Sachin @ Bhuri S/O. Shyam Arkhel vs State Of Maharashtra Thr. ...
2016 Latest Caselaw 6964 Bom

    Judgment                                                             1                                           wp772.16  

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   NAGPUR BENCH, NAGPUR.




                                                                                                                    
                                       WRIT PETITION NO. 772 OF 2016.




                                                                                     
    Sachin @ Bhuri S/o. Shyam Arkhel,
    Aged about 35 years, Occu.  : Labourer, 




                                                                                    
    R/o. Ward No.26, Itwara Bazar,
    Sudarshan Nagar, Fulfail,
    Tah. & District : Wardha. 
                                                                                                    .... PETITIONER.




                                                                 
                                                        // VERSUS //

    1. State of Maharashtra, 
                                       
       through Secretary, Home Department,
       Mantralaya, Mumbai - 32. 
                                      
    2. Superintendent of Police, 
       Wardha, Distt. Wardha. 

    3. The Police Station Officer,
      


       Police Station, Wardha City, 
   



       Wardha. 
                                                                                             ....RESPONDENTS.
    ----------------------------------------------------------------------------------------------------------------
    Shri N.H. Samundre, Advocate for petitioner. 





    Shri M.J.Khan, A.P.P. for Respondent Nos. 1 to 3. 
    ----------------------------------------------------------------------------------------------------------------

                          CORAM  :              B.P.DHARMADHIKARI AND
                                                KUM. INDIRA JAIN, JJ.

DATED : DECEMBER 06, 2016.

ORAL JUDGMENT : (Per : B.P.Dharmadhikari, J)

1. Heard.

Judgment 2 wp772.16

2. Short submission of Advocate Shri Samudre on

externment under Section 55 of the Bombay Police Act, 1951 is that it

is without jurisdiction. According to him, there is no material on

record to demonstrate that the petitioner has acted as a member of

any gang. He further submits that no incident having any live link

finds mention in the impugned order.

3. The learned A.P.P. is relying upon the reply affidavit. He

submits that as disclosed in the chart at page 4, the petitioner was a

suspect in illegal activities as a member of gang for Crime No. 209 of

2012 committed on 05/09/2012. In order to show recent illegal

activities, he relies upon second chart in that pararagraph.

4. Provisions of Section 55 of the Bombay Police Act, 1951

are very clear. The authority ordering externment has to consider

movement or encampment of any gang or body of person in his area.

If such movement or encampment is causing or is calculated to

cause danger or alarm or reasonable suspicion that the gang or body

or its members entertained any unlawful designs, he gets jurisdiction

to pass externment order.

Judgment 3 wp772.16

5. Keeping this in mind, when impugned order is perused, it

is seen that it no where mentions any activities in past two years by

petitioner as the member of any gang which may give rise to

apprehension envisaged in Section 55 of the Act. Later part of the

chart in paragraph 4 of reply affidavit mentions Crime Nos. 413 of

2014, 146 of 2015 and 289 of 2015. Last offence is alleged to be

under Sections 399 and 402 of the Indian Penal Code and the

investigation therefor is still pending. Admittedly, these offences are

not committed by the petitioner as member of any gang or alleged

group.

6. Details of all other offences looked into in paragraph 4 of

the affidavit reply show that the petitioner is acquitted therefor. Only

one offence i.e. Crime No. 209 of 2012 is alleged to be committed by

gang, but then the petitioner has been shown as acquitted therefrom

on 15/09/2012 itself by the respondents.

7. Thus, except in one offence, of which the petitioner is

immediately acquitted, there is no other offence or activity pointing

out that the petitioner can be identified with any gang or body of

persons. Thus. Basic ingredients of Section 55 are lacking in the

matter. Moreover, later offences in paragraph 4 of reply are in

individual capacity.

Judgment 4 wp772.16

8. By way of abundant precaution we have also perused

the impugned order. The impugned order ignores the essential

ingredients of Section 55 and also nowhere speaks of any illegal

design or intention demonstrated by any movement or action of the

petitioner or his gang. Thus, very basic facts from which power to

extern emanates are absent. Not only this the exercise of reaching

"subjective satisfaction" is not seen in the impugned order.

9.

The impugned order dated 17/03/2016 is, therefore,

unsustainable, it is quashed and set aside to the extent of petitioner.

Rule is made absolute in the above terms.

                                      JUDGE                                                   JUDGE 





    RRaut..