Sant Rohidas ChowkPadampura Chhatrapati Sambhaji Nagar(Aurangabad)..PETITIONER VERSUS1] The State of MaharashtraThrough: The Commissioner of PoliceChhatrapati Sambhaji Nagar (Aurangabad)2] Assistant Police Commissioner,Chhatrapati Sambhaji Nagar (Aurangabad)3] Deputy Commissioner of PoliceCircle-1, Chhatrapati Sambhaji Nagar (Aurangabad).4] The Police Tnspector,Vedant Nagar Police StationChhatrapati Sambhaji Nagar(Aurangabad)..RESPONDENTS...Advocate for the Petitioner : Mr. Kanade Angad LalaAPP for Respondent/State : Mr.Mukesh K. Goyanka ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 16th JANUARY, 2024. ORAL JUDGMENT :- This petition is filed under Article 227 of the Constitution ofIndia and under section 56 of the Maharashtra Police Act, challengingthe order of externment passed by respondent no.3, which is 1669.2023WP-2- confirmed by Divisional Commissioner, Aurangabad i.e. ChhatrapatiSambhajinagar. 2.The notice was issued by respondent no.2 to this petitioneron 16.05.2023 and he was called upon to explain as to why heshould not be externed from Aurangabad district, upon which thepetitioner submitted his explanation. It was alleged in the notice thathe has committed offences shown in the following chart :-अ.क्र.पो. ठाणेगुर. नं / कलम दोषारोपनं .सद्दस्थि(cid:22)(cid:23)ती०१वेदां तनगर गुरनं ६९/ २०२०कलम६५ (ख) म.दा.का.दोनं .१०/२०२०दिद.२७/०८/२०२०न्यायप्रदिवष्ठ०२वेदां तनगर गुरनं ७४/ २०२०कलम६५ (ख) म.दा.का.दोनं . ११/ २०२० दिदः ०९०९/१०/२०२०न्यायप्रदिवष्ठ०३वेदां तनगर गुरनं २०१/ २०२१कलम६५ (ख) म.दा.का.दोनं . २५ /२०२१ दिद०७/११/२०२१न्यायप्रदिवष्ठ०४वेदां तनगर गुरनं ६९/ २०२३कलम६५ (ख) म.दा.का.दिद.१४/०४/२०२३तपासावर०५ वेदां तनगर गुरनं ३१८/ २०२१कलम३०७, ३२४, ३५ ४(ड), ५ ०६, ३४भादं दिवदोनं . ४८/ २०२२दिद.३०/६/२०२२न्यायप्रदिवष्ठ०६छावणी गुरनं ४०५ / २०२१कलम३५ ४, ३५ ४(ड), ५ ०६भादं दिव दोनं २१६/ २०२१दिद.२०/१२/२०२२न्यायप्रदिवष्ठ प्रतितबं धककारवाई०१वेदां तनगरचॅ.के.क्रं .०३/ २०२०कलम९३मदाका०२वेदां तनगरचॅ.के.क्र.०३/ २०२२कलम११०सिसआरपीसी3.It is alleged that four crimes were registered against thepetitioner under section 65 of the Maharashtra Prohibition Act, 1949and one crime was registered against the petitioner under section307 of the Indian Penal Code, 1860 (for short, “IPC”) at Police Station 1669.2023WP-3- Vedantnagar. Last offence under section 354 of the IPC wasregistered at Chhavani Police Station, Chatrapati Sambhajinagar.Two chapter cases were registered against the petitioner undersection 107 of Cr.P.C., 1973 at Vedantnagar Police Station. It is alsoalleged that statements of two secrete witnesses were also recordedalleging that there is reasonable fear in their mind, and therefore,they did not proceed against the petitioner.4.The petitioner filed say and strongly opposed the saidnotice and also taken stand that two offences which are registeredagainst him at Vedantnagar and Chhavani Police Station are abouthis family dispute and there is no danger to the public order. Turningdown his explanation, the authority, respondent no.3 held that thepetitioner shall be externed and passed impugned order dated 5thJuly, 2023.5.An Appeal no.76 of 2023 was preferred before theDivisional Commissioner, Chhatrapati Sambhajinagar. It wasdismissed after hearing the petitioner and the respondents by itsorder dated 06.10.2023.6.The grounds raised in this writ petition are that thepetitioner is not involved in serious crimes as contemplated under 1669.2023WP-4- section 56 of the Maharashtra Police Act i.e. under Chapter XII, XVIand XVII of the IPC. Two offences registered against him undersections 354 and 307 of the IPC are out of family dispute. Theapplicant is externed from entire Aurangabad district, which is notlegal and correct as his activities were only in the area ofVedantnagar Police Station and Chhavani Police Station ofAurangabad city.7.The learned advocate for the petitioner submitted that theimpugned order is not legal and correct as the authority hasexceeded its power by externing the petitioner from entireAurangabad district. For that he is relying upon the judgments of thisCourt in the case of Shoeb @ Sharif @ Shafya Khan Aasif Khanand another Vs. The State of Maharashtra in Criminal WritPetition No.638 of 2021 dated 06.09.2021 and in the case of DipakSudhakar Patil Vs. The State of Maharashtra and others inCriminal Writ Petition No.159 of 2021 decided on 9th March, 2021.He lastly submitted to set aside the impugned order, which is ab-initiovoid.8.The learned APP for the State strongly opposed the petitionand submitted that the petitioner is involved in anti-social crimesinvolving public order as defined in the Maharashtra Prohibition Act
Decision
1669.2023WP-5- 1949 and other two offences under the Indian Penal Code undersections 354 and 307 of the Indian Penal Code, which are comingunder the purview of Section 56 of the Maharashtra Police Act i.e.offences against the human body and women. He pointed out thatthere are statements of two secrete witnesses, who did not comeforward against the petitioner. The petitioner did not obey the order ofexternment, therefore, four notices were issued to the petitioner. He,therefore, lastly submitted to dismiss the writ petition.9.The learned advocate for the petitioner submitted thatthough the notices under section 152 of the Maharashtra Police Actwere issued to the petitioner, no criminal action is taken against him.But, this is not the issue before this Court.10.As far as four crimes registered under section 65(b) areconcerned, those were registered in the years 2021, 2022 and 2023.Those are offences registered under section 65(b) of theMaharashtra Prohibition Act, which are not coming within the purviewof section 56 of the Maharashtra Police Act. As far as, other twocrimes are concerned, those are registered out of family dispute. Theobject of section 56 of the Maharashtra Police Act is to maintain thepublic order as specified in sub-clause (bb) that there must bereasonable grounds for believing that such person is acting or is 1669.2023WP-6- about to act in any manner prejudicial to the maintenance of publicorder as defined in the Maharashtra Prevention of Communal,Antisocial and Other Dangerous Activities Act, 1980 or in any mannerprejudicial to the maintenance of supplies of commodities essential tothe community etc.11.The learned APP pointed out the observations of theauthority noted in the impugned order that the activities of thepetitioner are prejudicial to the maintenance of public order. However,considering the mandate of section 56 of the Maharashtra Police Actthat such offences must be registered against him as per Chapter XII,XVI and XVII. These two offences registered under sections 354 and307 of the IPC are arising out of family dispute. Therefore, therecannot be a issue of maintenance of public order as defined in theMaharashtra Prevention of Communal, Antisocial and OtherDangerous Activities Act, 1980. Needless to mention that fouroffences registered under section 65(b) of the MaharashtraProhibition Act are not coming within the purview of section 56 of theMaharashtra Police Act.12.As far as the area of externment is concerned, thoughthe learned advocate for the petitioner pointed out that maximumoffences are committed in Vedantnagar Police Station and only one 1669.2023WP-7- is committed in Chhavani Police Station, in that regard consideringthese factual aspects, the externment order must be for AurangabadCity only and not for Aurangabad district. Considering these twogrounds, the impugned order deserves to be set aside. The Writpetition deserves to be allowed. Writ Petition is accordingly allowed interms of prayer clause “B”. (SANJAY A. DESHMUKH, J.) sga