Bombay High Court
Deepak Harilal Jaiswal And Anr vs The State Of Maharashtra And Ors on 12 September, 2024
2024:BHC-AS:36889
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2574 OF 2024
1) Deepak Harilal Jaiswal
Age 39 years, Occ: Job
R/o. Room No.202, D-4 Owners Colony
Chatranjan Colour, Vidyavihar (E),
Mumbai.
2) Mrs. Soni Sachin Singh
Age: 29 years, Occ. Hotel Business
R/o. Room No.102, B-Wing,
Building No.76, Tilak Nagar Colony
Tilak Nagar Chembur Mumbai. .. Petitioners
Vs.
1) State of Maharashtra, Through
Through its Secretary, Home Department
Mantralaya Mumbai
2) The Divisional Commissioner
Konkan Division Mumbai
3) The Deputy Commissioner Police
Zone-VI, Chembur, Mumbai
4) The Assistant Commissioner of Police
Deonar Division, Mumbai.
5) Senior Inspector of Police,
Tilak Nagar Police Station, Mumbai. .. Respondents
Mr. Sanjeev Kadam a/w. Mr. Atharv Nalawade and Mr.Sohel Mujawar
i/b. Mr.Ramdas Hake Patil for the Petitioners.
Ms. P. P. Bhosale, APP for the Respondents-State.
PSI R.B.Landge of Tilaknagar Police Station present.
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CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 12th AUGUST, 2024
PRONOUNCED ON : 12th SEPTEMBER, 2024
JUDGMENT:
-
. The challenge in the present Petition is to the Order dated 20 th
March 2024, passed by Respondent No.3, whereby the Petitioners have
been externed for a period of 18 months and, the Order dated 12th April
2024, passed by the Respondent No.2, whereby said Order dated 20th
March 2024, has been upheld.
2) Heard Mr. Sanjeev Kadam, learned counsel for the Petitioners
and Ms.Bhosale, A.P.P. for the Respondents-State.
3) Rule. Rule is made returnable forthwith. With consent of
learned counsel for respective parties heard finally. Perused the record.
4) Facts giving rise to the Petition are that, on 3 rd January 2024,
Respondent No.3 served the Petitioners with a notice dated 28 th December
2003, under Section 55 read with Section 59 of the Maharashtra Police Act,
1951 ('the Act', for short) and called upon them to show cause as to why
they should not be externed from the limits of Mumbai City, its Suburbs
and District Thane for a period of two years.
5) Occasion of said notice was an externment proposal submitted
by Tilaknagar Police Station. Said notice conveyed that, the Petitioners
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with their associates having 'goonda' mindset have formed an independent
gang and active in certain areas. That, they all have been booked for the
offences of attempt to commit murder, causing grievous hurt, hurt by using
dangerous weapons or means; causing damage; abusing; beating by hand;
threatening and cheating etc. That, the Petitioners are doing those acts
with the help of their associates; that, these activities of the Petitioners
terrorised the area and created feeling of in-safeness in the mind of people
of the said area which has posed a threat to their lives and properties; that,
the Petitioners have no respect for the law and they have tendency to
commit violent crimes in stark violation of law. History of the crimes
allegedly committed by the Petitioner No.1 as gang leader along with
Petitioner No.2 and other gang members and the preventive actions which
were relied upon for the purpose of the 'Order of Externment', are as
under:-
(i) History of crimes :-
Sr. Police CR No. & Sections Name of Accused Status
No. Station
1 Tilaknagar C.R.No.135/18, 1) Deepak Harinath Jaiswal Pending in
Sections 324, 323, 2) Ramal Meghu Yadav the Court
504,506,427, 34 IPC 3) Deepak Pinku Singh of law
4) Lallan Sanjay Mandal
2 Tilaknagar C.R.No.160/21, 1) Deepak Harinath Jaiswal Pending in
Sections 452, 427, 2) Soni Sachin Singh the Court
506(2), 504,141, 142, 3) Suman Deepak Jaiswal of law
143, 144, 148 IPC 4) Ved Pradeep Rajbhar
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3 Tilaknagar C.R.No.233/23, 1) Deepak Harinath Jaiswal Pending in
Sections 420, 465, 2) Soni Sachin Singh the Court
467, 471, 34 IPC 3) Rajendra Premchand Gupta of law
4) Avinash Sharayu Pasi
4 Tilaknagar C.R.No.360/23, 1) Deepak Harinath Jaiswal Pending in
Sections 324, 323, 2) Soni Sachin Singh the Court
427, 504, 34 IPC of law
5 Tilaknagar C.R.No. 716/23, 1) Deepak Harinath Jaiswal Pending in
Sections 307, 143, 2) Soni Sachin Singh the Court
144, 147, 149, 323, 3) Satish Shankar Verma of law
504, 506 IPC 4) Malkitsingh Satnam Singh
5) Gaurav Laxman Singh
6) Yedu Tuleram Rawal
7) Anand Sundar Sasane
(ii) Preventive actions taken against Petitioner No.1, the gang leader :-
Sr. Police E.A.N0. & Section Particulars
No. Station Chapter
Case No.
1 Tilaknagar 75/18 107 Personal Bond of Rs. 5000/- taken for
one Year dtd. 25/5/2018
2 Tilaknagar 01/22 110 Under Section Personal Bond taken of
Rs.30,000/- for three years dated
08/02/2022
3 Tilaknagar 06/23 122 (B) Cash of Rs.5000/- was paid on
10/08/2023
(iii) Preventive action taken against Petitioner No.2, the gang member :-
Sr. Police E.A.N0. & Section
No. Station Chapter Case
No.
1 Tilaknagar 21/23 107 Personal Bond of Rs.1,00,000/- taken
for a period from 10/08/2023 to
09/08/2023.
6) Besides the aforestated crime history, in-camera statements of
two confidential witnesses 'A' and 'B' were also considered. Witness 'A'
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informed that, one day, at about 21.30 hours, in 1 st week of November,
2023 the Petitioners and their associates abused, assaulted and threatened
him just because he demanded the charges of serving betel nut leaves, and
further they also threatened the members of crowd gathered there. Witness
'B' revealed that, one day, at about 19.30 hours, in the 1 st week of
November, 2023 the Petitioners and their associates abused, assaulted and
threatened the said witnesses as he failed to give an extortion amount of
Rs.10,000/-. Further, they threatened the members of the crowd gathered
there.
7) The Petitioners replied the said show cause notice and opposed
the proposal of their externment on various grounds. They have also
examined two witnesses.
8) After considering externment proposal, contentions of the
Petitioners and the evidence, the Respondent No.3 passed the impugned
Order dated 20th March 2024, and directed the Petitioners to leave the
limits of Mumbai, its suburban and District Thane for a period of 18
months, within two days from the date of receipt of the said order.
9) The Petitioners challenged the 'Order of Externment' in Appeal
No.52 of 2024 but were unsuccessful. Hence, the petition.
10) Learned counsel Mr. Kadam for the Petitioners submits that,
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even though the Petitioners have challenged the legality of the impugned
Orders on several grounds, the Petitioners rely only upon few of them. In
this regard, the learned counsel submits that, no finding is recorded in the
impugned orders that, the Petitioners had formed a gang or group or body
of persons engaged in continuous criminal activity so as to cause alarm or
danger to the members of public. That, Section 55 of the Act applied to a
gang or body of persons i.e. the leader and all the members of the gang and
not to an individual member thereof. Yet, the impugned 'Order of
Externment' is contrary to said Section 55. Secondly, that the five crimes
considered against the Petitioners were registered in Tilaknagar Police
Station only. However, the Petitioners have been externed from the entire
limits of Mumbai City, its Suburbs and District Thane for a period of 18
months. The impugned 'Order of Externment', however, does not show any
such reason to cover said area. Thirdly, there is no live link between the
first two crimes in the table and the 'Order of Externment'; that the 3 rd, 4th
and 5th crimes are against an individual. Therefore, said crimes cannot be
considered to base the impugned orders. As such, both the impugned
orders lack objective as well as subjective satisfaction to record the same,
which is unconstitutional. He submits that, in short, no material
whatsoever existed which could be said to be sufficient for answering the
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criteria of Section 55 of the Act. Thus, according to the learned counsel on
all the three grounds the impugned orders are illegal and therefore the
same may be quashed and set aside. To support the submissions, the
learned counsel relied upon following reported decisions.
1) Ahammad M.Shaikh vs. State of Maharashtra1
2) Vijay Lalso Jadhav Vs. State of Maharashtra with
Shailesh Ramesh Yadav Vs. State of Maharashtra2
3) Shaikh Mukhtyar Mustafa Shaikh Vs. State of
Maharashtra & Ors.3
4) Deepak s/o. Laxman Dongre Vs. The State of
Maharashtra & Ors.4
11) In contrast, learned A.P.P. submits that, looking at the crimes
committed in the past by the Petitioners and their associates, it is evident
that the Petitioner No.1 is the gang leader and Petitioner No.2 is a member
thereof. Petitioner No.1 is figured in all the said crimes and Petitioner No.2
is involved in 4 of them. However, the rest of the accused persons are
different. These facts show that, both Petitioners and the rest of the
accused persons have formed a gang to commit different offences in the
area concerned. Undoubtedly, the crimes they have committed are serious.
1 2013(4) Bom.C.R.(Cri)559
2 (2013) SCC online Bom 1432
3 2017(4) Bom.C.R.(Cri) 407
4 2022 SCC Online SC 99
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This indicates that, the Petitioners have no fear of law. Said acts of the
Petitioners and their gang members are dangerous and likely to cause
alarm to the members of public. It has created terror in the area concerned.
People are not coming forward to give their statement against the
Petitioners. Besides this, all other material angles have been well
considered by both the authorities, responsible for passing the impugned
orders. As such, the Petitioner have no case to question the legality of said
orders. Hence, the Petition be dismissed.
12) Considering the rival submissions and the 'Order of
Externment', it is necessary to refer Section 55 of the Act, which reads as
under :
"55. Dispersal of gangs and body of persons.- Whenever it
shall appear in Greater Bombay and in 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 2[Superintendent] 3[***] empowered by the
State Government in that behalf, that the 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
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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 4[or such area and any district, or districts or any part
thereof, contiguous thereto] which in such time as such officer
shall prescribe, and not to enter the area 5[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."
13) While dealing with a similar question, on referring Section 55
and the decision in Ahammad Mainuddin Shaikh (Supra), the
Division Bench of this Court in Vijay Jadhav (Supra) in paragraph 10
and 11 held as under :-
"10. A perusal of the aforesaid Section shows that the object
of Section 55 of the Bombay Police Act is "dispersal of gangs
and body of persons" and therefore, the Competent Authority
as well as the Appellate Authority had no power to direct any
individual person to be externed outside any district or
districts or any part thereof, inasmuch as it could only be
directed against all the members of a gang or a body of
persons, as contemplated under Section 55 of the Bombay
Police Act. The language of Section 55 shows that the power
given to the Competent Authority can be exercised only in
relation to any gang or a body of persons, whenever it
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appears to the Competent Authority, that the 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
a reasonable suspicion that unlawful designs are entertained
by such gang or body or by members thereof. It is, therefore,
evident that Section 55 of the Bombay Police Act does not
contemplate movement or encampment of 'a person' causing
or calculated to cause danger or alarm, but, refers to
movement or encampment of any gang or body of persons
causing or calculated to cause alarm, danger, etc. It is thus,
evident from the language of Section 55 of the Bombay Police
Act, that it's application is directed not against 'any
individual' but against any gang or body of persons or
members of the gang.
11. Section 55 of the Bombay Police Act contemplates
collective action against the gang or body of persons and
therefore, the final direction which is required to be issued in
terms of the said Section, will have to be necessarily against
each of the members of the gang and not against one or a few
of them on selective basis. It is therefore, apparent that an
illegality has been committed by both the Authorities, i.e. the
Competent Authority and the Appellate Authority by passing
the externment order and confirming the same only qua the
petitioners and not against the other members of the alleged
gang."
14) In the case in hand, the show cause notice, 'Order of
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Externment' and the Order in Appeal consistently maintained that the
Petitioners and the other accused persons shown in the table above have
formed a gang or body of persons. That, the Petitioner No.1 is a leader of
said gang and that, the Petitioner No.2 and the other accused are its
members. However, there is no material from which it can be discerned
that, the other accused persons are or were the members of the alleged
gang or body of persons formed by the Petitioners, when the aforesaid
crimes were considered. Secondly, it is significant that even though said
other accused persons have been labeled as the members of the gang, they
have not been proceeded against to extern them by virtue of Section 55 of
the Act. Thus, it is apparent that, the externment procedure was selectively
initiated only against the Petitioners without any intention to proceed in
the same manner against the other members of the gang. This is strictly
against what is contemplated in and the object of Section 55 of the Act.
15) Another aspect of the matter which requires an attention is,
the five crimes considered against the Petitioners were registered in
Tilaknagar Police Station. The impugned orders, however, do not indicate
any satisfactory or compelling reason to extern the Petitioners out of the
limits of Mumbai, its suburban and District Thane for a period of 18
months, in the backdrop of the show cause notice referring only to said five
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crimes. To that extent, the 'Order of Externment' is excessive, as held in the
case of Shaikh Mukhtyar (Supra).
16) As held in the case of Deepak Dongre (Supra), "there cannot
be any manner of doubt that an order of externment is an extraordinary
measure. The effect of the order of externment is 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. ...". "As the Order of Externment' takes away
fundamental right under Article 19 (1) (d) of the Constitution of India, it
must stand the test of reasonableness contemplated by clause (5) of Article
19."
17) Conspectus of the discussion above is that, from the facts of the
case in hand it is obvious that the objective and subjective satisfaction
arrived at to pass the 'Order of Externment', do not meet the requirements
of Section 55 of the Act. Yet, the said Order has been upheld turning down
the Appeal of the Petitioners. Thus, both the impugn orders show non-
application of mind and arbitrariness. Therefore, said orders cannot be
sustainable in law. As a result, both the impugned orders are liable to be set
aside. The Petition succeeds thus. Hence, following Order is passed :-
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- ORDER -
i) Petition is allowed.
ii) The impugned Externment Order bearing No.16/C/43,
dated 20th March 2024 passed by the Respondent No.3 and the
impugned Order dated 12th April 2024 passed by the
Respondent No.2 in Externment Appeal No.52 /2024, are
quashed and set aside.
iii) Rule is made absolute in aforesaid terms.
JYOTI
RAJESH (SHYAM C. CHANDAK, J.)
MANE
