Raees Rashid Shaikh vs The State Of Maharashtra And ...
2022 Latest Caselaw 2953 Bom

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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO. 97 OF 2022

 Raees Rashid Shaikh,
 age: 29 years, Occ: Business,
 R/o Gadi parisar, Navapur,
 Tal. Navapur, Dist. Nandurbar.                            Petitioner

          Versus

 01 The State of Maharashtra,
    through Police Inspector,
    Navapur Police Station,
    Nandurbar, Tq. & Dist. Nandurbar.

 02 Divisional Commissioner,
    Nashik Division, Nashik.

 03 Sub-Divisional Magistrate,
    Nandurbar Division, Nandurbar.                         Respondents


 Mr. Ruchir S. Wani, advocate for the petitioner
 Mr. S. S. Dande, A. P. P. for the Respondent.


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

                  RESERVED ON              : 10th March, 2022.
                  PRONOUNCED ON            : 25th March, 2022.

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

1 Rule. Rule made returnable forthwith and heard

finally by consent of learned Counsels for respective parties.

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2 By way of this writ petition, the petitioner prays to set

aside the order dated 08.09.2021, passed by Respondent No.3 -

Sub-Divisional Magistrate, Nandurbar in Externment Proposal No.

02/2021 and also order dated 21.12.2021, passed by Respondent

No.2 - Divisional Commissioner, Nashik Division, Nashik, in

Externment Appeal No. 110/2021. Under the impugned orders, the

petitioner has been externed from entire Nandurbar district for the

period of eight months under Section 56 (1) (a) and (b) of the

Maharashtra Police Act, 1951, (herein after referred to as the "said

Act").

3 According to the petitioner, he was served with notice

under Section 59 of the said Act mentioning, as to why he should

not be externed from Nandurbar district, since pendency of so

many criminal cases against him, as mentioned in the said notice.

Thereafter, Respondent No.3, on the basis of said notice, passed an

order dated 08.09.2021 and thereby externed the petitioner, as

aforesaid, by holding that the petitioner always indulges in

criminal activities which causes breach of law and order in the

area.

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4 Feeling aggrieved by the said order, the petitioner had

filed an appeal bearing Externment Appeal No. 110/2021 before

Respondent No.2 - Divisional Commissioner but the same has

been rejected vide order dated 21.12.2021.

5 Learned Counsel for the petitioner submits that both

these impugned orders are prima facie illegal and without

application of mind. Moreover, these orders are excessive in nature

since the criminal activities alleged against the petitioner are

restricted only to Navapur Police Station, but the petitioner has

been externed from entire Nandurbar district. Learned Counsel for

the petitioner further submits that old crimes are considered for

externment of the petitioner even in the absence of live-link. He

further submits that the petitioner has not been convicted in any

of the crimes mentioned in the impugned order, but, on the

contrary, he has been acquitted on merits by the Special Judge,

Nandurbar in Special (Atrocity) Case No. 11/2017 arising out

Crime No. 206/2017. The learned Counsel for the petitioner has

also tendered copy of the judgment and order dated 10.03.2022, in

Sessions Case No. 08/2021, passed by the Additional Sessions

Judge, Nandurbar, acquitting the petitioner for the offences

punishable under Sections 323, 504, 506 of the Indian Penal Code

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and under Sections 3(1) (r) (s) 3(2) (va) of the Scheduled Castes &

Scheduled Tribes (Prevention of Atrocities) Act, 1989. However,

subsequent acquittal of the petitioner, after passing of the

impugned order, has no bearing on the adjudication of this matter.

According to the learned Counsel for the petitioner, nature of

crimes against the petitioner is individualistic and in two cases,

there is one and the same informant. Said informant has also filed

affidavit in respect of trial of Crime No. 959/2020, to the effect that

he does not want to proceed with his complaint as it was filed due

to misunderstanding. It is submitted by the learned Counsel for

the petitioner that both the authorities below did not appreciate

the material on record and wrongly concluded that the petitioner is

involved in serious criminal activities causing serious problem of

law and order. The learned Counsel, therefore, prays for setting

aside the impugned orders.

6 Learned Counsel for the petitioner, in support of his

submissions, placed reliance on following judgments:

(i) In the case of Sumit s/o Ramkrishna Maraskolhe Vs. Deputy Commissioner of Police, Zone-I, Nagpur & another, 2019 (2) MhLJ 745;

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(ii) In the case of Rahmat Khan alias Rammu Bismillah Vs. Deputy Commissioner of Police, 2021 SCC Online SC 641;

(iii) In the case of Praful Bhausaheb Yadav Vs. Shri K. K. Pathak, Principal Secretary (Home) State of Maharashtra & others, 2013 SCC OnLine Bom 188;

(iv) In the case of Sunny Mansur Shaikh Vs. The Divisional Commissioner/Appellate Authority, Nashik Division, Nashik & others (Criminal Writ Petition No. 1566 of 2021, disposed of on 18 th August, 2021)

7 On the contrary, the learned A. P. P. has strongly

opposed the petition by filing affidavit-in-reply and supported the

impugned orders. It is specifically submitted by the learned

A.P.P. that if the petitioner is not prevented from committing

further offences by taking recourse to the provisions of the Act, it

would be difficult to stop him in future. He, therefore, submits

that the petition needs to be dismissed.

8 We have carefully gone through the impugned orders

and entire material on record. It is significant to note that the

petitioner has been externed by the authorities under Section 56

(1) (a) (b) of the Act, which, we would like to reproduce herein

below:

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56. Removal of persons about to commit offences:

               (1)               Whenever it shall appear in Greater
               Bombay          and    other        areas    for    which        a
               Commissioner          has      been     appointed         under

Section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this Section, to the District Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf-

(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or

(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or any offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or

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property,

9 On perusal of the said Section, it appears that if

movements or acts of any person are causing or calculated to

cause alarm, danger or harm to person or property, he can be

externed as a preventive measure. Further, the provisions of

aforesaid Section definitely make a serious inroad on the personal

liberty and, therefore, such restraints have to be suffered in the

larger interests of the Society. Considering this, while passing the

externment order under this Section, one must be careful. It

appears that when the behaviour of a person, who needs to be

externed, is found dangerous to public at large, then only such

stringent action can be imposed.

10 In the instant case, externment of the present

petitioner appears to be done on the basis of four crimes, which

are as follows:

Sr. No. Name of the Under Sections Remarks Police Station 1 Navapur Police Cr. No.206/2017. Pending before Station, Sections 452, the Court.

                     Nandurbar, Tq. &    427, 143, 149,
                     Dist. Nandurbar     323 IPC. Section
                                         (3) (1) (r) (s) of the





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                                             SC & ST Act.

2 Navapur Police Cr. No. 79/2018. Pending before Station, Sections 326, the Court Nandurbar, Tq. & 354, 143, 147, Dist. Nandurbar 149 IPC.

  3                  Navapur    Police       Cr.           No. Pending before
                     Station,                398/2020.         the Court
                     Nandurbar, Tq. &        Sections     188,
                     Dist. Nandurbar         268, 269 IPC
  4                  Navapur    Police       Cr.No.959/2020 Pending before
                     Station,                Sections 143, 147, the Court.
                     Nandurbar, Tq. &        323, 504, 506
                     Dist. Nandurbar         IPC & 3(1) (r) 3(2)
                                             (s) of the SC & ST
                                             Act.




 11               However, it appears that after trial in first crime i.e.

Crime No. 206/2017, the Special Court has acquitted the petitioner

on merits. Learned Counsel for the petitioner has also produced

copy of the judgment in Special (Atrocity) Case No. 11/2017 on

record. On perusal of the same, it is evident that the evidence of

complainant and the eye witness was found self contradictory and

unreliable in nature. It is also important to note that so far as

fourth crime i.e. Crime No. 959/2020 is concerned, the

complainant in the first crime is one and the same in the said

Crime No.259/2020. Moreover, the petitioner has also produced

on record affidavit filed by complainant Ajay Damu Birhade on

record wherein it is stated that the said complaint was result of

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misunderstanding. The learned Counsel for the petitioner has

now placed on record copy of the judgment and order dated

10.03.2022, in the said case i.e. Sessions Case No. 08/2021,

passed by the Additional Sessions Judge, Nandurbar, acquitting

the petitioner from the said crime. As such, two out of the four

crimes appear to be based on complaint of one and the same

person and both have resulted in an acquittal of the petitioner.

12 The second crime i.e. Crime No. 79/2018 also appears

to be of individualistic in nature, since larger public interest is not

involved it. Moreover, the third crime i.e. Crime No.398/2020 is in

respect of gambling in isolated place and, therefore, it cannot be

said that the said crime involves breach of peace as well as law and

order relating to public at large.

13 Learned Counsel for the petitioner has placed reliance

on various cases as mentioned above. In the judgment in the case

of Rahmat Khan alias Rammu Bismillah Vs. Deputy Commissioner

of Police, 2021 SCC Online SC 641, it has been observed in para 16

as under:

"16 An excessive order can undoubtedly

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be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case. The decision of the Bombay High Court in Balu Shivling Dombe v. Divisional Magistrate, Pandharpur, is an instance in point where an externment order was set aside on the ground that it was far wider than was justified by the exigencies of the case. The activities of the externee therein were confined to the city of Pandharpur and yet the externment order covered an area as extensive as districts of Sholapur, Satara and Poona. These areas are far widely removed from the locality in which the externee had committed but two supposedly illegal acts. The exercise of the power was therefore arbitrary and excessive, the order having been passed without reference to the purpose of the externment."

Moreover, in the same judgment, in para 34, it is

observed thus:

"34. An externment order may sometimes be necessary for maintenance of law and order. However the drastic action of externment should only be taken in exceptional cases, to maintain law and order in a locality and/or prevent breach of public tranquility and

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peace. In this case, it is patently clear that the impugned externment order was an outcome of the complaints lodged by the Appellant against government officials, some Madrasas and persons connected with such Madarasas who later lodged FIRs against the Appellant. The FIRs are clearly vindictive, retaliatory and aimed to teach a lesson to the Appellant and stife his voice."

14 In the instant case also, though all the crimes against

the petitioner are registered in Navapur Police Station, but he has

been externed from the area of entire Nandurbar district. There is

nothing on record to indicate that the activities of the petitioner are

also going on in other parts of Nandurbar district. Though the Full

Bench of this Court in the judgment in the case of Sumit s/o

Ramkrishna Maraskolhe Vs. Deputy Commissioner of Police, Zone-

I, Nagpur & another, 2019 (2) MhLJ 745, has observed that the

externment order can be passed in respect of larger area wherein

there is absence of criminal activities of the petitioner, but such

externment from larger area must be out of subjective satisfaction.

In the instant case, it is apparent that the criminal activities

wherein the petitioner is indulged, are against individual persons

and not against the public at large. Furthermore, two of the

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crimes appear to be registered on the basis of complaints lodged by

one and the same person. Thus, considering the fact that at

present there are only 2 crimes pending against the petitioner and

that too in Navapur Police Station, his externment from entire

Nandurbar district definitely appears to be excessive in nature.

15 In the judgment in the case of Praful Bhausaheb

Yadav Vs. Shri K. K. Pathak, Principal Secretary (Home) State of

Maharashtra & others, 2013 SCC OnLine Bom 188, in para 7, it is

observed by this Court as under:

"7 Furthermore, there was no any past instance of conviction recorded against the externee. He cannot be branded as habitual criminal merely on the basis of fact of pending criminal cases of 2010 particularly in the absence of any past conviction. He cannot be branded as dangerous in the absence of any complaint by any witness in any pending criminal case against the noticee. There was no any instance of misuse or abuse of the bail order by him in any pending criminal case. When impugned order of externment was passed there was no any tangible material for the externing authority to record subjective satisfaction that the externee was so dangerous

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that no witness or witnesses are willing to come forward to depose against him. In fact no such subjective satisfaction has been recorded by the externing authority which is a condition precedent for passing an order of externment under Section 56 (1) (b). Externment order when implemented may result in far-reaching harsh consequences for the externee and his family members if dependent upon him for their livelihood. It may spell economic death for the externee. That being so, Procedure established by law must be shown to have been followed vigilantly and cautiously before a person is deprived of his fundamental right of free movement as guaranteed under article 19(1) (d) and personal liberty guaranteed under article 21 of the Constitution of India."

16 In the instant case also, there is no conviction

recorded against the petitioner in any of the aforesaid crimes. On

the contrary, he is acquitted on merit in one of the four crimes.

Further, though there is reference to some confidential in-camera

statements of the witnesses, but no details of said statements are

mentioned in the order. As such, it appears that both the

authorities below have externed the petitioner only on the basis of

two crimes which are of individualistic nature.

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17 Considering all these aspects, we are of the opinion

that the impugned orders are not passed by proper application of

mind. Further, the impugned orders are excessive in nature and

there appears to be no subjective satisfaction of the authorities

below. It also appears that live-link is also missing in the instant

matter and hence the impugned orders are liable to be set aside.

18 In the result, we pass the following order:

(i) Criminal Writ Petition is hereby allowed in terms of

prayer clause (B).

(ii) Rule is made absolute accordingly.

  (SANDIPKUMAR C. MORE)                          (V. K. JADHAV)
      JUDGE                                         JUDGE

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