Bombay High Court
Nitin Anna Dhivar vs The State Of Maharashtra And ... on 30 March, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1418 OF 2021
Nitin s/o Anna Dhivar,
Age : 33 years, Occu.: Labour,
R/o.: Bhimnagar, Shirdi, Taluka Rahata,
District : Ahmednagar. .... PETITIONER
VERSUS
1. The State of Maharashtra
Through the Secretary,
Department of Home,
Maharashtra State,
Mantralaya, Mumbai
2. The Special Executive Magistrate-
Cum-Police Offcer,
Local Crime Branch, Ahmednagar
3. The Sub-Divisional Police Offcer,
Shrirampur Sub-Division,
Shrirampur, Taluka Shrirampur,
District Ahmednagar
4. The Superintendent of Police,
Ahmednagar
5. The Divisional Commissioner,
Nashik Division, Nashik ... RESPONDENTS
.....
Senior Advocate for Petitioner : Mr. Rajendrraa Deshmukh a/w
Mr. Vishal Chavan i/b Mr. Devang R. Deshmukh
APP for Respondents-State : Mr. M. M. Nerlikar
....
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2 judgment wp 1418-21 & 1419-21
AND
CRIMINAL WRIT PETITION NO.1419 OF 2021
Sachin s/o Sitasram Gaikwad,
Age : 32 years, Occu.: Labour,
R/o.: Bhimnagar, Shirdi, Taluka Rahata,
District : Ahmednagar. .... PETITIONER
VERSUS
1. The State of Maharashtra
Through the Secretary,
Department of Home,
Maharashtra State,
Mantralaya, Mumbai
2. The Special Executive Magistrate-
Cum-Police Offcer,
Local Crime Branch, Ahmednagar
3. The Sub-Divisional Police Offcer,
Shrirampur Sub-Division,
Shrirampur, Taluka Shrirampur,
District Ahmednagar
4. The Superintendent of Police,
Ahmednagar
5. The Divisional Commissioner,
Nashik Division, Nashik ... RESPONDENTS
.....
Senior Advocate for Petitioner : Mr. Rajendrraa Deshmukh a/w
Mr. Vishal Chavan i/b Mr. Devang R. Deshmukh
APP for Respondents-State : Mr. S. J. Salgare
....
CORAM : V. K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
RESERVED ON : 16/03/2022
PRONOUNCED ON : 30/03/2022
....
3 judgment wp 1418-21 & 1419-21
JUDGMENT : (Per : Sandipkumar C. More, J.) :
1. Rule. Rule made returnable forthwith. By consent, heard
fnally at admission stage.
2. Both the petitioners have challenged the order dated
18/08/2021 passed by respondent no.4, whereby they are externed
for a period of 18 months from entire Ahmednagar District. The
petitioners also challenged the order dated 26/10/2021 passed by
respondent no.5 i.e. i.e. Divisional Commissioner, Nashik Region,
Nashik in their respective appeals bearing Appeal No.90 of 2021 and
Appeal No. 91 of 2021, whereby the earlier order dated 18/08/2021
of respondent no.4 is confrmed. Therefore, we fnd it proper to
dispose of both these petitions with common judgment.
3. Background facts are as under :
The petitioners are permanent residence of Bhimnagar, Shirdi,
Taluka Rahata, District Ahmednagar and they belong to a
respectable family and also involved in active social work, such as
organizing blood donation camps, helping the poor and needy
persons. However, respondent no.3 Sub-Divisional Police Offcer,
Shrirampur, issued notice under Section 59 of the Maharashtra
Police Act, 1951 (hereinafter referred to as "the Act") on 13/01/2021
4 judgment wp 1418-21 & 1419-21
calling upon the petitioners as to why they should not be externed
from Ahmednagar and Aurangabad Districts and also from Yeola
Taluka of Nashik District for a period of two years. The petitioners
replied the said notice on 27/01/2021 and requested to drop the
same. However, thereafter, respondent no.4 issued another notice
dated 04/08/2021 to the petitioners calling their explanation as to
why they should not be externed for a period of two years from
Ahmednagar District and its adjacent Talukas, Niphad, Yeola and
Sinnar from Nashik District and Vaiapur Taluka from Aurangabad
District. The petitioners again replied the said notice under reply
dated 13/08/2021 but respondent no.4 then passed the impugned
order dated 18/08/2021 for the externment of the petitioners as
mentioned above. Both the petitioners then challenged the said
order dated 18/08/2021 under their respective appeal No.90 of 2021
and Appeal No. 91 of 2021 before respondent No.5 but under order
dated 26/10/2021 respondent No.5 was pleased to dismiss the
appeals by confrming the earlier order dated 18/08/202.
4. Learned counsel for the petitioners submits that though there
are so many other persons, who are involved in more than two
crimes, registered with Shirdi Police Station, but only the petitioners
were chosen for initiating externment proposal and that too merely
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on the basis of two crimes. Learned counsel for the petitioners
further submits that both the petitioners are social workers and
engaged in various activities of social nature in helping the poor and
needy. He further submits that out of two offences registered against
the petitioners, not a single crime is resulted into their conviction.
Moreover, the order of externment is also excessive in nature. As
such, the learned counsel for the petitioners prayed for dismissal of
the impugned orders since the same are passed erroneously by both
the authorities below.
5. On the contrary, the learned APP strongly opposed the
petitions by fling a common reply in Criminal Writ Petition No. 1419
of 2021. The learned APP submits that both the authorities below
have strictly followed the procedure according to the law and
implemented the provisions of the Act in proper perspective while
externing the petitioners. Moreover, the authorities below have also
applied their minds properly and considered the material on record
rightly. As such, he prayed for rejection of both the petitions.
6. We have carefully gone through the impugned orders and also
say of the petitioners in respect of the entire proceeding and
externment against them. On perusal of notice dated 04/08/2021
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following crimes appear to be registered against both the petitioners
in Shirdi Police Station:
Sr. Police Station and Name of the Court Case Status of the
No. Crime No. accused No. crime
1. Shirdi Police 1. Nitin Anna RCC No. Subjudice
Station, Crime No. Dhivar 440 of 2019
803 of 2019, under 2. Sachin Sitaram
Sections 143, 147, Gaikwad
148 and 149 of IPC
2. Shirdi Police 1. Nitin Anna Under Under
Station, Crime No. Dhivar investig- investig-
154 of 2020, under 2. Sachin Sitaram ation ation
Sections 143, 147, Gaikwad
148, 323, 326, 504
and 506 of IPC
3. Shirdi Police Nitin Anna Dhivar Under Under
Station, Crime No. investig- investig-
305 of 2020, under ation ation
Sections 307, 324,
323, 504 r.w. 34 of
IPC and under
Section 4/25 of
the Arms Act
Besides, information regarding chapter cases registered in
Shirdi Police Station against both the petitioners is also mentioned
therein. On perusal of the same, it is evident at least two crimes
namely Crime No. 803 of 2019 and Crime No. 154 of 2020 appear to
be committed jointly by the petitioners are there on record. Further,
the offence punishable under Section 307 of the IPC along with
other sections and Section 4/25 under Arms Act, is registered
additionally against the petitioner Nitin Anna Dhiwar. On going
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through the allegations in the said crime, it appears that both these
petitioners have committed severe crimes involving beatings,
formation of unlawful assembly, criminal trespass, destruction of
property etc. Moreover, the petitioners were also involved in offences
against human body. Both the offences jointly committed by the
petitioners are at the stage of investigation and pending before the
court. Besides, there are also confdential statements of witnesses
on record, who are reluctant to lodge complaint openly against the
petitioners due to their deterrent behaviour. Further, both the
authorities below have also verifed the statements, wherein two
persons have made allegations that the petitioners and their gang
members abused and beat them. Thus, it is clearly evident that the
petitioners are involved in serious criminal activities such as
formation of unlawful assembly, criminal trespass, causing damage
to the property of public, using dangerous weapons for causing
injuries and attempt to commit murder etc. Further, both these
offences are of the year 2019 and 2020 respectively.
7. Learned counsel for the petitioners vehemently argued that
only two crimes have been registered against the petitioners and no
conviction is recorded against them in any of those offences.
However, the externment proceeding initiated against the petitioners
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is under Section 55 of the Act and it is not at all necessary to extern
them only in case of conviction. Section 55 of the Act is applicable if
it is found that the persons are involved in serious criminal activities
being a gang and their activities must involve breach of law and
order and grievance to public at large. As such, the submission of
the learned counsel for the petitioners that in absence of any
conviction, they cannot be externed, cannot be considered in view of
scope of Section 55 of the Act. The learned counsel for the
petitioners also vehemently argued that the petitioners are social
workers and conducted so many social activities for the help of
needy and poor specially in the pandemic period. He also placed on
record various letters issued by respectable persons of Shirdi
attached to various political parties. However, all these letters, total
six in number, appear to be issued on same date i.e. 13/08/2021.
Thus, the possibility cannot be ruled out that the petitioners have
obtained such letters of their good character from the concerned
persons only for the sake of creating their good image to avoid their
future externment.
8. Further, on perusal of both the impugned orders it is clearly
apparent that the replies of the petitioners have been considered by
both the authorities below and appropriate reasons are also given as
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to why the same are not believable. It is to be noted that the initial
proposal of externment against the petitioners was in fact for larger
area than the area of Ahmednagar District but after considering the
material against the petitioners, the authorities below, have
restricted the area of externment only to Ahmednagr District. As
such, there appears application of mind by the authorities below.
Moreover, every aspect before passing such order appears to be
considered by the authorities by giving reasonable opportunity of
being heard to the petitioners. This defnitely indicates subjective
satisfaction of the authorities. Further, the crimes considered for
externment of the petitioners are of the year 2019 and 2020 and just
after the commission of crime in the year 2020 by the petitioners,
the externment proposal was initiated. As such, there appears live
link in the instant matter.
9. Thus, considering all the material on record and in view of our
aforesaid discussion, we come to the conclusion that the authorities
below have rightly externed the petitioners considering their criminal
background and activities in proper sense. There is prima facie
material on record against the petitioners as to how their criminal
activities are dangerous to public at large and how they are
committing crimes as a gang in the area mentioned therein. Though
10 judgment wp 1418-21 & 1419-21
the criminal activities of the petitioners are restricted to the area
under Shirdi Police Station, but the Full Bench of this Court in case
of Sumit s/o Ramkrishna Maraskolhe vs. Deputy Commissioner of
Police Zone-1, reported in 2019(2) Mh.L.J. 745 , has already made it
clear that even though criminal activities of the externee is limited to
certain area, he can be externed from larger area than that in view of
the advance mode of transportation. Therefore, the impugned
orders do not appear as an excessive orders. Hence, we proceed to
pass the following order.
ORDER
I) Criminal Writ Petition No. 1418 of 2021 and
Criminal Writ Petition No.1419 of 2021 are hereby
dismissed and disposed of accordingly.
II) Rule stands discharged accordingly.
(SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)
vsm/-
