Savita W/o Baburao Gaikwad v. …
Case Details
2023:BHC-AUG:25947 996-WP-1704-2023.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1704 OF 2023 Savita W/o Baburao Gaikwad VERSUS ….Petitioner The State Of Maharashtra And Others …..Respondent Mr. S. S. Gangakhedkar, Advocate for the Petitioner. Mr. S. B. Narwade, APP for Respondents. *** *** CORAM:R.M. JOSHI, J. DATE:DECEMBER 12, 2023 PER COURT: 1. Rule. Rule made returnable forthwith. With consent, heard finally. 2. Petitioner takes exception to the order dated 09.09.2023 passed by Superintendent of Police, Nanded externing the Petitioner from entire Nanded District for the period of six months in order dated 09.09.2023 passed by S. P. Nanded in O. No. 850/LCB/Section-55/ItwaraP.K.03/2023/FinalOrder/5455/20 23, Nanded and order dated 07.11.2023 passed by Divisional Commissioner, Chhatrapati Sambhajinar
Legal Reasoning
confirming the said order in Case Page 1 of 7 996-WP-1704-2023.odt No.2023/GA/Room-1/Pol-1/Externment/CR-104. 3. Perusal of the record indicates that the concerned police authorities have sought to invoke provisions of Section 55 and 56 of the Maharashtra Police Act for the purpose of externment of the Petitioner. A proposal was send by the concerned police station for the externment of the Petitioner along with others on the ground that they are operating a gang and their presence in the area is disturbing peace and tranquility. It is also stated therein that number of offences are registered against the Petitioner. On 04.08.2023 show cause notice was issued to the Petitioner as to why she should not be externed. Petitioner submitted reply to the notice. Proposal came to be submitted for the externment of the Petitioner from Districts Nanded, Hingoli, Latur and Parbhani for the period of two years. On 09.09.2023 was passed by Respondent No. 3 whereby the Petitioner is externed from the limits of Nanded District for the period of six months. The said order came to be unsuccessfully challenged before the Appellate Authority under Section 60 of the Act. Page 2 of 7 996-WP-1704-2023.odt 4.
Legal Reasoning
Learned Counsel for the Petitioner submits that though eight offences are sought to be considered for the purpose of initiation of action of externment, out of those offences in three offences Petitioner is already acquitted. These offences, therefore, ought to have been kept out of consideration by Authority. According to him, except one offence being Crime No. 12/2023 there is no allegation that present Petitioner along with others have committed any crime in order to draw conclusion that they operating as a gang. It is also sought to be argued that the Authority concerned has committed error in considering the offences registered beyond its jurisdiction. In any case, according to him, the order of externment is not passed by the Authority on subjective satisfaction of material on record and as such, the same is not tenable. 5. Learned APP opposed the Petition contending that the required procedure of law has been complied with by the Authority so also principles of natural justice are followed. According to him, notice was issued to the Petitioner and others and their say is duly considered. It is submitted that the Appellate Page 3 of 7 996-WP-1704-2023.odt Authority while deciding the Appeal has considered the confidential statements recorded during the court of proceedings. Thus, it is his submission that owing to the serious crimes registered against the Petitioner, it is not a fit case for interfering in order of externment and confirmation thereof by Appellate Authority. 6. Law on the point of interference in the administrative orders like externment proceeding is clearly settled by Apex Court. In case of Deepak Laxman Dongre Vs. State of Maharashtra and Others, AIR 2022 SC 1241 the Hon’ble the Apex Court has laid down guidelines for deciding Petitions challenging order of externment passed by competent authority. It is held that for invoking the said provisions there must be objective material on record on the basis of which competent authority must record its subjective satisfaction. It is further observed that in a given case even if multiple offences have been registered against an individual that by itself is not sufficient to pass an order of externment. Moreover, there must be satisfying material on record to indicate the Page 4 of 7 996-WP-1704-2023.odt reasonable apprehension of the witnesses of their safety and for that reason they are not coming forward to give statement against the externee. 7. In case of State of NCT of Delhi Vs. Sanjeev @ Bitto, 2005, DGLS (SC) 320, it is held that the Courts will be slow in interfering in the matters relating to administrative functions unless decision is tainted by any vulnerability like illegality, irrationality and procedural impropriety. Keeping in mind the guidelines laid down by the Hon’ble Apex Court, impugned orders are considered in the facts and circumstances of the case. 8. Reverting back to the facts of the present case it is pertinent to note that the concerned authority has sought to invoke provisions of Section 55 and 56 of the Maharashtra Police Act. The authority while passing order of externment has considered solitary offence in which participation of all concerned is seen. Except for this one offence, there is nothing from record to indicate that there is a gang and Petitioner is a member thereof. There is no objective material in order to hold that the Petitioner Page 5 of 7 996-WP-1704-2023.odt is member or operating as a gang in order to extern her invoking provisions of Section 55 of the Act. 9. As far as order passed taking aid of Section 56 of the Act is concerned, though it is alleged that in all eight offences are registered against Petitioner, however, as recorded herein above out of said offences in 3 offence Petitioner is already acquitted. Though it is sought to be contended by learned APP that Appellate Authority has taken into consideration the confidential statements, however, the order passed by Superintendent of Police, Nanded does not show that such statements are taken into account. In any case, perusal of these statements, on the fact of it, indicates that these statements are general in nature. None of the witnesses has claimed any personal knowledge or fear from the Petitioner. Thus, there is no material on record which could be said to be sufficient to justify the order of externment of the Petitioner, which takes away her liberty as an individual guaranteed by the Constitution. 10. In the light of above discussion, orders impugned cannot sustain. The Petition, therefore, Page 6 of 7 996-WP-1704-2023.odt deserves to be allowed. Resultantly, order dated 09.09.2023 passed by S. P. Nanded in O.No. 850/LCB/Section-55/ItwaraP.K.03/2023/FinalOrder/5455/20 23, Nanded and order dated 07.11.2023 passed by Divisional Commissioner, Chhatrapati Sambhajinagar in Case No.2023/GA/Room-1/Pol-1/Externment/CR-104 are hereby quashed and set aside. 11. Petition stands allowed in terms of prayer clause ‘B’. Rule made absolute in above terms. Malani (R.M. JOSHI, J.) Page 7 of 7