Bombay High Court
Shaikh Abdul Rasheed Abdul ... vs The State Of Maharashtra And ... on 26 April, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.268 OF 2022
WITH
CRIMINAL APPLICATION NO. 840 OF 2022
Shaikh Abdul Rasheed Abdul Razaque Kasai,
Age : 47 years, Occu.: Labour,
R/o.: Ghodapir Mohalla, Dhanora Road,
Nandurbar, Tal. and Dist. Nandurbar ..... PETITIONER
VERSUS
1. The State of Maharashtra,
Through Secretary,
Ministry of Home Department,
Mantralaya Mumbai -32
2. The Superintendent of Police,
Nandurbar, District Nandurbar
3. The Police Inspector,
Nandurbar (City) Police Station,
District : Nandurbar ..... RESPONDENTS
....
Advocate for Petitioner : Mr. G. R. Syed
APP for Respondents-State : Mr. M. M. Nerlikar
.....
WITH
CRIMINAL WRIT PETITION NO.269 OF 2022
WITH
CRIMINAL APPLICATION NO. 839 OF 2022
Shaikh Ishtiyaque Ahmed s/o
Abdul Razzaq Qureshi,
Age : 52 years, Occu.: Labour,
R/o.: Ghodapir Mohalla, Dhanora Road,
Nandurbar, Tal. and Dist. Nandurbar ...... PETITIONER
VERSUS
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1. The State of Maharashtra,
Through Secretary,
Ministry of Home Department,
Mantralaya Mumbai -32
2. The Superintendent of Police,
Nandurbar, District Nandurbar
3. The Police Inspector,
Nandurbar (City) Police Station,
District : Nandurbar ..... RESPONDENTS
.....
Advocate for Petitioner : Mr. G. R. Syed
APP for Respondents-State : Mr. M. M. Nerlikar
....
WITH
CRIMINAL WRIT PETITION NO. 369 OF 2022
1. Shaikh Juber Shaikh Mustaq Qureshi
Age : 30 years, Occu.: Labour,
R/o.: Ghodapir Mohalla, Dhanora Road,
Nandurbar, Tal. and Dist. Nandurbar
2. Riyaz Ahmed Mushtaq Ahmed Qureshi
Age : 34 years, Occu.: Labour,
R/o.: Ghodapir Mohalla, Dhanora Road,
Nandurbar, Tal. and Dist. Nandurbar
3. Nihal Ahmed Shaikh Ashfak Qureshi,
Age : 37 years, Occu.: Labour,
R/o.: Ghodapir Mohalla, Dhanora Road,
Nandurbar, Tal. and Dist. Nandurbar ... PETITIONERS
VERSUS
1. The State of Maharashtra
2. Superintendent of Police,
Nandurbar, Tq. & Dist. Nandurbar
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3. The Divisional Commissioner,
Nashik Division, Nashik,
Tq. and Dist. Nashik. .... RESPONDENTS
.....
Adv. for Petitioner : Mr. Rohit Patwardhan h/f Mr. Satej S. Jadhav
APP for Respondents-State : Mr. M. M. Nerlikar
.....
CORAM : V. K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
RESERVED ON : 11/04/2022
PRONOUNCED ON : 26/04/2022
....
JUDGMENT : (Per : Sandipkumar C. More, J.) :
1. Rule. Rule made returnable forthwith. By consent, heard
finally at admission stage.
2. All these criminal writ petitions are filed by respective
petitioners for challenging the common judgment and order of their
externment passed on 09/09/2021 by the Superintendent of Police
Nandurbar, District Nandurbar in Case No. 290/LCB/Externment
Order/4151, under Section 55 of the Maharashtra Police Act, 1951
(hereinafter referred to as 'the Act'). The petitioners have also
challenged the order of the learned Additional Divisional
Commissioner, Nashik, Division Nashik in their respective appeals
filed under Section 60 of the Act, whereby the earlier order of
externment dated 09/09/2021 has been confirmed. Since the
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externment order dated 09/09/2021 as mentioned above is common
for all these petitioners, we find it proper to decide all these petitions
by common judgment.
3. In Criminal Writ Petition No. 268 of 2022 the petitioner Shaikh
Abdul Rasheed Abdul Razaque Kasai has challenged the order dated
04/02/2022 passed by the learned Additional Divisional
Commissioner in his Externment Appeal No. 136 of 2021, whereas in
Criminal Writ Petition No. 269 of 2021 the petitioner Shaikh
Ishtiyaque Ahmed s/o Abdul Razzaq Qureshi has challenged the
order dated 04/02/2022 passed by the Additional Commissioner,
Nashik Division in his Externment Appeal No. 120 of 2021. Further
the petitioners in Criminal Writ Petition No.369 of 2022 have
challenged the order dated 04/02/2022 passed by the Divisional
Commissioner Nashik Division in their respective Externment
Appeal No. 122 of 2021, Externment Appeal No. 121 of 2021 and
Externment Appeal No. 123 of 2021.
4. Background facts are as follows :
All the petitioners have claimed that they are peace loving and
law abiding citizens of India and earning their livelihood by doing
labour jobs. However, the Police Inspector of Nandurbar (City) Police
Station forwarded a proposal to the Superintendent of Police,
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Nandurbar under Section 55 of the Act on 27/02/2021 and thereby
proposed externment of the petitioners. After receipt of the said
proposal, the Superintendent of Police, Nandurbar sent the proposal
to Sub-Divisional Police Officer, Nandurbar for enquiry under
Section 59 of the Act on 11.03.2021. Thereafter, said Sub-Divisional
Officer issued notice to all the petitioners on 23/03/2021 calling
upon their explanations. The petitioners replied the said notice on
08/04/2021. However, Sub-Divisional Police Officer, Nandurbar
after going through the explanations of the petitioners,
recommended their externment along with other members of gang
from Nandurbar district for a period of two years. The
Superintendent of Police, Nandurbar thereafter issued notice dated
16/07/2021 to the present petitioners along with other members of
gang mentioning that why they should not be externed as proposed.
The petitioners again filed their reply to the said notice on
27/07/2021, however, the Superintendent of Police i.e. present
respondent no.2 after hearing the petitioners, passed order of
externment against the petitioners and other gang members on
09/09/2021 and thereby externed them from entire Nandurbar
district for a period of two years. Though the petitioners in their
respective appeals as mentioned above, challenged the said order
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dated 09/09/2021 before the Divisional Commissioner, Nashik, but
those appeals were rejected. Hence, these petitions.
5. The learned counsel for the petitioners submit that order dated
09/09/2021 passed by respondent no.2 and the consequential
orders passed in respect of the appeals by the concerned authorities,
are cryptic and without assigning proper reasoning. Moreover, those
orders are vague in nature and passed on the basis of enquiry report
which was never supplied to the petitioners. They further submit
that the material or the criminal activities which are considered for
passing the order of externment against the petitioners, are not
against the public at large but the same appear to be of
individualistic nature. They further submit that Crime No.29 of
2020 and Crime No. 280 of 2020 have been registered against the
petitioners out of personal dispute with the complainant parties
therein and the same have no bearing at all over the public safety
and maintenance of law and order. They further submit that on the
basis of material which has been considered by both the authorities
below for externment of the petitioners, does not disclose the fact
that the petitioners are involved in serious criminal activities which
are deterrent to public at large and that they have acted as a gang or
body of persons.
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6. The learned counsel for the petitioners also relied upon the
judgment passed by this court ( V. K. Jadhav and S. C. More, JJ) in
Criminal Writ Petition No. 1448 of 2021, wherein reference of rival
members with whom the present petitioners were having dispute,
has come.
7. On the contrary, the learned APP strongly opposed the
petitions by filing a common affidavit in reply. Learned APP
supported the order of externment of the petitioners and also the
orders passed by the learned Divisional Commissioner, Nashik
Division in respective appeals filed by these petitioners against that
order. According to the learned APP various crimes are registered
against the petitioners in the area of Nandurbar City Police Station
and the same are sufficient to draw an inference that the petitioners
have acted as a gang for causing disturbance to the public
tranquility and also maintenance of law and order. Thus, the
learned APP prayed for dismissal of all these criminal writ petitions.
8. We have carefully gone through the entire material on record
along with police papers. We also perused the impugned orders
passed by the Superintendent of Police, Nandurbar as well as the
learned Divisional Commissioner, Nashik.
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9. It is significant 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 officer may, by
notification addressed to the persons
appearing to be the leaders or chief men of
such gang or body and published by beat of
drum or otherwise as such officer thinks fit,
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
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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."
On perusal of the aforesaid said section, it is evident that the
criminal cases against the persons sought to be externed, must be of
collective nature and the same should not be individualistic in
nature. Further, it has to be confirmed that the persons whose
externment is proposed under the aforesaid section, must be the
members of a gang, whose activities must involve deterrence to
public at large. It is, thus, made clear that if all these conditions
mentioned above are satisfied, then only Section 55 of the Act can be
invoked.
10. On perusal of order dated 09/09/2021 passed by the
Superintendent of Police, Nandurbar i.e. respondent no.2, it is
evident that the following crimes registered in Nandurbar (City)
Police Station against the respective petitioners, have been
considered for their externment.
i) Crimes registered against the petitioner i.e. Shaikh Abdul
Rasheed Abdul Razaque Kasai in Writ Petition No. 268 of 2022 :
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Sr. CR No. Under Sections Court Case Final
No. No. result
1. 29/2020 307, 395, 354, 324, 509, RCC No. 189 Subjudice
143, 147, 148, 149, 323, of 2020
504, 506 of IPC read
with Section 4/25 of the
Arms Act, under Section
37(1)(3) read with 135 of
of Maharashtra Police
Act
2. 280/2020 324, 143, 147, 148, 149, RCC No.223 Subjudice
504 and 506 of IPC of 2020
ii) Crimes registered against the petitioner Shaikh
Ishtiyaque Ahmed s/o Abdul Razzaq Qureshi in Criminal Writ
Petition No. 269 of 2022:
Sr. CR No. Under Sections Court Case Final
No. No. result
1. 29/2020 307, 395, 354, 324, 509, RCC No. 189 Subjudice
143, 147, 148, 149, 323, of 2020
504, 506 of IPC read
with Section 4/25 of the
Arms Act, under Section
37(1)(3) read with 135 of
of Maharashtra Police
Act
2. 280/2020 324, 143, 147, 148, 149, RCC No.223 Subjudice
504 and 506 of IPC of 2020
3. 141/2015 143, 147, 323, 504, 506 SCC No.95 of Acquitted
read with 34 of IPC 2016
iii) Crimes registered against the petitioners i.e. 1) Shaikh
Juber Shaikh Mustaq Qureshi, 2) Riyaz Ahmed Mustaq Ahmed
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Qureshi and 3) Nihal Ahmed Shaikh Ashfak Qureshi in Criminal
Writ Petition No. 369 of 2022 :
Sr. CR No. Under Sections Court Case Final
No. No. result
1. 29/2020 307, 395, 354, 324, 509, RCC No. 189 Subjudice
143, 147, 148, 149, 323, of 2020
504, 506 of IPC read
with Section 4/25 of the
Arms Act, under Section
37(1)(3) read with 135 of
of Maharashtra Police
Act
2. 141/2015 143, 147, 323, 504, 506 SCC No.95 of Acquitted
read with 34 of IPC 2016
11. On perusal of the aforesaid crimes registered against the
concerned petitioners it is clearly evident that there is only one
crime i.e. Crime No. 29 of 2020 under Section 307, 395, 354, 324,
509, 143, 147, 148, 149, 323, 504, 506 read with Section 4/25 of the
Arms Act and Section 37(1)(3) read with Section 135 of the
Maharashtra Police Act is in fact against all these petitioners. In
other crimes all the petitioners are not involved jointly. Moreover, on
going through FIR in Crime N. 29 of 2020, it is evident that the same
has been registered by way of counter blast in respect of Crime
No.28 of 2020. It would not be out of place to mention herein that
the complainant party in the said crime had also been externed on
the basis of Crime No. 28 of 2020, but the said order of externment
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has been quashed by this court in the aforesaid judgment relied by
the present petitioners in Criminal Writ Petition No.1448 of 2021.
Thus, it appears that the only crime wherein the petitioners are
jointly arrayed as an accused i.e. Crime No. 29 of 2020, has been
arisen out of personal dispute and no aspect of public deterrence, is
involved in the same. Moreover, the Crime No.29 of 2020 appears to
be result of family dispute. Further, the other crimes which are
used for the externment of the petitioners, appear to be
individualistic in nature.
12. Further, it is significant to note that though in the impugned
order 09/09/2021 it is mentioned by respondent no.2 that due to
criminal activities of the present petitioners, there is alarm in the
public at large and that nobody from common public are coming
forward openly to lodge report against the petitioners, but there is
nothing on record to support the said finding. Moreover, no
particulars are there in the impugned order dated 09/09/2021 in
respect of any confidential statement on the basis of which the
petitioners are externed. Therefore, considering the entire material
on record, it appears that the crimes registered against the
petitioners are either separate crimes or the same are of
individualistic nature. Further, the said material does not prima
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facie show that the petitioners have acted as gang members or body
of persons for commission of serious criminal activities.
13. In case of Vijay Lalso Jadhav vs. State of Maharashtra and
others, 2013 SCC OnLine Bom 1432 this court has given reference of
the observation made in the case of Ahammad Mainduddin Shaikh
vs. The State of Maharashtra (Criminal Writ Petition No. 2385 of
2013), wherein in para no. 14 it is observed as follows :
"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
such gang or body of persons. The second
direction which follows the first one, is about
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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." (emphasis supplied).
On going through the aforesaid observation, it is evident that
Section 55 of the Act can be invoked only if there are collective
criminal activities of the body of persons or gang. In the instant
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case, there is no sufficient material on record to show that the
petitioners have acted criminally as members of a gang or body of
persons.
14. In the case of Sachin Bhaskar Badgujar vs. State of
Maharashtra, 2018 SCC OnLine Bom 1429, 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.
Therefore, there is no live link and proximity between
the registration of the said offences and initiation of
the present externment proceedings".
15. Further, this court (Coram: V. K. Jadhav & S. D. Kulkarni,
JJ.) in Criminal Writ Petition No. 638 of 2021 has made 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
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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".
16. In the instant case it appears that certain crimes of 2015 are
considered for the externment of the some of the petitioners.
Moreover, there is no material on record to show that the petitioners
have indulged in the criminal activities as a group or a gang.
Therefore, in the light of aforesaid observations made by this court
in the above cited cases and on careful consideration of the entire
material on record, we are of the opinion that the crimes against the
petitioners, are individualistic in nature and do not show their
involvement as a body of persons or a gang. Thus, the main
requirement of Section 55 of the Act is clearly missing in the instant
case. Further, it appears that both the authorities below without
their being any sufficient material about public deterrence at the
hands of petitioners, have wrongly opined that the petitioners need
to be externed. Moreover, the crimes which are considered for
externement of the petitioners are registered only in the Nandurbar
(City) Police Station, but the petitioners have been externed from
entire Nandurbar district. Thus, the impugned orders definitely
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appear excessive in nature. Apart from that there appears no
subjective satisfaction of the authorities below while passing the
impugned orders. The impugned orders in all these criminal writ
petitions are liable to be quashed and set aside and therefore, we
pass following order.
ORDER
I) Criminal Writ Petition No. 268 of 2022, Criminal
Writ Petition No. 269 of 2022 are hereby allowed
in terms of prayers clause "A" and Criminal Writ
Petition No.369 of 2022 is hereby allowed in
terms of prayer clause "B".
II) Rule is made absolute in above terms.
III) Since the impugned orders are quashed and set
aside, the Criminal Application No. 840 of 2022
in Criminal Writ Petition No. 268 of 2022 and
Criminal Application No. 839 of 2022 in Criminal
Writ Petition No. 269 of 2022 for interim relief,
are also disposed of being infructuous.
IV) Criminal writ petitions are disposed of
accordingly.
(SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)
VS Maind /-
