Ganesh Gorakh Sathe vs The State Of Maharashtra And ...
2022 Latest Caselaw 3447 Bom

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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

              (1 )CRIMINAL WRIT PETITION NO. 1409 OF 2021

 Sachin @ Lakhan s/o Manjabapu Warule,
 age: 28 years, Occ: Agril.;
 R/o Warulwadi, Tq. Nagar,
 District Ahmednagar.
 At present C/o Prashant Fasale,
 R/o Wadgaon, Tq. Ashti,
 District Beed.                                             Petitioner
       Versus

 01 The State of Maharashtra,
    through its Principal Secretary,
    Home Department,
    Mantralaya, Mumbai-32.

 02 The Superintendent of Police,
    Ahmednagar.

 03 The Sub Divisional Police Offcer,
    Nagar City Division, Ahmednagar,
    Tq. & District Ahmednagar.

 04 The Divisional Commissioner,
    Nasik Division, Nasik.                                  Respondents

                                 WITH
              (2) CRIMINAL WRIT PETITION NO. 1410 OF 2021

 Vishal s/o Shaharam Warule,
 age: 26 years, Occ: Agril.;
 R/o Warulwadi, Tq. Nagar,
 District Ahmednagar.
 At present C/o Sandip Dalvi,
 R/o Kelpimpalgaon, Tq. Ashti,
 District Beed.                                             Petitioner

          Versus

 01 The State of Maharashtra,




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      through its Principal Secretary,
      Home Department,
      Mantralaya, Mumbai-32.

 02 The Superintendent of Police,
    Ahmednagar.

 03 The Sub Divisional Police Offcer,
    Nagar City Division, Ahmednagar,
    Tq. & District Ahmednagar.

 04 The Divisional Commissioner,
    Nasik Division, Nasik.                                   Respondents

                                 WITH
              (3) CRIMINAL WRIT PETITION NO. 1411 OF 2021

 Ganesh s/o Gorakh Sathe,
 age: 29 years, Occ: Agril.;
 R/o Warulwadi, Tq. Nagar,
 District Ahmednagar.
 At present C/o Prashant Fasale,
 R/o Wadgaon, Tq. Ashti,
 District Beed.                                              Petitioner

          Versus

 01 The State of Maharashtra,
    through its Principal Secretary,
    Home Department,
    Mantralaya, Mumbai-32.

 02 The Superintendent of Police,
    Ahmednagar.

 03 The Sub Divisional Police Offcer,
    Nagar City Division, Ahmednagar,
    Tq. & District Ahmednagar.

 04 The Divisional Commissioner,
    Nasik Division, Nasik.                                   Respondents

                                 WITH
              (4) CRIMINAL WRIT PETITION NO. 1412 OF 2021




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 Sagar s/o Vithoba Kardile,
 age: 34 years, Occ: Agril. & Business,;
 R/o Warulwadi, Tq. Nagar,
 District Ahmednagar.
 At present C/o Prashant Fasale,
 R/o Wadgaon, Tq. Ashti,
 District Beed.
                                                 Petitioner
          Versus

 01 The State of Maharashtra,
    through its Principal Secretary,
    Home Department,
    Mantralaya, Mumbai-32.

 02 The Superintendent of Police,
    Ahmednagar.

 03 The Sub Divisional Police Offcer,
    Nagar City Division, Ahmednagar,
    Tq. & District Ahmednagar.

 04 The Divisional Commissioner,
    Nasik Division, Nasik.                                         Respondents


 Mr. N. B. Narwade, advocate for the petitioners
 Mr. M. M. Nerlikar, APP for Respondents.


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

                    RESERVED ON   : 14th March, 2022.
                    PRONOUNCED ON : 30th March, 2022.

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

1 Rule. Rule made returnable forthwith and heard

fnally by consent of learned Counsel for respective parties.

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2 The petitioners in Criminal Writ Petitions No.

1409/2021, 1411/2021 and 1412/2021, have prayed for quashing

and setting aside order dated 26.10.2021, passed by Respondent

No.4 i.e. Divisional Commissioner, Nasik Division, Nasik, in their

respective Externment Appeals No.78/2021, 80/2021 and

79/2021, confrming the common order dated 14.07.2021, passed

by Respondent No.2 i. e. Superintendent of Police, Ahmednagar, in

respect of all these three petitioners, whereby said petitioners are

externed from the entire area of Ahmednagar district for the period

of 15 months.

The petitioner in Criminal Writ Petition No. 1410/2021

has also challenged the order dated 26.10.2021, passed by

Respondent No. 4 - Divisional Commissioner, Nasik Division, Nasik

in Externment Appeal No. 103/2021, confrming the order dated

23.08.2021, passed by Respondent No. 2 - Superintendent of

Police, Ahmednagar, whereby he is externed from the entire area of

Ahmednagar district, for the period of 15 months.

3 Though the numbers of Externment Appeals fled by

these petitioners before Respondent No. 4 - Divisional

Commissioner, Nasik Division, Nasik, are different, but those

appeals are arising out of the impugned orders dated 14.07.2021

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and 23.08.2021, respectively, passed by Respondent No.2 -

Superintendent of Police, Ahmednagar. Vide order dated

14.07.2021, Respondent No.2 has externed three petitioners in

Criminal Writ Petitions No. 1409/2021, 1411/2021 and 1412/2021,

from the area of entire Ahmednagar district for the period of 15

months, whereas, the same authority has also externed petitioner

- Vishal Shaharam Warule, (petitioner in Criminal Writ Petition No.

1410/2021) vide separate order dated 23.08.2021, from the area of

entire Ahmednagar district for the period of 15 months.

4 On perusal of all these petitions along with its

annexures, it appears that both the authorities have jointly

considered the allegations against all these petitioners, being

members of a gang and they have been externed under the

provisions of Section 55 of the Maharashtra Police Act, 1951

(herein after referred to as "the said Act"). We, therefore, fnd it

proper to dispose of all these four petitions by a common

judgment.

5 The background facts of this case are as under:

On 15.05.2021, Respondent No. 2 - Superintendent of

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Police, Ahmednagar, had issued a notice under Section 59 of the

said Act to the petitioners mentioning therein that they are

members of the gang and involved in serious offences mentioned

herein below:

(1) Petitioner: Sachin @ Lakhan Manjabapu Warule (Cr.W.P.No.1409/21)

Sr. No. Crime No. & Sections Present status 01 Camp Police Station, Cr. No. 1610/2020, Pending before Sections 326, 324, 341, 323, 504, 506, the Court 143, 147, 148, 149, 269, 270, 290 IPC RCC and Section 37(1)(3) of the Maharashtra No.594/2020 Police Act.

02 Camp Police Station, Cr. No. 1611/2020, Pending before Sections 326, 341, 323, 504, 506, 269, the Court 270, 290 read with Section 34 IPC. RCC No. 571/2020 03 Camp Police Station Cr. No. 6855/2020, Under Sections 143, 144, 504, 506 IPC Investigation

(2) Petitioner: Vishal Shaharam Warule (Cr.W.P.No.1410/21)

Sr. No. Crime No. & Sections Present status 01 Camp Police Station, Cr. No. 1610/2020, Pending before Sections 326, 324, 341, 323, 504, 506, the Court 143, 147, 148, 149, 269, 270, 290 IPC RCC and Section 37(1)(3) of the Maharashtra No.594/2020 Police Act.

02 Camp Police Station, Cr. No. 1611/2020, Pending before Sections 326, 341, 323, 504, 506, 269, the Court 270, 290 read with Section 34 IPC. RCC No. 571/2020 03 Camp Police Station 127/2014, Sections Pending before 143, 144, 323, 504 read with S.34 IPC the Court STC No. 998 of 2015

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(3) Petitioner: Ganesh Gorakh Sathe (Cr.W.P.No.1411/21)

Sr. No. Crime No. & Sections Present status 01 Camp Police Station, Cr. No. 1610/2020, Pending before Sections 326, 324, 341, 323, 504, 506, the Court 143, 147, 148, 149, 269, 270, 290 IPC RCC and Section 37(1)(3) of the Maharashtra No.594/2020 Police Act.

02 Camp Police Station, Cr. No. 1611/2020, Pending before Sections 326, 341, 323, 504, 506, 269, the Court 270, 290 read with Section 34 IPC. RCC No. 571/2020

(4) Petitioner: Sagar Vithoba Kardile (Cr.W.P.No.1412/21)

Sr. No. Crime No. & Sections Present status 01 Camp Police Station, Cr. No. 1610/2020, Pending before Sections 326, 324, 341, 323, 504, 506, the Court 143, 147, 148, 149, 269, 270, 290 IPC RCC and Section 37(1)(3) of the Maharashtra No.594/2020 Police Act.

02 Camp Police Station, Cr. No. 1611/2020, Pending before Sections 326, 341, 323, 504, 506, 269, the Court 270, 290 read with Section 34 IPC. RCC No. 571/2020 03 Tofkhana Police Station Cr.No. 6855 of Under 2020, Sections 143, 144, 504, 506 IPC investigation

6 It was also mentioned in the notice that there were

confdential statements of witnesses and, therefore, a proposal was

forwarded to the Camp Police Station. It was further mentioned in

the said notice that accordingly, the Sub Divisional Police Offcer,

Ahmednagar City Division i.e. Respondent No.3 conducted inquiry

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and thereafter show cause notice was issued to the petitioners,

asking them as to why they should not be externed from

Ahmednagar district for the period of two years. Petitioners then

appeared before Respondent No.2 and submitted their respective

replies and thereby made a request not to proceed with the show

cause notice dated 15.05.2021. However, after considering the

defence replies of the petitioners, Respondent No.2, on the basis of

material placed before him, externed three petitioners from the

entire area of Ahmednagar district for the period of 15 months

vide order dated 14.07.2021 and vide order dated 23.08.2021,

externed petitioner Vishal Shaharam Warule from the entire area of

Ahmednagar district for the period of 15 months. Aggrieved by the

externed orders, the petitioners have fled respective appeals as

mentioned herein above before Respondent No.4 - Divisional

Commissioner, Nasik Division, Nasik, under Section 60 of the said

Act. However, Respondent No.4 was pleased to reject the appeals

of all the petitioners under separate orders, all dated 26.10.2021.

Hence, these petitions.

7 Learned Counsel for the petitioners submits that the

externment orders passed against these petitioners by Respondent

No.2 as well as orders passed by Respondent No.4, confrming the

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externment orders, are prima facie erroneous and against the

guidelines issued in respect of externment proceedings. He further

submits that fundamental right of the petitioners guaranteed by

the Constitution of India, particularly, under Articles 19 (1) (d) and

21 has been violated. He further submits that there were no

collective criminal activities of the petitioners but, still they were

brought under the purview of Section 55 of the said Act. He

submits that during pendency of externment proceedings against

the petitioners, they were, in fact, acquitted on 01.07.2021 from the

trial of Crime No. 1611/2020, but the said fact was not considered.

Learned Counsel for the petitioners also submits that though the

activities of the petitioners are restricted to the jurisdiction of

Ahmednagar taluka only, but they have been wrongly externed

from the entire area of Ahmednagar district. Thus, he prayed for

setting aside the impugned orders being excessive in nature.

Ultimately, he submits that both the authorities below did not

consider defence material placed before them by the petitioners.

8 Besides the oral submissions, learned Counsel for the

petitioners, relied upon various judgments as mentioned below:

(a) In the case of Nisar @ Nigro Bashir Ahmed Khan Vs. Deputy. Commissioner of Police & others, 2013 (3) Bom.C.R. (Cri.)

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566;

(b) In the case of Umar Mohammed Malbari Vs. K. P. Gaikwad & another, 1988 (2) Bom. C. R. 724;

(c) In the case of Balu Shivling Dombe Vs. The Divisional Magistrate, Pandharpur & another, AIR 1969 Bombay 351 (V. 56

57);

(d) In the case of Ganpat @ Ganesh Tanaji Katare Vs. Assistant Commissioner of Police & others, 2006 (1) Mh.L.J. 510;

(e) In the case of Namdeo Laxman Charde Vs. Sub- Divisional Magistrate, Katol, 1996 (1) Mh.L.J. 483;

(f) In the case of Kashinath @ Kashya Sitaram Keluskar Vs. The Deputy Commissioner of Police & others, 2000 ALL MR (Cri.) 801;

(g) In the case of Aakash Anil Tambe Vs. The State of Maharashtra & others (Criminal Writ Petition No. 500 of 2014, disposed of on 08.08.2014);

(h) In the case of Sajid s/o Mahemood Shaikh Vs. The State of Maharashtra & others (Criminal Writ Petition No. 521 of 2014, disposed of on 25.08.2014);

(i) In the case of Yeshwant Damodar Patil Vs. Hemant Karkare, Deputy Commissioner of Police & another; 1989 (3) Bom. C. R. 240;

(j) In the case of Pandharinath Shridhar Rangnekar Vs. Deputy Commissioner of Police, the State of Maharashtra; 1972 DGLS (SC) 574;

(k) In the case of Munaf Samshuddin Shaikh Vs. The Deputy Commissioner of Police; 2014 ALL MR (Cri.) 2412;

(l) In the case of Kantibhai Bhagwanbhai Kahar Vs. B. J. Gadhvi, Deputy Commissioner of Police, Surat; 1987 (1) Crimes 613 (Guj.);

(m) In the case of Ashraf Shamsher Ali Jagirdar Vs. State of Maharashtra & others; 2016 (1) Bom. C. R. (Cri.) 504;

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(n) In the case of Vishwas Damduji Choudhari Vs. State of Maharashtra & another, 2010 (3) Bom. C. R. (Cri.) 431;

(o) In the case of Vilas Siddharth Sirsat Vs. State of Maharashtra & another, 2010 (1) Bom. C. R. (Cri.) 37;

(p) In the case of Sanket Balkrushna Jadhav Vs. State of Maharashtra & another, 2013 ALL MR (Cri.) 3843;

9 On the contrary, the learned A. P. P., by fling common

affdavit-in-reply in Criminal Writ Petition No. 1412/2021, has

strongly opposed the petitions on the ground that the petitioners

are the members of a gang headed by one of the petitioners,

namely Sagar Vithoba Kardile and the crimes registered against

them are of serious nature for the offences punishable under

Sections 326, 324, 341, 323, 504, 506, 143, 147, 148, 149, 269,

270, 290 IPC and Section 37(1)(3) of the Maharashtra Police Act.

Moreover, preventive actions under Section 110 of the Code of

Criminal Procedure are also taken against the petitioners. He

further submits that all the material on record clearly indicates

that the petitioners are in the habit of committing offences by

forming unlawful assembly creating bad impact on the society,

which is culminated into the disturbance of public peace and law

and order. Not only this, but criminal activities of the petitioners

are causing disturbance of public tranquility and due to the

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deterrent behaviour of the petitioners, nobody is coming forward

openly to lodge complaint against them. Thus, the learned A. P. P.

supported the impugned orders whereby petitioners are externed.

10 We have carefully gone through the impugned orders

in all the petitions along with the material on record. Further, we

have also considered the police papers. On going through the

impugned orders, passed by Respondent No.2 - Superintendent of

Police, Ahmednagar, it appears that the petitioners are externed

from entire Ahmednagar district for the period of 15 months mainly

because they are found dangerous to the public at large as they are

involved in various crimes against human body, formation of

unlawful assembly, causing deterrence to the common public,

attempting to murder and robbery, etc. Further, it is also found

that all these crimes are committed by the petitioners, being the

leader and members of a gang. Section 55 of the Act provides for

dispersal of such persons or body of persons who are found

involved in serious crimes being a gang. As such, joint commission

of crimes is required to be there to consider whether the persons

need to be dispersed under the aforesaid Section.

11 On perusal of the orders of Respondent No.2, prima

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facie, it appears that all the petitioners are involved in two crimes

of Camp Police Station, Ahmedngar, registered for the offences

punishable under Sections 326, 324, 341, 323, 504, 506, 143, 147,

148, 149, 269, 270 and 290 of Indian Penal Code and Section 37

(1) & (3) of the said Act. The charges levelled against them, by

itself, suggest that the petitioners have committed these crimes

jointly, which are of serious nature. Further, there are chapter

cases also against all the petitioners, as mentioned in the

impugned orders, initiated under Sections 110 (e) (g) of the Code of

Criminal Procedure. Thus, it also appears that all the petitioners

are habitual offenders. So far as crime at Sr. No. 3 is concerned,

petitioners, namely Sagar Vithoba Kardile and Sachin @

Manjabapu Warule are only involved in the said crimes, whereas in

the crime at Sr. No.4, only petitioner Vishal appears to have been

involved. However, the frst two crimes defnitely indicate

involvement of all the petitioners being a gang. Further, the

impugned orders also indicate that there were statements of two

confdential witnesses wherein those witnesses, by keeping their

names secret, had stated that petitioner - Sagar Kardile heads the

gang along with other petitioners as members of the gang and

causes deterrence to common public. The frst witness has

specifcally stated that he was robbed by the petitioners on the

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point of knife. The second witness has also stated in similar terms

and made it clear that all the petitioners have robbed him for the

amount of Rs.1200/-. All this material, referred in the impugned

orders, is specifcally mentioned in the notice dated 15.05.2021

also. Moreover, it appears that Respondent No.2 has also

considered all the defence material or issues raised by the present

petitioners while coming to the conclusion that the petitioners are

required to be externed from the entire Ahmednagar district.

12 Learned Counsel for the petitioners has placed reliance

on the judgments, as mentioned herein above. However, the

judgments cited at Sr. Nos. (i), (j) and (k) are in respect of

externment of petitioners therein under Section 56 (1) (a) (b) of the

said Act. The consideration for externment under that Section is

totally different than the externment under Section 55 of the Act

and, therefore, we do not fnd the aforesaid judgments helpful to

the petitioners in the instant matter.

13 Learned Counsel for the petitioners, by referring the

judgment at Sr. No. (c) Balu Shivling Dombe Vs. The Divisional

Magistrate, Pandharpur & another, AIR 1969 Bombay 351 (V. 56

57); has vehemently argued that there is no proper interpretation

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of "alarm", "danger" or "harm" to the persons or property, in the

impugned orders, as observed by this Court in the said judgment.

This Court, in the said judgment, has observed as follows:

"The expression "alarm, danger or harm to person or property", must if possible be so interpreted as to ensure that the provisions of that section are in conformity with the fundamental rights guaranteed by Art. 19(1)(d) and (e) of the Constitution. It must follow that the expression must be held to refer to the alarm, danger or harm to person or property of the public at large, and not one one or two individuals among the public. Such an order cannot also be made on the ground that it was necessary for the preservation of peace or the maintenance of law and order in a particular locality."

Though the Division Bench of this Court, in the

aforesaid judgment, has held that the order of externment cannot

be based merely on a fnding that the movements or acts of a

person are causing or are calculated to cause alarm, danger or

harm to one or two individuals in the locality, but this observation

has come on record mainly while considering the externment order

under Section 56 of the Act. However, present petitions involve

application of Section 55 of the Act and the requirement of said

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Section is only to see whether the crimes are committed by

persons or body of persons acting as a gang. As such, we do not

fnd that the aforesaid judgment is helpful to the present

petitioners.

14 The learned Counsel for the petitioners has also relied

upon judgments at Sr. No. (d), (e), (f) and (l) wherein it is observed

that no consideration of extraneous material must be there before

passing the externment order. It is also held in those judgments

that there must be mention of details of cases and particulars of

offences registered against the persons against whom externment

proceedings are initiated. It is also observed that non mentioning

of details of offences, in the notice or externment orders, causes

serious infrmity. However, on perusal of the impugned orders, it is

revealed that all the details of offences committed by the

petitioners are mentioned in the notice as well as impugned orders

passed by Respondent No.2. As such, these judgments are also

not helpful to the petitioners, in any manner.

15 Learned Counsel for the petitioners then submits that

though the crimes, on the basis of which the authorities below

have come to the conclusion that the petitioners are acting as a

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gang, are registered in Camp Police Station, Ahmnednagar, only,

but the petitioners have been externed from entire Ahmedngar

district, that too for the period of 15 months. On this ground,

learned Counsel for the petitioners has heavily relied upon the

judgments at Sr. Nos. (a), (b) (g) (h) (m) (n) (o) and (p). We have

carefully gone through the aforesaid judgments and the sum and

substance of these judgments is that the authority cannot extern a

person from any larger area than the area wherein his criminal

activities are going on. However, it is extremely important to note

that the initial proposal for externment of the petitioners was from

Ahmednagar district, Yeola taluka, Nasik, Vaiapur, Taluka,

Aurangabad, Ashti taluka, District Beed, Shirur taluka, Pune

district. However, ultimately, on the basis of inquiry, the Sub

Divisional Police Offcer, Ahmednagar City, only proposed

externment of petitioners from Ahmedngar district by excluding

other areas.

16 The Hon'ble Full Bench of this Court at Nagpur, in the

judgment in the case of Sumit Ramkrushna Maraskolhe Vs.

Deputy Commissioner of Police, Zone-I, Nagpur & another, 2019 (2)

Mh.L.J. 745, has opined that the externment order directing

externment of a person from much larger area than the one of his

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illegal activities, can be made, but it should be based upon some

material which provides an objective criteria to the authority for

reaching a subjective satisfaction. It is held in the said judgment

as under:

"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. 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. Application of mind to the material present on record by the authority passing the externment order is necessary, but any refection 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 its wisdom the one which it though to be most appropriate. The

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Detaining Authority can select a larger area for being covered under its externment order, as one of the options available to it, whether such larger area has within it contiguous or interconnected or intimately connected pockets of areas or not.

17 In the instant case, though the proposal of externment

was for externing the petitioners from larger area than the

Ahmednagar district, but after making thorough inquiry, the

petitioners are externed only from Ahmednagar district and that

too on the basis of material on record. Even though the crimes

considered for externment of the petitioners are registered only in

the Camp Police Station, Ahmednagar, but considering the latest

modes of transportation, it appears that the authorities below have

rightly restricted the petitioners from entering into entire

Ahmednagar district to prohibit their criminal activities. Even in

the aforesaid Full Bench judgment, it has been observed in similar

terms.

18 Learned Counsel for the petitioners also vehemently

argued that the petitioners are acquitted from the trial in respect of

Crime No. 1611/2020 at Sr. No.2. He produced copy of the

judgment in the said case. However, on going through the copy of

the said judgment, it appears that the petitioners are acquitted

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from the said crime since the complainant and other witnesses did

not support the prosecution story. Therefore, it cannot be said

that acquittal of the petitioners, in the said case, was on merit. As

such, we discard the submission of the learned Counsel for the

petitioners that such acquittal would come to help the petitioners

for quashing the impugned orders.

19 Further, on going through the impugned orders, it

appears that the authorities below have rightly appreciated the

entire material on record against the petitioners in proper

perspective with their subjective satisfaction. Moreover, there is

presence of live-link since the crimes chosen for externment of the

persons are of the year 2020 and the externment proposal also

appears to be initiated immediately in the year 2020 itself.

20 Thus, considering the entire material on record, we

come to the conclusion that petitioners are involved in serious

criminal activities and they have committed serious crimes jointly

as a gang. Moreover, there appears application of mind by the

externing authority and Respondent No.4 has rightly confrmed

the orders of externment against the petitioners with the intention

to restrict their criminal activities. Thus, considering the aforesaid

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discussion, we are of the opinion that there is no need to interfere

with the impugned orders of externment passed against the

petitioners.

21 In the result, we pass the following order:

(i) Criminal Writ Petitions No.1409/2021, 1410/2021,

1411/2021 and 1412/2021 are dismissed.

 (ii)             Rule stands discharged.




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

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