Bombay High Court
Manjur Akil Ghassi vs The State Of Maharashtra And Ors on 25 October, 2024
2024:BHC-AS:42915
P.H. Jayani 910 WPST13095.2024 final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST.) NO. 13095 OF 2024
Manjur Akil Ghassi
Age : 46 years, Occ. Business,
Residing at Mulla Wada, Chandwad,
Tal. Chandwad, District Nashik ..... Petitioner
v/s.
1. The State of Maharashtra
2. The Divisional Commissioner, Nashik,
Nashik Division, Nashik Road, Nashik.
3. The Additional District Magistrate,
Chandwad at Nashik.
4. Chandwad Police Station, Nashik ..... Respondents
Mr. Akshay Bankapur for the Petitioner.
Ms. P.P. Bhosale, APP for the State.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 04th OCTOBER, 2024
PRONOUNCED ON : 25th OCTOBER, 2024
JUDGMENT :
-
. Present Petition seeking for quashing and setting aside of the
impugned Order dated 22nd April, 2024 passed by Respondent No.2 in
Externment Appeal No.27 of 2024 and the impugned Order of
Externment dated 25th January, 2024 passed by the Respondent No.3-
Assistant District & Sub-Divisional Magistrate, Chandwad.
2) Heard Mr. Bankapur, learned Advocate for the Petitioner and
Ms. P.P. Bhosale, learned APP for the State. Perused the record.
P.H. Jayani 910 WPST13095.2024 final.doc
3) Rule. Rule made returnable forthwith. With consent of the
parties, heard finally.
4) Pursuant to a proposal dated 26th June, 2023 seeking for an
externment of the Petitioner, received from a Senior Police Inspector,
Chandwad and as directed in the letter dated 18 th October 2023 by the
Sub-Divisional Magistrate Chandwad, the Sub-Divisional Police Officer,
Manmaad issued a notice dated 30th November, 2023 to the Petitioner,
under Section 56 (1) (b) of the Maharashtra Police Act of 1951 (' the Act',
for short) and called upon the Petitioner to show cause as to why he
should not be externed from the limits of Districts Nashik and Dhule, for
a period of 02 years. Further, the notice conveyed the Petitioner to
remain present along with his Advocate, 02 sureties and 02 witnesses in
the office of SDPO on 07th December, 2023 to submit his representation.
The Petitioner attended said office and complied the notice. Thereafter,
the SDPO enquired under Section 56 (1) (a) of the Act and forwarded his
report to the office of Respondent No.3-Assistant District & Sub-
Divisional Magistrate, Chandwad with a recommendation to extern the
Petitioner.
4.1) In turn, the Assistant District and Sub-Divisional Magistrate,
Chandwad considered the proposal for externment dated 26 th June, 2023
and dated 23rd September, 2023 respectively received from the Senior
Police Inspector/SDPO Chandwad and Senior Police Inspector & Special
P.H. Jayani 910 WPST13095.2024 final.doc
Executive Magistrate, LCB, Nashik Rural, and issued a show cause notice
dated 27th December, 2023 to the Petitioner. The Petitioner submitted his
response-cum-explanation to that notice. After hearing the Parties and
considering the material, the Assistant District & Sub-Divisional
Magistrate, Chandwad passed the impugned Order 25 th January, 2024
under Section 56 (1) (b) of the Act and externed the Petitioner for a period
of 2 years from the said two Distircts.
4.2) The Order of Externment is based on following crimes and the
chapter proceedings under Section 107 of the Code of Criminal Procedure
registered against the Petitioner :-
Sr. No. Police Crime No. Sections Present
Station status
1 Vani 133/2016 395, 120-B, 411 of IPC Subjudice
2 Chandwad 106/2016 143, 147, 148, 149, 323, 324, 427, Subjudice
452, 504, 506 of IPC
3 Chandwad 35/2018 Sec. 4, 5 of Maharashtra Prevention Subjudice
Of Gambling Act, 1887
4 Chandwad 377/2022 143, 147, 149, 324, 323, 504, 506 of Subjudice
IPC
5 Chandwad 262/2022 107 of Cr.P.C. Interim
Bond
6 Chandwad 21/2023 307, 326, 323, 354-B, 143, 147, 148,
149, 452, 427, 504, 506, 509 of IPC, Subjudice
u/Sec. 37 (1) (3) r/w. 135 of the Act,
u/Secs.3 and 4 of the Arms Act and
5) Petitioner preferred an Externment Appeal No.27/2024 and
challenged the Order of Externment. After hearing the parties, the
Respondent No.2-Appellate Authority held that, the crimes at Sr. Nos.1
and 2 are stale, therefore, live link is snapped between the same and the
P.H. Jayani 910 WPST13095.2024 final.doc
Order of Externment. The crime at Sr. No.3 is under prohibition of
gambling and Sr. No.5 is a chapter proceedings. However, Respondent
No.2 held that the crimes at Sr. Nos.4 and 6 are recent and serious. The
activities of the Petitioner has created terror in the mind of the people in
the locality concerned. Hence, a case was made out under Section 56 (1)
(a) (b) of the Act of 1951 to extern the Petitioner. As a result, and
considering the area in which the crimes were committed, he partly
allowed that Appeal, reduced the Externment to 01 year and restricted it
to the limits of Districts Nashik. Hence, Petition.
6) Learned Advocate for Petitioner submitted that, the Order of
Externment has been passed without taking into consideration the
submissions advanced for and on behalf of the Petitioner. There was no
live-link in one of the crimes considered by the Appellate Authority. The
crimes considered, were registered at Chandwad Police Station. However,
the Petitioner has been externed from the limits of District Nashik for a
period of one year without recording appropriate and legal reasons. Thus,
according to learned Advocate for the Petitioner, the impugned Orders of
Externment are excessive in nature and said Orders are lacking both
subjective and objective satisfaction. As such, the Orders are illegal and
liable to be quashed and set-aside.
7) Per contra, learned APP for the Respondents submitted that,
the crimes considered against the Petitioner clearly show that, the
P.H. Jayani 910 WPST13095.2024 final.doc
Petitioner is a habitual offender. There is live-link in the crimes
considered and the Externment Order passed. She submits that, despite
prohibitory action was initiated under Section 107 of Cr.P.C., the
Petitioner indulged in a serious offence of attempt to murder, forming an
unlawful assembly. In the backdrop, the learned APP claims that, the
case was made out under Section 56 (1) (a) and (b) of the Act to extern the
Petitioner. Hence, no fault can be found with the impugned Orders.
Thus, there is no merit in the Petition and the Petition be dismissed.
8) The Externment Order was passed by relying upon the
provisions of Section 56 (1) (a) (b) of the Act of 1951. Therefore, it would
be necessary to consider the said relevant part of Section. It reads thus:
"56. Removal of person about to commit offence:-
(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 alram, 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 or an
offence involving force or violence or an offence punishable under
chapter XII, XVI or XVII of the Indian Penal Code, or in the
abetment of any such offence and when in the opinion of such
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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 property, or,
(bb) (1) (2) xxx xxx xxx
(c) xxx xxx xxx "
9) The ground under aforesaid clause (a) provides that the
movements or act of any person must be causing or calculated to cause
alarm, danger or harm to the person or property. The ground under
clause (b), requires that on the basis of the material it must be established
that there are reasonable grounds for believing that person sought to be
externed is engaged or is about to be engaged in the commission of an
offence involving force or violence or an offence punishable under
Chapters XII, XIV or XVII of the IPC or abetment of any such offence.
The second part of clause (b), which is required to be read with first part,
clearly provides that the competent authority empowered to pass an order
should form an opinion that the witnesses are not willing to come forward
to give evidence in public against such person, only because of an
apprehension on their part as regards safety of their person or property.
The conjoint reading of clauses (a) and (b) would, therefore, show that in
arriving at subjective satisfaction as to the grounds, there must be
objective material on record before the authority and the same must be
considered in accordance with law.
10) The crimes considered by the Respondent No.3-Externment
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Authority to base the Externment Orders were allegedly committed by the
Petitioner between 2016 to 2023. However, until the date of commission
of the crime at Sr. No.4, no preventive action was initiated against the
Petitioner nor any proposal seeking for his Externment was submitted.
The Crime at Sr. No.4 was registered on 15th October, 2022. However, the
show cause notice dated 30th November, 2023 indicates that, the proposal
for externment was forwarded on 26th June, 2023 i.e., only after filing of
the charge sheet in the last crime. Thus, there is no live and proximate
link between the crime at Sr. No.4 and the Order of Externment. The
Appellate Authority was required to take this aspect into consideration.
11) In so far as the crime at Sr.No.6 is concerned, it was registered
on 14th January 2023 and, on completion of investigation charge sheet
was submitted on 22th May 2023. The proposal of the externment was
forwarded on 26th June, 2023 by the Senior Police Inspector. In turn, the
SDM, Chandwad by his letter dated 18th October, 2023 directed the SDPO
to hold an enquiry and report under Section 56 (1) (b) of the Act.
Thereafter, the show cause notice was issued on 30 th November, 2023. It
was followed by the 2nd show cause notice dated 27th December, 2023.
Thus, the time gap between registration of the last crime in the year 2023
and the 1st and 2nd show cause notices is more than 9/10 months.
Ultimately, the Order of Externment came to be passed on 25 th January,
2024. Thus, there is time gap of more than a year between the date of the
P.H. Jayani 910 WPST13095.2024 final.doc
last crime and the date of the Externment Order. In order to justify the
Externment Order on the ground provided under Section 56 (1) clauses
(a) and (b), the urgency and promptness required on the part of an
Officer in initiating the proceeding and taking the proceeding to the
logical end at the earliest, is thus completely lacking in this case. No
acceptable justification has been placed on record for this purpose.
12) It is not out of place to mention that seriousness of crime is
one of the factors while deciding the bail application. The role attributed
to the accused is significant and by and large taken into consideration
while deciding the bail application. It is pertinent to note that, as
submitted by the Petitioner in the Appeal Memo, the Petitioner is on bail
in all the crimes. However, this aspect is not taken into considered while
passing the Order of Externment or by the Appellate Authority. It is not
the case of the Respondents that the Petitioner had either breached the
conditions of the bail order or misused the bail liberty. The Respondents
were required to take this aspect into consideration and after doing so,
ought to have formed their subjective satisfaction. In my opinion, this
would be contrary to the law.
13) In the show cause notice dated 30th November, 2023 and the
Order of Externment it is stated that, people in Chandwad area do not
come forward to give statement against the Petitioner due to his criminal
activities and file complaint against the Petitioner due to alarm, danger or
P.H. Jayani 910 WPST13095.2024 final.doc
harm to their person or property from Petitioner. The Order of
Externment mentions about receiving an anonymous complaint on 17 th
January 2024, while the externment proceeding was in progress. Said
anonymous complaint alleged that there is terror of the Petitioner in the
locality and Petitioner is engaged in smuggling of bio-Diesel, Gutakha,
extortion etc. The Order of Externment claims that, some witnesses met
with the Sub-Divisional Magistrate and stated that, due to fear they gave
the anonymous complaint instead of giving statement. However, the
impugned Order of the Appellate Authority claims to have recorded in-
camera statement of two witnesses, which fact does not find place in the
show cause notice and the Order of Externment. Moreover, there are no
complaints about smuggling of bio-Diesel, Gutakha, extortion. Thus, it is
clear that, extraneous material was considered by Respondent No.2.
14) As observed in the case of Pratik s/o. Prakashrao Kamble Vs.
Divisional Commissioner, Amravati and Others, 2023 (3) Mh.L.J. (Cri.)
284, it is not out of place to mention that the Externment Order apart
from making inroads on the fundamental right of the movement, makes
the said person leave separate from his family members. Similarly, the
Externment Order can deprive the said person of his livelihood.
Depending upon the financial position, it can make the dependent family
members to starve. In the case in hand, the crimes relied upon by the
Appellate Authority were committed within the jurisdiction of Chandwad
P.H. Jayani 910 WPST13095.2024 final.doc
Police Station. However, the Petitioner has been externed for a period of 1
year from the limits of entire Nashik District. Therefore, the impugned
Order passed by the Respondent No.2 is excessive in nature.
15) Conspectus of the above discussion is that, there is
considerable time gap between the crimes at Sr. No.4 and the Order of
Externment. Only one crime registered at Chandwad Police Station was
available to consider the proposal of externment. There were no
complaints of smuggling, extortion. However, the Petitioner has been
externed from Nashik district for a period of one year. As such, said Order
is excessive and thus, has unreasonably curtailed the fundamental right of
free movement of the Petitioner guaranteed by the Constitution. Thus,
subjective and objective satisfaction required to pass an Order of
Externment is lacking in this case. Hence, the impugned Orders are not
sustainable in law and liable to be quashed and set aside. Said Orders are
hereby quashed and set aside, accordingly.
15.1) Petition is allowed in aforesaid terms.
15.2) Rule is made absolute.
PREETI
HEERO (SHYAM C. CHANDAK, J.)
JAYANI
