Jay Sanjay Pawanmare vs The State Of Maharashtra, Thr. ...
2022 Latest Caselaw 7657 Bom

Judgment                           1                 8-Cri.W.P.No.277.2022.odt




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

             CRIMINAL WRIT PETITION NO. 277 OF 2022


      Jay Sanjay Pawanmare,
      Aged about 28 years,
      Occu. - Vegetable and Kirana shop
      (handicapped),
      R/o. Gautam nagar,
      R.T.O. Office Road, Akola,
      Tq. & Distt. Akola.                         .... PETITIONER

                             // VERSUS //

1)    State of Maharashtra,
      through Divisional Commissioner,
      Amravati.

2)    Superintendent of Police, Akola,
      Taluka and District Akola.

3)    Sub Divisional Police Officer,
      Akola, District Akola.

4)   The Police Station Officer,
     Khadan Police Station, Akola.         .... RESPONDENTS
______________________________________________________________
Mr. C.N. Wankhade, Advocate for the petitioner.
Miss. M.H. Deshmukh, Additional Public Prosecutor for respondents.
______________________________________________________________


                  CORAM : VINAY JOSHI, J.

DATED : AUGUST 04, 2022

ORAL JUDGMENT :

1. Heard. Rule. Rule made returnable forthwith. Heard finally

by consent of the learned counsel appearing for the parties.

Judgment 2 8-Cri.W.P.No.277.2022.odt

2. The petitioner has been externed for a period of two years

from Akola district vide order dated 09.10.2021 in terms of Section 55

of the Maharashtra Police Act, 1951. The externment order is against

three persons which is based on four offences shown to be registered

against them. The petitioner has served with show cause notice, which

was replied. The externment order is on the premise that the

petitioner is one of the gang member and his movement are causing or

likely to cause danger or alarm or there is reasonable suspicion that

unlawful designs are entertained by such gang members.

3. The learned counsel for the petitioner would submit that

though the show cause notice has shown only two offences registered

against him, however, the Externing Authority as well as the Appellate

Authority has considered four offences against the petitioner. Copies of

First Information Report (FIR) of all four offences are produced to

show that the petitioner was involved only in offence at serial No.3 and

4 which are bearing Crime No. 545 of 2020 and 249 of 2019. It is

submitted that those offences are of private nature and thus it cannot

be construed that the petitioner was a member of gang and acting

accordingly.

4. Perusal of both the FIR, indicates that out of private

vengeance those incidents have occurred. Their appears no material Judgment 3 8-Cri.W.P.No.277.2022.odt

from which it can be construed that the petitioner is a gang member

and was acting in connivance with the gang to commit the offences of

serious nature. One of the offence is of the year 2019 and one is in the

following year. The learned counsel for the petitioner has placed

reliance on the decision of this Court in the case of Abasaheb

Balasaheb Warkhede Vs. The State of Maharashtra, 2022 ALL MR (Cri)

1541, wherein it is held that in absence of material to show that the

externee acted as a member of gang the order of externment would not

survive.

5. Both the offences against the petitioner are pending

meaning thereby he is not convicted. Except two criminal cases under

Section 324 of the Indian Penal Code, there is no material to show that

the petitioner has acted as a member of gang. On examination of both

the FIR, Crime No.545 of 2020 reflects that other two persons named

in the externment order were not made accused in said crime.

Likewise in another Crime No. 249 of 2019, the petitioner and one of

the externed is made accused, but, two other accused are somebody

else. Thus, there is no material to arrive to a conclusion that the

petitioner acted as a gang member to sustain the action under Section

55 of the Maharashtra Police Act, 1951. The Appellate Authority has

misdirected itself by holding that the petitioner has committed four Judgment 4 8-Cri.W.P.No.277.2022.odt

offences. Having regard the above facts the impugned order would not

sustained in the eyes of law.

6. In view of that, the Writ Petition stands allowed. The

externment order dated 09.10.2021 passed by the Superintendent of

Police, Akola is hereby quashed and set aside.

Rule is made absolute in the aforesaid terms. No costs.

(VINAY JOSHI, J.)

Kirtak

Digitally Signed By:KIRTAK BHIMRAO JANARDHAN Signing Date:05.08.2022 13:45