Nitin S/O Krushnaprakash Asati vs Superintendent Of Police Gondia, ...
2021 Latest Caselaw 6609 Bom

                                    1                                        wp290.21+2.odt



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


                        CRIMINAL WRIT PETITION NO. 290/2021
                                       WITH
                        CRIMINAL WRIT PETITION NO. 291/2021
                                       WITH
                        CRIMINAL WRIT PETITION NO. 293/2021
                                       AND
                        CRIMINAL WRIT PETITION NO. 294/2021



CRIMINAL WRIT PETITION NO. 290/2021

     Mukesh S/o Hariprasad Asati,
     Aged about 38 years, Occ. Business,
     R/o. Bahekar Mohalla, Amgaon,
     Dist. Gondia

                                                                      .... PETITIONER

                                    // VERSUS //

1]   Superintendent of Police, Gondia,
     Dist. Gondia

2]   Divisional Commissioner,
     Nagpur Division, Dist. Nagpur
                                                                .... RESPONDENT(S)



CRIMINAL WRIT PETITION NO. 291/2021

     Paras S/o Dinesh Asati,
     Aged about 20 years, Occ. Business,
     R/o. Bahekar Mohalla, Amgaon,
     Dist. Gondia

                                                                      .... PETITIONER

                                    // VERSUS //




     ::: Uploaded on - 27/04/2021                  ::: Downloaded on - 08/09/2021 05:39:16 :::
                                      2                                           wp290.21+2.odt



1]    Superintendent of Police, Gondia,
      Dist. Gondia
2]    Divisional Commissioner,
      Nagpur Division, Dist. Nagpur                                 .... RESPONDENT(S)



CRIMINAL WRIT PETITION NO. 293/2021

      Hemraj S/o Sitaram Rokde,
      Aged about 51 years, Occ. Labour,
      R/o. Bhimnagar, Dist. Gondia
                                                                          .... PETITIONER

                                     // VERSUS //

1]    Superintendent of Police, Gondia,
      Dist. Gondia

2]    Divisional Commissioner,
      Nagpur Division, Dist. Nagpur                                 .... RESPONDENT(S)



CRIMINAL WRIT PETITION NO. 294/2021

      Nitin S/o Krushnaprakash Asati,
      Aged about 38 years, Occ. Business,
      R/o. Bahekar Mohalla, Dist. Gondia
                                                                          .... PETITIONER

                                     // VERSUS //

1]    Superintendent of Police, Gondia,
      Dist. Gondia

2]    Divisional Commissioner,
      Nagpur Division, Dist. Nagpur                     .... RESPONDENT(S)

 *************************************************************************
  Shri Kabir Jhamb, Adv h/f Shri V.S. Mishra, Adv for the petitioners in all petitions
               Shri T.A. Mirza, APP for the respondents in all petitions
 *************************************************************************




      ::: Uploaded on - 27/04/2021                     ::: Downloaded on - 08/09/2021 05:39:16 :::
                                       3                                          wp290.21+2.odt



                            CORAM : Z.A.HAQ & AMIT B. BORKAR, JJ.

APRIL 22, 2021

ORAL JUDGMENT : (PER:- AMIT B. BORKAR, J.)

1] Heard.

2]            RULE. Rule made returnable forthwith.


3]            Since the impugned orders passed by the respondent nos. 1 and 2 are

common, all these petitions can be disposed by common judgment.

4] The above writ petitions take exception to the order dated 03/03/2021

passed by the Divisional Commissioner, Nagpur Division, Nagpur by which order, the

appeal filed by the petitioners came to be dismissed and resultantly the order dated

11/01/2021 passed by the Externing Authority under Section 55 of the Maharashtra

Police Act, 1951 (for short "the said Act") came to be confirmed. The petitioners herein

who are four in number were served with the show cause notices under Section 59 of

the said Act calling upon them to show cause as to why they should not be externed

under Section 55 of the said Act. In the said show cause notices, the offences

registered against the petitioners amongst whom one was purported gang leader and

members were mentioned in tabulated form in respect of each of the above four

petitioner. The said offences are, inter alia, under Section 12A of the Maharashtra

Prevention of Gambling Act. The tabulated form discloses that the offences registered

are against the gang leader Mukesh Hariprasad Asati and alleged members who are

4 wp290.21+2.odt

the other petitioners. The petitioners showed cause to the show cause notices issued to

them. The Externing Authority, after giving an opportunity of hearing to the

petitioners, passed the order dated 11/01/2021 externing the petitioners for period of

5 months from Gondia District.

5] Being aggrieved by the order of externment, the petitioners filed an

appeal before the Appellate Authority under Section 60 of the said Act. As indicated

above, the said appeal came to be dismissed by the Divisional Commissioner by the

impugned order dated 03/03/2021. Challenge to the order by the Externing Authority

as confirmed by the appellate authority is on the touch stone of non-existence of

jurisdictional fact for exercise of power under Section 55 of the said Act. The sine qua

non for exercising the power under Section 55 of the said Act is the movement of gang

or body of persons on account of which movement, there is alarm or danger or

reasonable suspicion of unlawful designs been entertained by such a gang. In the fact

situation of the present case, the question that begs an answer is whether on account

of an offence being registered against the purported gang leader and a member of the

gang, the same would constitute a gang so as to come within the sweep of Section 55

of the said Act. The answer has to be in the negative. The said issue is no more

res-integra and is covered by the decision of this Court in Criminal W.P. No. 2454/2018

(Altaf RajeKhan Pathan & ors. vs. Divisional Commissioner, Pune & ors.) and

companion matters. In the said judgment, it is held that to constitute a gang or body of

persons, they have to act in concert towards a common unlawful object and just

5 wp290.21+2.odt

because an offence is registered against the gang leader and one member of the gang,

would not mean that they constitute a gang so as to come within the sweep of Section

55 of the said Act.

6] A useful reference could be made to para nos. 29 and 30 of the said

judgment, which is reproduced herein under for the ready reference :-

"29. In the context of the aforesaid issue, Section 55 would have to be revisited, the said provision has already been reproduced in the earlier part of this Judgment. The said provision as can be seen can be invoked against the movement or encampment of any gang or body of persons in the area of a Commissioner in the Commissionerate area, in a district by the District Magistrate, the Sub- Divisional Magistrate or the Superintendent empowered by the State Government in that behalf. Therefore the sine-qua-non for Section 55 to apply is the movement or encampment of any gang or body of persons. Hence the Section contemplates that there has to be a collective action or concerted action on the part of the gang members. Only when there is a collective or concerted action that the action of dispersal or removal of each of the gang members can be taken. The word "gang" has not been defined in the police act. It would therefore be useful to refer to the dictionary meaning of the said word "gang".

Black's Law Dictionary "Gang" means:--

"A group of persons who go about together or act in concert, esp. for antisocial or criminal purposes".

Oxford Dictionary "Gang" means:--

"an organized group of criminals or disorderly young people".

30. Hence going by the dictionary meaning of the word "gang" the same also indicates that a gang has to be a collection of persons or a body of persons who are acting in concert towards a common unlawful object and, just because an offence is registered against a gang leader and one member of a gang would not mean that

6 wp290.21+2.odt

they constitute a gang so as to come within the sweep of Section 55 of the police act. Even the meaning of the word "gang" in the Law Lexicon on which the learned Additional Public Prosecutor sought to place reliance cannot be said to be in deviation to the meaning in the other dictionaries as above. In fact the learned Additional Public Prosecutor sought to rely upon a line from the meaning in the Law Lexicon which in our view would be reading the said line out of context.

It is required to be noted that in all the above Petitions, the offence under the gambling act is registered against the gang leader "A" with the alleged member of the gang being "B", against "A" with "C", "A" with "D", "A" with "E", but not against A, B, C, D, or E collectively or even against a substantial number of gang members collectively. It is also required to be noted that in some cases the offence registered against "A" and "B" is much anterior in point of time to the offences registered against "A" and "E" and therefore there is no proximity between the offences and therefore the test of there being a collective participation is not satisfied as they are all individualistic cases registered against the alleged gang leader and a member."

7] In the instant case, the factual situation is identical to the factual

situation which was in existence in the writ petitions which have been decided by this

Court. In our view, therefore, the petitioners cannot be said to constitute the gang.

Hence, the jurisdictional fact for the authorities to invoke the provisions of Section 55

of the said Act is absent. The consequence of the same would be that the authorities

could not have exercised the jurisdiction under Section 55 of the said Act to extern the

petitioners. Though other contentions have been raised on behalf of the petitioners,

the said aspect does not detain us as the petitioners are entitled to succeed on the

doubt of non-existence of jurisdictional fact in the instant case. The above writ

petitions therefore are required to be allowed.

                                         7                                             wp290.21+2.odt



8]              Hence, the following order:-

The orders dated 11/01/2021 and 03/03/2021 passed by the respondent

nos. 1 and 2 externing the petitioners for period of 5 months and the

show cause notices dated 27/08/2020 & 24/11/2020 issued to each of

the petitioner are quashed and set aside.

Rule is made absolute in the above terms.

                 (JUDGE)                                             (JUDGE)




ANSARI