Yogesh Gorkhnath Shinde And Anr vs The State Of Maharashtra And Ors
2016 Latest Caselaw 1433 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION




                                                                                               
                                   WRIT PETITION NO. 58 OF 2016




                                                                  
     1. Yogesh Gorkhnath Shinde
        Age 32 yrs. Occ: Business




                                                                 
     2. Kumar Gorakhnath Shinde
        Age 36 yrs., Occ: Business




                                           
     Both R/o CTS No.254, Bonne View
     Bungalow, Mahabaleshwar,
     District - Satara.
                              ig                                                 .. Petitioners


                       Versus
                            
     1.       The State of Maharashtra
              Through Chief Secretary (Special)
      

              Home Department, Mantralaya,
              Mumbai 400 032.
   



     2.       Divisional Commissioner
              Pune Division, District - Pune





     3.       Superintendent of Police,
              District - Satara.

     4.       Deputy Superintendent of Police
              Wai Division, District - Satara.                                   .. Respondents





     Mr. Vijay D. Patil i/by Mr. S. R. Karpe for petitioners.
     Mr. K. V. Saste, APP for State.




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                                           CORAM :                 NARESH H. PATIL AND
                                                                   A.M. BADAR, JJ.

                               RESERVED ON                  : 31st March, 2016.
                            PRONOUNCED ON                   : 12th APRIL, 2016




                                                                 
     JUDGMENT [ Per Naresh H. Patil, J.] :




                                                                
              An     externment    order       was          passed             by        respondent   no.3,

Superintendent of Police on 20th October, 2015. The petitioner filed an

appeal against the said order. By an order dated 22 nd December, 2015, the respondent no.2 herein Divisional Commissioner, Pune dismissed the

said appeal. The petitioner challenges both these orders.

2. It is contended that both the petitioners are residents of Mahabaleshwar, District Satara. A show-cause notice dated 27th July, 2015 came to be issued under Section 59(1) of the Maharashtra Police

Act (hereinafter referred to as 'the said Act'). In the said show-cause

notice petitioners were called upon to explain as to why they shall not be externed for a period of two years. It was contended in the show-cause notice that the petitioners were leaders of a gang operating in Satara and

neighboring district and they were involved in various serious offences such as unlawful assembly, rioting, carrying deadly weapons, theft, house-trespassing, kidnapping or abducting in order to murder, kidnapping or abducting with intent to secretly and wrongfully confine

person, voluntarily causing hurt, criminal intimidation in order to grab the land etc. The list of cases pending before various criminal Courts against the petitioners was mentioned in the notice.

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3. The petitioners filed reply dated 24 th August, 2015. They denied contentions and allegations made against them. The petitioners

contended that as a counter blast to the earlier proceedings initiated by

them against the respondent, show-cause notice came to be issued. According to petitioner they are resident of CTS 254, Borne View Bungalow. The said bungalow was seized by respondent no.3 by an

order dated 10th March, 2015 under Section 39 of the said Act. The validity and legality of the order was challenged in Writ Petition No. 1075/2015. The High Court by an order dated 29th June, 2015 directed

respondents nos.3 and 4 to hand over possession of said bungalow to the petitioners within seven days. The respondents failed to comply with

the said order. The petitioners were constrained to initiate contempt proceedings against respondents 3 and 4. A show-cause notice was

issued on 27th July, 2015 by respondent no.4 against them. The petitioners submit that as a counter blast these proceedings are initiated against the respondents.

4. The petitioners have filed reply to the show-cause notice. The Respondent No.3 had passed an order of externment under Section 55(1) of the said Act for a period of six months. An appeal filed by the

petitioners came to be dismissed.

5. Learned Counsel appearing for the petitioners submitted that as

petitioners had resorted to contempt proceedings against the authorities, present proceedings are initiated. The petitioners are peace loving citizens and in the facts no case is made out to extern the petitioners by curtailing their liberty. It is further submitted that there is serious legal

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infirmity in the impugned order. Section 55 refers to dispersal of gangs and bodies of persons. In such a situation one or two persons like

petitioners could not be picked up and externed from the area. Learned

Counsel submitted that there is non-application of mind by the authorities. They have not taken into consideration orders of acquittal passed in some cases. In Criminal Case No. 27/12 the petitioners were acquitted

after the show-cause notice was issued. Other cases are pending. Petitioner No. 1 is accused in four cases and petitioner no.2 is accused in five cases. Learned Counsel submitted that earlier to the present

proceedings the respondents had initiated externment proceedings being Case No. 5/2010 against the petitioner no.1 which was dropped by order

passed by SDO on 31st December, 2010. The petitioner no.2 is sitting Councilor of Municipal Council. The learned Counsel has placed reliance

on the Division Bench judgment of this Court in the case of Rajwardhan Babaso Patil v/s. Vijaysinha Jadhav in Cr. WP No. 399/2013 and Cr. WP No. 459/2013, Ahammad Mainuddin Shaikh v/s. The State of

Maharashtra & anr. in Criminal Writ Petition No. 2385/2013 and in the

case of Vijay Lalso Jadhav v/s. State of Maharashtra in Criminal Writ Petition Nos. 3510 and 3513/2013.

6. Learned APP submitted that there was ample material to initiate externment proceedings against the respondents. Their activities were disturbing public peace and tranquility and their movements in the area

were causing danger alarm, therefore, the authorities have to take appropriate steps. Learned Counsel submitted that the order passed by the Appellate Authority is required to be maintained.

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7. We have perused the record and the judgments cited supra. Section 55 of the Maharashtra Police Act refers to dispersal of gangs and

bodies of persons. From the record it is seen that while passing orders

the respondent authorities have not taken into consideration that in criminal case no. 27/12, the petitioners were acquitted after the issuance of show-cause notice. In case No. 4/2005 they were already acquitted.

Case no. 5/10 and 26/11 is pending. In the reply petitioners have narrated that authorities concerned have overlooked the reply filed by the petitioners. The Superintendent of Police in the order has observed that

the petitioners have brought to the notice of the authorities concerned that the confidential statement of witnesses are not inspiring and they are

not reliable.

8. We have perused the reference made by the authorities to the in- camera statement of these witnesses.

9. From the material placed on record we find that the cases pending

against the petitioners do not relate to activities of group or a gang. Section 55 of the Act contemplates a collective action against the gang or body of persons. Therefore, the authorities if desire to take action ought

to have taken necessary action against each of the members of the gang and not against one or few of them on selective basis. In the case of Vijay Jadhav cited supra this Court observed in the facts that the

competent authorities as well as Appellate authority had no power to extern any individual person outside the district.

10. For the reasons stated above, we are of the view that the

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impugned orders deserves to be quashed and set aside.

ORDER

I) The Writ Petition is allowed.

ii) The Divisional Commissioner's order dated 22nd December, 2015

and the externment order dated 20th October, 2015 passed by Superintendent of Police are hereby quashed and set aside.

              (A.M. BADAR, J.)ig                            (NARESH H. PATIL, J.)
     L.S. Panjwani, P.S.