Shaikh Amer Shaikh Yusuf vs The Divisional Commissioner, ...
2022 Latest Caselaw 2452 Bom

                                     (1)
                                                           criwp-1115.2021.odt

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

               CRIMINAL WRIT PETITION NO.1115 OF 2021


 Shaikh Amer s/o Shaikh Yusuf
 Age : 25 years, occ : labour
 R/o Railway Station Road,
 Topkhana, Hingoli.                                              Petitioner
                  Versus
 1.       The Divisional Commissioner,
          Aurangabad Division,
          Aurangabad.


 2.       The Externing Authority i.e.
          The Superintendent of Police,
          Hingoli, District Hingoli.


 3.       The Sub-Divisional Police
          Offcer, Hingoli City,
          District Hingoli.


 4.       The Police Inspector,
          Police Station, Hingoli City,
          Taluka and Dist. Hingoli.                              Respondents


                                     ...
 Mr. Sachin S. Deshmukh and Mr. Majit S. Shaikh,
 Advocates for the petitioner.
 Mr. S.S. Dande, A.P.P. for the respondents.
                                 ...

                               CORAM : V.K. JADHAV AND
                                           SANDIPKUMAR C. MORE, JJ.

Judgment reserved on : 28.02.2022 Judgment pronounced on: 11.03.2022

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Judgment (Per Sandipkumar C. More ) :

1. Rule. Rule made returnable forthwith. By

consent of the parties, heard fnally at the stage of admission.

2. Under the present criminal writ petition, the

petitioner Shaikh Amer Shaikh Yusuf is seeking quashing of

the order externment dated 09.08.2021 passed by the

Divisional Commissioner, Aurangabad i.e. respondent No. 1

herein in Externment Appeal No. 31/2021 confrming the

order passed by Externment Authority i.e. Superintendent of

Police, Hingoli, present respondent No.2 dated 02.06.2021.

Under the order dated 02.06.2021 the petitioner externed

from entire Hingoli District for the period of two years.

3. Background facts are as under :

Present respondent No.3 i.e. Sub-Divisional Police

Offcer, Hingoli City had submitted proposal for externment of

the present petitioner alongwith the other gang members and

leader under Section 55 of the Maharashtra Police Act, 1951

(for short, "the Act"). Thereafter respondent No. 2 issued

notice dated 18.02.2021 to the present petitioner and others

mentioning the various crimes against the petitioner and

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other members, as below :

  Sr. Name of accused Crime     No. Court                      Present
  No. person          and sections case No.                    status
  1.     1. Shaikh Majid       11/2015, u/s 94/2015            Acquitted
         Sk. Ismail            143,     147,
         2. Shaikh Amer Sk.    148,    323,
         Yusuf and others      336, 427 of
                               IPC.
  2.     1. Shaikh Majid       444/2018,   455/2019 Pending
         Sk. Ismail            u/s    326,
         2. Shaikh Amer Sk.    504, 34 of
         Yusuf and others      IPC.
  3.     1. Shaikh Majid       424/2020,             -         Under
         Sk. Ismail            u/s       307,                  Investigati
         2. Shaikh Javed       323,     504,                   -on
         Ismail and others     506,      143,
         3. Uvesh Ayubkhan     147, 149 of
         Pathan and othes      IPC. Sec.3(2)
                               (5), 3(2)(VA)
                               of SC & ST
                               (Prevention
                               of Atrocities)
                               Act and sec.
                               135 of the
                               Bombay
                               Police Act.
  4.     1. Shaikh Majid       511/2020,             -         Under
         Sk. Ismail            u/s       307,                  Investigati
         2. 2. Shaikh Javed    323,     504,                   -on
         Shaikh Ismail         506,      143,
         3. Shaikh Amer Sk.    147, 149 of
         Yusuf                 IPC. Sec.3(2)
         4. Uvesh Ayubkhan     (5), 3(2)(VA)
         Pathan and othes      of SC & ST
                               (Prevention
                               of Atrocities)
                               Act and sec.
                               135 of the
                               Bombay
                               Police Act.






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 4.               The          petitioner   replied   the      said      notice        by

mentioning that all the crimes mentioned in the said notice

were false and the same were in respect of only one person.

He further submitted that he was released on bail in all those

crimes and those crimes were not against the public at large

or related to any rioting or of disturbing public order. He also

claimed that he was the sole bread winner of the family, and

therefore, prayed for cancellation of the said notice. He also

submitted one judgment in R.C.C. NO. 91/2015 pending in

the court of Additional Chief Judicial Magistrate, Hingoli

wherein he was accused and subsequently got acquitted.

Thereafter considering the reply and other material on record,

respondent No. 2 under the impugned order dated 02.06.2021

externed the petitioner and others from entire Hingoli District

for the period of two years. The petitioner though fled appeal

under Section 60 of the Act before respondent No. 1 for

setting aside the order dated 02.06.2021, the respondent No.1

was pleased to reject the said appeal and confrmed the order

dated 02.06.2021. Learned Counsel for the petitioner has

relied upon the following judgments :

(i) Criminal Writ Petition No. 159 of 2021 (Dipak Sudhakar Patil vs. State of Maharashtra & ors)

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(ii) Criminal Writ Petition No. 638 of 2021 (Shoeb @ Sharif @ Shafya Khan Aasif Khan and another vs. State of Maharashtra and others).

(iii) Criminal Appeal No. 139 of 2022 (SLP (Cri.) No. 9032 of 2021) (Deepak Laxman Dongre vs. State of Maharashtra and others.

5. On the contrary, learned A.P.P. strongly opposed

the application by fling affdavit-in-reply and supported the

impugned orders on the ground that there is suffcient

material on record to show that the petitioner has committed

crimes being the member of gang and that his presence in

Hingoli District is suffcient to disturb the law and order and

public peace.

6. We have carefully gone through the impugned

orders, affdavit-in-reply fled by learned A.P.P. and record and

proceedings.

7. From the perusal of entire record, it appears that

both the impugned orders are passed against this petitioner

since it has been found that the petitioner acted as a member

of gang with the other persons as mentioned in the show-

cause notice and his presence in the area, from which he is

externed, is highly dangerous to the public at large. It is to be

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noted here that the externment of the petitioner and other

gang members is sought under Section 55 of the Act, which

relates to dispersal of gangs and body of persons. We would

like to reproduce the said section for quick reference, herein

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 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 going through the aforesaid section, it appears

that if it is found that the movement or encampment of any

gang or body of persons in the area is causing danger or

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alarm, the members of such gang including its leader can be

externed with a view to their dispersal from such area.

Further, it appears that such order passed must be of

subjective satisfaction and the material on record should

indicate that the crime committed by the alleged gang

members should not be of individual nature. Moreover, the

crimes must be of such nature that it should cause alarm

and deterrence in the mind of public at large. In addition to

that, there may be some in-camera statements of confdential

witnesses indicating as to how the conduct of such gang

members is deterrent to common public. In the light of the

aforesaid requirements, let us peruse the impugned orders

alongwith other material.

9. Admittedly, in the notice dated 18.02.2021 itself

there appear atleast three crimes against the present

petitioner committed being as a gang. Though it has shown

that the petitioner is acquitted in R.C.C. No. 94/2015 arising

out of Crime No. 11/2015, under Sections 143, 147, 148, 323,

336 and 427 of the Indian Penal Code, but it is to be noted

here that the petitioner has not fled the judgment in the said

case. On the contrary, it appears that the petitioner has fled

judgment of R.C.C. No. 91/2015 arising out of Crime

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No.10/2015 wherein he has been acquitted. On perusal of the

said judgment, prima facie, it appears that the witnesses in

the said case did not support the prosecution, and therefore,

the petitioner and other accused were acquitted. So far as the

crimes against the petitioner are concerned, the same are of

the year 2018 and 2020. Moreover, if the crimes against the

other members of gang as mentioned in the impugned orders

are perused, it is evident that CR No. 11/2015, CR

No.444/2018 and CR No. 511/2020 are common for all the

gang members. Even though the petitioner appears to be

acquitted from the trial of CR No. 11/2015, but thereafter also

his conduct is not improved and he again indulged into

serious crimes under Sections 326, 307 and sections of

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act. As such, it appears that the petitioner is

engaged in serious crimes which are against human body and

also involve caste abuse. It is apparent that the present

petitioner alongwith other gang members has committed such

criminal activities. Further, there are also statements of two

confdential witnesses which are considered in the impugned

orders. In view of those statements, it is evident that the

present petitioner and his associates are involved in crime

relating to extortion which is defnitely dangerous to common

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public. Further, those statements also indicate that the

present petitioner is a member of gang indulging in serious

crimes.

10. Learned Counsel for the petitioner has placed his

reliance on the order and judgments as aforesaid. In the

order of Criminal Writ Petition No. 159 of 2021, there is

reference of the case of Sumit s/o Ramkrishna Maraskolhe

vs. Deputy Commissioner of Police Zone-1, Nagpur and

another reported in [ 2019 (2) Mh.L.J. (Cri) 14], wherein it is

observed as below :

"24. A combined reading of the principles of law laid down in all the aforesaid cases would show that ordinarily the externment order be restricted to the area of illegal activity of externee. In a given case, the order can be capacious which would include more area than the actual feld of the illegal activities of the externee so as to shake the externee off his roots and this may be so necessary in a particular case for achieving the object of externment order. While making such an expansive order, suffcient leeway has been granted to the offcer and it includes the power conferred under amended provision of Section 56 of the Act, 1951 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 the area of illegal activities or may not be falling within the local limits of the jurisdiction of the offcer. But, this discretion is always subject to the limits drawn by the Wednesbury triad of unreasonableness, already elaborated upon in the previous paragraphs.

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25. Thus, we can now reasonably say that although the offcer 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. 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 suffciency or otherwise of such material. In a given case, it may also happen that the externment order does not refer to some material on record. Still, the externment order could be seen as unassailable. Such possibility would arise when the situation of surrounding areas is such as to give rise to an impression upon taking of judicial notice of the situation that these areas are contiguous or adjacent to each other or inter-connected with each other through the improved means of transport and communication warranting externment of a person from a larger area in order to sweep the person off his moorings, just to make the order of externment effective and practicable, as held in Pandharinath (supra). But, some time the facts and circumstances may not be so self- speaking and in such a case, no judicial notice could possibly be taken. It is in such a case, there would be need for the externment order to refer to some material on record, though not eloquently, and if that is done, the externment order would clear the validity test of Wednesbury doctrine. Once such reference to some material on record is seen, the judicial review has to stop as no further enquiry into suffciency or otherwise of the material to pass a spacious externment order is permissible. This is on account of the cardinal principle of judicial review that when exercise of discretion is questioned as being arbitrary, a secondary

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reviewing Court, a High Court examining the challenge on the ground of arbitrariness of administrative action or statutory discretion would be a secondary court of review unlike in a situation where it considers the challenge based on grounds of inequality and discrimination when it turns into a primary court of review, cannot substitute it's own view for the view taken by the authority whose decision is under review just because another view is possible, unless the view of the authority subject to review is shown to be illegal or perverse or illogical or impossible, or procedurally improper. These are all nothing but part of Wednesbury principle of unreasonableness".

11. However, the aforesaid observation is relating to

passing of an excessive order. But in this case, we fnd that

both the Authorities below have come to the conclusion with

subjective satisfaction that considering the nature of the

crimes against the petitioner and others, they are required to

be externed from entire Hingoli District. Therefore,

considering the peculiar facts of this case, the aforesaid

observation is not helpful in the instant case.

12. Further, in the judgment of Criminal Writ Petition

No. 638 of 2021 this Court (Coram : V.K. Jadhav, Shrikant D.

Kulkarni, JJ.) found that there was no material on record

which might focus light compelling the Authorities to extern

the petitioners therein from the entire Jalgaon District and

Dhule District. The quashing of externment order in all the

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above-said cases was made mainly on the ground that the

petitioner therein was externed from the larger area as

compared to the area wherein his criminal activities were

restricted. However, in the instant case there is suffcient

material on record to show as to how the presence of

petitioner is dangerous so far as the area of Hingoli District is

concerned. Moreover, it appears that both the Authorities

have passed the impugned orders by properly appreciating

the material on record with subjective satisfaction.

13. Though the learned Counsel for the petitioner also

relied on the judgment of the Hon'ble Apex Court in Criminal

Appeal No. 139 of 2022 in the case of Deepak Laxman Dongre

vs. State of Maharashtra and others, but on careful reading of

the said judgment, it appears that it is in respect of

externment under Section 56 (1) (a) (b) of the Act. The Scope

of Section 56 is different than the scope of Section 55 of the

Act, and therefore, when it is found that the present petitioner

has indulged into various dangerous criminal activities being

a gang member, this judgment and the observations therein

are not helpful in the instant case.

14. Thus, considering all the material on record

carefully, we have come to the conclusion that both the

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impugned orders against the petitioner are passed

appropriately by the concerned Authorities with due reference

to the material on record and of course with subjective

satisfaction. As such, we do not fnd any reason to interfere

with the impugned orders. Accordingly, we pass the following

order.

ORDER

(i) Criminal Writ Petition is hereby dismissed.

         (ii)      Rule stands discharged.


         (iii)     Criminal Writ Petition is accordingly disposed
                   of.




 (SANDIPKUMAR C. MORE, J.)                                 (V.K. JADHAV, J.)

 VD_Dhirde