Bombay High Court
Farukh Khan @ Pappu Zahir Khan ... vs The State Of Maharashtra on 7 April, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
(1)
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1448 OF 2021
1. Farukh Khan @ Pappu s/o
Zahir Khan Qureshi.
2. Nayab Khan s/o Zahir Khan
Qureshi
3. Feroz Khan s/o Zahir Khan
Qureshi
4. Sikandar Khan s/o Zahir Khan
Qureshi
5. Firdaus Khan @ Raju s/o Zahir
Khan Qureshi
6. Shaikh Mustaqeem s/o
Shahabuddin Qureshi Petitioners
Versus
The State of Maharashtra
Through Police Inspector,
Nandurbar Police Station,
Taluka and Dist. Nandurbar. Respondent
...
Mr. S.P. Brahme, Advocate holding for
Mr. Ruchir S. Wani, Advocate for the petitioners.
Mr. M.M. Nerlikar, A.P.P. for the respondent - State.
...
CORAM : V.K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
RESERVED ON : 14th March 2022.
PRONOUNCED ON : 7th April 2022.
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Judgment (Per Sandipkumar C. More, J.) :
1. Rule. Rule made returnable forthwith. By
consent of the parties, heard fnally at the stage of admission.
2. The petitioners have challenged the order dated
09.09.2021 passed by the Superintendent of Police,
Nandurbar whereby the petitioners have been externed from
the entire Nandurbar District for the period of two years.
Further, the petitioners have also challenged the order dated
06.12.2021 passed by the learned Divisional Commissioner,
Nashik Division, Nashik in Externment Appeal No. 111/2021,
whereby the earlier order dated 09.09.2021 is confrmed.
3. The background facts are as under :
The respondent through Police Inspector,
Nandurbar Police Station had sent externment proposal in
respect of the petitioners under Section 55 of the
Maharashtra Police Act (hereinafter referred to as "the Act")
since it was found that all the petitioners were involved in
serious criminal activities being a gang in the jurisdiction of
Nandurbar city police station. Those criminal activities
involved formation of unlawful assembly, use of dangerous
weapon, commission of rioting, criminal trespass and the
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offences related to human body. Thereafter the Sub-
Divisional Police Offcer, Nandurbar conducted inquiry of the
said externment proposal and proposed that the petitioners
were required to be externed from entire Nandurbar District
for the period of two years. Accordingly, the Superintendent
of Police, Nandurbar on the basis of the reported submitted
by the Sub-Divisional Police Offcer, Nandurbar, issued notice
dated 15.07.2021 under Section 59 of the Act and asked all
the petitioners as to why they should not be externed from
Nandurbar District as proposed. All the petitioners submitted
their replies by denying all the allegations made against them
in the said notice. However, the Superintendent of Police,
Nandurbar under the impugned order dated 09.09.2021,
externed the petitioners as aforesaid. Being aggrieved with
the said order dated 09.09.2021, the petitioners even
preferred appeal before the Divisional Commissioner, Nashik
bearing Externment Appeal No. 111/2021 under Section 60 of
the Act. However, learned Divisional Commissioner, Nashik
was pleased to dismiss the same vide order 06.12.2021 by
confrming the earlier impugned order dated 09.09.2021.
Hence, this Writ Petition.
4. Learned Counsel for the petitioners submits that
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both the impugned orders are prima facie erroneous and
against the provisions of law. He submits that the
externment proposal against the petitioners is allowed by
ignoring the settled principle of law and without there being
any material to show that the petitioners acted together in the
criminal acts being a gang or body of persons. He submits
that the criminal activities of the petitioners considered by
the Authorities below for their externment are individualistic
in nature and not in collective form. He further submits that
the Chapter cases shown against the petitioners are also fled
in their individual capacity and not as a group. Further, the
petitioner Nos.1 to 5 are brothers, and therefore, they cannot
be termed as gang members or leader of such gang. He
further submits that most of the crimes considered for
externment of the petitioners are not committed collectively by
the petitioners and in some of those crimes, the concerned
petitioners are also acquitted. The main crimes which appear
to be committed collectively by the petitioners, are the result
of family dispute, and therefore, they cannot be said as the
crimes against public at large. With these submissions the
learned Counsel for the petitioners prayed for quashing of the
impugned orders. In addition to the oral submissions, the
learned Counsel also relied upon the following judgments :
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(i) Rahmat Khan alias Rammu Bismillah vs. Deputy
Commissioner of Police, 2021 SCC OnLine SC 641.
(ii) Vijay Lalso Jadhav vs. State of Maharashtra and others
2013 SCC OnLine Bom 1432.
(iii) Praful Bhausaheb Yadav vs. K.K. Pathak and others
2013 SCC OnLine Bom 188.
(iv) Sachin Bhaskar Badgujar vs. State of Maharashtra
2018 SCC OnLine Bom 1439.
(v) Judgment of Hon'ble Bombay High Court, Bench at
Aurangabad in Criminal Writ Petition No. 638/2021
(Shoeb @ Sharif @ Shafya Khan vs. State of
Maharashtra and others).
5. On the contrary, learned A.P.P. for the respondent-
State strongly opposed the petition by fling affdavit-in-reply
of the Assistant Police Inspector, Local Crime Branch,
Nandurbar. Learned A.P.P. supported both the impugned
orders and submits that the impugned orders are
appropriately passed by considering the entire material on
record in proper manner. He submits that there are various
crimes registered against the petitioners in the area of
Nandurbar City Police Station. Besides, the prohibitory
action under Sections 110 and 107 of the Code of Criminal
Procedure was also initiated against the petitioners
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considering their criminal activities. As such, he prayed for
dismissal of the petition.
6. We have carefully gone through the entire material
on record alongwith the police papers and the impugned
orders.
7. It is signifcant to note that the externment
proposal against the petitioners was sent in view of Section 55
of the Act. We would like to reproduce the said Section as
below :
"55. Dispersal of gangs and bodies of persons. -
Whenever it shall appear in Greater Bombay and
in other areas in which a Commissioner is
appointed under section 7 to the Commissioner
and in a district to the District Magistrate, the
Sub-Divisional Magistrate or the Superintendent
empowered by the State Government in that
behalf, that the movement or encampment of any
gang or body of persons in the area in 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 or
by members thereof, such offcer may, by
notifcation addressed to the persons appearing
to be the leaders or chief men of such gang or
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body and published by beat of drum or otherwise
as such offcer thinks ft, direct the members of
such gang or body so to conduct themselves as
shall seem necessary in order to prevent violence
and alarm or disperse and each of them to
remove himself outside the area within the local
limits of his jurisdiction [or such area and any
district or districts, or any part thereof,
contiguous thereto] within such time as such
offcer 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.
8. On perusal of Section 55 of the Act, it appears that
the main requirement for attracting Section 55 is that the
criminal cases against gang or group of persons must be
collective in nature and the same should not be individualistic
in nature. Further, it has to be shown that the petitioners
involved in criminal activities must be the members of gang.
Further, there should be specifc material on record showing
that the persons are acting as gang or body of persons.
Section 55 of the Act can only be invoked if all these aforesaid
ingredients are present.
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9. On perusal of the order dated 09.09.2021 passed
by the Superintendent of Police, Nandurbar, it is evident that
the following crimes registered in Nandurbar City Police
Station against the petitioners have been considered for their
externment.
Crime registered against all the petitioners :
Sr. Police CR No. Under Court Final
No. Station Sections Case No. Result
1. City Police Part-5, CR 307 of RCC Pending
Station No.28/2020 IPC No.186 of
Crime registered against petitioner Nos.1 to 5 :
Sr. Police CR No. Under Court Final
No. Station Sections Case No. Result
1. City Police Part-5, CR 143, 147, RCC Pending
Station No.281/2020 148,149, No.251 of
324,504, 2020
506 of
IPC,
under
section
37(1)(3)
of Mah.
Police
Act
Crime registered against petitioner Nos.2 and 5 :
Sr. Police CR No. Under Court Final
No. Station Sections Case No. Result
1. City Police Part-5, CR 324,504, RCC Not
Station No.136/2015 504/34 No.24 of proved.
of IPC 2016
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Crime registered against petitioner No. 2 :
Sr. Police CR No. Under Court Final
No. Station Sections Case No. Result
1. City Part-5, 268,269,289, RCC Pending
Police CR No.425 290of IPC & No.1701
Station of 2020 u/s 5, 9(A) of of 2020
Maharashtra
Animal
Preservation
Act, u/s 11 of
Prevention of
Cruelty to
Animal Act,
1960 & u/s
291 of
Maharashtra
Municipal Act
Crime registered against petitioner No.3 :
Sr. Police CR No. Under Court Final
No. Station Sections Case No. Result
1. City Part-5, 5(C), 9, 9(A) of RCC Not
Police CR No.65 Maharashtra No.114 of proved.
Station of 2015 Animal 2016
Preservation
Act.
Crime registered against petitioner No.2 :
Sr. Police CR No. Under Court Final
No. Station Sections Case No. Result
1. City Part-5, 160 of IPC RCC Proved.
Police CR No.1755
Station No.279 of of 2021
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Crime registered against petitioner No.1 :
Sr. Police CR No. Under Charge- Final
No. Station Sections sheet No. Result
1. City CR No. U/s 1238 of Charge -
Police 1100 of 268,269,290 2020 sheet is
Station 2020 of IPC, u/s yet to be
11(G((D) of fled in
Prevention of the Court
Cruelty to
Animal Act,
1960 & u/s
119 of the
Maharashtra
Police Act.
Non cognizable case registered against petitioner Nos.1 & 2 :
Sr. Police CR No. Under Registered on
No. Station Sections
1. City Police Reg. No. Under Sec. 27.05.2020
Station 149/2020 186 of IPC
Besides, the aforesaid crimes, certain prohibitory
action against the petitioners also appear to be considered,
which are as follows :
Sr. Police Proposal No. and Section Name of
No. Station accused
1. City Police 1. Ch.Case No.269/2020 Mushtakim
Station u/s 107 CrPC, dt. Sk.
29.07.2020 Shahabuddin
2. Ch.Case No.150/2020 Qureshi, age
u/s 107 CrPC, dt. 28 yrs, r/o
11.03.2020 Qureshi
3. Ch.Case No.234/2020 Mohalla,
u/s 107 CrPC, dt. Nandurbar.
26.07.2020
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2. City Police 1. Ch.Case No.6/2020 Pappu @
Station u/s 110 of CrPC, dt. Farukh Khan
28.07.2020. Jahirkhan
2. Ch.Case No.145/2020 Qureshi, age
u/s 107 of CrPC, dt. 40 yrs, r/o
10.03.2020 Qureshi
Mohalla,
Nandurbar.
3. City Police 1. Ch.Case No.7/2020 Nayabkhan
Station u/s 110 of CrPC, dt. Jahirkhan
28.07.2020. Qureshi, age
2. Ch.Case No.222/2020 48 yrs, r/o
u/s 107 of CrPC, dt. Qureshi
07.07.2020 Mohalla,
Nandurbar.
4. City Police 1. Ch.Case No.144/2020 Firoz Khan
Station u/s 107 of CrPC, dt. Jahirkhan
10.03.2020. Qureshi, age
2. Ch.Case No.235/2020 48 yrs, r/o
u/s 107 of CrPC, dt. Qureshi
26.07.2020 Mohalla,
Nandurbar.
5. City Police Ch.Case No.241/2020 Sikandar
Station u/s 107 of CrPC, dt. Khan s/o
26.07.2020. Jahirkhan
Qureshi, r/o
Qureshi
Mohalla,
Nandurbar.
6. City Police Ch.Case No.243/2020 Raju @ Firdos
Station u/s 107 of CrPC, dt. Khan s/o
26.07.2020. Jahirkhan
Qureshi, age
40 yrs, r/o
Qureshi
Mohalla,
Nandurbar.
10. Learned Counsel for the petitioners strongly
submitted that the aforesaid material considered for
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externment of the petitioners is not in the form of collective
activities, but it is individualistic in nature. On this
background if we peruse the crimes registered against the
petitioners, then it is evident that Crime No. 28/2020 under
Sections 307, 143, 147, 148, 149, 324, 452 of the Indian Penal
Code and under Sections 37 (1) (3) and 135 of the
Maharashtra Police Act is registered against 12 accused
persons, but only six accused, who are the present
petitioners, are selected for externment. Further, on going
through the F.I.R., it appears that there was dispute between
family members and other party also lodged cross F.I.R.
bearing Crime No. 29/2020. Similarly, in Crime No.281/2020
petitioner No.1 is not party in the said crime and rest of the
petitioners are there alongwith other 11 accused. Further, on
perusal of F.I.R. it is clearly evident that the same has been
arisen out of family dispute and the rival party has also fled
cross F.I.R. bearing Crime No. 280/2020. Thus, it appears
that though the petitioners are shown to be involved in Crime
No. 28/2020 and Crime No. 281/2020, but those crimes are
the result of family dispute and not against public at large.
Further, Crime No. 136/2015 is of old nature and it is only
against petitioner Nos. 2 and 5. Moreover, petitioner Nos.2
and 5 have already been acquitted from the trial of the said
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crime.
11. In crime No.425/2020 under Sections 268, 269,
289, 290 of I.P.C., under Section 5 (C) 9 (A) of Maharashtra
Animal Preservation Act, under Section 11 of Prevention of
Cruelty to Animal Act, 1960 and under Section 291 of
Maharashtra Municipal Act only petitioner No.6 is accused
and not petitioner No.2 as claimed in the order. Moreover, the
said crime is also not against public at large. Further, Crime
No. 65/2015 under Sections 5 (C), 9 and 9(A) of the
Maharashtra Animal Preservation Act is also not against
public at large and it is registered only against petitioner No.3.
Moreover, on perusal of the judgment in the trial of the said
crime, it appears that petitioner No. 3 has already been
acquitted. Further, Crime No. 279/2020 appears to be under
Section 160 and 268 of I.P.C. which is only against petitioner
No.2 for not wearing mask during the pandemic period. It
further appears that petitioner has been convicted in the said
crime only when he pleaded guilty. The said offences also
cannot be said against the public at large. Further Crime
No.1100/2020 is also under Sections 268, 269, 290 of I.P.C.
and under Section 11 (G)(D) of Prevention of Cruelty to Animal
Act 1960 and Section 119 of the Maharashtra Police Act. In
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this crime only petitioner No. 1 is involved and not the other
petitioners. On perusal of the F.I.R. in the said crime, it
appears that full name of petitioner No.1 is shown as not
known, and therefore, there is ambiguity whether the present
petitioner No.1 was in fact involved in the said crime. Even if
it is assumed that the said crime has been registered against
petitioner No.1, then also the nature of the crime is not
harmful to public at large.
12. Besides the aforesaid crimes, there is non-
cognizable case No. 149/2020 under Section 149 of I.P.C.
which is only against petitioner Nos.1 and 2 and not against
all the petitioners. Further, the prohibitory actions by way of
Chapter cases as shown above are also of individualistic
nature and separately fled against the petitioners. Thus, on
perusal of entire material which is considered for the
externment of the petitioners, it is clearly evident that the
crimes registered against the petitioners are either separate
crimes or they are more of individualistic nature. Further,
only frst two crimes appears to be committed collectively by
the petitioners, but they are also arising out of family
disputes wherein cross complaints are registered. As such, it
cannot be said that because of those two crimes there is
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danger to the public at large.
13. Though it is mentioned in the impugned order
dated 09.09.2021 by the Superintendent of Police, Nandurbar
that there is alarm in the public at large due to deterrent
behaviour of the petitioners, and therefore, nobody from
common public are coming forward openly to lodge report
against the petitioners, but nothing is thereon record to
support the same. Further, though it is mentioned in the
said order that some of the confdential witnesses have stated
against the petitioners, but the contents of such confdential
statements are also not mentioned in the impugned order.
Therefore, on perusal of the entire material on record, it
prima facie appears that the petitioners have not acted
criminally in the vicinity of Nandurbar District being a gang
or body of persons.
14. Though the learned Counsel for the petitioners
relied upon certain judgments as mentioned above, the
judgments in the cases of Rahmat Khan alias Rammu
Bismillah vs. Deputy and Praful Bhausaheb Yadav vs. K.K.
Pathak and others (supra) are not much helpful to the instant
case as the same relate to externment under Sectin 56 (1) (a)
(b) of the Act. In the case of Vijay Lalso Jadhav vs. State of
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Maharashtra and others (supra), this Court in para-8 has
observed that Section 55 of the Act can be invoked only if
there is collective criminal activities of the body of persons or
gang. In the said judgment, reference of the observation
made in the case of Ahammad Mainuddin Shaikh vs. The
State of Maharashtra (Criminal Writ Petition No. 2385/2013)
has come, which is as below :
"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 offcer may by notifcation
addressed to the leaders or chief men of such gang
or body of persons and suitably published, issue
two types of directions. The frst 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 such gang or body
of persons. The second direction which follows the
frst 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 defnite 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
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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." (emphasis supplied).
On perusal of the aforesaid observation, it reveals
that Section 55 of the Act would be applicable only when the
persons against whom externment is proposed, are seen to be
acting as member of of gang or body of persons.
15. In the instant case, there is no suffcient material
on record to show that the petitioners have acted criminally
as members of gang or body of persons.
16. In the case of Sachin Bhaskar Badgujar vs. State
of Maharashtra (supra), this Court has observed in para-9 as
follows :
"9. As rightly contended by learned counsel
appearing for the petitioner that, there is no live
link between the offences registered and initiation
of the present externment proceedings against
the petitioner. It appears from the perusal of the
original record that while initiating the
externment proceedings in the year 2017, the
offences registered in the year 2011, 2012, 2013,
2014 and 2015 are also taken into 41.18WP.odt
consideration by the Respondent authorities.
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Therefore, there is no live link and proximity
between the registration of the said offences and
initiation of the present externment proceedings".
The aforesaid observation appears to be helpful in
this case since there are certain crimes of 2015 appear to be
considered in the instant case. Moreover, the concerned
petitioners have also been acquitted in the trial of the said
crimes. As such, the aspect of live link is also missing in the
present case as per the aforesaid observation. Further, this
Court (Coram : V.K. Jadhav and Shrikant D. Kulkarni, JJ.) in
Criminal Writ Petition No. 638 of 2021 has made the following
observation in para 24 :
"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
suffcient material to brand them as gang members
or chief of the gang".
. In the instant case, there is no material on record
to show that the petitioners have indulged into criminal
activities as a group or as a gang, and therefore, the aforesaid
observation squarely applies to the instant matter.
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17. Thus, on going through the entire material on
record and in the light of the observations made by this Court
as mentioned in the above-cited cases, we are of the opinion
that the crimes considered for externment of the petitioners
are more of individualistic in nature and do not show
involvement of the petitioners therein as a body of persons or
gang. As such, the main requirements of Section 55 of the
Act as mentioned in the opening para, are not fulflled. It
appears that both the Authorities below have considered the
individual activities of the petitioners for their externment
without application of mind. Moreover, both the Authorities
below have wrongly come to the conclusion that such
individual activities are deterrent to the public at large. On
the contrary, all the crimes registered against the petitioners
appear to be of private nature and not suffcient to disturb the
public tranquility. Moreover, the crimes against the
petitioners are registered only in City Police Station,
Nandurbar and even though the petitioners are externed from
the entire Nandurbar District. Such action on the part of
both the Authorities below is therefore defnitely excessive in
nature. Further, there appears no subjective satisfaction on
the part of those Authorities.
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18. in view of the above discussion we are of the
opinion that both the impugned orders are liable to be
quashed and set aside. Hence, we pass the following order.
ORDER
(i) Criminal Writ Petition is hereby allowed in
terms of prayer clause [B].
(ii) Rule is made absolute in above terms.
(iii) Criminal Writ Petition is accordingly disposed
of.
(SANDIPKUMAR C. MORE, J.) (V.K. JADHAV, J.)
VD_Dhirde
