Bombay High Court
Miya Khan S/O Aliyar Khan And ... vs The State Of Maharashtra, Through ... on 5 August, 2016
Bench: B.P. Dharmadhikari
apl205.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPLICATION (APL) NO. 205 OF 2016
1. Miya Khan s/o Aliyar Khan
aged about 31 years,
occupation - Business.
2. Javed Khan s/o Aliyar Khan
aged 32 years,
occupation - Business.
Both residents of Nawabpura,
Old City Akola, Tq. & Dist. Akola. ... APPLICANTS
Versus
1. The State of Maharashtra,
through Divisional Commissioner,
Amravati, District - Amravati.
2. The State of Maharashtra,
through Superintendent of Police,
Akola, District - Akola. ... NON-APPLICANTS.
Shri S.V. & R.S. Sirpurkar, Advocate for the applicant.
Mrs. Ketki Joshi, Additional Public Prosecutor for the non-applicants.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
AUGUST 05, 2016.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Rule is made returnable forthwith and heard finally
with the consent of Shri Sirpurkar, learned counsel for the
applicants and Mrs. Joshi, learned APP for the non-applicants.
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2. After hearing the respective counsel on 27.07.2016,
we had adjourned the matter to today with the following
order :
"Heard Shri S.V. Sirpurkar, learned Counsel for the
applicants and Mrs. K.S. Joshi, learned A.P.P. for respondents, for
some time.
2. Before proceeding further to apply mind and to record any
finding, we find it proper to direct the State Government to place
on record dates on which Crime Nos. 230/2013 and 67/2013
came to be recorded, and date of incidence in relation to which the
same have been recorded. Similarly, show cause notices under
Section 55 of the Maharashtra Police Act issued to other four
persons (Appellant Nos. 1 to 4) before the State Government, shall
also be made available for perusal of this Court.
3. List the matter for further consideration on 03.08.2016."
3. The learned APP has pointed out that Crime No. 67
of 2013 is in relation to an incident dated 31.03.2013 while
Crime No. 230 of 2013 is in relation to an incident dated
06.10.2013.
4. We find that show cause notice served upon both
these non-applicants and their so-called four colleagues is dated
04.09.2014 i.e. about one year after the alleged involvement in
the last crime. On the basis of said show cause notice, the
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Superintendent of Police at Akola has passed the orders under
Section 55 of the Maharashtra Police Act, 1951, (hereinafter
referred to as the Act) and directed all six persons to remove
themselves out of Akola district for a period of two years. This
order dated 03.10.2014 was questioned by all six in appeal
before the Divisional Commissioner at Amravati. Vide order
dated 08.07.2015, the Divisional Commissioner has excluded
four persons from the said order and confirmed the order only
in relation to these two persons.
5. Shri Sirpurkar, learned counsel in this background
has submitted that show cause notice issued to all is identical,
all are alleged to be members of same gang and considering the
provisions of Section 55 of the Act, when no material is found
against four members of alleged gang, the orders dated
03.10.2014 could not have been maintained against only these
non-applicants. He has further submitted that the last alleged
affence is of October 2013 and thus there is nothing to sustain
the belief or then subjective satisfaction as contemplated under
Section 55 of the Act on 03.10.2014. In the absence of any
material, the non-applicants could not have been asked to
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remove themselves out of Akola district.
6. We have perused the records and we find that show
cause notice issued to all six persons is identical. Only in
relation to these two non-applicants, two additional crimes, i.e.
Crime No. 67 of 2013 and Crime No. 230 of 2013 have been
pointed out. In show cause notice served upon applicant No. 2
- Javed Khan, both these crimes are mentioned, while in show
cause notice served upon applicant No. 1, Crime No. 67 of 2013
only is mentioned.
7. On the basis of a report, the action was initiated
perhaps sometimes in March 2014 which ultimately resulted in
report dated 28.03.2014. The show cause notice was then
issued after about 5½ months i.e. on 04.09.2014.
8. Section 55 of the Act contemplates a satisfaction
that movement or encampment of any gang or body of persons
is causing or calculated to cause danger or alarm or reasonable
suspicion that unlawful designs are entertained by such gang or
body or by members thereof. The notice is to be addressed to
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persons appearing to be the leaders or chief men of such gang
or body and it is to be published by beat of drum. Thus,
Section 55 of the Act contemplates an action against gang or
body of persons or then members of such gang. Here, show
cause notice has been issued to six individuals, obviously as
members of gang. When four are excluded from action, it is
apparent that there ought to have been a specific finding about
remaining two persons constituting a gang and their behaviour
leading to subjective satisfaction as regards Section 55 of the
Act. There is no such application of mind in the appellate
order. Only because Crime Nos. 67 of 2013 and 230 of 2013
are registered against these applicants, action against them has
been upheld. Considering the dates of alleged crimes and
absence of any material to show wrongful conduct or mal-
intention since said dates till issuance of show cause notice on
03.09.2014, no subjective satisfaction on reasonable suspicion,
danger or alarm can be sustained in present facts. The alleged
crimes are stale and lack live link with the object to be
achieved.
9. We, therefore, find the impugned order
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unsustainable. It is accordingly quashed and set aside. Rule
accordingly. However, there shall be no order as to costs.
JUDGE JUDGE
******
*GS.
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C E R T I F I C A T E
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Uploaded on : 09.08.2016.
