Mohan S/O Damodar Raut And Another vs The Superintendent Of Police ...
2021 Latest Caselaw 2296 Bom

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

                     CRIMINAL WRIT PETITION NO.612/2020

 1.       Mohan S/o Damodar Raut,
          aged about 28 Yrs., Occ. Agriculturist.

 2.       Dhiraj S/o Damodar Raut,
          aged about 25 Yrs., Occ. Agriculturist.

          Both R/o Pitambarvadi, Patur,
          Tal. Patur, Dist. Akola.                                ..Petitioners.
          ..Vs..
 1.       The Superintendent of Police,
          Akola, Dist. Akola.

 2.       Sub Divisional Police Officer,
          Akot, Dist. Akola.

 3.       State of Maharashtra,
          through its Police Station Officer,
          Police Station Patur, Dist. Akola.

 4.       The Divisional Commissioner,
          Amravati, Dist. Amravati.                               ..Respondents.


                   AND CRIMINAL WRIT PETITION NO.627/2020

 1.       Damodar S/o Kisan Raut,
          aged about 62 Yrs., Occ. Agriculturist,
          R/o Pitambarwadi, Patur,
          Tah. Patur, Dist. Akola.                                ..Petitioner.
          ..Vs..
 1.       State of Maharashtra,
          through the Secretary, Ministry of Home
          Affairs, Mantralaya, Mumbai - 32.

 2.       Divisional Commissioner, Amravati
          Division, Amravati.


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 3.       Superintendent of Police, Akola,
          Tq. and Dist. Akola.

 4.       Sub-Divisional Police Officer, Akot,
          Tq. Akot, Dist. Akola.

 5.       Police Station Officer, P.S. Patur,
          Tq. Patur, Dist. Akola.                                             ..Respondents.
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 Shri N.T. Gwalwansh, Advocate h/f Shri S.N. Nandeshwar, Advocate for the petitioners.
 Ms H.N. Jaipurkar, A.P.P. for the respondents.                  .....(W.P. No.612/2020)

 Shri D.S. Patil, Advocate for the petitioner.
 Ms H.N. Jaipurkar, A.P.P. for the respondents.                         .....(W.P. No.627/2020)
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                           CORAM :- SUNIL B. SHUKRE AND
                                            AVINASH G. GHAROTE , JJ.

DATED :- 4.2.2021

ORAL JUDGMENT (Per Sunil B. Shukre, J.)

1. Both these petitions are being heard together and being

disposed of together as the challenge made in each of these petitions

is common which is the one against the order of externment passed

against all these petitioners by respondent - Superintendent of Police,

Akola on 12.9.2020 and the order dated 22.10.2020 of the Divisional

Commissioner, Amravati Division, Amravati thereby confirming the

externment of these petitioners in appeal for a period of two years

from the districts of Akola, Amravati, Washim and Yavatmal.

2. Heard. Rule. Rule made returnable forthwith. Heard finally

by consent.

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3. Petitioners Mohan Damodar Raut and Dhiraj Damodar Raut in

Criminal Writ Petition No.612/2020 are the sons of Damodar Kisan

Raut, who is a petitioner in Criminal Writ Petition No.627/2020. The

father and his two sons have been externed from 4 districts for a

period of two years by the impugned orders.

4. It is the contention of respective learned counsel for these

petitioners that the impugned orders are arbitrary and excessive.

According to them, there was no material available on record which

would satisfy the essential requirements of Section 55 of the

Maharashtra Police Act and that the material necessary for passing a

larger externment order was also absent. They submit that these

petitioners never formed any gang or any body of persons engaged in

criminal activities, rather these petitioners were members of one and

the same family who had at the time of passing of the impugned

orders and still have a civil dispute with the family of the complainant

in all the crimes registered against these petitioners. They further

submit that these material facts though stated in their reply were not

considered in any manner by the respondents.

5. Learned A.P.P. for the State, defending the impugned orders

submits that these petitioners though belong to the same family, have

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together engaged themselves in continuous criminal activity and,

therefore, it could be said that all of them constituted a group of

criminals sufficient to attract the provisions of Section 55 of the

Maharashtra Police Act. She submits that if one goes through the

criminal history of the petitioners and the manner in which those

crimes were committed by the petitioners, one would be convinced

that the activities of the petitioners are dangerous and likely to cause

alarm to the members of public.

6. Upon consideration of the material available on record,

especially the show cause notice, the facts stated in the impugned

orders, reply of the respondents and the documents annexed to the

reply, we find that this is a case wherein no material whatsoever

existed which could be said to be sufficient for answering the criteria

of Section 55 of the Maharashtra Police Act.

7. If any preventive action in the nature of externment of a

criminal is to be taken by invoking Section 55 of the Maharashtra

Police Act, the following conditions must be satisfied:-

(i) There must be a satisfaction regarding existence of a gang or body of persons in the subject area, which is engaged in continuous criminal activity,

(ii) There must be noticed either movement or

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encampment of such gang or body of criminals in a manner as would cause or is calculated to cause danger or alarm or reasonable suspicion that unlawful designs are entertained by such a gang or body of persons or members of such body.

8. Now, if we go through the impugned orders, we would find that

there is no finding recorded therein that these petitioners had formed

a gang or group of persons or body of persons engaged in continuous

criminal activity so as to cause alarm or danger to the members of

public. It is further seen that no material whatsoever has been

referred in this regard while passing the impugned orders. It must be

noted here that no subjective satisfaction regarding existence of any

gang or group of criminals can be recorded unless, there is some

material available on record and which when considered, would show

that such persons are engaged in continuous criminal activity by

performing it in an organized manner or in partnership with each

other or by forming a group together so as to cause danger or alarm to

the members of public. However, there is no such material whatsoever

which appears to be considered while passing the impugned orders.

What has been considered by the respondents before passing the

impugned orders was only the material in the nature of registration of

17 crimes against these petitioners. But, admittedly, all these crimes

were registered against them on the basis of complaints made by a

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member of the same family of Ramdas Kisan Raut, the younger

brother of the petitioner in Criminal Writ Petition No.627/2020.

When so many crimes are registered at the behest of one and the same

family, it cannot be said that the alleged criminal activity of the

accused persons is targeted towards society in general and, therefore,

it would cause or is calculated to cause danger or alarm or reasonable

suspicion that some unlawful designs are entertained by such group of

persons qua the society or members of public in general.

9. It is true that in Section 55 of the Maharashtra Police Act the

words like "causing of danger" or "alarm" or "reasonable suspicion

that some unlawful designs are entertained" have not been used in the

context of or vis-a-vis society in general. But, such contextual

reference is discernible upon reading this provision as a whole and

when it is done, it becomes clear that the danger or alarm which is

likely to be caused by the gang of criminals or the unlawful designs

entertained by the gang of criminals can only be towards the larger

society and none of these could be only in respect of one or two

persons or a family of persons. There is one more reason for reaching

such a conclusion. It is that this Section 55 has been inserted in

Chapter 5 which prescribes special measures for maintenance of public

order and safety of State. So, the intention of the legislature is

indicated by such special positioning of Section 55 in Chapter 5. The

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intention of the legislature is to provide for maintenance of public

order and safety of State and to prescribe measures which are

necessary for ensuring the public peace and order. Therefore, the

words alarm or danger or unlawful designs whenever construed would

only mean something as would have consequences on the general

state of public peace and order.

10. Then, there is material available on record which shows that

these two families, the family of the petitioners and the family of

younger brother of petitioner Damodar, namely, Ramdas Kisan Raut,

are at war in a series of civil litigations. The reply filed by these

petitioners in externment proceedings shows that at least two civil

suits bearing Regular Civil Suit No.23/2000 and Regular Civil Suit

No.163/2018 are pending between these two families and that there is

one Revenue Application No.467/2019 and one Revenue Appeal

No.43/Patur/15-16, all of which are still pending adjudication. All

these facts were already stated in the reply filed by the petitioners

before respondent - Sub-Divisional Officer, Akot on 31.8.2020. But, it

appears that the respondents refused to consider this reply because it

was filed after a delay of just one day. We are of the view that even

though the reply was filed with some delay, delay was not so big as to

warrant its ignorance by the respondents. After all, facts having

material impact on the conclusions to be made in this matter were to

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be found in this reply and, therefore, such reply ought not to have

been ignored by the respondents. If these facts have been really

considered by the respondents before passing impugned orders, we

are sure, the result of the whole proceedings would have been

different. Be that as it may. The fact remains that there is civil

dispute between these two families and it appears to us that this civil

dispute lies at the base of registration of so many crimes against these

petitioners. Learned counsel for the petitioners pointed out that even

the petitioners have filed counter complaints against the members of

family of Ramdas Kisan Raut, which facts have not appeared on

record. But, if this contention is true, it would fortify our inference

that starting point of the whole enquiry under Section 55 was this

family dispute. Thus, we find that the impugned orders do not satisfy

the essential requirements of law and, therefore, they deserve to be

quashed and set aside. With such basic flaw in the impugned orders,

in our opinion, there would be no need to consider the argument

relating to excessive nature of impugned orders.

11. The writ petitions, are therefore, allowed. The impugned

orders are hereby quashed and set aside. Rule is made absolute in

these terms.

                               JUDGE                                  JUDGE
 Tambaskar.