Bombay High Court
Sheikh Zafar S/O Sheikh Husain vs State Of Mah. Thr. Its Secretary ... on 8 February, 2021
Bench: S.B. Shukre, Avinash G. Gharote
Judgment 1 Cri.W.P.586.2020+3.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 586 OF 2020
Sheikh Zafar S/o. Sheikh Husain,
Aged about 23 years, Occu. - Labour,
R/o. Naigaon, Akot Fail, Akola.
.... PETITIONER
// VERSUS //
1) State of Maharashtra,
through its Secretary,
Home Department, Mantralaya,
Mumbai.
2) Superintendent of Police,
Superintendent of Police Office,
Akola,
3) Sub Divisional Police Officer,
Akot, District Akola.
4) The Police Station Officer,
Murtizapur Police Station,
Murtizapur.
.... RESPONDENTS
WITH
CRIMINAL WRIT PETITION NO. 587 OF 2020
Sheikh Farukh S/o. Sheikh Rafiq,
Aged about 23 years, Occu. - Labour,
R/o. Naigaon, Akot Fail, Akola.
.... PETITIONER
// VERSUS //
1) State of Maharashtra,
through its Secretary,
Home Department, Mantralaya,
Mumbai.
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Judgment 2 Cri.W.P.586.2020+3.odt
2) Superintendent of Police,
Superintendent of Police Office,
Akola,
3) Sub Divisional Police Officer,
Akot, District Akola.
4) The Police Station Officer,
Murtizapur Police Station,
Murtizapur.
.... RESPONDENTS
WITH
CRIMINAL WRIT PETITION NO. 590 OF 2020
Sheikh Rafiq S/o. Sheikh Bashir,
Aged about 45 years, Occu. - Labour,
R/o. Naigaon, Akot Fail, Akola.
.... PETITIONER
// VERSUS //
1) State of Maharashtra,
through its Secretary,
Home Department, Mantralaya,
Mumbai.
2) Superintendent of Police,
Superintendent of Police Office,
Akola,
3) Sub Divisional Police Officer,
Akot, District Akola.
4) The Police Station Officer,
Murtizapur Police Station,
Murtizapur.
.... RESPONDENTS
WITH
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Judgment 3 Cri.W.P.586.2020+3.odt
CRIMINAL WRIT PETITION NO. 659 OF 2020
Sheikh Nisar S/o. Sheikh Nazir,
Aged about 36 years, Occu. - Labour,
R/o. Naigaon, Akot Fail, Akola.
.... PETITIONER
// VERSUS //
1) State of Maharashtra,
through its Secretary,
Home Department, Mantralaya,
Mumbai.
2) Superintendent of Police,
Superintendent of Police Office,
Akola,
3) Sub Divisional Police Officer,
Akot, District Akola.
4) The Police Station Officer,
Murtizapur Police Station,
Murtizapur.
.... RESPONDENTS
______________________________________________________________
Shri A. S. Londhe, counsel for the petitioners.
Ms. H. N. Jaipurkar, A.P.P. for the respondents.
______________________________________________________________
CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
DATED : 08.02.2021.
ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)
1. Heard. Rule. Rule made returnable forthwith.
2. Heard finally by consent of the learned counsel appearing
for the parties.
Judgment 4 Cri.W.P.586.2020+3.odt
3. All these petitions are being disposed of by this common
order as the facts and situation of these petitions are identical in nature
and the grounds taken in the impugned order dated 21.10.2020
thereby externing these petitioners from Akola district are also
common.
4. These petitioners have been externed from Akola district
for a period of two years under Section 55 of the Maharashtra Police
Act. A close perusal of the impugned orders, four in number, would
show that all these petitioners have been consistently committing
crimes of serious nature at various places in Akola district. These
places are Murtizapur Gramin, Barshitakli, Borgaon Manju, Civil Lines,
Akola and Balapur. The offences that these persons have been
committing are those which are punishable under Section 461, 379 and
380 read with Section 34 of the Indian Penal Code. They have
committed about seven such crimes at different places. These crimes
appear to be committed by them by forming a gang or a group of
persons and as a group activity. Naturally, such spree of offences having
been committed by these petitioners would create a danger or alarm in
the minds of members of public and therefore, if any preventive action
like their externment from a particular area is taken, the same cannot
be faulted with.
Judgment 5 Cri.W.P.586.2020+3.odt
5. Learned counsel for the petitioners submits that the
impugned orders being identical give an indication of non application
of mind inasmuch as they appear to be mechanically passed. Learned
A.P.P. would disagree. We are with learned A.P.P. for the reason that
although the impugned orders are more or less identical in nature,
such similarity has arisen not because of non application of mind but
because of the similarity of the facts in the offences committed by all
these petitioners forming a gang. The argument of the learned counsel
for the petitioners is therefore rejected.
6. It is also contended that all these offences are triable by
Judicial Magistrate, First Class that the petitioners have been arrested;
there are no witnesses speaking against the petitioners and because
no charge-sheet has been filed, the police cannot take recourse to such
a measures of externing the petitioners. We do not find any apparent
connection between the danger and alarming movement of these
petitioners, as found in the impugned orders and the police
investigation being made effectively or the offences being triable by the
Court of Judicial Magistrate, First Class or otherwise. Therefore, the
argument is rejected.
7. Learned counsel for the petitioners has also relied upon the
case of Ajij Babu Khan Pathan Vs. The State of Maharashtra and Ors.,
Judgment 6 Cri.W.P.586.2020+3.odt
2020 ALL MR (Cri) 2910, in which it has been found, on the basis of
facts of that case, that there was complete non application of mind
while passing the impugned order. This case, in our view is not of any
assistance to the petitioners for two reasons, firstly, the impugned order
passed in the said case of Ajij (supra) was under Section 56(1)(b) of
Maharashtra Police Act and secondly, it was a case wherein the
impugned order was passed without any application of mind. In the
present case, the impugned orders have been passed under Section 55
of the Maharashtra Police Act and we find, from the impugned orders
that there is an existence of sufficient material to invoke power under
Section 55 of the Maharashtra Police Act and such material has been
appropriately considered by the authority before passing the impugned
orders thereby showing proper application of mind on the part of the
authority.
8. In the result, we find no merit in these petitions. The Writ
Petitions stands dismissed. Rule is discharged.
We clarify that in case charge-sheet is filed against the
petitioners in the various crimes referred to in the impugned orders,
the petitioners shall be granted exemption from complying with the
externment order only for the day on which the presence of each of the
petitioner is necessary before the trial Court, provided a specific order,
in accordance with the liberty granted by this Court, is passed by the
Judgment 7 Cri.W.P.586.2020+3.odt
trial Court in this behalf. We, therefore, direct the concerned
Investigating Officer to bring the liberty granted hereunder to the
notice of the concerned trial Court so as to enable it to pass appropriate
exemption order confined to a particular date of appearance in the
matter.
(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE J.)
Kirtak
