Balram @ Ballu S/O Ramsingh Dikav ... vs State Of Maharashtra, Thr. The ...
2021 Latest Caselaw 16257 Bom

 wp 196.21 judgT-112.doc                                                                      1

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

                     CRIMINAL WRIT PETITION NO.196/2021

 1. Balram @ Ballu Ramsingh Dikav,
    Aged about 23 years, Occ.-Sweeper.

 2. Kunal s/o Ramsingh Dikav,
    Aged about 25 years, Occ.-Sweeper,
    both R/o Walmik Wasti, Bhimnagar, Dabaki Road,
    Akola, Tal.& District Akola.                                  ... Petitioners

                                    VERSUS

 1. State of Maharashtra,
    through the Police Station Officer,
    Police Station, Dabaki Road, Akola,
    Tah. & District Akola.

 2. The Superintendent of Police, Akola,
    Tah. and District Akola.

 3. The Sub Divisional Police Officer, Murtizapur,
    Tah. Murtizapur, District Akola.

 4. The Divisional Commissioner, Amravati,
    Tah. and District Amravati.                              ... Respondents

 ______________________________________________________________
                 Mr. N.R. Tekade, Advocate for petitioners.
                   Mr. M.J. Khan, APP for respondents.
 ______________________________________________________________

                     CORAM: M.S. SONAK & PUSHPA V. GANEDIWALA, JJ.

DATE: 24-11-2021.

ORAL JUDGMENT : (Per: M.S. Sonak, J.)

Heard Mr. Tekade, learned Counsel for the petitioners, and

Mr. Khan learned APP for the respondents.

2. Rule. The rule is made returnable forthwith at the request

and with the consent of learned Counsel for the parties.

3. The challenge in this petition is to the orders dated

02-10-2020 and 15-12-2020 externing the petitioners for two years

from the Akola District. The impugned orders have been made under

Section 55 of the Maharashtra Police Act, 1951 (the said Act).

4. In this case, on 17-09-2020 and 18-09-2020 two separate

show-cause notices were issued to petitioner no.2 and petitioner no.1

respectively. In both the show-cause notices there is no allegation that

the petitioners are the members of a gang or that they are moving or

encamping as the members, leaders, or chief men of any gang that is

operating in the area. The two show-cause notices only refer to certain

cases instituted against the petitioners and thereafter require the

petitioners to show cause why no externment orders should be made

against them.

5. The petitioners did file their response to the show-cause

notices and thereafter, by the impugned common order dated

02-10-2020, both the petitioners were ordered to be externed for two

years. Now this impugned order states that the petitioners are the

members of the gang and one of the petitioners is a leader of the gang.

The impugned order also speaks about the movement and encamping

of the gang or body of persons. As noted earlier, all these aspects were

completely missing in the show-cause notices. This indicates that for

passing the impugned order, the externing authority has taken into

account some material, of which neither any notice was given to the

petitioners nor were the petitioners given an opportunity to offer their

explanation to such material. This according to us, amounts to a

violation of principles of natural justice and fair play, and on this count

itself, the impugned externment order warrants interference.

6. Mr. Khan, learned APP no doubt pointed out the provisions

of Section 59 of the said Act to submit that only the general nature of

the material allegations are required to be furnished to the proposed

externee to enable him to avail of reasonable opportunity of tendering

an explanation regarding them. He also pointed out that the show-

cause notices had specifically referred to the provisions of Section 55 of

the said Act and from this, the petitioners, ought to have understood

that they were being treated as the members or leaders of a gang.

7. According to us, the aforesaid defense cannot be accepted.

This is because the show-cause notices in the present case had not even

generally indicated that there was any gang or body of persons

operating in the area and that the petitioners were the members or

leaders of such gang. Further, merely because there was a reference to

Section 55 of the said Act, the petitioners, cannot be expected to

presume that there was some gang in operation and they were the

members or leaders of the said alleged gang.

8. According to us, this is the case where there is variation

between the allegations in the show cause notice and the final

externment order. The purpose of giving a show-cause notice is to

enable the proposed externee to have a reasonable opportunity of

tendering an explanation regarding the allegation against him. If even

the general nature of the material allegations are not made known to

the proposed externee, he will naturally be deprived of a reasonable

opportunity of tendering an explanation regarding them. The

principles of natural justice in such matters have been expressly

incorporated in the provisions of Section 59 of the said Act and on the

failure to observe the same, the impugned externment order will have

to be set aside. In the facts of the present case, we think that there has

been a breach in compliance with the provisions of Section 59 of the

said Act and consequently, there is a failure of the principles of natural

justice. This warrants interference with the impugned detention order.

9. The decisions of this Court in Mohan s/o Damodar Raut

and others vs State of Maharashtra and others in Criminal Writ Petition

No.612/2020 decided on 04-02-2021 and Munaf Samshuddin Shaikh

vs The Deputy Commissioner of Police Zone-IV and others, reported in

2014 All MR(Cri) 2422 support the case of the petitioners. In Mohan

Raut (supra) as well, there were no allegations in the show- cause

notice that the proposed externee was a part of a gang. The final order

based on such a premise was therefore quashed by the Division Bench

of this Court holding that the externing authority had relied upon

additional and extraneous material which was not disclosed to the

proposed externee and therefore the proposed externee had no

opportunity to offer his explanation in respect of the said material

relied upon by the externing authority.

10. This petition is liable to succeed on yet another ground. If

the petitioners were indeed the members of a gang then, there is no

explanation as to why only the petitioners have been singled out for

action under Section 55 of the said Act. Mr. Tekade learned Counsel

has placed on record the copies of First Information Reports (FIRs)

which are referred to in the impugned externment order. The FIRs

indicate the alleged involvement of more than two persons. One of the

FIRs indicates the involvement of almost 5 persons. In such

circumstances, the externing authority was required to explain why

only the petitioners have been singled out for being externed from

Akola District for two years. Neither the impugned externment order

nor the return filed offers any explanation.

11. In similar circumstances, the Division Benches of this

Court in the case of Vijay Lalso Jadhav vs State of Maharashtra,

reported in 2014 (1) Mh.L.J. (Cri) 457 and Ahammad Mainuddin

Shaikh vs State of Maharashtra, reported in 2014(1) Mh.L.J. (Cri) 231

quashed and set aside the externment orders holding that such singling

out without any rhyme or reason is arbitrary and vitiates the

externment orders. These decisions were followed by us in the case of

Vinod s/o Raju Tejwal vs State of Maharashtra and others (Criminal

Writ Petition No.650/2021 decided on 28-10-2021) to quash an

externment order after noticing the selective exercise of powers under

Section 55 of the said Act. On this ground as well, the impugned

externment orders are liable to be set aside.

12. For the aforesaid reasons, we make the rule absolute in the

petition and quash and set aside the impugned externment orders.

There shall be no order as to costs.

 (Pushpa V. Ganediwala, J.)                                 (M.S. Sonak, J.)



 Deshmukh