Vijay Kailas Bhosale And Ors vs The State Of Maharashtra And Anr
2017 Latest Caselaw 7517 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              CRIMINAL APPELLATE JURISDICTION

            CRIMINAL WRIT PETITION NO.1811 OF 2017


1 Vijay Kailas Bhosale
Age: 27 yrs., Occ: Business,
R/At: Mangaon, Tal: Mulshi,
Dist. Pune

2 Dinesh Mohanlal Yadav
Age; 32 years, Occ: Jijamata Hospital
Nurses Quarters, Near Gita Niwas,
Pimpri, Pune.

3 Chetan Jaysing Nikalje
Age: 25 years, Occ: Business,
R/At: Bhingare Corner, Mhatoba
Nagar, Vakad, Pune

4 Sanjay Madhukar Kumkar
Age: 34 years, Occ: Business,
R/at: Baburao Landage Chawl,
Kasarwadi, Pune                                      ......Petitioners

                 V/s.

1 The State of Maharashtra
(Through D.C.P.Zone-3, Pune City,
Pune)

2 Divisional Commissioner, Pune
Council Hall, Camp, Pune 411001                      .......Respondents

                                   WITH
                          WRIT PETITION NO.1812 OF 2017

Rakesh Popat Bharne
Age: 40 years, Occ: Business,
Permanent R/at: Bhoir Estate,
A-4, Dange Chowk, Thergaon,
Pune.

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         V/s.


1 The State of Maharashtra
(Through D.C.P.Zone-3, Pune City,
Pune)

2 Divisional Commissioner, Pune
Council Hall Camp, Pune 411001                       ...Respondents.



                                   WITH
                          WRIT PETITION NO.1836 OF 2017

Anil Tukaram Mohite,
Age: 39 years, resident of
C.1/401, Bella Villa, Near
Datta Mandir, Vakad, Pune                            ...Petitioner

                 V/s.

1 The State of Maharashtra
at the instance of the office
of Public Prosecutor,
Bombay

2 The Secretary, Mantralaya,
Bombay.

3 Deputy Commissioner of
Police, In charge of Vakad,
Pune                                                 ...Respondents.

Mr. C.K.Pendse i/by Mr. V.L.Kolekar , Advocates for
Petitioners in WP Nos.1811 and 1812 of 2017.

Mr. A.Siddiqui with Ms. Sana Hanif Shaikh with Ms. P. Vidya ,
Advocates for Petitioner in WP No.1836 of 2016.


Mrs. M.M.Deshmukh, APP for Respondent-State.


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                          CORAM : R.M.SAVANT &
                                  SANDEEP K. SHINDE, JJ.

DATE : September 25, 2017.

JUDGMENT : (Per Shri Sandeep K. Shinde, J.)

The Petitioners in all these three Petitions have

challenged the legality of the externment order dated

3.2.2017 passed under Section 55 of the Maharashtra Police

Act and the order dated 12.4.2017 passed by the Divisional

Commissioner, Pune Division, Pune under Section 60 of the

Act inter-alia confirming the externment of the Petitioners

and hence, all the Petitions are taken up for final hearing at

the admission stage.

2 The Deputy Commissioner of Police, Pimpri

Division, Pune upon careful scrutiny of the proposal received

from PI Wakad, Pune, directed Assistant Commissioner of

Police to hold enquiry and issue notice under Section 59 of the

Act. Thereupon notices were issued under Section 59 of the

Act to a gang leader and the members of his gang as to why

they be not externed under Section 55 of the Said Act. It may

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be stated that notices were issued to Rakesh Popat Bharne

gang leader and fourteen gang members in December, 2016

informing them general nature of material allegations against

them and affording opportunity of tendering explanation. It

appears Ravindra Dhumal, a gang member could not be served

despite persistent efforts. It appears after affording sufficient

opportunity to Petitioners herein and other members of gang,

the Assistant Commissioner submitted his report dated

9.1.2017 to the Deputy Commissioner of Police along with

replies filed by the Petitioners and other members of gang. It

further appears the Deputy Commissioner of Police again

issued notice dated 12.1.2017 whereby he called upon

Petitioners to remain present before him for hearing. In

response thereto, the Petitioners herein filed their counter.

The Competent Authority after perusing the preliminary

report submitted by the Assistant Commissioner of Police and

after taking into consideration submissions of the externees

vide order dated 3.2.2017 externed the gang leader and 13

members of his gang from the District: Pune for a period of

year and half. It may be stated that two members who were

the proposed externees namely, Jaydeep Sampat Mane,

Vinayak Ramesh Gaikwad were dropped and excluded from

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the externment proceedings on the ground that they were to

contest elections of the Pune Municipal Corporation. The said

exclusion was conditional.

3 It may be stated that the Externing Authority after

adverting to material, i.e. offences registered against the

leader of a gang and his members and also the individual

offences registered against each of the members of the gang

which were in the nature of offences punishable under

Chapter XII, XVI of the Indian Penal Code, 1860 and after

considering the in-camera statements of four witnesses

externed the Petitioners from the limits of Pune District for a

period of one and a half year.

4 That, the Appeals preferred under Section 60 of

the Act against the said order of externment were partly

allowed by the Divisional Commissioner, Pune Division, Pune,

who vide order dated 12.4.2017 confirmed the externment of

the Petitioners from limits of District: Pune but reduced the

period of externment from year and half to a year.

5                The learned counsel for the Petitioners contended

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that admittedly the Petitioners were externed as members of a

gang under Section 55 of the Said Act preceded by notice

under Section 59 issued to15 members of the gang including

the gang leader. The learned counsel submitted that the

Externing Authority while passing the order of externment

had dropped the proceedings, against the two members

namely, Jaydeep Mane and Vinayak Gaikwad which was not

permissible. He submitted that Section 55 would be applicable

only when persons are seemed to be acted as 'members of

gang' or 'body of persons' and it is only then that action under

Section 55 of the Act can be taken and further it is to be taken

against all the members and not only a few of them selectively

(emphasis supplied). It is Petitioners' submission that the

Externing Authority cannot discriminate between the

members of the gang particularly when collective criminal

activity alleged on their part. On this premise, the learned

counsel for the Petitioners would contend that the Externing

Authority has had no powers to discriminate between the

members of the gang, once the provisions of Section 55 of the

said Act are invoked. In other words, the Petitioners would

submit that exclusion up to two members of the gang though

they were initially served with notice being members of the

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gang and thereafter excluding them from the proceedings for

whatever reason was not permissible in terms of Section 55 of

the Maharashtra Police Act and that itself vitiates entire

proceedings under Section 55 of the Act.

The learned counsel would further submit that four

offences were registered against the gang leader and the

members of the gang namely, Crime No.65/2000, 224/2007,

170/2007 and 3164/2007. The Petitioners further submitted

that the above referred four offences were registered against

gang leader and his members including the two gang members

against whom proceedings were dropped for collective

criminal activity. The Learned Counsel further submitted that

in all the aforesaid four crimes, the gang leader and his

members were acquitted by the Trial Court. In these

circumstances they submitted that as on the date of issuance

of notice against the Petitioners being members of the gang,

the Respondents were precluded from relying on these four

crimes being material for externing the Petitioners .

The learned counsel would further submit that when the

re-course is taken to the provisions of Section 55 of the said

Act, the authority could not have taken into consideration the

offences registered against each of the Petitioners in their

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individual capacity. On this premise, the Petitioners submitted

that approach of the Externing Authority was contrary to the

scheme of Section 55 of the said Act.

6 On the other hand, the learned APP appearing for

the State has supported the impugned orders and also filed an

affidavit of one Shri Ganesh Shinde, Deputy Commissioner of

Police, Zone-III, Pune City, District: Pune.

7 We have perused the orders passed by the

Externing Authority; the notice dated 20.12.2016 issued

under Section 59 and the order passed by the Divisional

Commissioner, Pune Division, Pune in the Appeals under

Section 60 of the said Act.

The learned counsel for the Petitioners have relied upon

judgment of the Division Bench of this Court in the case of

Ahammad Mainuddin Shaikh v. The State of

Maharashtra & Anr. reported in 2013 ALL MR Criminal

3804 and another judgment of the Division Bench in the case

of Vijay Lalso Jadhav v. The State of Maharashtra &

Ors. reported in 2014 All M.R. Criminal 1277 .

In the aforesaid judgments, it was held "The language of

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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

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

Maharashtra Police Act does not contemplate movement or

encampment of 'a person' (emphasis supplied) 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

Maharashtra Police Act that its application is directed not

against any individual but against any gang or body of persons

or members of gang.

8 A close scrutiny of Section 55 makes it very clear

that when the authority invokes the provisions of Section 55

of the said Act, it cannot exercise discretion selectively and

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exclude some of the members from the proceedings.

The language of the Section 55, therefore, mandates that

when authority orders dispersal of the members of the gang, it

has to remove 'each' of the members of the gang outside the

area within the local limits of its jurisdiction. Expression "each

of them", leaves no option to the Externing Authority but it

has to extern all the members of the gang once the subjective

satisfaction is reached by such authority. The provisions of

Section 55 does not permit the Externing Authority to

exercise the discretion on any count to exclude and/or to drop

externment proceedings against any of the members of the

gang.

9 In the case in hand, admittedly, notices were

issued to fifteen members of the gang including it's leader. The

said notice was issued to the proposed externees in the

capacity as 'members' of a gang. The Externing Authority,

however, excluded the two members namely, Jaydeep Mane

and Vinayak Gaikwad from the externment proceedings on

the ground that they were to contest the election of the Pune

Municipal Corporation. In our view, the order passed by the

Externing Authority is per-se illegal and contrary to the

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provisions of Section 55 of the said Act. The Externing

Authority has had no jurisdiction and/or power to exclude

and/or to drop the proceedings against any of the members of

the gang and more particularly when they were served with

notice to which they had responded to. That taking into

consideration facts of the case and the view taken by the

Division Bench in the aforesaid two cases , we are of the view

that the order passed by the Externing Authority which has

been confirmed by the Appellate Authority is not sustainable

in law, being contrary to spirit of Section 50 of the said Act.

10 The submission urged on behalf of the petitioners,

that the four cases as referred to hereinabove registered

against the leader of the gang and his members could not have

been taken recourse to for initiating proceedings against them

as all of them were acquitted in all such four cases. We do not

see any merit in the submission in as-much-as acquittal has no

relevance to order under Section 55 of the Act and acquittal

itself is no ground for not acting under Section 55 of the Act.

In view of the facts of the case and for the reasons stated

here-in-above, the Petitions are allowed in terms of prayer

clause ( a ) of Writ Petition No.1811 of 2017 and Writ Petition

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No.1812 of 2017 and prayer clause (b) of the Writ Petition

No.1836 of 2017.

(SANDEEP K. SHINDE, J)                         (R.M.SAVANT, J)




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