Bombay High Court
Balu @ Balasaheb Jagannath Jadhav vs The Divisional Commissioner And ... on 2 May, 2017
Bench: S.S. Shinde
84.17WP
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 84 OF 2017
Balu @ Balasaheb Jagannath Jadhav
Age : 39 years, Occ : Agri. & Social Service,
R/o Kabad Galli, Beed, Tq. Beed, Dist. Beed.
..PETITIONER
-VERSUS-
1. The Divisional Commissioner,
Aurangabad Division, Aurangabad.
2. The Superintendent of Police/
The Externment Tribunal, Beed,
Dist. Beed.
3. The Sub-Divisional Police Officer,
Sub-Division, Beed, Dist. Beed.
4. The Assistant Police Inspector,
Beed City Police Station, Beed.
..RESPONDENTS
...
Mr. V.P. Savant, Advocate for petitioner
Mr. S.Y. Mahajan, A.P.P. for respondent/State
...
CORAM: S.S.SHINDE &
K.K.SONAWANE, JJ.
RESERVED ON : 24.04.2017
PRONOUNCED ON : 02.05.2017
JUDGMENT (S.S. SHINDE,J) :-
Rule. Rule made returnable forthwith
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and heard finally with the consent of the
learned counsel appearing for the parties.
2. This Petition is filed with the
following prayer :-
"B. Quash and set aside the judgment
and order dated 16.12.2016 passed by
Ld. Divisional Commissioner,
Aurangabad in Appeal No.113/2016 and
judgment and order dated 13.06.2016
passed by the Ld. Externment
Tribunal/Ld. Superintendent of Police,
Beed in File bearing No.LCB:01/MPA
Sec. 55/2006/16 and for that purpose
issue necessary order."
3. The learned counsel appearing for
the petitioner submits that, none of the
offences mentioned in the show-cause notice,
can be said to be under Chapter XVI or XVII
of the Indian Penal Code. It is submitted
that, the petitioner is Councillor of Beed
Municipal Council for 10 years and is a
respectable person in the society. 31
Offences shown registered against the
petitioner are punishable under Section 12A
of the Maharashtra Prevention of Gambling
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Act, 1887, which is bailable offence. In
respect of offence bearing C.R. No.12/2016
registered with Police Station, Beed (City)
under Sections 395, 504 and 506 of the I.P.
Code, it is submitted that, the complainant
therein himself has given the affidavit and
on the basis of the said affidavit, the
petitioner is enlarged on bail and now the
investigation of the said crime is in
progress. It is submitted that, the offences
registered against the petitioner are with an
ulterior motive and in some of the alleged
offences, the petitioner is already
acquitted. Respondent No.2 has initiated the
externment proceedings out of vengeance,
since in the month of January-February, 2016
one Police Constable was trapped by the Anti
Corruption Department on the basis of the
complaint filed by the petitioner and other
three persons. The said externment
proceedings have been initiated so as to take
revenge of said incident. It is submitted
that, there are dependents upon the
petitioner and he is the only bread earner of
his family. Therefore, the learned counsel
appearing for the petitioner submits that,
the Petition may be allowed. The learned
counsel appearing for the petitioner has
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placed reliance on the reported judgments in
the cases of Vijay Lalso Jadhav V/s State of
Maharashtra and others1, Shri Rajwardhan
Babaso Patil V/s Shri Vijaysinha Jadhav and
anr.2 and also Umar Mohammed Maibari V/s K.P.
Gaikwad and another3.
4. On the other hand, the learned
A.P.P. appearing for the respondent/State,
relying upon the reasons assigned by
Respondent Nos. 1 and 2 in the impugned
orders, submits that, after considering the
documents, the order of externment has been
passed by Respondent No.2. The authorities
have given cogent and convincing reasons in
the impugned orders. It is submitted that,
more than 31 offences are pending against the
petitioner. He is involved in illegal
activities, and therefore, his externment was
warranted and accordingly, the impugned order
is passed by Respondent no.2. It is submitted
that, while passing the impugned order, the
mandate of provisions of the Bombay Police
Act, and also the procedure contemplated
therein, has been followed and thereafter,
only an order of externment has been passed
1 2014 All MR (Cri) 1277
2 2015 All MR (Cri) 2936
3 1988(2) Bom. C.R. 724
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by respondent no.2.
5. We have given anxious consideration
to the submissions advanced by the learned
counsel appearing for the petitioner and the
learned A.P.P. appearing for the
respondent/State. With their able assistance,
we have perused the original record of the
case and also the grounds taken in the
Petition, annexures thereto and the reasons
assigned by the authorities while passing the
impugned orders.
6. Upon careful perusal of the record
in relation to the case in hand maintained by
the respondents, it appears that, the show
cause notice issued to the petitioner in the
month of March, 2016 is keeping in view the
provisions of Section 55 of the Maharashtra
Police Act, 1951. It further appears that,
the petitioner has filed the written reply to
the said notice through the Advocate. The
notice was issued taking recourse to Section
59 of the Maharashtra Police Act by invoking
the provisions of Section 55. The provisions
of Section 55 reads thus :-
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"55. Dispersal of gangs and bodies of
persons
Whenever it shall appear in
Greater Bombay and in other 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 (Superintendent)
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
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himself outside the area within the
local limits of his jurisdiction (or
such area and any district or
districts, or any part thereof,
contiguous thereto) within such time
as such officer shall prescribe, and
not to enter to area (for the areas
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."
7. If the nature of offences registered
against the petitioner and other members of
his gang is considered, not only offences are
registered under the provisions of the
Maharashtra Prevention of Gambling Act, 1887
but also registered even under the I.P. Code.
There are in all 30 offences registered
against the petitioner. Crime No.12 of 2016
registered at Beed Police Station (City) for
the offences punishable under Sections 395,
504, 506 of the I.P. Code would clearly
demonstrate the alleged activities of the
petitioner, which are causing danger to the
public peace. It is clear from the alleged
activities of the petitioner that, the
petitioner is not acting in individual
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capacity but he has formed the gang of
persons and then involved in commission of
offence. Respondent no.2 has considered the
material collected by Respondent No.4 during
the course of enquiry and subjectively
satisfied that, the movement of the body of
persons of which the petitioner is a member
in Beed city and adjoining area is causing
danger by indulging into unlawful designs to
the public residing in the said area, and
therefore, the externment of the petitioner
from Beed district is necessary.
8. On careful perusal of the reasons
assigned by respondent no.2 in the impugned
order, it is abundantly clear that, there is
detail discussion and specific considerations
of the offences registered against the
petitioner. An each of the offence is
discussed separately and thereafter the
observations are made by the authority. In
some of the offences, the investigation is in
progress and in some of the offences already
the charge-sheet is filed. As already
observed, the Crime No.12/2016 is registered
for the offences punishable under Sections
395, 504, 506 of the Indian Penal Code with
Beed Police Station (City). We have also
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carefully perused the orders passed by
Respondent Nos.1 and 2, and we are of the
opinion that, all the aspects have been
considered by all the authorities and
thereafter the order of externment of the
petitioner from Beed district is passed. In
that view of the matter, viewed from any
angle, we are of the opinion that, the
externment of the petitioner from the
boundaries of Beed district is proper and
needs no interference.
9. Upon careful perusal of the reasons
assigned by respondent no.2 in the impugned
order not only unlawful/illegal activities of
the gang of which the petitioner is a member
are considered by the said authorities,
however, in camera statements of the persons
residing in the said vicinity, wherein the
gang of the petitioner is involved in the
alleged activities, have also been recorded.
Along with the petitioner other five members
of his gang have been externed from the
boundaries of Beed district for one year.
Therefore, the mandate of provisions of
Section 55 of the Maharashtra Police Act has
been met/fulfilled in the facts of the
present case.
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10. As far as the reliance placed by the
learned counsel appearing for the petitioner
in support of his contention on the reported
judgments in the cases of Vijay Lalso Jadhav
(supra), Shri Rajwardhan Babaso Patil (supra)
and Umar Mohammed Maibari (supra) are
concerned, the ratio laid down in the said
judgments are not applicable in the facts of
the present case, in as much as, in the facts
of that case, it appears that, before the
provisions of Section 55 of the Maharashtra
Police Act were invoked, it was not shown
that, the persons are acting as a gang or
body of the persons. In the facts of the
present case, upon perusal of the original
record, there is sufficient material to hold
that, before the authorities could invoke the
provisions of Section 55 of the Maharashtra
Police Act, it is shown that, the petitioner
and other five persons are acting as a gang
and indulged into various illegal and
unlawful activities.
11. In the facts of the present case, as
it is apparent from perusal of the discussion
in the impugned orders that, the gang of six
persons including the petitioner is seen to
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be acting as a members of that gang or body
of persons, and therefore, Section 55 of the
Bombay Police Act is rightly invoked in the
present case. It appears that, the petitioner
is a leader of the gang and other five
persons are the members of his gang.
12. As already observed, more than 30
offences are registered against the
petitioner under the Maharashtra Prevention
of Gambling Act, 1887 and also crime no.12 of
2016 under I.P. Code. While discussing in
respect of each crime registered against the
petitioner and his members of gang everywhere
the petitioner is referred as head of the
gang and other five persons are referred as
members of the said gang. In that view of the
matter, we do not find any reason to
interfere in the impugned judgments and
orders passed by Respondent Nos.1 and 2.
Hence the Petition stands rejected.
(K.K. SONAWANE, J.) (S.S. SHINDE, J.)
...
SGA
