Avinash Sopan Khadke vs The State Of Maharashtra And ...
2021 Latest Caselaw 10493 Bom

                                    1                  943-CRWP-70-2021

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                   CRIMINAL WRIT PETITION NO. 70 OF 2021

Avinash s/o Sopan Khadke,
Age : 45 years, Occu: Agri,
R/o House No. 176, Vitthal Peth,
Jalgaon, Dist : - Jalgaon                                ...Petitioner

        Versus

1. The State of Maharashtra,
   Through its Divisional Commissioner,
   Nashik Division, Nashik.

2. The Superintendent of Police,
   Jalgaon, Dist.- Jalgaon.

3. The Sub Divisional Officer,
   Jalgaon, Dist. Jalgaon,

4. The Police Inspector,
   Taluka Police Station,
   Jalgaon, Dist. - Jalgaon.                 `           ...Respondents

Mr Shrikrishna U. Chaudhari, Advocate for Petitioner
Mr Shashibhushan P. Deshmukh, A.P.P. for Respondents-State


                               CORAM : V.K. JADHAV AND
                                       SHRIKANT D. KULKARNI, JJ.

DATE : 6th AUGUST, 2021

ORAL JUDGMENT : (PER SHRIKANT D. KULKARNI, J.)

1. Rule. Rule made returnable forthwith. Heard finally at admission

stage with consent of both the sides.

2. The petitioner by invoking Article 226 and 227 of the

Constitution of India, has challenged the externment order passed by the

Superintendent of Police, Jalgaon under section 55 of the Maharashtra

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Police Act, 1951 (For short "Act, 1951) and confirmed in appeal by the

Divisional Commissioner, Nashik Division, Nashik.

3. Respondent No. 2/Superintendent of Police, Jalgaon has

issued a show cause notice dated 15.09.2020 to the petitioner as to why

he should not be externed from Jalgaon District for a period of two years.

In response to the show cause notice, the petitioner has filed his reply

dated 21.09.2020. Respondent No. 2 passed impugned order of

externment against the petitioner from Jalgaon District for a period of two

years on the ground that he is threat to the society and a member of a

gang involved in the racket of sand mafia. The petitioner has challenged

the said impugned order before respondent No.1/The Divisional

Commissioner, Nashik Division, Nashik by filing Externment Appeal No.

82/2020. The Divisional Commissioner, after giving an opportunity of being

heard to the appellant, confirmed the impugned order of externment under

order dated 29.12.2020.

4. Heard Mr Chaudhari, learned counsel for the petitioner and

Mr Deshmukh, learned A.P.P. for the State/Respondents.

5. Mr Chaudhari, learned counsel for the petitioner vehemently

submitted that the impugned orders passed by the authorities are bad in

law in view of the provisions of the Act of 1951. Both the authorities did not

consider the factual and legal aspects pointed out by the petitioner.

According to Mr Chaudhari, the impugned order of externment passed by

the Superintendent of Police, Jalgaon is based upon presumptions,

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assumptions and surmises. There is no material on record to extern the

petitioner from entire Jalgaon District. It is an excessive order passed by

the authority. The petitioner is pursuing education in faculty of law and he

is peace loving person. There is no material on record to show that the

petitioner is a member of the gang and sand mafia. There is no record or

statement of persons stating that there is a danger at the hands of the

petitioner. According to Mr Chaudhari, learned counsel for the petitioner,

one crime came to be registered at Jalgaon Taluka Police Station and

another at Shanipeth Police Station under section 379 read with section

34 of the IPC. Both cases are pending before the concerned court. Other

two cases are chapter cases under section 107 of Cr.P.C. The impugned

order of externment passed by the authority is liable to be quashed and

set aside.

6. Mr Deshmukh, learned A.P.P. for the State supported to the

impugned order of externment passed by the Superintendent of Police,

Jalgaon as well as the impugned order passed in Externment Appeal No.

82/2020 by the Divisional Commissioner, Nashik Division, Nashik. He

submitted that the petitioner is involved in sand mafia and he is a member

of the gang. The petitioner is disturbing the peace and tranquility in the

society. Both the authorities have considered the factual and legal aspects

and passed order of externment. Both the authorities have considered the

material placed on record and accordingly arrived at a correct conclusion.

He submitted that there is no merit in the writ petition and liable to be

dismissed.

                                               4                   943-CRWP-70-2021




         7.           We      have     considered   the   submissions        advanced        by

         Mr Chaudhari, learned          counsel for the petitioner and Mr Deshmukh,

learned A.P.P. for the respondents/State. We have also perused the

provisions of section 55 to 60 of the Act, 1951, which deal with the

exernment proceedings and appeal.

8. On perusing the record, following factual scenario is noticed by

us.

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                        379]34             3- foosd e/kqlqnu lidkGs
                                           4- lksek lqdyky eksjs
                                           5- fnid lq/kkdj ikVhy
                                           6- dSykl xkSre lidkGs
 2        'kfuisB       [email protected]            1- izfo.k xksdqG lidkGs           U;k;izyachr
                        Hkk-na-fo-d-       2- vfouk'k lksiku [kMds
                        379]34             3- ukenso fnudj dksGh
                                           4- iznhi nxMw lksuo.ks

VksGh izeq[k izfo.k xksdqG lidkGs ;kP;kfo:/n dj.;kr vkysY;k izfrca/kd dkjokbZpk rif'ky & v-ua- iks-Bk.ks pW-ds-j-u o dye 1 tGxko rkyqdk [email protected] fl-vkj-ih-lh- d- 107 2 'kfuisB [email protected] fl-vkj-ih-lh- d- 107

9. One crime seems to have been registered at Jalgaon Taluka

Police Station and another at Shanipeth Police Station under section 379

5 943-CRWP-70-2021

read with section 34 of the IPC wherein the petitioner is also allegedly

involved in a case of theft of sand vide Crime No. 54/2017 registered at

Shanipeth Police Station. Both the cases are pending before the

concerned trial court. Remaining two cases are the proceedings initiated

under section 107 of the Cr.PC. against gang man Pravin Gokul Sapkale.

The petitioner is stated to be menace to the society and that is why he

has been externed as stated in the impugned order passed by the

Superintendent of Police, Jalgaon. In order to substantiate such action for

externment, there is no sufficient material before the authority. The

charges of theft of sand alleged against the petitioner are yet to be proved.

There are no statements of witnesses which may speak that the petitioner

is a goon and menace to the society. There is no material on record to

speak that the petitioner is threatening to the witnesses and that is why

they are not turning to the court to tender their evidence. There must be

sufficient material to extern a person invoking section 55 of the Act, 1951.

10. There is one more aspect to be considered. The alleged

activities of the petitioner were restricted to area of Jalgaon Taluka Police

Station and Shanipeth Police Station. There is no material on record to

show that the illegal activities of the petitioner are also spread in the

remaining talukas of Jalgaon District. There is no material to show that

how many cases are registered against the petitioner with remaining

Police Stations and the details thereof.

6 943-CRWP-70-2021

11. In this context, we may place reliance on the full bench decision

in the case of Sumit s/o Ramkrishna Maraskolhe Vs. Deputy

Commissioner of Police, Nagpur and Anr. reported in 2019 ALL MR

(Cri) 1961 (F.B.), wherein it is held by the Full Bench as under :-

The externment order directing externment of a person from a much larger area than the one of his illegal activities, must be based upon some material which provides an objective criteria to the authority for reaching a subjective satisfaction regarding the need for externing a person to an expansive area though it may not always directly or elaborately refer to that material in the order itself, as it all depends upon facts and circumstances of the case which need be vetted through the judicial process of drawing of legitimate inference following the law laid down by Apex Court in case of Pandharinath [1972 ALLMR ONLINE 758] and Sanjeev @ Britto [(2005) SCC (Cri) 1025].

The order of externment need not be necessarily refer to the details of the material considered by it so as to show independently that larger or additional area chosen by it is intimately connected with the actual area of the activities of the externee due to improved or common means of transport and communication.

Application of mind to the material present on record by the authority passing the externment order is necessary, but any reflection of application of mind in the externment order in a specific manner, as if to pass a reasoned order, would not be necessary. It would be enough if the order discloses that the subjective satisfaction has been reached by considering the material available on record and it would

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and should be a matter of legitimate inference that the authority, while considering materials to satisfy itself about the need for and extent of externment to be ordered, also considered all the options available to it and selected in it's wisdom the one which it thought to be most appropriate. This would also mean that authority, in this way, can select a larger area for being covered under it's externment order, as one of the options available to it, whether such larger area has within it contiguous or interconnected or intimately connected pocket of areas or not.

It is not necessary to state in the show-cause notice the details or the particulars of in-camera statements recorded by the externing authority and only the general nature of material allegations is all that is necessary to be said in show-cause notice. In other words, it is sufficient compliance with requirement of law if the show cause notice refers in general terms to the material allegations against the proposed externee and when the action is under Section 56(1) (b) of the Act, 1951 it also generally says that the witnesses are not coming forward to give evidence in public against the proposed externee due to fear, alarm, danger or harm to the person or property, as the case may be.

12. Having regard to the legal position made clear by the Full

Bench decision of this Court in case of Sumit s/o Ramkrishna

Maraskolhe Vs. Deputy Commissioner of Police, Nagpur and Anr.

(supra), the authority may extern a person from the larger area as it is

intimately connected with the actual area of the activities of the externee,

but that action needs to be supported by material on record. If the case on

8 943-CRWP-70-2021

hand is examined with the impugned order passed by the Superintendent

of Police, Jalgaon, according to us, there was no sufficient material on

record to extern the petitioner from the entire Jalgaon District. If the

criminal activities of the petitioner are restricted to a particular area i.e.

Jalgaon Taluka Police Station and Shanipeth Police Station, the externee

cannot be externed beyond that area unless it is shown that these areas

are contiguous or adjacent to each other or interconnected with each other

through the improved means of transport and communication

necessitating externment of proposed externee from a larger area. The

authority has discretion to extern a person from larger area. The discretion

is neither unfettered nor uncanalized nor unrestricted. The discretion is

rather guided by the sound principles of judicial review of administrative

action or statutory discretion which have now been called the Wednesbury

principle of unreasonableness. It means that an externment order must be

based upon some material, that it must refer to some material on record

which is requirement of law.

13. The Superintendent of Police, Jalgaon has externed the

petitioner from entire Jalgaon District without having sufficient material on

record. The impugned order of externment passed by the Superintendent

of Police, Jalgaon does not stand on the legal platform. The appellate

authority has also not considered the above said aspect and confirmed the

impugned order of externment passed against the petitioner without

making exercise of independent assessment and scanning of material on

record.

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14. Having regard to the above reasons and discussion, we arrived

at conclusion that the impugned order of externment passed by the

Superintendent of Police, Jalgaon and confirmed by the Divisional

Commissioner, Nashik Division, Nashik in appeal are unsustainable. The

petition needs to be allowed. Hence, we proceed to pass the following

order :-

ORDER

(I) The Criminal Writ Petition is hereby allowed.

(II) The impugned order passed by respondent No. 2/

Superintendent of Police, Jalgaon dated 30.09.2020 and

confirmed by respondent No. 1/Divisional Commissioner,

Nashik Division Nashik in appeal vide order dated 29.12.2020

is hereby quashed and set aside.

 (III)        Rule is made absolute accordingly.


 (IV)         The criminal writ petition stands disposed of.




 [ SHRIKANT D. KULKARNI, J. ]                       [ V.K. JADHAV, J. ]



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