Vinod S/O Raju Tejwal vs State Of Maharashtra, Thr. The ...
2021 Latest Caselaw 15521 Bom

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

                  CRIMINAL WRIT PETITION NO. 650 OF 2021

  Vinod S/o. Raju Tejwal,
  Age:- 28 years, Occ. Labour,
  Both R/o. Athwadi Bazar,
  Guruwar Peth, Patur                                                       . . . PETITIONER

                       ...V E R S U S..

  1. State of Maharashtra through
     the Secretary, Ministry of Home Affairs,
     Mantralaya, Mumbai-32.

  2. Divisional Commissioner,
     Amravati Division, Amravati

  3. Superintendent of Police,
     Akola, Tah. & Dist. Akola.

  4. Sub-Divisional Police Officer,
     Murtijapur, Tah. Murtijapur, Dist. Akola.

  5. Police Station Officer, P.S. Patur,
     Tah. Patur, Dist. Akola.                                           . . . RESPONDENTS

 ------------------------------------------------------------------------------------------------
 Shri Deepak S. Patil, Advocate for the petitioner.
 Shri T. A. Mirza, A.P. P. for respondents/State.
 -----------------------------------------------------------------------------------------------

                  CORAM:- M. S. SONAK AND
                          PUSHPA V. GANEDIWALA, JJ.

DATED:- 28.10.2021

JUDGMENT (PER: M. S. SONAK, J.):-

1. Heard learned counsel for the parties.

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

and with the consent of the learned counsel for the parties.

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

07.04.2021 and 29.07.2021, externing the petitioner invoking the

provisions of Section 55 of the Maharashtra Police Act, 1951 (the said

Act).

4. The impugned externment order has been made inter alia

on the ground that the petitioner is a member of a gang that is causing

or is calculated to cause danger or alarm or reasonable suspicion that

unlawful design is entertained by such gang. There is material on

record that establishes that this gang comprises of 4/5 persons against

whom the First Information Reports (FIRs) have been lodged. The

communication dated 24.03.2021 makes specific reference to three

FIRs in Crime Nos. 61/2015, 105/2016, and 577/2020. Such FIRs are

on record and they refer to at least 4/5 other persons as forming a part

of the gang of which the petitioner is alleged to be a member.

5. The impugned externment order was made only against

the petitioner and not against any other members of the gang. Based

on this, Mr. Patil, learned counsel for the petitioner submits that the

impugned externment order warrants interference because Section 55

of the said Act contemplates collective action and not action against

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only one of the members of the gang on a selective basis. He relies on

Vijay Lalso Jadhav Vs. State of Maharashtra [2014 (1) Mh.L.J. (Cri.)

457] and Ahammad Mainuddin Shaikh Vs. State of Maharashtra [2014

(1) Mh.L.J. (Cri.) 231] in support of his contention.

6. Mr. T. A. Mirza, learned A.P.P. for State submits that in

every case, it is not necessary to make externment order against all the

members of the gang. He submits that it is for the Externing Authority

to determine the person against whom such order is necessary to be

made. He submits that decisions relied upon by the petitioner turn on

their facts and therefore are not applicable in the present case.

7. We have considered the rival contentions and also perused

the material on record. According to us, the petitioner's contention

finds support in the decision of this Court in Vijay Jadhav (supra) and

Ahammad Shaikh (supra). There are no distinguishing features

pointed out to persuade us not to apply these two decisions to the facts

of the present case.

8. In Vijay Jadhav (supra), the Division Bench of this Court

has analyzed the provisions of Section 55 of the said Act and in para

no. 8 held that:-

"...... ...

Section 55 of the Bombay Police Act does not contemplate movement or encampment of `a person' causing or calculated

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to cause danger or alarm, but, refers to movement or encampment of any gang or body of persons causing or calculated to cause alarm, danger, etc. It is thus, evident from the language of Section 55 of the Bombay Police Act, that it's application is directed not against `any individual' but against any gang or body of persons or members of the gang.

Section 55 of the Bombay Police Act contemplates collective action against the gang or body of persons and therefore, the final direction which is required to be issued in terms of the said Section, will have to be necessarily against each of the members of the gang and not against one or a few of them on selective basis. It is therefore, apparent that an illegality has been committed by both the Authorities, i.e. the Competent Authority and the Appellate Authority by passing the externment order and confirming the same only qua the petitioners and not against the other members of the alleged gang."

9. Similarly, in Ahammad Mainuddin Shaikh (supra), another

Division Bench of this Court has analyzed the provision of Section 55

of the said Act and in para no. 8 observed thus:-

"Upon a careful reading of this section, it becomes clear that, whenever it appears to the competent authority that the movement or encampment of any gang or body of persons in the area under his charge is causing or is calculated to cause danger or alarm or reasonable suspicion that unlawful designs are entertained by such gang or body of persons or by its members, such officer may by notification addressed to the leaders or chief men of such gang or body of persons and suitably published, issue two types of directions. The first direction is about regulating of conduct of such gang or body of persons in a manner prescribed in the direction in order to prevent violence and alarm. Such direction, in the alternative, can also be in the form of an order for dispersal of members of

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such gang or body of persons. The second direction which follows the first one, is about removal of each of the members of the gang or body of persons outside the area within the local limits of jurisdiction of the competent authority. In suitable cases, the order of removal can also be from district or it's parts or together with contiguous districts or parts thereof. This second direction, in order to be reasonable, has to be passed for a definite period of time. In the entire section, there is common thread of participation by all and collective action against all that holds together all it's parts. The section starts with gang or body of persons, sails through the dangerous impressions that the movement or encampment of gang or body of persons creates and ends with a direction of removal passed against each of the members of the gang or body of persons. This common thread is the essence of Section 55 and that is the mandate of the legislature. In other words, Section 55 would be applicable only when the persons are seen to be acting as members of the gang or body of persons and it is only then that action under Section 55 of the Act can be taken and which is to be taken against all members and not only a few of them selectively."

10. As noted earlier, this is a case, where the allegations are

made against the gang comprising of at least 4/5 members as is

evident from the FIRs relied upon by the Externing Authority. However,

without assigning any reason whatsoever, the impugned externment

order has been made only against one of the members of the gang i.e.

the petitioner herein. In such circumstances, the principle laid down

in the aforesaid two decisions of the Division Bench applies, and the

impugned externment order warrants interference.

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11. Accordingly, the impugned orders are liable to be set aside

and hereby set aside.

12. Rule is made absolute in terms of prayer clause nos. 1 and

2 of this petition that read as follows:-

"1. Quash and set aside the order dt. 7/4/2021 passed by the respondent no. 3/Superintendent of Police, Akola in case No. MP. Act-55/P.K.8(2)/2021 at Annexure-P6.

2. Quash and set aside the order dt. 29/7/2021 in appeal no. 36/MPA,1951/U/S60/EXT./G.B.-7/2021/Akola passed by the respondent no. 2 Divisional Commissioner, Amravati at Annexure-P8."

                      (PUSHPA V. GANEDIWALA, J.)                     (M. S. SONAK, J.)




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