Bombay High Court
Hitesh Santosh Shinde Andothers vs The Divisional Commissioner And Other on 2 September, 2024
2024:BHC-AUG:20105
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 615 OF 2024
1. Hitesh Santosh Shinde
Age- 23 years, Occupation- Education,
R/o. Shanipeth Chaughule plot,
Kanchan Nagar, Jalgoan,
Ta. & Dist. Jalgaon.
2. Santosh @ Jango Ramesh Shinde
Age- 45 years, Occupation- Nil
3. Akash @ Nagtodya Sanjay Marathe
Age- 22 years, Occupation- Nil
4. Sumit @ Golya Sanjay Marathe
Age- 27 years, Occupation-Nil
5. Sanjay Devchand Marathe
Age- 50 years, Occupation-Nil
All are R/o. Shanipeth Chaughule plot,
Kanchan Nagar, Jalgoan,
Ta. & Dist. Jalgaon. ..Petitioners
VERSUS
1. The Divisional Commissioner
Nashik Division Nashik.
2. The Superintendent of Police,
Division Jalgaon, Dist. Jalgaon.
3. The Sub-Divisional Magistrate
Jalgoan, Dist- Jalgoan.
4. The Police Inspector,
Shanipeth Police Station,
Jalgaon, Dist. Jalgaon. ..Respondents
...
Advocate for Petitioners : Mr. Atul M. Pawar h/f Mr. Bhausaheb S.
Deshmukh
APP for Respondents/State : Mr. A.S. Shinde
...
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(2)
CORAM : S.G. MEHARE, J.
RESERVED ON : AUGUST 13, 2024
PRONOUNCED ON : SEPTEMBER 2, 2024
JUDGMENT :
-
1. Rule. The rule is made returnable forthwith and the
petition was heard finally with the consent of the respective counsels.
2. The petitioner has impugned the externment order of
Superintendent of Police, Jalgaon dated 25.11.2023 passed in
Outward No.7019/Stagusha/Haddparaadesh/2023 and the order of
the Divisional Commissioner Nashik passed in Haddpar Appeal
No.110/2023 dated 13.03.2024.
3. The Police Inspector, Local Crime Branch Jalgaon, had
placed a proposal of externment of the petitioner and the members of
his gang under Section 55 of the Maharashtra Police Act ('The Act' for
short). The Superintendent of Police sent the proposal to the Sub
Divisional Police Officer (S.D.P.O. for short) Jalgaon for inquiry. The
SDPO issued the show cause notices to the petitioner. They have
submitted their explanation on 13.07.2023. The SDPO placed the
proposal before the Superintendent of Police Jalgaon in the month of
August, 2023 to extern the applicant and his gang members for two
years from Jalgaon District.
4. The Superintendent of Police Jalgaon again issued a show
cause notice to the petitioner. All the externees filed their joint reply.
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In sum and substance, their explanation was that they were falsely
implicated in the crime. All the externees were the joint family
members even then a false notice of forming a gang was issued. The
show-cause notice is illegal. Before issuing the notice, no inquiry was
done. They have made allegations against one PSI Pradeep
Chandelgar, that he was asking for a bribe to them for not taking
serious action against them in a crime registered against them for the
offence punishable under Section 307 of the Indian Penal Code. It
was a quarrel between two groups. The opposite party had also
caused the injury to his father by chopper. Even then, the said PSI
registered the crime under Section 324 of IPC instead of Section 327
or 307 of the Indian Penal Code. He was asking for ransom to them.
He was also asking bribe for not filing the chapter case against them.
The police were taking action at the instance of one Mahesh Govinda
Choudhary. On his instance Crime No.44 of 2023 was registered for
attempt to commit murder and forming an unlawful assembly. The
false evidence was created against them. They had no any gang.
Therefore, it cannot be said that they were causing or calculated to
cause danger or alarm or reasonable suspicion that unlawful designs
are entertained by them. There was no satisfactory material before
the authority to take stringent action under Section 55 of the Act.
The petitioner no.1 is deliberately shown as the leader of the gang.
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5. The learned counsel for the petitioners vehemently argued
that both authorities did not apply the mind. The impugned order
was passed after five months. That shows that there was no link and
proximity in registering the crimes and passing the externment
orders. Only one offence was registered against them. Two offences
were registered against petitioner no.2 However, he was acquitted in
that crime after the show cause notice. The camera statement of the
witnesses were not examined. However, wrong findings regarding the
camera witnesses were recorded. To bolster his arguments, he relied
on the case of Iqbaluddin Ziauddin Pirzade Vs. The State of
Maharashtra and others, 2015 ALL MR (Cri) 2298.
6. Per contra, the learned APP argued that Section 55 of the
Act has been complied with. All the petitioners were committing
crime by forming a gang. To form a gang, it is not essential that a
gang member should be from different families. Petitioner no.2 was
acquitted after the show cause notice. Hence, the impugned order
cannot be said to be illegal. There was objective material to record
the subjective satisfaction. Both orders are free from illegalities.
7. To initiate an action against an offender under Section 55
of the Act, the authority passing the externment order should satisfy
that there were communality of the actions of several persons joint
together. Section 55 would be applicable only when the persons seem
to be acting as members of the gang or body of persons, and it is only
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then that action under Section 55 of the Act can be taken and when it
is to be taken, it must be taken against all members and not only a
few of them selectively. Section 59 of the Act provides for a show
cause notice to be served upon the proposed externee informing them
in writing the general nature of material allegations against them. If
the proposed externee bona fide seeks leave to lead the evidence and
such application is not vexation or delaying the proceeding, the
application for recording the evidence should be accepted.
8. The record of the proceeding produced before the Court
includes the show cause notice of the Superintendent of Police. The
show cause notice given the details of five crimes of the year 2019,
2021 and 2023. Out of five crimes, in two crimes registered in 2020
and 2023, all petitioners were the accused. However, a crime
registered in 2019 was only against Petitioner Hitesh and crime
registered in 2020 was similarly registered against petitioner Aakash.
In a notice, it was mentioned that all the petitioners forming a gang
caused danger to the property or the residents of Jalgaon City. They
always disturb the law and order and create terror by committing the
crime against the properties.
9. The show cause notice was silent about not coming of the
witnesses forward to give the evidence in public against them due to
apprehension to their life and property. However, the Superintendent
of Police while passing the impugned order has observed that the
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petitioners by gang spreading the terror in Jalgaon City as well as
nearby area. They did not respond to the preventive actions.
10. The first question to be answered is whether the family
members constitute a gang as required under Section 55 of the Act.
The term 'gang' has not been defined in the Act. The dictionary
meaning of the term 'gang' is to join together with other people in
order to act against somebody. As per the Oxford Advanced Learners
Dictionary 8th Edition the term 'gang' means an organized group of
criminals (ii) a group of young people who spend a lot of time
together and often cause trouble and fight against other groups (iii)
an organized group of workers or prisoners. As per Wikipedia, the
term 'gang' means is a group or society of associates, friends or
members of the family with a defined leadership and internal
organization that identifies with or claims control over territory in a
community and engages, either individually or collectively in illegal
and possibly violent, behavior, with such behavior often constituting a
form of organized crime (extracted from Google).
11. From the above dictionary meaning of the term 'gang' it
could be understood that gang is a group of criminals. Therefore, it
cannot be separated from the definition of family members. The
illegal activities of such persons either individually or collectively
should be considered while understanding the term gang used in
Section 55 of the Bombay Police Act. The separate and individual acts
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not committed collectively may not amount the gang. But if such
illegal acts are committed, separately or collectively, with the common
intention or the object, those are the illegal acts committed by a gang.
Considering the dictionary meaning of the term 'gang', the Court does
not find substance in the argument of the learned counsel for the
petitioners that family members could be said to be a gang and no
action under Section 55 of the Act could be initiated against them.
12. The learned counsel for the petitioners argued that after
the show cause notice, it is not necessary to appear before the
inquiring officer in person with the witnesses and furnish the surety
bond. It was not a legal requirement. But the inquiring officer, to
impress the higher authority, has recorded the finding after show
cause, the petitioners did not appear before him with surety and
witnesses and they have furnished their submissions through the
registered post.
13. Section 59(2) of the Act provides that the authority or
the officer proceeding under sub-section (1) may for the purpose of
securing the attendance of any person against whom any order is
proposed to be made under Sections 55, 56, 57 or 57(a), pass a
security bond with or without securities for such attendance during
the inquiry. If the person fails to the pass security bond as required or
fails to appear before the officer or authority during the inquiry, it
shall be lawful to the officer or authority to proceed with the inquiry,
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and thereupon such order as was proposed to be passed against him
may be passed. Sub-section (2) reflects that the officer or authority
proceeding under sub-section (1) may direct such person to furnish
such bond with or without sureties only for the purpose of securing
the attendance of such person. The consequences of failure to appear
in person and furnishing bond do not take away the defence of such a
person. The authority may proceed with the inquiry on the basis of
material available before it. Therefore, it cannot be said that the
inquiring officer recorded observation of not appearing in person and
furnishing security bonds to influence the higher authority. It was just
the finding of the fact of non-appearance and not furnishing the
security bond by the petitioners. However, the authority has
considered the written submissions/explanations and recorded the
finding that the explanation was extraneous and irrelevant.
14. The record reveals that the first offence against the
petitioners were jointly registered in 2020 and thereafter 2023. The
rest of the offences registered against the petitioner Hitesh and
Aakash were of 2019, 2020 and 2021. The authority did not have the
material to show that those individualistic crimes were committed by
the members of the gang to their knowledge. In a crime of 2023, the
counter crime was registered. So far as the body offence against all
registered in 2020, it seems that thereafter till 2023, no offences as
such were registered against the petitioners.
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15. The law is well settled that the authority exercising
power under Section 55 of the Act should 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 gangs or body or members thereof. Invoking his
powers, there must be objective material on record on the basis of
which the competent authority must record its subjective satisfaction
that the movement or the encamped movement of a gang or body of
a person 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. There should be live link and
proximity in the registration of crime and the initiation of the action.
The crimes jointly registered against the petitioners appears
individualistic and not affecting the danger to the common man or
their property. Both orders are silent about the effect of the crimes
registered against the particular persons. Both authorities did not
mention the conclusion of the chapter cases. The chapter cases also
do not show that those were registered against all petitioners jointly.
Those actions were individualistic filed in 2011 then 2020 and 2022.
The Divisional Commissioner Nashik in the impugned order
considered the extraneous material about recording the camera
statement of the witnesses which was neither mentioned in the show
cause notice nor the order of the Superintendent of Police. Therefore,
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it could be said the opportunity to explain the statement of such
witnesses was not granted to the petitioners. Recording such finding
show non-application of mind.
16. After examining the material and the impugned orders,
the Court is of the view that there was no objective material to record
the subjective satisfaction that the movements or the encampment of
the alleged gang of the petitioners were causing or calculated to cause
danger or alarm of reasonable suspicion that the gang or any member
thereof entertaining the unlawful designs. Apart from that, there was
no objective material to believe that the movement of the petitioners
was causing any danger to the person or their property. There also
appears to be no live link and proximity in registering the crime and
initiating the externment proceeding against them,. Therefore, the
impugned orders warrant interference. Hence, the following order :
ORDER
(I) The writ petition is allowed.
(II) Both impugned orders are quashed and set aside.
(III) The rule is made absolute in the above terms.
(IV) Record and proceedings be returned to the learned APP
(S.G. MEHARE, J.)
Mujaheed//
