Bombay High Court
Vijay Lalso Jadhav vs State Of Maharashtra on 13 November, 2013
Bench: Naresh H. Patil, R.P. Mohite-Dere
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SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3510 OF 2013
Vijay Lalso Jadhav,
Age - 23 years, residing at
Waduj, Tal: Khatav,
Dist: Satara ...Petitioner
Versus
1. State of Maharashtra,
through Special Secretary,
Home Department, Mantralaya,
Mumbai
2. Competent Authority
and Supt. Of Police,
Dist. Satara
3. Sub Divisional Police Officer,
Dahiwadi Division, Dahiwadi
4. Police Inspector,
Waduj Police Station ...Respondents
WITH
CRIMINAL WRIT PETITION NO.3513 OF 2013
Shailesh Ramesh Jadhav,
Age - 23 years, residing at
Waduj, Tal: Khatav,
Dist: Satara ...Petitioner
Versus
1. State of Maharashtra,
through Special Secretary,
Home Department, Mantralaya,
Mumbai
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2. Competent Authority
and Supt. Of Police,
Dist. Satara
3. Sub Divisional Police Officer,
Dahiwadi Division, Dahiwadi
4. Police Inspector,
Waduj Police Station ...Respondents
......
Mr. R. A. Lokhande for the Petitioner in both the petitions.
Mrs. A. S. Pai, A.P.P. for Respondents
......
CORAM:- NARESH H. PATIL AND
REVATI MOHITE DERE, JJ.
DATED:- NOVEMBER 13, 2013
JUDGMENT : (Per Revati Mohite Dere, J.) :
1. By these writ petitions, the petitioners take exception to the
order dated 4th September, 2013 passed by the Secretary (Special), Home
Department, Government of Maharashtra, in appeal No. EXT-
2013/109/SPL-3(B) confirming the order of externment, dated 25 th July,
2013 passed by the Competent Authority i.e. the Superintendent of Police,
Satara, externing the petitioners from Satara District for a period of one
year, under Section 55 of the Bombay Police Act.
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2. Both these petitions are heard finally at the stage of admission
with the consent of the parties. Hence, rule made returnable forthwith.
3. We have heard Shri Lokhande, learned Counsel for the
petitioners in both the aforesaid petitions and Ms. A. S. Pai, learned A.P.P.
for the State.
4.
The principal ground which is urged before us, by the
petitioners for seeking quashing and setting-aside of the impugned orders
dated 4th September, 2013 passed by the Secretary (Special), Home
Department, Government of Maharashtra, in appeal No. EXT-
2013/109/SPL-3(B) and the order of externment dated 25 th July, 2013
passed by the Competent Authority i.e. the Superintendent of Police, Satara,
is the non-applicability of Section 55 of the Bombay Police Act to the
petitioners, in the facts of the present case.
5. At the outset, it would be necessary to advert to the facts as are
necessary for the determination of the aforesaid ground raised by the
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petitioners. A proposal to extern the petitioners was initiated by the Police
Inspector, Waduj Police Station, Satara, under Section 55 of the Bombay
Police Act. Accordingly, a notice dated 10th May, 2013 came to be issued
under Section 59 of the Bombay Police Act to the petitioners, giving them
an opportunity to present their case before the Sub-Divisional Police
Officer, Dahiwadi Division Camp, Waduj, Satara. Pursuant to the said
notice, the petitioners replied to the same notice and after considering the
reply of the petitioners and the proposal of the Waduj Police Station, the
Sub-Divisional Police Officer, Dahiwadi Division, submitted his report to
the Externing Authority i.e. the Superintendent of Police, Satara. Before
the Externing Authority, the petitioners were also given an opportunity to
represent themselves against the proposed externment. After hearing the
petitioners and after considering the report, the Externing Authority i.e. the
Superintendent of Police, Satara passed the impugned order dated 25 th July,
2013, externing the petitioners from Satara District for a period of one year.
6. Against the aforesaid order of externment dated 25th July, 2013
passed by the Superintendent of Police, Satara, the petitioners preferred an
appeal being Appeal No.EXT-2013/109/SPL-3(B), under Section 60 of the
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Bombay Police Act to the Secretary (Special), Home Department,
Government of Maharashtra. After hearing the parties, the Secretary
(Special), Home Department, Government of Maharashtra, vide order dated
4th September, 2013 rejected the appeal filed by the petitioners and upheld
the order passed by the Competent Authority i.e. the Superintendent of
Police, Satara, externing the petitioners from Satara District for a period of
one year.
7.
The learned Counsel for the petitioners urged before us, that
the impugned order dated 4th September, 2013 passed by the Secretary
(Special), Home Department, Government of Maharashtra in Appeal,
thereby confirming the order dated 25th July, 2013 passed by the Competent
Authority i.e. the Superintendent of Police, Satara, externing the aforesaid
two petitioners cannot be sustained under Section 55 of the Bombay Police
Act, in as much as Section 55 applied to a gang/body of persons/all the
members of the gang and not to individual persons and as such sought
quashing and setting-aside of the said orders. According to the learned
Counsel for the petitioners, the order passed by the Externing Authority and
confirmed by the Appellate Authority is based on such material which is not
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sufficient to record a satisfaction under Section 55 of the Bombay Police
Act. He relied on a Judgment of this Court passed in Criminal Writ
Petition No. 2385/2013 in the case of Ahammad Mainuddin Shaikh vs.
The State of Maharashtra and Anr. and contended that the same squarely
applies to the facts of the present case. Ms. Pai, learned A.P.P. fairly
accepted and conceded to the same. She did not dispute the applicability of
the Judgment in the case of Ahammad Mainuddin Shaikh ( supra), relied
upon by the petitioners to the facts of the present case.
8. In the present case, Section 55 of the Bombay Police Act was
invoked only as against the two petitioners and not against any gang/body
of persons or members thereof, as is contemplated under the said Section.
The details of cases relied upon as against the aforesaid two petitioners
were set out in the externment order.
Petitioner No.1 -
C.R. No. Sections
110 / 2010 395, 326, 143, 147 of IPC
160 / 2011 395 of IPC
100 / 2012 324, 323, 504, 506, 143, 147, 148, 149, 427
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of IPC
36 / 2013 295 of IPC
53 / 2013 395 of IPC
3 / 2013 3 of Damage to Properties Act
Petitioner No.2-
C.R. No. Sections
110 / 2010 395, 326, 143, 147 of IPC
160 / 2011
ig 395 of IPC
100 / 2012 324, 143, 147, 148 of IPC
90 / 2012 324, 504, 506 of IPC
53 / 2013 395 of IPC
On a perusal of the aforesaid cases registered against the
petitioners, it is evident that four were committed by them together and out
of which two cases were committed by them along with others by engaging
in an unlawful assembly / by being a member of the unlawful assembly to
commit the alleged offences. It is pertinent to note, that apart from the
aforesaid two petitioners, the aforesaid two cases were also registered as
against other co-accused. It would be relevant to reproduce Section 55 of
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the Bombay Police Act, which reads as under :
"Dispersal of gangs and body of persons.- Whenever it shall
appear in Greater Bombay and in areas in which a
Commissioner is appointed under section 7 to the
Commissioner and in a district to the District Magistrate, the
Sub-Divisional Magistrate or the District Superintendent
specially empowered by the State Government in that behalf,
that the movement or encampment of any gang or body of
persons in the area in his charge is causing or is calculated to
cause danger or alarm or reasonable suspicion that unlawful
designs are entertained by such gang or body or by members
thereof, such officer may, by notification addressed to the
persons appearing to be the leaders or chief men of such gang
or body and published by beat of drum or otherwise as such
officer thinks fit, direct the members of such gang or body so
to conduct themselves as shall seem necessary in order to
prevent violence and alarm, or disperse and each of them to
remove himself outside the area within the local limits of his
jurisdiction 3[or such area and any district, or districts or any
part thereof, contiguous thereto] which in such time as such
officer shall prescribe, and not to enter the area 4[or the area
and such contiguous districts, or part thereof, as the case may
be], or return to the place from which each of them was
directed to remove himself."
A perusal of the aforesaid Section shows that the object of
Section 55 of the Bombay Police Act is "dispersal of gangs and body of
persons" and therefore, the Competent Authority as well as the Appellate
Authority had no power to direct any individual person to be externed
outside any district or districts or any part thereof, inasmuch as it could
only be directed against all the members of a gang or a body of persons, as
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contemplated under Section 55 of the Bombay Police Act. The language of
Section 55 shows that the power given to the Competent Authority can be
exercised only in relation to any gang or a body of persons, whenever it
appears to the Competent Authority, that the movement or encampment of
any gang or body of persons in the area in his charge is causing or is
calculated to cause danger or alarm or a reasonable suspicion that unlawful
designs are entertained by such gang or body or by members thereof. It is,
therefore, evident that Section 55 of the Bombay Police Act does not
contemplate movement or encampment of `a person' causing or calculated
to cause danger or alarm, but, refers to movement or encampment of any
gang or body of persons causing or calculated to cause alarm, danger, etc.
It is thus, evident from the language of Section 55 of the Bombay Police
Act, that it's application is directed not against `any individual' but against
any gang or body of persons or members of the gang.
Section 55 of the Bombay Police Act contemplates collective
action against the gang or body of persons and therefore, the final direction
which is required to be issued in terms of the said Section, will have to be
necessarily against each of the members of the gang and not against one or
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a few of them on selective basis. It is therefore, apparent that an illegality
has been committed by both the Authorities, i.e. the Competent Authority
and the Appellate Authority by passing the externment order and
confirming the same only qua the petitioners and not against the other
members of the alleged gang.
9. We have perused the Judgment relied upon by the learned
Counsel for the petitioners in Ahammad Mainuddin Shaikh (supra) and
find that the ratio therein is squarely applicable to the facts of the present
case. The relevant portion of the said Judgment is reproduced hereunder :
"Upon a careful reading of this section, it becomes clear that,
whenever it appears to the competent authority that the
movement or encampment of any gang or body of persons in
the area under his charge is causing or is calculated to cause
danger or alarm or reasonable suspicion that unlawful designs
are entertained by such gang or body of persons or by its
members, such officer may by notification addressed to the
leaders or chief men of such gang or body of persons and
suitably published, issue two types of directions. The first
direction is about regulating of conduct of such gang or body
of persons in a manner prescribed in the direction in order to
prevent violence and alarm. Such direction, in the alternative,
can also be in the form of an order for dispersal of members
of such gang or body of persons. The second direction which
follows the first one, is about removal of each of the members
of the gang or body of persons outside the area within the
local limits of jurisdiction of the competent authority. In
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suitable cases, the order of removal can also be from district
or it's parts or together with contiguous districts or parts
thereof. This second direction, in order to be reasonable, has
to be passed for a definite period of time. In the entire
section, there is common thread of participation by all and
collective action against all that holds together all it's parts.
The section starts with gang or body of persons, sails through
the dangerous impressions that the movement or encampment
of gang or body of persons creates and ends with a direction
of removal passed against each of the members of the gang or
body of persons. This common thread is the essence of
Section 55 and that is the mandate of the legislature. In other
words, Section 55 would be applicable only when the persons
are seen to be acting as members of the gang or body of
persons and it is only then that action under Section 55 of the
Act can be taken and which is to be taken against all members
and not only a few of them selectively."
(emphasis supplied)
10. We, are therefore of the opinion, that the requirements of
Section 55 of the Bombay Police Act are not satisfied in the present case
and on this count alone the order passed by the Externing Authority as well
as the order passed by the Appellate Authority deserves to be quashed and
set-aside.
11. In the light of what is aforestated, the impugned order of
externment dated 25th July, 2013 passed by the Competent Authority i.e. the
Superintendent of Police, Satara and the order dated 4 th September, 2013
passed by the Secretary (Special), Home Department, Government of
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Maharashtra, in appeal No. EXT-2013/109/SPL-3(B), are quashed and set
aside.
12. Rule made absolute in the above terms in both the petitions.
(REVATI MOHITE DERE, J.) (NARESH H. PATIL, J.)
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