Bombay High Court
Sayyad Jahangir Sayyad Saber vs The State Of Maharashtra And Others on 9 August, 2024
2024:BHC-AUG:17510
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1188 OF 2024
Sayyad Jahangir s/o Sayyad Saber,
Age :- 20 years, Occ. Private Job,
R/o Labour Colony, Nanded,
Tq. & Dist. Nanded. ...Petitioner
VERSUS
1. The State of Maharashtra
Through Divisional commissioner,
Chhatrapati Sambhaji Nagar.
2. The Superitendent of Police,
Nanded. Tq. & Dist. Nanded.
3. The Sub- Divisional Police Officer,
Nanded Division, Nanded.
Tq. & Dist. Nanded.
4. The Police Inspector,
Vazirabad Police Station, Nanded.
Tq. & Dist. Nanded. ...Respondent
...
Advocate for Petitioner : Mr. V.aibhav B. Dhage
APP for Respondents/State : Mr. D.J. Patil
...
CORAM : S.G. MEHARE, J.
RESERVED ON : JULY 30, 2024
PRONOUNCED ON : AUGUST 09, 2024
JUDGMENT :
-
1. Rule. Rule made returnable forthwith.
2. The Petitioner has impugned the order of externment
passed by the Superintendent of Police, Nanded dated 01.04.2024 in
Outward No. 850/Stha.gu.sha/Kalam-55/Wazirabad 03/2023/Final
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Order/2024 and the order of Divisional Commissioner, Aurangabad
dated 12.06.2024 in Appeal No.54/2024.
3. A Few facts of the case were that the show cause notice
under Section 55 of the Maharashtra Police Act was issued to the
petitioner. It was informed that the petitioner was a member of the
gang. The inquiring officer issued a notice under Section 59 of the
Maharashtra Police Act to the petitioner and his gang members,
including the gang leader. The petitioner was informed that there are
crimes registered against them at Wazirabad, Itwara, Limbgaon, and
Vimantal Police Stations. The list of crimes registered against the gang
members was also given. The petitioner was called upon to explain
against the proposal of externment. The petitioner and others were
informed that their movements in the area were causing or calculated
to cause alarm, danger or harm to the persons and property for
reasonable suspicion with unlawful designs entertained by the gang.
It has created terror in the mind of the general public. Due to their
movements, there is a possibility of disturbance of public tranquility. It
was proposed that they be would externed for two years from Nanded
District.
4. The petitioner submitted his explanation on 08.01.2024. He
submitted that he had no concern with the crimes listed in the show
cause notice. He was not named in the FIR because he is not a
habitual offender. He is pursuing his education and doing service. The
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Superintendent of Police granted him the certificate of good
behaviour. He is from an educated family, His brother is practicing law
at Nanded. His father is a clerk to the Advocate. He is from a well-to-
do family. Hence, the proposal against him should be dismissed.
5. After the proposal was placed before the Superintendent
of Police/respondent no.2 by the inquiring officer, he again issued a
show cause notice to the petitioner on 23.01.2024. The petitioner
reiterated the same reply and prayed to quash the proposal. He added
that the allegations that instead of improving himself, the crimes
registered against him are false. There is no apprehension to the
general public from him. No deadly weapons were seized from him.
He is not a co-accused with the other externees. He relied on certain
case laws.
6. The externing authority, by the impugned order,
discarded the submissions and externed the petitioner for six months
from Nanded District. The appeal preferred against the order of
respondent No.2 was also dismissed, agreeing with the findings
recorded by the externing authority.
7. Before adverting to the arguments of the learned counsel
for the petitioner and learned APP, it would be appropriate to mention
the requirements for exercising the powers under Section 55 of the
Maharashtra Police Act.
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(i) There must be a gang, and the proposed externee should be
either the leader or a member of the gang.
(ii) There should be a live link and proximity between the
registration of the offences and the initiation of action in the
externment proceeding.
(iii) Every allegation should be disclosed to the externee in show
cause notice.
(iv) The action under Section 55 should not be taken individually or
singled out against a few gang members.
(v) The externing authority should record subjective satisfaction
with the objective material.
8. Learned counsel for the petitioner has vehemently argued
that there was no material before the externing officer to believe that
the petitioner was a member of the gang. No joint crimes were
registered against the petitioner with the so-called gang leader. The
externing authority has exceeded its jurisdiction without considering
the law laid down by this Court in the matter of Savita Vs. The State
of Maharashtra. Only one crime was registered against the petitioner;
the trial is pending. The Appellate Authority did not apply the mind
and mechanically dismissed the appeal. He submits that the order is
apparently illegal and against the principles set out by the High
Courts in various cases. Hence, the impugned order may be set aside.
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9. Per contra, the learned APP would submit that there was
ample objective material before the authority to believe that the
petitioner was a gang member and that their activities were harmful
to the general public and property. It is a big gang under the
leadership of Mirza Shabbir Baig. The crimes were registered against
the petitioner and their gang members at various places. Since the
objective material was sufficient, the subjective satisfaction has been
correctly recorded. Considering the nature of offenses registered
against the gang, those were committed for financial benefit. He has
referred to the material placed on record. He submits that both orders
impugned before the Court are legal, proper, and correct.
10. The first requirement to initiate the externment action is
that the show cause notice must mention the allegations that the
petitioner was the gang member and he was knowing or encamping
as the members, leaders, or chief men of any gang operating in the
area. The show cause notice placed on record reveals that the
petitioner was made aware that the petitioner was a gang member
and that various crimes had been registered against them at
Wazirabad, Itwara, Limbgaon, and Vimantal police stations. The list of
crimes registered against all externees was also given. However, the
petitioner has a defence that only one crime has been registered
against him with police station Wazirabad, and it is pending.
However, he has no concerns about that or other crimes. Its FIR
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indicates that it was a crime registered for the offences punishable
under Sections 387, 307, 143, 147, 148, 149, 120-B of the Indian
Penal Code. The said crime was registered against the petitioner with
gang leader Mirza Shabbir Baig Mirza Gaffar Baig, Mirza Sikandar
Baig Mirza Gaffar Baig, Mirza Kalandar Baig Mirza Gaffar Baig, Abdul
Hafiz Abdul Jabbar and three unknown persons. The petitioner was
not named in the FIR. However, he was detected as co-accused, and a
charge sheet was filed against him. Except for the above crime, the
petitioner was not the co-accused with the other externees. It was a
solitary crime registered him in 2023. It seems that the crimes were
registered against the co-externees. The petitioner has been
considered to be a member of the gang. The foremost requirement to
propose an action under Section 55 of the Maharashtra Police Act, as
discussed above, is that such externees should be gang leaders or
gang members. The material on record shows that except for the
single solitary crime of 2023, the petitioner was not co-accused with
the other externees. Therefore, the question is to consider whether
the petitioner could be a gang member. As per the Oxford Dictionary,
"Gang" means "an organized group of criminals or disorderly young
people". All accused should be collectively involved in the seriousness
of offences.
11. The Hon'ble Supreme Court in the case of Altaf Rajekhan
Pathan and Others Vs. Divisional Commissioner, Pune, and Others,
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2018 (4) Mh.L.J. (Cri.) 257 in para 21 observed thus that "it is
required to be noted that in all the above Petitions, the offence under
the Gambling Act is registered against the gang leader "A" with the
alleged member of the gang being "B", against "A" with "C". "A" with
"D". "A" with "E", but not against A, B, C, D, or E collectively or even
against a substantial number of gang members collectively. It is also
required to be noted that in some cases, the offence registered against
"A" and "B" is much anterior in point of time to the offences registered
against "A" and "E" and therefore, there is no proximity between the
offences and therefore the test of there being collective participation
is not satisfied as they are all individualistic cases registered against
the alleged gang leader and a member."
12. Similar is the fact of the case that the petitioner has been
arraigned as an accused in Crime No.87/2023 for the first time. He
was not named in the FIR, but subsequently, he was arraigned as an
accused. In other crimes, he is not the accused. The crimes against the
co-accused have been registered long back since 2016 and afterwards.
This fact gives the Court the scope to record the finding that it is
difficult to believe that there was a collective participation of the
petitioner in the crimes with the other co-accused against whom a
large number of cases were registered. Therefore, the collective
participation in initiating an action under Section 55 of the
Maharashtra Police Act is not satisfied. Individualistic cases could not
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be considered to initiate action under Section 55 of the Maharashtra
Police Act. In view of the above observations, the Court is of the view
that the authority did not record its subjective satisfaction of the
grounds under Section 55 on the basis of material placed before it.
Subjective satisfaction on the basis of objective material placed before
the authority is sine qua non to initiate the action under Section 55 of
the Maharashtra Police Act. Hence, the petition deserves to be
allowed. Hence, the following order :
ORDER
(i) Writ Petition is allowed.
(ii) The impugned order of the externment passed by the
Superintendent of Police, Nanded dated 01.04.2024 in
Outward No. 850/Stha.gu.sha/Kalam-55/Wazirabad
03/2023/Final Order/2024 and the order of Divisional
Commissioner, Aurangabad, dated 12.06.2024 in Appeal
No.54/2024 stand quashed and set aside.
(iii) Rule is made absolute in above terms.
(S.G. MEHARE, J.)
Mujaheed//
