Govinda Pitambar Bhoi vs The State Of Maharashtra And ...
2022 Latest Caselaw 2748 Bom

                                    1           J WP 1301-2021

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO.1301 OF 2021


      Govinda s/o Pitambar Bhoi,
      Age : 34 years, Occu.: Labourer,
      R/o.: Khanderao Nagar, Behind,
      Ganpati Mandir, Jalgaon                    ....     PETITIONER

               VERSUS

1.    The State of Maharashtra through :
      Divisional Commissioner, Nashik,
      Division - Nashik.

2.    The Superintendent of Police,
      Jalgaon, Tq & Dist - Jalgaon.

3.    The Sub-Divisional Police Offcer,
      Jalgaon Division, Jalgaon.

3.    The Police Inspector,
      Ramanand Police Station,
      Jalgaon.                                   ....     RESPONDENTS

                                    .....
                Advocate for Petitioner : Mr. S. D. Kotkar
             APP for Respondents-State : Mr. R. V. Dasalkar
                                     ....

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

RESERVED ON : 27/01/2022 DELIVERED ON: 22/03/2022 ....

JUDGMENT : (Per : Sandipkumar C. More, J.) :

1. Rule. Rule made returnable forthwith. By consent, heard

fnally at admission stage.

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2. The petitioner is seeking quashing and setting aside of the

order dated 27/05/2021 passed by respondent no.2 i.e. the

Superintendent of Police, Jalgaon, under which he is externed from

Jalgaon District for a period of two years. The petitioner has also

challenged the order dated 08/09/2021 passed by respondent no.1,

who has confrmed the earlier order of respondent no.2 in

Externment Appeal No. 62 of 2021.

3. Background facts are as under :

The petitioner claims to be a labourer in his local area

maintaining his family peacefully. However, respondent no.2 issued

show cause notice dated 05/02/2021 under Section 55 of the

Maharashtra Police Act, 1951 (hereinafter referred to as 'the Act') and

thereby called explanation from the petitioner as to why he should

not be externed from Jalgaon District for a period of two years since

he indulged into criminal activities being a gang leader. The details

of offences registered against the petitioner as mentioned in the

notice dated 05/02/2021 are as follows:

Sr. Police Crime No. and Name of the Present No. Station Sections participated status accused persons

1. Ramanand 86/2017 (151/2017) 1. Govinda s/o Subjudice Nagar under sections 147, Pitambar Bhoi 143, 148, 149, 323, 2. Samadhan

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504 and 506 r.w. 34 s/o Harchand of IPC Bhoi

3. Sagar s/o Harchand Bhoi

2. Ramanand 234/2018 (415/2018, 1. Sagar s/o Subjudice Nagar under Sections 307, Harchand Bhoi 353, 295, 143, 145, 2. Harfan @ 146, 147, 148, 149, Eppo Yusuf 153, 135 of IPC pathan

3. Ramanand 118/2019 Paddumn @ Subjudice Nagar (237/2019), under Banti Nandu Sections 452 and Mahale 392 r.w. 34 of IPC

4. Ramanand 70/2020 1. Govinda s/o Subjudice Nagar (205/2020), under Pitambar Bhoi Sections 324, 143, 2. Samadhan 147, 148, 504, 506, s/o Harchand 135 of IPC Bhoi

3. Sagar s/o Harchand Bhoi

4. Paddumn @ Banti Nandu Mahale

5. Zilhapeth 247/2019, under Paddumn @ Subjudice Section 389 r.w. 34 Banti Nandu of IPC Mahale

Besides this, the particulars of preventive measures taken

against the petitioner and other gang members as per the provisions

of Section 107 of Cr.P.C. are also mentioned therein. The petitioner

thereafter submitted his explanation along with other two members

in response to the aforesaid notice. Thereafter, respondent no.2 by

considering entire material against the petitioner and other members

of his gang, passed the impugned order dated 27/05/2021 externing

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the petitioner and others from Jalgaon District as mentioned above.

The petitioner preferred an Externment Appeal No.62 of 2021 against

the said order under Section 60 of the Act before respondent no.1,

but respondent no.1 after reconsidering entire material along with

the impugned order, dismissed the said appeal. As such, earlier

order of respondent no.2 dated 27/05/2021 bearing [email protected]

xq-'[email protected]íikj vkns'[email protected], was confrmed.

4. The learned counsel for the petitioner submits that both the

orders are prima facie erroneous since extraneous material was

considered while passing the same. He also submits that the orders

are excessive in nature since criminal activities shown against the

petitioner, are only restricted to Ramanand Nagar Police Station,

Jalgaon. He further submits that both the concerned authorities

erred in passing the orders, which are based upon only two criminal

cases registered against the petitioner, out of which one is of the year

2017 and another is of the year 2020. Thus, the learned counsel for

the petitioner prayed for quashing both the impugned orders.

5. On the contrary, the learned APP has fled affdavit in reply and

strongly opposed the petition and submits that the gang of the

petitioner is known as 'Khandoba Gang' in the vicinity of Jalgaon

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District and the said gang is involved in serious criminal offences

involving unlawful assembly, deterring public at large, beatings and

attempting to commit murder, rioting etc. It is submitted by the

learned APP that no one from the public is coming forward to lodge

written or oral complaint against the petitioner due to his

deterrence. As such, he prayed for dismissal of the petition.

6. We have carefully gone through the entire material on record

along with both the impugned orders and also police papers

submitted by the learned APP.

7. Section 55 of the Act deals with dispersal of gangs and bodies

of persons, which reads as under :

"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

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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."

It is to be noted here that for taking cognizance under the said

section, the alleged criminal activities of the gang members need to

be collective in nature and if the same is not found like that then a

case under Section 55 of the Act cannot be made out. This appears

to be very frst requirement of Section 55. In light of this, if we

perused the notice dated 05/02/2021, it appears that there are two

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crimes registered against the petitioner along with other members of

his gang. First crime is of the year 2017, which is pending for trial

and second crime is of the year 2020, which is also subjudice.

8. Thus, it prima facie appears that despite committing an offence

in the year, 2017, there is no improvement in the conduct of the

petitioner and he again indulged into serious crime involving against

human body, rioting and breach of orders of the authority meant for

maintaining law and order. Further, the frst impugned order dated

27/05/2021 passed by respondent no.2 clearly indicates that the

gang of the petitioner is known as 'Khandoba Gang' in the vicinity of

Jalgaon District and the same is involved in serious crimes as

mentioned in the notice along with extortion, rioting etc. Further,

suffcient opportunity was also given to the petitioner and other

members of being heard before passing the said order. It appears

that despite suffcient opportunity, no satisfactory explanation has

been fled by the petitioner on record.

9. Learned counsel for the petitioner mainly objected the

impugned orders on the ground that the same are excessive in

nature since the petitioner has been externed from entire Jalgaon

District even though his criminal activities are restricted to the area

under the jurisdiction of Ramanand Nagar Police Station only.

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However, the learned Full Bench of this Court, Bench at Nagpur in

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. 745, has already observed that the authority is

having every power to extern the persons involving in dangerous

crimes from the contiguous area to avoid breach of public order. It

is specifcally observed in the aforesaid judgment in para 26 as

follows :

" 26. The discussion made so far would lead us to record our conclusions as follows :

(i) The externment order directing externment of a person from a much larger area than the one of his illegal activities, must be based upon some material which provides an objective criteria to the authority for reaching a subjective satisfaction regarding the need for externing a person to an expansive area though it may not always directly or elaborately refer to that material in the order itself, as it all depends upon facts and circumstances of the case which need be vetted through the judicial process of drawing of legitimate inference following the law of Pandharinath and Sanjeev @ Brittoo (supra).

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(ii) The order of externment need not necessarily refer to the details of the material considered by it so as to show independently that larger or additional area chosen by it is intimately connected with the actual area of the activities of the externee due to improved or common means of transport and communication.

(iii) Application of mind to the material present on record by the authority passing the externment order is necessary, but any reflection of application of mind in the externment order in a specifc manner, as if to pass a reasoned order, would not be necessary. It would be enough if the order discloses that the subjective satisfaction has been reached by considering the material available on record and it would and should be a matter of legitimate inference that the authority, while considering materials to satisfy itself about the need for and extent of externment to be ordered, also considered all the options available to it and selected in it's wisdom the one which it thought to be most appropriate. This would also mean that authority, in this way, can select a larger area for being covered under it's externment order, as one of the options available to it, whether such larger area has within it

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contiguous or inter-connected or intimately connected pockets of areas or not.

Question no. (1) having three aspects enumerated in clauses (a), (b) and (c), is answered specifcally through the three conclusions made as above."

In view of aforesaid observation, it is clearly evident that even

though the criminal activities of a particular person is restricted to a

certain area, but considering the advance modes of transportation

he can be externed from larger area than that if there is suffcient

material against him about his serious criminal activities. Under

such circumstances, we fnd that there is suffcient material against

the petitioner about his indulgence in the criminal activities.

Further there appears subjective satisfaction in respect of the said

material at the hands of both the concerned authorities below.

Further, there appears live link in the crimes committed by the

petitioner and his externment order. The last crime against the

petitioner appears to be registered in the year 2020 and therefore,

immediately in the said year itself, the externment proposal against

him, was initiated and he has been fnally externed in the year 2021.

Further there is also reference of confdential in-camera statements

of witnesses, which have been verifed by the authorities. Therefore,

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considering all these aspects, we are of the opinion that the

concerned authorities have passed appropriate orders by

considering the material against him in proper perspective. Hence,

we are not inclined to interfere with the same. In the result, we pass

following order.

                                              ORDER

             I)      Writ petition stands dismissed.

             II)     The rule stands discharged.

             III)    Writ petition is accordingly disposed of.



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

vsm/-