Naushad Ali S/O. Rehman Ali Shah ... vs State Of Mah. Thr. Its Secretary ...
2023 Latest Caselaw 5752 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.

               CRIMINAL WRIT PETITION NO. 901 OF 2022

 PETITIONERS : 1.              Naushad Ali S/o Rehman Ali Shah
                               Aged about 32 yrs, Occupation : Labour,
                               R/o Sherekar Pura, Shirajgaon Band,
                               Near Pri Marathi School,
                               District : Amravati.

                         2.    Sarfaraz Ali S/o Mansoor Ali Shah
                               Age about 24 Years, Occupation : Labour,
                               R/o Sherekar Pura, Shirajgaon Band,
                               District : Amravati.

                               VERSUS

 RESPONDENTS :                 1.   State of Maharashtra
                                    Through it's Secretary Department of
                                    Home, Mantralaya, Mumbai-32.

                               2.   Superintendent of Police,
                                    Amravati Rural, Amravati.

                               3.    Police Station Officer,
                                     Police Station, Chandur Bazar,
                                     District : Amravati.
 -------------------------------------------------------------------------------------------
 Shri R. J. Mirza, Advocate for petitioners.
 Shri V. A. Thakare, Additional Public Prosecutor for respondent
 Nos.1 to 3.
 -------------------------------------------------------------------------------------------
                               CORAM:- VINAY JOSHI AND
                                              VALMIKI SA MENEZES, JJ.

 RESERVED ON                   : 08/06/2023.

 PRONOUNCED ON                 : 19/06/2023.


 JUDGMENT : (PER VALMIKI SA MENEZES, J.) :





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1. Rule. Rule made returnable forthwith. Heard finally

with the consent of learned counsel appearing for the parties.

2. By this writ petition, the petitioners seek to challenge

the order of externment dated 31/10/2022 passed by the

Superintendent of Police, Amravati Rural, Amravati in terms of the

provisions of Section 55 of the Maharashtra Police Act, 1951 (For

short, 'the Act'). The order of externment has been imposed on the

petitioners for a period of one year from the date of passing of

impugned order.

3. The main grounds on the basis of which the order of

externment has been challenged are as under:

a] That the show cause notice dated 26/09/2022 which

formed the basis for passing of the impugned order, itself being

issued more than a year after the last incident alleged against the

petitioners in FIR No.456/2021 dated 25/06/2021, there was no

live link between the offence alleged against the petitioners and

the notice issued under Section 55 of the Act; thus, the respondent

No.2 lacked the jurisdiction to proceed with any action under the

Act;

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 b]       That the essential jurisdictional facts required for exercising

jurisdiction under Section 55 of the Act did not exist as on the date

of issuance of the show cause notice; moreso, in the light of the

fact that there was not a single crime reported or registered

against the petitioners between 25/06/2021 and the passing of the

impugned order on 31/10/2022 and;

c] That in view of total lack of explanation by the authorities

under the Act, for the abnormal delay in filing proposal as on

06/08/2022 and the passing of the impugned order on

31/10/2022, the impugned order suffers from total arbitrariness

and amounts to denial of the petitioners' fundamental rights under

Article 19(1) of the Constitution of India; hence, the order is in

direct contravention of the petitioners' fundamental rights freedom

of movement guaranteed under Article 19(1)(d) of the

Constitution of India.

4. After service of notice of the petition on the

respondents, an affidavit dated 05/02/2023 came to be filed by

the respondent No.2 in support of the impugned order. Apart from

supporting the findings of the subjective satisfaction recorded in

the impugned order, the respondents have taken up a preliminary

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objection of maintainability of writ petition under Article 226,

there being an alternate and equally efficacious remedy provided

in terms of Section 60 of the Act, where the petitioner can take

recourse to the filing of an appeal, if aggrieved by the impugned

order. The affidavit of the respondents does not offer any

explanation to the inordinate delay in filing proposal of

externment of petitioners by the Police Station, Bramhanwada,

Dist. Amravati as late as 06/08/2022 about one year and two

months after the last offence alleged against the petitioners in FIR

No.456/2021 dated 25/06/2021.

5. We have heard the learned counsel for the parties and

perused the record of the petition.

6. Shri Mirza, learned counsel for the petitioners has

submitted that in the proposal for externment of the petitioners,

Brahmanwada Police Station, Dist. Amravati has relied upon 35

offences registered against the petitioners and 9 other persons,

alleging that they are also part of a gang of thieves; all these

offences are relating to theft of motorcycles during the year

2020-2021. He refers to the chart enumerating the offences

contained in the impugned order, which, if perused would show

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that 35 offences have been investigated and are pending

adjudication before the concerned Court. He submits that the last

alleged offence is shown at Sr. No.30 of the chart, which is FIR

No.456/2021 admittedly filed on 25/06/2021 and alleges that the

petitioners, along with other eight accused were part of a gang,

have committed offences under Sections 379, 411, 465, 467, 470,

471 and 34 of the Indian Penal Code. He further submits that since

the offences are pending trial, there was no cause for the

respondents to invoke the jurisdiction under Section 55 of the Act,

as the trial in these offences would take their course, in a regular

criminal proceeding. It was further submitted by the learned

counsel that the proposal for externment of the petitioners being

presented before the respondent No.2 only on 06/08/2022, almost

one year and two months after the last registered offence, in which

an enquiry was conducted by respondent No.2 and show cause

notice was issued on 26/09/2022, itself would point out that there

was a total lack of live link between the offences relied upon and

the purpose for which the externment was sought.

Learned Advocate further submits that since the

provisions of Section 55 of the Act require that the gang or the

body of persons need to be externed from area only the ground

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that such members of the gang are causing or are calculated to

cause danger or alarm within that area, and are required to

immediately be removed from that area, there were no facts stated

in the application / proposal which would vest the respondent

No.2 with the jurisdiction to proceed under Section 55 of the Act,

the last offence having been allegedly committed more than a year

prior to the proposal. It was further submitted that the impugned

order suffers from arbitrariness and would amount to denial of the

petitioners' fundamental rights guaranteed under Article 19(1)(d)

of the Constitution of India and such order need not be challenged

by way of an appeal, if it can be demonstrated from the facts

stated in the order itself that such an order militates against the

petitioners' fundamental rights. Consequently, it was submitted

that the petitioners need not exhaust their remedy of appeal as the

order, on the face of it, amounted to the denial of the petitioners'

fundamental rights under Article 19 of the Constitution of India.

Learned counsel for the petitioners relied upon the

following decisions :

i] Umar Mohammed Malbari vrs. K. P. Gaikwad and another, reported in 1988(2) BCR 724.

ii] Dilip Laxman Kokare Vrs. S. M. Ambedkar and another, reported in 1991 Mh.L.J. 833.

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iii] Shri Rajwardhan Babaso Patil Vrs. Shri Vijaysinha Jadhav and another dated 04/09/2013 in Criminal Writ Petition No.399/2013 and

iv] Sachin Bhaskar Badgujar Vrs. State of Maharashtra, reported in AIR Online 2018 Bom 395 to buttress his above submissions.

7. Per contra, Shri Thakare, learned APP for the

respondents, while supporting the findings of subjective

satisfaction arrived at by the respondent No.2 in the impugned

order, has argued that the order does not suffer from any

arbitrariness and has been passed within the bounds of Section 55

of the Act. As a consequence, it was incumbent upon the

petitioners to exhaust their alternate remedy of filing an appeal

under Section 60, which would act as a bar to the exercise of

jurisdiction by this Court under Article 226 of the Constitution of

India.

8. Undisputably, the facts before us are that the last crime

alleged against the petitioners was dated 25/06/2021 as contained

in FIR No.456/2021 which was one year and 40 days prior to the

proposal filed by the concerned Police Station before the

respondent No.2 on 06/08/2022 for externment of the petitioners

and other alleged members of their gang. There is no explanation

offered in the proposal itself or before the respondent No.2 during

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the course of hearing of the notice issued under section 55, which

was dated 26/09/2022. An enquiry was conducted into the

proposal prior to issuance of notice, which from the record does

not specify any criminal activity at the behest of the petitioners

from 25/06/2021, the date of the last alleged crime committed by

them until 26/09/2022, when the show cause notice purportedly

issued under Section 55 of the Act was served on the petitioners.

There is, therefore, clearly no allegation made of any offence or

unlawful activity by the petitioner for more than one year prior to

the show cause notice, which forms the factual basis on the

respondent No.2 to exercise jurisdiction under Section 55 of the

Act to record the subjective satisfaction at such activity to form the

basis that the act could cause any danger, alarm or reasonable

suspicion that unlawful designs are entertained by such gang or

body or by members thereof of which the petitioners were part.

9. Section 55 of the Act 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

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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 officer may, by notification 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 officer thinks fit, 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 officer 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."

Section 55 of the Act, therefore clearly postulates that

there has to be certainly jurisdictional fact before the authority, to

enable it to proceed with the show cause notice to a person

alleged to be a member of the gang, such facts being, that the

movement or encampment of such gang in the area is causing or is

calculated to cause danger or alarm or reasonable suspicion, and

their externment is immediately required from that area. The

provisions of Section 55 of the Act, therefore, presupposes that

such danger is eminent and requires immediate action in terms of

that Section; the provisions can be resorted to only if the proposal

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for externment contained such incidence which are of occurrence,

immediately in point of time prior to the invoking of jurisdiction of

the authority and not as late as over a year from the last alleged

crime committed by the petitioners.

10. In the case of Deepak s/o Laxman Dongre (supra), the

Hon'ble Supreme Court was considering the provisions of Section

56 of the Maharashtra Police Act, 1951 and whether an

unexplained inordinate delay in filing a proposal for externment of

the petitioners under those provisions, from the date of last

offence alleged, would amount to denial of the offenders'

fundamental rights under Article 19(1)(d) of the Constitution of

India. In that case, the last offence alleged against the petitioner

was on 02/06/2020 while the impugned order was passed on

15/12/2020 more than six months from the last alleged offence.

In that case also, the first offence relied upon was from 2013 and

2018 which was a stale offence in the sense that there was no live

link between the offence and necessity to pass orders for

externment. In that set of facts, the Hon'ble Supreme Court has

held as under :

"4. We have given careful consideration to the submissions. Under clause (d) of Article 19(1) of the Constitution of India, there is a fundamental right

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conferred on the citizens to move freely throughout the territory of India. In view of clause (5) of Article 19, State is empowered to make a law enabling the imposition of reasonable restrictions on the exercise of the right conferred by clause (d). An order of externment passed under provisions of Section 56 of the 1951 Act imposes a restraint on the person against whom the order is made from entering a particular area. Thus, such orders infringe the fundamental right guaranteed under Article 19(1)(d). Hence, the restriction imposed by passing an order of externment must stand the test of reasonableness.

7. There cannot be any manner of doubt that an order of externment is an extraordinary measure. The effect of the order of externment is of depriving a citizen of his fundamental right of free movement throughout the territory of India. In practical terms, such an order prevents the person even from staying in his own house along with his family members during the period for which this order is in subsistence. In a given case, such order may deprive the person of his livelihood. It thus follows that recourse should be taken to Section 56 very sparingly keeping in mind that it is an extraordinary measure. For invoking clause (a) of sub-section (1) of Section 56, there must be objective material on record on the basis of which the competent authority must record its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to persons or property. For passing an order under clause (b), there must be objective material on the basis of which the competent authority must record subjective satisfaction that there are reasonable grounds for believing that such

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person is engaged or is about to be engaged in the commission of an offence involving force or violence or offences punishable under Chapter XII, XVI or XVII of the IPC. Offences under Chapter XII are relating to Coin and Government Stamps. Offences under Chapter XVI are offences affecting the human body and offences under Chapter XVII are offences relating to the property. In a given case, even if multiple offences have been registered which are referred in clause (b) of sub-section (1) of Section 56 against an individual, that by itself is not sufficient to pass an order of externment under clause (b) of sub-section (1) of Section 56. Moreover, when clause

(b) is sought to be invoked, on the basis of material on record, the competent authority must be satisfied that witnesses are not willing to come forward to give evidence against the person proposed to be externed by reason of apprehension on their part as regards their safety or their property. The recording of such subjective satisfaction by the competent authority is sine qua non for passing a valid order of externment under clause (b).

11. In the facts of the case, the non-application of mind is apparent on the face of the record as the order dated 2 nd June 2020 of the learned Judicial Magistrate is not even considered in the impugned order of externment though the appellant specifically relied upon it in his reply. This is very relevant as the appellant was sought to be detained under sub-section (3) of Section 151 of Cr. PC for a period of 15 days on the basis of the same offences which are relied upon in the impugned order of externment. As mentioned earlier, from 2nd June 2020 till the passing of the impugned order of externment, the appellant is not

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shown to be involved in any objectionable activity. The impugned order appears to have been passed casually in a cavalier manner. The first three offences relied upon are of 2013 and 2018 which are stale offences in the sense that there is no live link between the said offences and the necessity of passing an order of externment in the year 2020. The two offences of 2020 alleged against the appellant are against two individuals. The first one is the daughter of the said MLA and the other is the said Varsha Bankar. There is material on record to show that the said Varsha Bankar was acting as per the instructions of the brother of the said MLA. The said two offences are in respect of individuals. There is no material on record to show that witnesses were not coming forward to depose in these two cases. Therefore, both clauses (a) and (b) of sub-section (1) of Section 56 are not attracted."

11. Dilip Kokari (supra) also considers the similar case of

abnormal delay of one and half year in passing of externment

order. In that case, it has held as under :

"4. It needs to be reiterated in these cases that the law visualises a situation where an offender has become so persistently troublesome or dangerous to society around him that his physical presence in that area has to be done away with in the public interest. Delay in implementation, therefore, runs counter to and frustrates the objective behind these provisions. More importantly, a reviewing authority such as a Court, is unable in cases of gross delay, to ascertain as to whether the situation complained about

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is still in existence at the latter point of time when the order was passed. In the likely event of the wrongdoer at least in a few cases, having completely ceased indulgence in the offensive acts after service of the preliminary notice, and a prolonged period of good behaviour having followed the earlier activity that was complained of, the passing of an adverse order even if earlier justified may no longer be valid. Alternately, in the case of hardened and habitual offenders, with whom the police are most concerned, it is imperative that their activities are curbed at the earliest point of time. Dragging on enquiries for months and years will subject society to the torture from the offenders right through that long period and seriously undermine public confidence in the administration opening it to the inevitable charge of collusion. The casual and cavalier manner in which these proceedings were hitherto conducted, will have to be replaced by a sense of purpose and vigour. In serious matters of public security, such as these, speed is the watchwords, where the eye should be guided by the clock rather than the calendar, if at all there is honesty of approach.

6. In view of the abnormal delay in the passing of the order as far as the present case is concerned, the externment order is liable to be quashed and set aside on this ground alone."

Similarly, in the case of Shri Rajwardhan Patil (supra)

while deciding the challenge to externment order under Section

55, this Court has considered that the criminal cases registered

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against that petitioner range from year 2008 to 2011. The show

cause notice was issued on 01/06/2011 and externment order was

passed on 06/02/2012. This Court considered the long gap

between the time of issuance of show cause notice, the dates of

the alleged offences which ranged as far back is 2008 and the date

of passing of externment order in the year 2012, and whilst noting

that there was no explanation for inordinate delay, has held that

such externment orders could not outweigh the constitutional

guarantee of fundamental rights. We make reference of Para Nos.9

and 10 of this Judgment as under :

"9. The show cause notices tabulate criminal cases registered against the Petitioners. These range from 2008 to 2011. By the time the externment order was passed, these could not be said to have retained any immediacy. We note, too, that in many of the cases, in the intervening period between the show cause notices and the externment order, many of the Petitioners were acquitted in several cases and obtained bail in others, leaving only a few still pending. This, to our mind, is a consideration that both authorities entirely overlooked. In the Affidavit in Reply in Writ Petition 399 of 2013, the fact of such acquittals and compromises is admitted, but the contention is that this was achieved by "turning witnesses hostile on the point of fear". There is no such finding in either the externment order or the appellate order. From the externment order, it appears that some of the

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Petitioners are co-accused in some criminal cases, while others are not; and it is, therefore, difficult to ascertain consistent, continuous, collective offences by all the Petitioners. Had the Petitioners each been dealt with separately and, perhaps, under some other section of the Bombay Police Act, matters may have been different. But as soon as all the Petitioners were joined together in a single externment order, one said to be under Section 55, it was incumbent on the authorities to show that their actions were that of a gang or body of persons acting as such; and that these actions bear a temporal proximity to the externment order.

10. There is, we find, a very long gap between the time of issuance of the show cause notices on 1st June 2011 and the externment order of 6th February 2012. There is no explanation for this at all in the Affidavit in Reply in Writ Petition 399 of 2013. In paragraph 13 of the Affidavit in Reply in the second matter, Writ Petition 459 of 2103, we are told that the delay was because there were multiple proposed externees in a single proposal; service of notices took time; the externees sought adjournments; the interning authority, having other duties, was also busy attending to VIPs and VVIPs, emergent law and order situations elsewhere, security arrangements during festivals and so on. We find this unacceptable. There is not only no specific material of repeated adjournments, but it surely cannot be suggested that the travel plans of a VIP or, for that matter, a VVIP, outweigh constitutional guarantees of fundamental rights."

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Similarly, in the case of Sachin Bhaskar Badgujar

(supra), the Court considered whether the live link was

established between the offences registered between the years

2011 and 2015, while the externment order under Section 55 of

the Act was passed only on 21/10/2017 and has observed as

under :

"9. As rightly contended by learned counsel appearing for the petitioner that, there is no live link between the offences registered and initiation of the present externment proceedings against the petitioner. It appears from the perusal of the original record that while initiating the externment proceedings in the year 2017, the offences registered in the year 2011, 2012, 2013, 2014 and 2015 are also taken into consideration by the Respondent authorities. Therefore, there is no live link and proximity between the registration of the said offences and initiation of the present externment proceedings.

10. Upon perusal of the original record, it reveals that, the Superintendent of Police has passed the externment order on 27.10.2017 against the petitioner along with other four persons namely, Devendra @ Deva Chandrakant Sonar, Bhushan Chandrakant Sonar, Vijay @ Ladya Bapu Jadhav and Bhushan Rajendra Mali, observing that, all of them were operating as a Gang. Against the said order, the petitioner has filed the appeal before the Divisional Commissioner, Nashik, which came to be rejected by observing that, the petitioner was operating as a member of

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the gang. It is pertinent to note that, other four persons whose names have been mentioned above, against whom an externment order was passed along with the petitioner mentioning the same offences which have been considered while externing the petitioner, have filed appeal before the Divisional Commissioner, Nashik. The Divisional Commissioner has allowed the said appeal by observing that, the appellants therein were not operating as members of the Gang. Thus it appears that, there is total nonapplication of mind by the Divisional Commissioner while passing the order in the appeal filed by the petitioner and the another appeal filed by the members of the alleged gang."

12. Applying the ratio laid down in these Judgments to the

facts of the present case, there can be no manner of doubt that the

respondents have not explained the inordinate delay in filing the

proposal for externment dated 06/08/2022 more than a year after

the last alleged offence. Without any explanation, the impugned

order on the face of it, suffers from arbitrariness and the authority

lacked the jurisdictional facts, to proceed in exercising its

jurisdiction under Section 55 of the Act. There is no live nexus

shown on the face of record between the last act allegedly

committed by the petitioners as a part of gang on 25/06/2021,

and the proposal dated 06/08/2022 or issuance of notice on

26/09/2022. The impugned order is therefore, in total violation of

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of Section 55 as also in violation of the petitioners' fundamental

rights under Article 19(1)(d) of the Constitution of India.

13. Having concluded that the impugned order directly

militates against the petitioners' fundamental rights under Article

19; the question of raising a plea of bar to the exercise of the

Court jurisdiction under Article 226, there being an alternate

remedy under Section 60 of the Act, does not arise.

As held in Umar Mohammed Malbari (supra) which

considers precisely this point at Para No.9 as under :

"9. Shri Kothari, however, submitted that this petition does not call for interference in exercise of the jurisdiction under Article 226 of the Constitution inasmuch as the petitioner has not exhausted the remedy of an appeal to the State Government. He further submitted that the present petition suffers from the vice of latches inasmuch as the petitioner has approached this Court about 15 months after the passing of the impugned order. In our judgment, there is no merit in this contention inasmuch as the Rule about the failure to exercise an alternative remedy when one is in existence is a Rule relating to the discretion of the Court and that Rule does not act as a bar to the jurisdiction of the Court to entertain and grant petition. Therefore, the fact that the petitioner has not exhausted all his remedies does not bar the jurisdiction of

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the Court to entertain and dispose of the petition but, is a factor to be taken into account for the purpose of considering whether the discretion should or should not be exercised in favour of the petitioner. The rule that the High Court will not issue a prerogative writ when an alternative remedy is available does not apply when a petitioner comes to the Court with an allegation that his fundamental rights have been infringed. When an order of externment is passed against the petitioner, he can undoubtedly come to this Court with a writ petition on the ground that his fundamental right of freedom of movement is affected and this he can do without exhausting the other remedy provided for in the act viz. an appeal to the State Government against the order. In view of the fact that the petitioner has been externed out of the areas covering three Districts as also Greater Bombay, it will have to be held that his fundamental right to move freely throughout the territory of India which is guaranteed under Article 19(1)(d) of the Constitution has been infringed. In this view of the matter, the very fact that the petitioner has not exhausted his alternative remedy of an appeal or merely because he has come here after undue delay can be no hurdles in the matter of entertaining this petition."

14. The fundamental rights of the petitioners under Article

19 of the Constitution of India having been infringed by virtue of

passing of the impugned order, which were held to be arbitrary

and contrary to the provisions of Section 55 of the Act, the bar in

the form of an alternate remedy under Section 60 of the Act by

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way of an appeal would not come in the way of the petitioners for

the maintainability of this petition. Accordingly, we reject the

preliminary objections raised by the respondents.

15. In view of what we have held about, we allow this

petition.

16. Rule is made absolute in terms of prayer clause (i) of

the petition. No order as to costs.

                     [VALMIKI SA MENEZES, J.]                 [VINAY JOSHI, J.]

Choulwar