Bombay High Court
Shoeb @ Sharif @ Shafya Khan Aasif ... vs The State Of Maharashtra And ... on 6 September, 2021
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
1 CRI.WP-638-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 638 OF 2021
1. Shoeb @ Sharif @ Shafya Khan Aasif Khan
Age : 24 years, Occu: Labour,
R/o HUDCO Cornor Clolony, Near Madina
Masji, Chalisgaon, Tal. Chalisgaon,
District Jalgaon.
2. Shoeb @ Dibbar Shaikh Kadar Shaikh
Age : 22 years,Occu: Labour,
R/o Near New Water Tank, Wamiknagar,
Chalisgaon, Tal. Chalisgaon,
District Jalgaon. ...Petitioners
Versus
1. The State of Maharashtra,
Through Secretary,
Home Department, Mantralaya,
Mumbai - 32.
2. The Chalisgaon City Police Station,
Chalisgaon, Tal. Chalisgaon,
Dist. Jalgaon,
Through Police Station Officer/Inspector
3. The Superintendent of Police,
Jalgaon, Tq. & Dist. Jalgaon.
4. The Divisional Commissioner, Nashik
Division, Nashik, Dist. Nashik. ...Respondents
Mr A.R. Syed, Advocate for Petitioners
Mr Sachin J. Salgare, A.P.P. for Respondents-State
CORAM : V.K. JADHAV AND
SHRIKANT D. KULKARNI, JJ.
RESERVED ON : 02.08.2021
PRONOUNCED ON : 06.09.2021
JUDGMENT : (PER SHRIKANT D. KULKARNI, J.)
1. Rule. Rule made returnable forthwith.
2. Heard finally with consent of both the sides at admission stage.
2 CRI.WP-638-2021
3. The petitioners by invoking Article 226 and 227 of the
Constitution of India, have challenged the externment order dated
11.02.2021 passed by the Superintendent of Police, Jalgaon under section
55 of the Maharashtra Police Act, 1951 (for short "Act of 1951") and
confirmed in appeal by the Divisional Commissioner, Nashik Division,
Nashik vide order dated 07.05.2021.
4. Respondent No. 3/Superintendent of Police, Jalgaon has
issued a show cause notice dated 19.01.2021 to the petitioners and others
as to why they should not be externed from Jalgaon District for a period of
two years. The petitioners have appeared before the Superintendent of
Police, Jalgaon and filed their reply in response to the show cause notice.
Respondent No. 3 passed an impugned order of externment against the
petitioners from Districts of Jalgaon and Dhule for the period of two years
vide order dated 11.02.2021 in externment proceedings on the ground that
they are members of a gang involved in committing offence against the
society. They are threat to the society. The persons are not coming
forward to lodge the complaint against the petitioners because of their
terror. Due to illegal activities of the petitioners and being members of the
gang, there is a serious problem of law and order in the society. There is
eminent danger to the persons because of illegal activities of the
petitioners and their members of the gang.
5. The petitioners have challenged the said impugned order of
externment before the Divisional Commissioner, Nashik Division,
3 CRI.WP-638-2021
Nashik/respondent No. 4 by preferring Externment Appeal No. 16/2021.
The Divisional Commissioner, Nashik Division, Nashik after giving an
opportunity of being heard to both the sides, was pleased to confirm the
impugned order of externment by taking aid of section 60 of the Act of
1951.
6. Heard Mr A.R. Syed, learned counsel for the petitioners and
Mr S.J. Salgare, learned A.P.P. for the State/Respondents.
7. Mr Syed, learned counsel for the petitioners strenuously argued
that both the orders passed by the competent authority are against the
principles of natural justice. Both the orders are arbitrary and perverse.
The submissions made on behalf of the petitioners were not considered in
a proper perspective. Most of the offences were registered long back. The
petitioners are not concerned in respect of the offences mentioned in
column No. 1 to 3 in the chart relied upon by the authority. The offence
mentioned in column No. 4 is under section 12-A of the Maharashtra
Prevention of Gambling Act, which cannot be a basis for the externment.
The offence mentioned in column No. 6 is also not related to petitioner
No.1. The authorities have failed to record the subjective of satisfaction
before passing order of externment against the petitioners.
8. Both the petitioners are labours. They are not members of the
gang. Mere involvement of the petitioners in two offences cannot be sole
basis for initiating the proceedings under section 56 of the Act. Mr Syed,
learned counsel submitted that alleged activities of the petitioners are
restricted to Chalisgaon City Police Station, and as such, it was necessary
4 CRI.WP-638-2021
on the part of the externing authority to assign reasons for externing the
petitioners for an expansive area i.e. from Jalgaon District and Dhule
District. No reasons are recorded while externing the petitioners from
Dhule District and entire Jalgaon District. The petitioners never convicted
as gang members or leader of the gang. There are no in-camera
statements to support the proceedings initiated by the authority.
9. To buttress the argument, Mr Syed, learned counsel for the
petitioners has placed reliance on following stock of citations :-
(i) 2021 All M.R. (Cri.) 1869 Dipak Sudhakar Patil Vs. State of
Maharashtra and others
(ii) 2014 (1) Mh L J (Cri.) 231 Ahammad Mainuddin Shaikh Vs.
State of Maharashtra and anr.
(iii) 2014 All M.R. (Cri.) 2161 Bilal Gulam Rasul Patel Vs.
Divisional Magistrate, Thane and others
10. Per contra, Mr S.J. Salgare, learned A.P.P. for the
State/Respondents vehemently submitted that the petitioners are
disturbing the peace and tranquility in the Society. They are involved in
commission of cognizable and serious offences. Both the authorities have
considered the material placed on record. Both the authorities have rightly
externed the petitioners in an expansive area by looking to their illegal
activities. The petitioners are members of the gang. Both the authorities
have given cogent reasons with subjective satisfaction for externing the
petitioners from District Dhule and Jalgaon. Mr Salgare learned A.P.P. for
the State supported to the impugned order of externment passed by the
Superintendent of Police, Jalgaon as well as impugned order passed in
5 CRI.WP-638-2021
Externment Appeal No. 16/2021 by the Divisional Commissioner, Nashik
Division, Nashik.
11. Mr Salgare, learned A.P.P. has placed his reliance on citation in
the case of State of NCT of Delhi Vs. Sanjeev @ Bittu reported in 2005
(5) SCC 181 in support of his submissions, wherein it is held by the
Hon'ble Supreme Court that it is not the sufficiency of material but
existence of material which is sine qua non.
12. We have considered the submissions advanced by Mr Syed,
learned counsel for the petitioners and Mr Salgare, learned A.P.P. for the
respondents/ State. We have also perused the provisions of section 55 to
60 of the Act, 1951, which deals with the externment proceedings and
appeal. We have perused the police papers made available by the learned
A.P.P. and impugned order of externment passed by the Superintendent
of Police, Jalgaon and confirmed in the externment appeal by the
Divisional Commissioner, Nashik Division, Nashik.
13. The Superintendent of Police, Jalgaon while passing the order
of externment dated 11.02.2021, has considered following crimes which
alleged to have been committed by the petitioners individually as well as
jointly as members of the gang.
v-ua- iksyhl xq-j- o dye lgHkkxh vkjksihrkaph ukos l|fLFkrh
LVs'ku
1 pkGhlxko [email protected] 1½ 'ks[k tqcsj mQZ lkchj U;k;izfo"B
'kgj d- 326] 324] 504] mQZ cacS¸;k 'ks[k xkyhc
506] 143] 147] 2½ fodkl mQZ vYykm|hu
148] 149] 427 'ks[k uqjks|hu 'ks[k
3½ vQlj 'ks[k vklhQ 'ks[k
6 CRI.WP-638-2021
2 pkGhlxko [email protected] 1½ 'ks[k tqcsj mQZ lkchj U;k;izfo"B
'kgj d- 326] 323] 504] mQZ cacS¸;k 'ks[k xkyhc
506] 143] 147] 2½ vQlj 'ks[k vklhQ 'ks[k
148] 149] 427
e-iks-dk- d-135
3 pkGhlxko [email protected] 1½ 'ks[k tqcsj mQZ lkchj U;k;izfo"B
'kgj d-160 mQZ cacS¸;k 'ks[k xkyhc
e-iks-dk- d-135 2½ fodkl mQZ vYykm|hu
'ks[k uqjks|hu 'ks[k
4 pkGhlxko [email protected] 1½ 'ks[k tqcsj mQZ lkchj U;k;izfo"B
'kgj eq-tq-vW-d 12¼v½ mQZ cacS¸;k 'ks[k xkyhc
2½ 'kks,c mQZ 'kjhQ mQZ
'k¶;k[kku vklhQ[kku
5 pkGhlxko [email protected] 1½ 'ks[k tqcsj mQZ lkchj U;k;izfo"B
'kgj d- 323] 504] 143] mQZ cacS¸;k 'ks[k xkyhc
147] 148] 149] 2½ fodkl mQZ vYykm|hu
427] 452 'ks[k uqjks|hu 'ks[k
e-iks-dk- d-135 3½ 'kks,c mQZ 'kjhQ mQZ
'k¶;k[kku vklhQ[kku
4½ vQlj 'ks[k vklhQ 'ks[k
5½ 'kks,c mQZ fMCcj 'ks[k
dknj 'ks[k
6 pkGhlxko [email protected] 1½ 'kks,c mQZ fMCcj 'ks[k U;k;izfo"B
'kgj d- 307] 326] 323] dknj 'ks[k
504] 506
v-ua- lkeusokyk ;kps uko izfrca/kd dkjokbZpk rif'ky l|fLFkrh
01 'ks[k tqcsj mQZ lkchj mQZ cacS¸;[email protected] Qk;uy ckWaM
'ks[k xkyhc fl-vkj-ih-lh- d-107
02 fodkl mQZ vYykm|hu 'ks[k [email protected] Qk;uy ckWaM
uqjks|hu 'ks[k fl-vkj-ih-lh- d-107
03 'kks,c mQZ 'kjhQ mQZ 'k¶;k[kku [email protected] Qk;uy ckWaM
vklhQ[kku fl-vkj-ih-lh- d-107
04 vQlj 'ks[k vklhQ 'ks[k [email protected] Qk;uy ckWaM
fl-vkj-ih-lh- d-107
05 'kks,c mQZ fMCcj 'ks[k dknj 'ks[k [email protected] Qk;uy ckWaM
fl-vkj-ih-lh- d-107
14. It is noticed by us that above said offences seem to have been
7 CRI.WP-638-2021
registered with Chalisgaon City Police Station. There is no offence
registered against the petitioners with remaining Police Stations from
Jalgaon District or District Dhule. The alleged activities of the petitioners
seem to have been restricted to the jurisdiction of Jalgaon City Police
Station. The Superintendent of Police, Jalgaon has issued the show cause
notice against the petitioners and others from entire Jalgaon District
having regard to their criminal antecedents. The Superintendent of Police
is empowered to extern a person involved in criminal activities even from
more area and on that ground, notice cannot be said to be defective in the
eye of law. However, it is pointed out by Mr Syed, learned counsel for the
petitioners that though above said four crimes at Sr. No. 1 to 4 shown in
the chart subjudiced before the Court, it is not a true picture. Mr Syed, learned
counsel for the petitioners invited our attention to the copies of the judgments and
orders passed by the concerned Court relating to above said crimes at Sr. Nos. 1
to 4. The petitioners have been acquitted from those criminal cases.
15. We have gone through the copies of the judgments and orders
passed by the concerned Courts. We noticed that the petitioners have
been acquitted out of Regular Criminal Case No. 167/2015 by the
Judgment and order of J.M.F.C., Chalisgaon arising from crime No.
94/2015. The petitioners also came to be acquitted in Regular Criminal
Case No. 280/2016 arising out of Crime No. 98/2016 for the offences
punishable under sections 147, 143, 148, 324, 323, 504, 506 read with
149 of the Indian Penal Code and under section 37 (1) (3) punishable
under section 135 of the Maharashtra Police Act vide judgment and order
dated 26.09.2019.
8 CRI.WP-638-2021
16. Both the petitioners seem to have not been arraigned as
accused in the proceedings of SCC No.1247/2016 for the offence
punishable under section 160 of the Indian Penal Code. However, the
accused persons involved therein came to be acquitted by the J.M.F.C.
Chalisgaon under its judgment and order dated 13.01.2020. Therefore, it
is clear that above said matters are not pending before the concerned
Court though the competent authority has shown those cases as pending
before the concerned Courts.
17. Now, coming to crime No. 3045/2018, the petitioners are not
shown as accused as appearing from the record. Moreover, the said crime
seems to have registered under the Maharashtra Prevention of Gambling
Act and petitioner No. 2 is shown as accused.
18. Remaining two crimes shown in the above said chart at Sr. No.
5 and 6 are only pending before the concerned Court. The crime at Sr. No.
5, both the petitioners are shown in the column of accused whereas, both
the petitioners are not shown as accused in respect of the crime shown at
Sr. No. 6. Apart from the above said criminal cases, one chapter case vide
Chapter Case No. 186/2020 under section 107 of Cr.P.C. seems to have
been initiated against petitioner No. 1 and one chapter case against
petitioner No. 2 vide Chapter Case No. 184/2020 by taking aid of section
107 of Cr.P.C.
19. Having regard to the above stock of material, it is very much
clear that so-called criminal activities of the petitioners are restricted to
jurisdiction of Jalgaon City Police Station. However, the Superintendent of
9 CRI.WP-638-2021
Police, Jalgaon seems to have externed both the petitioners from entire
Jalgaon District and District Dhule as well. It is very much necessary for us
to examine the externment order as well as material produced by the
Police machinery in order to find out whether the authority has exercised
its jurisdiction judiciously and properly. The provisions of section 55 of the
Act of 1951 empowered the authority to extern a person, who is the
member of the gang or head of the gang causing danger to the society in
order to prevent violence and alarm or disperse each of them to remove
himself outside area within the local limits of jurisdiction [or such area and
any district or districts, or any part thereof, contiguous thereto] within such
time as such officer shall prescribe, and not to enter to area [for the areas
and such contiguous districts, or part thereof, as the case may be,] or
return to the place from which each of them was directed to remove
himself.
20. On perusing the show cause notice issued under section 55 of
the Act, 1951, externment order passed thereunder and order passed in
Externment Appeal No. 16/2021, we do not find any material which may
focus light compelling the authorities to extern both the petitioners from
entire Jalgaon District and Dhule District.
21. In case of Dipak Sudhakar Patil Vs. State of Maharashtra
and others (supra), the Division Bench of this Court, to which one of us
was party (V.K. Jadhav, J.) has held that while making such an expansive
order to remove a person from a much bigger area than the area of his
actual activity and such a larger area may not necessarily be contiguous to
10 CRI.WP-638-2021
the area of illegal activities or may not be falling within the local limits of
the jurisdiction of the officer but this discretion is always subject to the
limits drawn by the Wednesbury triad of unreasonableness. The authority
which is having the discretion to extern a person from a much 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.
22. That would mean that an externment order must be based upon
some material, that it must refer to some material on record, and if that is
done, the requirements of law are met and the judicial review would go no
further to examine sufficiency or otherwise of such material. In the case in
hand, the impugned externment order does not refer to such material on
record. What were the compelling circumstances and the reasons for the
competent authority to extern the petitioners from a much larger area
when their illegal activities are restricted to Chalisgaon Police Station. The
show cause notice issued to the petitioners and others under section 55 of
the Act of 1951, mentioned about externment from Jalgaon District. There
is no reference for a proposal of externment from Dhule District. Even
then, the authority has externed the petitioners from entire Jalgaon District
and Dhule District without having material on record. We could understand
if the externment order of the petitioners was restricted to Jalgaon District,
in view of the reference of two criminal cases registered against the
petitioners recently in the year 2019 and 2020. The authority seems to
have exercised his discretion to extern the petitioners from a much larger
11 CRI.WP-638-2021
area arbitrarily, unreasonably and without having any material on record. It
reflects non-application of mind by the competent authority.
23. In this context, we may refer the citation in case of Bilal Gulam
Rasul Patel Vs. Divisional Magistrate, Thane and others (supra),
wherein show cause notice was given to the proposed externee i.e.
petitioner, why he should not be externed for a period of two years from
the Districts of Thane, Brihan Mumbai, Raigad, Nashik and Ahmednagar.
The order of externment passed by the externing authority, externing the
petitioner was from Thane, Pune, Nashik, Mumbai City and Mumbai
suburban. The show cause notice did not mention Pune District even then,
the petitioner in that case, came to be externed even from Pune District.
The Division Bench of this Court held that it clearly reflects non-application
of mind by the externing authority and pleased to quash the order of
externment. The facts of the case in hand are squarely covered by the
decision of Division Bench of this Court as referred above.
24. As discussed herein before, whatever criminal cases are there
against the petitioners, did not show that they have indulged in criminal
activities as a group and either of them is held as a member of the gang.
The material relied upon by the authority did not make out any case
against the petitioners as a member or chief of gang or a body of a
persons simply on the basis of two crimes referred above cannot be said
to be sufficient material to brand them as gang members or chief of the
gang.
12 CRI.WP-638-2021
25. The Superintendent of Police, Jalgaon seems to have externed
the petitioners from entire Jalgaon District and Dhule District without
having sufficient material on record against them. 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 aspects and confirm the impugned order of
externment passed against the petitioners without making exercise of
independent assessment and scanning of material on record.
26. The order directing externment should show existence of some
material warranting an order of externment. The case in hand does not
show the existence of some material warranting an order of externment of
both the petitioners from entire Jalgaon District and Dhule District. The
impugned order of externment seems to be an example of arbitrariness
and excessive use of authority.
27. Having regard to the above reasons and discussion, we arrive
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 is not sustainable and
liable to be set aside. The criminal writ petition needs to be allowed. We
proceed to pass the following order :-
ORDER
(I) The criminal writ petition is hereby allowed.
13 CRI.WP-638-2021
(II) The impugned order of externment dated 11.02.2021 passed
by respondent No. 3/Superintendent of Police, Jalgaon, and
confirmed by respondent No.4/Divisional Commissioner, Nashik
Division, Nashik in externment appeal No. 16/2021 vide order
dated 07.05.2021 are hereby quashed and set aside.
(III) Rule is made absolute accordingly.
(IV) Criminal Writ Petition is disposed of.
[ SHRIKANT D. KULKARNI, J. ] [ V.K. JADHAV, J. ]
mta
