Firoz @ Ba Dilavar Shaikh v. State of Maharashtra & Ors.

WP 6802 OF 2025.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.6802 OF 2025 Firoz @ Ba Dilavar Shaikh ...Petitioner versusState of Maharashtra and Ors. …Respondents Ms. Shivani Kondekar with Mr. Satyavrat Joshi, for Petitioner. Mr. A.R.Metkari, APP for State. CORAM: N.J.JAMADAR, J. DATE : 22 JANUARY 2026 JUDGMENT : 1.Rule. Rule made returnable forthwith, and, with the consent of thelearned Counsel for the parties, heard finally. 2.By this petition under Article 227 of the Constitution of India, thePetitioner takes exception to an order dated 11 November 2025 passed bythe Divisional Commissioner, Pune, in Appeal No.85 of 2025, whereby theappeal preferred by the Petitioner under Section 60 of the Maharashtra PoliceAct, 1951, against an order of externment passed by the DeputyCommissioner of Police, Zone-I, Pimpri Chinchwad, by invoking the powerunder Section 56(1)(b) of the Act, 1951, came to be dismissed. 3.Background facts necessary for the determination of this Petition canbe summerized as under : 3.1A notice under Section 59 of the Act, 1951, was served upon theSSP 1/8 WP 6802 OF 2025.docPetitioner calling upon him to show cause as to why he be not externed byinvoking the power under Section 56(1)(b) of the Act, 1951. A reference wasmade to the six crimes registered against the Petitioner at Bhosari PoliceStation, during the period 2016 to 2024, and the prohibitory actions takenagainst the Petitioner in the past. 3.2After considering the reply, by an order dated 28 March 2025, theDeputy Commissioner, Zone I, directed the externment of the Petitioner fromthe limits of Pimpri Chinchwad Police Commissionerate, Pune City PoliceCommissionerate and Pune Rural Police limits, for a term of 24 months. Itwas, inter alia, observed that there were reasonable grounds for believing thatthe Petitioner was engaged or was about to be engaged in the commission ofoffences involving force or violence or offences punishable under Chapters12, 16 and 17 of the Indian Penal Code, 1860 and the witnesses were notwilling to come forward to give evidence in public against the Petitioner, asthey feared for the safety of their person or property. A reference was madeto in-camera statements of two confidential witnesses. 3.3Being aggrieved, the Petitioner preferred an appeal before theDivisional Commissioner. By the impugned judgment and order dated 11November 2025, the Divisional Commissioner dismissed the appeal, findingno infirmity in the order of externment. 3.4Being further aggrieved, the Petitioner has invoked the writ jurisdiction. SSP 2/8 WP 6802 OF 2025.doc4.I have heard Ms. Shivani Kondekar, learned Counsel for the Petitioner,and Mr. A.R.Metkari, learned APP for the State, at some length. With theassistance of the learned Counsel for the parties, I have also perused thematerial on record. 5.Ms. Kondekar, learned Counsel for the Petitioner, submitted that, in theprosecution arising out of one of the crimes i.e. C.R.No.441 of 2016, thePetitioner has already been acquitted on 16 March 2021, and, yet, the saidcrime was taken into account in ordering the externment of the Petitioner.Secondly, Ms. Kondekar would urge, another crime i.e. C.R.No.458 of 2024was registered against the Petitioner while the Petitioner was in judicialcustody in connection with C.R.No.425 of 2024. Whereas, the other threecrimes were the subject matter of a prior show cause notice dated 2September 2021. Thus, the impugned order of externment suffers fromclear non-application of mind and is based on material which could not havebeen considered. 6.In opposition to this, Mr. Metkari, learned APP, supported the impugnedorder. It was submitted that the cumulative assessment of the material onrecord would indicate that the Petitioner had created a reign of terror withinthe limits of Bhosari Police Station. The persistent violent acts committed bythe Petitioner justified an inference that the Petitioner was engaged or wasabout to be engaged in the commission of the offences involving force orSSP 3/8 WP 6802 OF 2025.docviolence or the offences punishable under Chapters XII, XVI and XVII of thePenal Code, 1860. In addition, the statements of the confidential witnessesjustify the opinion formed by the Competent Authority that the witnesses werenot willing to come forward to give evidence in public against the Petitioner asthey feared for their safety. 7.The measure of externment under the provisions contained in Section56(1)(a) and (b) of the Act, 1951, by its very nature, is extra-ordinary. It hasthe effect of forced displacement from the home and surroundings. Often itaffects the livelihood of the person ordered to be externed and thedependants on him. Thus, there must exist justifiable grounds to sustain anorder of externment. The order of externment, therefore, must be strictlywithin the bounds of the statutory provisions. Under clause (a) of sub-Section(1) of Section 56, the externing authority must be satisfied on the basis of theobjective material that the movements or acts of the person to be externedare causing or calculated to cause alarm, danger or harm to person orproperty. Under clause (b), there must be objective material on the strength ofwhich the externing authority must record subjective satisfaction that there arereasonable grounds for believing that the externee is engaged or about to beengaged in the commission of offences involving force or violence.8.Mere registration of a number of offences, by itself, does not sustain anexternment under Section 56(1)(b) of the Act. The offences must eitherSSP 4/8 WP 6802 OF 2025.docinvolve elements of force or violence or fall under Chapters XII, XVI and XVIIof the Indian Penal Code. In addition, the externing authority must recordsatisfaction that the witnesses are not willing to come forward to giveevidence in public against the externee by reason of apprehension on theirpart as regards the safety of their person or property. In effect, to sustain anaction of externment under sub-clause (b), the offences the externee hasengaged in must be under one of the Chapters enumerated therein and thatthe acts or conduct of the externee are such that the witnesses are terrifiedand dissuaded from giving evidence against the externee in public fearingsafety of their person or property. 9.From the perusal of the impugned order, it becomes evident that theCompetent Authority had taken into account the following offences registeredagainst the Petitioner : Sr. No.Police StationC.R.No.SectionsRegisteredonCurrentstatus1Bhosari458 of 2024232 of BNS25-07-2024UnderInvestigation2Bhosari425 of 20248(c), 20(b), 29(ii)(a) of NDPS Act,189504-06-2023UnderInvestigation3Bhosari352 of 2021Sections 143,144, 147, 148,149, 323, 504,506 of IPC andSection 4(25) ofIndian Arms Act,and Sections37(1) with 135 ofSubjudiceSSP 5/8 WP 6802 OF 2025.docthe MaharashtraPolice Act,1951 .4Bhosari668 of 2018307, 143, 144,147, 148, 149,452, 504, 506, ofIPC, 4(25) of theIndian Arms Actand Section37(1) and 135 ofthe MaharashtraPolice Act, 1951. Subjudice. 5Bhosari263 of 2017307, 143, 147,148, 504 and506 of IPCSubjustice6Bhosari441 of 2016324, 323, 504,506 read with 34of IPCSubjudice10.A copy of the judgment in Regular Criminal Case No.82 of 2017 arisingout of C.R.No.441 of 2016, delivered by the learned Judicial Magistrate, FirstClass, Khadki, Pune, indicates that the Petitioner and other co-accused wereacquitted of the said offences on 16 March 2021. Yet, in the aforesaid table,at Sr. No.6, the proceeding arising out of C.R.No.441 of 2016 was shown tobe subjudice. Thus, there is substance in the submission on behalf of thePetitioner that the Competent Authority ought not to have taken into accountthe crime in which the Petitioner was duly acquitted. 11.Secondly, it is imperative to note that, the crimes ar Sr. Nos.1 and 2,namely, C.R.No.458 of 2024 for the offences punishable under Section 232 ofBNS, 2023 and C.R.No.425 of 2024 for the offences punishable underSSP 6/8 WP 6802 OF 2025.docSections 20(b)(ii)(a) and 29 of the NDPS Act, 1985, also could not have beenlawfully taken into account, especially to sustain the order of externmentunder Section 56(1)(b) of the Police Act, 1951. 12.Section 232 of BNS 2023 provides for punishment for threatening anyperson to give false evidence. Under the Penal Code, 1860, Section 195Aprovided for punishment for such offence. Section 195A was subsumed inChapter IX of the Penal Code, 1860, which dealt with ‘False evidence andoffences against public justice’. Thus, Section 323 of BNS 2023, whichcorresponds with Section 195A of the Penal Code, 1860, does not fall withinthe ambit of the class of the offences covered by Section 56(1)(b) of the Act,1951. 13.Likewise, the offences punishable under the NDPS Act, 1985, arebeyond the purview of the offences covered by Section 56(1)(b) of the Act,1951. Resultantly, the consideration of the crimes at Sr. Nos.1 and 2 tosustain the order of externment, was wholly unjustifiable. 14.Lastly, the submission on behalf of the Petitioner that, rest three crimesi.e. C.R.No.352 of 2021, 668 of 2018 and 263 of 2017 (Sr. Nos.3 to 5 in theafore extracted table) were considered by the Competent Authority whileissuing show cause notice in the year 2021, is substantiated by the copy ofthe show cause notice dated 2 September 2021. It appears that the saidnotice to show cause as to why action should not be taken against theSSP 7/8 WP 6802 OF 2025.docPetitioner and others was issued under Section 55 of the Act, 1951.Moreover, the live-link between the offences registered during the period 2017to 2021 and the measure of externment appears to have been snapped. 15.The conspectus of aforesaid consideration is that, the order ofexternment took into account irrelevant material, and, thus, suffered from thevice of non-application of mind. Resultantly, the order of externment as wellas the impugned order cannot be legally sustained. The Writ Petition, thus,deserves to be allowed. 16.Hence, the following order : ORDER (i)The Writ Petition stands allowed. (ii)The impugned order dated 11 November 2025 as well as theorder dated 28 March 2025 passed by the Competent Authority externing thePetitioner stand quashed and set aside. (iii)Rule made absolute in the aforesaid terms. (iv)No costs. ( N.J.JAMADAR, J. )SSP 8/8