High Court
Legal Reasoning
wp1899.23-4- given while passing an impugned order. In camera statements of twowitnesses were recorded to establish the essential ingredientsagainst the petitioner. There is no illegality or perversity in passingthe impugned order. It is lastly prayed to dismiss the writ petition.6.During the course of arguments, learned advocate for thepetitioner placed reliance on the following authorities:-I)Bhagwat Dadasaheb Landge vs. The State ofMaharashtra and others, 2020 (5) Mh.L.J. (Cri.) 546, in which thelaw is laid down that the reasons have to be assigned for passing anexcessive order for expansive area i.e. out of entire Ahmednagardistrict. In absence of any reason, order of externment cannot besustained as the same suffers from vice of arbitrariness.ii)In the case of Abasaheb Balasaheb Warkhede vs. TheState of Maharashtra, 2022 ALL MR (Cri.) 1541, this Court has heldthat there is no sufficient material to show that the petitioner andother gang members were acting in concert and were committingserious offences. There is no material to show unlawful design bygang or body of persons or members, necessitating, removal ofpetitioner outside jurisdiction of the authority. The externment of thepetitioner, was unsustainable. Further there was no live link betweenoffence and necessity of passing impugned order. The externmentorder thus quashed and set aside. wp1899.23-5- iii)In the case of Mohan Sakharam Kharat and others vs.The State of Maharashtra and others, 2021 ALL MR (Cri.) 2766,this Court held that when there is no evidence to show that thepetitioners were acting as members of gang or body or persons andtheir activities were causing alarm or danger or harm to person orproperty and in camera statements of witnesses found vague byrespondent authorities, such externment order cannot be sustained. 7.Perused the impugned order. The impugned order doesnot disclose any reason for externing the petitioner for expansivearea out of these two police stations i.e. Zilla Peth police station andM.I.D.C. police station, Jalgaon. Therefore, in the absence of anysuch reason, as held by this Court, in the case of Bhagwat Landge(supra), the order of externment is not sustainable. Therefore,without adverting to the merits of the case, the impugned orderdeserves to be quashed and set aside.8.Learned A.P.P. for the respondents submitted that theappellate authority i.e. the Divisional Commissioner, Nashik observedin the impugned judgment that considering the development in theimproved transportation system, the petitioner may continue hisillegal activities in entire district. However, the such apprehensionhas not been discussed by the Superintendent of Police, Jalgaonwhile passing the order of externment. In absence of cogent and
Arguments
wp1899.23-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1899 OF 2023 Bhushan @ Bhasa Vijay MaliAge 22 years, Occ. LabourR/o. Behind Bhui Katya,Tukaramwadi, JalgaonDistrict Jalgaon...Petitioner versus 1.The State of MaharashtraThrough the SecretaryHome Department, Mantralaya, Mumbai 2.The Divisional Commissioner,Nashik Division, Nashik 3.The Superintendent of PoliceJalgaon4.The Sub Divisional Police OfficerJalgaon ...Respondents ...Advocate for the Petitioner : Ms. Priyanka P. Shinde h/f Mr.Abhaysinh K. BhosleAPP for Respondents: Mr. Satish A. Gaikwad ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 7th FEBRUARY, 2024. ORAL JUDGMENT:- 1.Rule. Rule made returnable forthwith. By consent of theparties, heard finally at admission stage. wp1899.23-2- 2.This writ petition is directed against impugned order passedby the Superintendent of Police, Jalgaon dated 17.3.2022 undersection 55 of the Maharashtra Police Act.3.Brief facts giving rise to the present writ petition are asunder:-a)The petitioner is prosecuted in 14 cases, as shown in thechart. Out of which, the present petitioner is prosecuted in 9 cases.The said cases are mostly under the Indian Penal Code (for short“I.P.C.”) and Arms Act, which are not yet decided and pending beforethe concerned Court registered with M.I.D.C. police station and ZillaPeth Police Station, Jalgaon.b)While issuing notice under section 55 of the MaharashtraPolice Act for initiating the proceedings against the petitioner and co-accused in other cases, the authority/Superintendent of Police,Jalgaon held that the opportunity was given to the petitioner but thepetitioner did not respond it. It is held that the petitioner is a memberof gang and created terror in the society. Nobody is ready to registera report against him. It is lastly held that the petitioner is liable to beexterned. Accordingly, the petitioner has been externed for two yearsfrom entire Jalgaon district. 4.Learned advocate for the petitioner pointed out that the wp1899.23-3- order dated 03.01.2023 passed by the Divisional Commissioner,Nashik in appeal No. 130 of 2022 and submitted that the same isperverse, unjust and arbitrary. It is pointed out that opportunity toprefer an appeal against the order of externment was not given andhe was externed from entire Jalgaon district within 48 hours. Thepetitioner did not violate any condition of his bond of good behaviourand he is abide the conditions of bail which are granted in allproceeding. The family members of the petitioner are facinghardship, as they are depending upon him. There is no live linkbetween the alleged offences and the passing of the impugned order.There is no subjective satisfaction. There is no material to show thatthe petitioner participated in the gang for commission of allegedoffences continuously. The order of externment is passed withoutfollowing procedure prescribed by law. The order is based onextraneous consideration. Learned advocate for the petitioner pointedout the impugned order and the documents relied upon by theauthority. It is lastly prayed to quash and set aside the impugnedorder. 5.Learned A.P.P. for the respondent State strongly opposedthis writ petition and submitted that full opportunity of hearing wasgiven to the petitioner. However, he did not respond. He pointed outthe letter issued to the petitioner that he is member of the gang andhe has to explain or reply to the said show cause notice. However,no such reply was given. He lastly submitted that proper reasons are
Decision
wp1899.23-6- acceptable reasons for the impugned order, there is no justificationfor considering the observation of the appellate authority underSection 60 of the Maharashtra Police Act. Considering all thesereasons, the writ petition deserves to be allowed. 9.In the result, the writ petition is allowed. The order dated17.3.2022 passed by the Superintendent of Police Jalgaon therebyexterning the petitioner from entire Jalgaon district and the orderdated 3.1.2023 passed by the Divisional Commissioner, Nashik inappeal No. 130 of 2022, are quashed and set aside. 10.Rule made absolute in the above terms. (SANJAY A. DESHMUKH, J.) rlj/