Bombay High Court
Sheikh Kasam Shikh Shaikhji And 1 vs The State Of Maharashtra Thr. ... on 25 September, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:11360-DB
1 CRIWP429.24 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 429 OF 2024
PETITIONER : 1] Sheikh Kasam Sheikh Shaikhji,
Aged 32 years, Occu. Labour,
2] Sheikh Ayaz Sheikh Shaikhji,
Aged 31 years, Occu. Labour,
Both R/o Chandkhaw Plot, Washim Road,
Old City, Akola.
VERSUS
RESPONDENTS : 1] State of Maharashtra,
through Additional Chief Secretary,
Home Department, Mantralayan
Mumbai - 32.
2] The Divisional Commissioner,
Amravati Division, Amravati,
3] Superintendent of Police, Akola.
4] The Police Station Officer,
Old City Police Station, Akola.
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Mr. Abdul Subhan, Advocate for the petitioner.
Mrs. S. V. Kolhe, A.P.P. for respondent nos.1 to 4.
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CORAM : G. A. SANAP, J.
DATED : SEPTEMBER 25, 2024.
ORAL JUDGMENT
1. RULE. Rule made returnable forthwith. Heard finally by
the consent of the learned advocates for the parties.
2 CRIWP429.24 (J).odt
2. In this writ petition, challenge is to the order 26.03.2024,
passed by respondent no.2 - Divisional Commissioner, Amravati
Division, Amravati, dismissing the appeal filed by the petitioners
against the order dated 02.11.2023, passed by respondent no.3 -
Superintendent of Police, Akola, whereby the petitioners have been
externed out of entire Akola district for two years as per the provisions
of Section 55 of the Maharashtra Police Act, 1951 (hereafter referred to
as "the Act of 1951" for short).
3. The respondent no.2 had issued directions to the Sub
Divisional Police Officer (SDPO), Balapur, Dist. Akola, for conducting
an inquiry against the petitioners in terms of Section 59 of the Act of
1951. Accordingly, the SDPO, Balapur, on completion of the inquiry,
submitted his report to respondent no.3. Respondent no.3 by his notice
dated 25.10.2023, called upon the petitioners to show cause as to why
they shall not be externed, being the members of of a gang, out of the
Akola district. The petitioners replied those notices and placed on
record their side of the story.
4. Respondent no.3 relied upon the following crimes
registered with Old City police station, Akola for invoking the
3 CRIWP429.24 (J).odt
provisions of Section 55 of the Act of 1951 against the petitioners. The
details of the crimes are as follows :
(A) Shaikh Kasam Sheikh Shaikhji (petitioner no.1)
Sr Police Crime Offences Challan Case No. Status
Stn. No. No.
1. Old City, 74/2016 U/ss 143, 144, 147, 148, 117/2016 317/2016 Pending
Akola 149, 302 of IPC ; and dated dated before Court
U/s 7 Cri.Law Act, U/s 17.12.2016 17.12.2016
135 of Mah. Police Act &
U/ss 3 & 4 of MCOC Act
2. Old City, 575/2018 324, 504 IPC 56/2019 1244/2022 ---"---
Akola dtd.15.09.22 dtd.07.10.22
3. Old City, 356/2020 324, 323, 427 IPC 72/2021 514/2021 ---"---
Akola dtd.20.04.21 dtd.28.04.21
4. Old City, 820/2021 3, 25 Arms Act 256/2022 754/2022 ---"---
Akola dtd.23.06.22 dtd.27.06.22
5. Old City, 930/2021 294, 341, 506 IPC 51/2022 335/2022 ---"---
Akola dtd.29.03.22 dtd.30.03.22
6. Old City, 950/2021 341, 452, 323, 504, 506, 73/2022 609/2022 ---"---
Akola 34 IPC, Sec.4, 25 Arms dtd.02.06.22 dtd.06.06.22
Act, 135 Mah. Police Act
7. Old City, 144/2023 324, 323, 504, 34 IPC 81/2023 833/2023 ---"---
Akola dtd.25.07.23 dtd.26.07.23
Preventive Action against petitioner no.1
S.No. Police Station Sumar No. Under Sections Order
1. Old City, Akola 10/2021 3(1) M.P.D.A. Act Collector's order No. Kaksha/Desk-2/
Home/HA/WS-580/2021,
dtd.30.11.2021 -Externed for one year
(B) Shaikh Ayaz @ Bholu Sheikh Shaikhji (petitioner no.2)
Sr Police Crime No. Offences Challan Case No. Status
Station No.
1. Old City, 74/2016 U/ss 143, 144, 147, 148, 117/2016 317/2016 Pending
Akola 149 302 of IPC ; and dated dated before Court
U/s 7 Cri.Law Act, U/s 17.12.2016 17.12.2016
135 of Mah. Police Act &
U/s 3 & 4 of MCOC Act
2. Old City, 950/2021 341, 452, 323, 504, 506, 73/2022 609/2022 ---"---
Akola 34 IPC, Sec.4, 25 Arms dtd.02.06.22 dtd.06.06.22
Act, 135 Mah. Police Act
3. Old City, 144/2023 324, 323, 504, 34 IPC 81/2023 833/2023 ---"---
Akola dtd.25.07.23 dtd.26.07.23
4 CRIWP429.24 (J).odt
5. Respondent no.3 conducted inquiry on receipt of the
replies and passed the order dated 02.11.2023, externing the petitioners
from entire Akola district for two years. Being aggrieved by this order,
the petitioners challenged it before respondent no.2. Respondent no.2,
on consideration of the material against the petitioners, agreed with the
subjective satisfaction recorded by the respondent no.3 and confirmed
the said order dated 02.11.2023.
6. I have heard Mr. Abdul Subhan, learned advocate for the
petitioners and Mrs. S. V. Kolhe, learned Additional Public Prosecutor
for the respondent/State. Perused the record and proceedings.
7. Mr. Subhan, learned advocate for the petitioners submitted
that neither in the notice nor in the order, the fundamental
requirements of Section 55 of the Act of 1951 have been made out.
The crimes relied upon for passing the impugned order, had not been
committed by the petitioners together as the members of the gang. The
offences, in which the petitioners have been acquitted, have also been
taken into consideration for passing the impugned orders. It is pointed
out that on the date of the impugned order, only one criminal case was
5 CRIWP429.24 (J).odt
pending against the petitioners. It is also pointed out that in the said
case, which is at serial no.1, there are in all seven accused, but the action
has been initiated against the petitioners only and not against the
remaining five co-accused. It is submitted that the crimes, which are
individualistic in nature against the petitioners, have been taken into
consideration. The order passed by respondent no.3, and confirmed by
respondent no.2, is contrary to the mandatory requirements of Section
55 of the Act of 1951. It is submitted that since the crimes, in which
the petitioners are acquitted, have been considered, the subjective
satisfaction recorded by respondent no.3, has been dented. Learned
advocate submitted that no case has been made out at all to invoke the
provisions of Section 55 of the Act of 1951 against the petitioners.
Learned advocate submitted that the Appellate Authority - respondent
no.2 has committed a manifest error. It is further submitted that the
order directing the petitioners to move out of the entire Akola district,
suffers from the vires of excessiveness.
8. Learned Additional Public Prosecutor submitted that the
entire material collected during the course of inquiry has been
considered by respondent no.3 while passing the order. The subjective
6 CRIWP429.24 (J).odt
satisfaction has been recorded on the basis of the objective material
available on record. Learned APP submitted that respondent no.2 -
Appellate Authority, has re-appreciated the entire material and has
recorded its agreement with the subjective satisfaction recorded by
respondent no.3.
9. I have gone through the record and proceedings. It is to be
noted that while deciding the Criminal Writ Petition No. 275 of 2024
(Aakash S/o Arunrao Waghade and others .vs. The Divisional
Commissioner, Amravati Division, Amravati and others), on
21.08.2024, this Court has dealt with this issue in great detail. This
Court has considered the earlier two decisions rendered by the Division
Benches of this Court on this point. In my view, the facts of this
petition and the facts in Cri.W.P. No. 275/2024, are similar. In my
view, therefore, the view taken by this Court in Cri.W.P. No. 275/2024
would be squarely applicable to this case. It is appropriate at this stage
to reproduce paragraphs 10, 11 and 12 of the decision in Cri.W.P. No.
275/2024. The same are extracted below :
"10. I have gone through the record and proceedings. Learned
Advocate for the petitioners to buttress his submission has relied
upon the decision of the Division Bench of this Court at the
Principal Seat in the case of Ahammad Mainuddin Shaikh .v/s.
7 CRIWP429.24 (J).odt
The State of Maharashtra and others1. It is further pointed out
that the decision in the case of Ahammad Shaikh (supra) was
considered by the Division Bench of the Bombay High Court in
the case of Vijay Lalso Jadhav .v/s. State of Maharashtra and Ors.2
Learned Advocate submitted that the facts of this case and the
facts of the cases relied upon by him are more or less similar.
11. I have minutely perused the decisions relied upon by the
learned Advocate for the petitioners. In my view, for the purpose
of addressing the issue involved in this petition, it would be
profitable to reproduce para No. 8 of the decision in the case of
Ahammad Shaikh (supra). It is read thus:
"8. Section 55 of the Act deals with dispersal of gangs and
bodies of persons. It 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 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
1 2013 ALL MR (Cri.) 3804
2 2013 SCC OnLine Bom 1432
8 CRIWP429.24 (J).odt
not to enter 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.
[
Upon a careful reading of this section, it becomes clear
that, whenever it appears to the competent authority that
the movement or encampment of any gang or body of
persons in the area under 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
of persons or by its members, such officer may by
notification addressed to the leaders or chief men of such
gang or body of persons and suitably published, issue two
types of directions. The first direction is about regulating
of conduct of such gang or body of persons in a manner
prescribed in the direction in order to prevent violence and
alarm. Such direction, in the alternative, can also be in the
form of an order for dispersal of members of such gang or
body of persons. The second direction which follows the
first one, is about removal of each of the members of the
gang or body of persons outside the area within the local
limits of jurisdiction of the competent authority. In
suitable cases, the order of removal can also be from
district or it's parts or together with contiguous districts or
parts thereof. This second direction, in order to be
reasonable, has to be passed for a definite period of time.
In the entire section, there is common thread of
participation by all and collective action against all that
holds together all it's parts. The section starts with gang or
body of persons, sails through the dangerous impressions
that the movement or encampment of gang or body of
persons creates and ends with a direction of removal passed
against each of the members of the gang or body of
persons. This common thread is the essence of Section 55
and that is the mandate of the legislature. In other words,
Section 55 would be applicable only when the persons are
seen to be acting as members of the gang or body of
persons and it is only then that action under Section 55 of
the Act can be taken and which is to be taken against all
9 CRIWP429.24 (J).odt
members and not only a few of them selectively."
This decision was considered by the Division Bench in the
case of Vijay Lalso Jadhav (supra).
12. It is held that Section 55 of the Act of 1951 contemplates
collective action against the gang or body of persons and
therefore, the final directions which are 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 a selective basis. It is held that the offences which are
individualistic in nature against the members of the gang cannot
be taken into consideration under Section 55. Section 55 would
be applicable only when the persons are seen to be acting as
members of the gang or body of persons and it is only then the
action under Section 55 of the Act of 1951 can be taken and
which is to be taken against all members and not only a few of
them selectively."
10. In my view, this writ petition has to be decided on the
backdrop of the above stated legal position. The petitioners are accused
in the crime at serial no.1 i.e. Crime No. 74/2016. It is further pertinent
to mention that apart from the petitioners, there are other five co-
accused in the said crime. The petitioners have been acquitted in the
crimes at serial nos.6 and 7. Respondent no.3 has taken those crimes in
to consideration. It is also seen that in those crimes also, the petitioners
are not common. With the petitioners, there are other accused as well.
In the crime at Sr.No.1 from the chart, the petitioners are the accused
with other five co-accused. As far as remaining crimes at serial nos. 2, 3,
10 CRIWP429.24 (J).odt
4 and 5 are concerned, the petitioners are not accused together. It is,
therefore, apparent that the crimes, which are individualistic in nature
against the petitioners, have been taken into consideration. In my view,
this is against the spirit of Section 55 of the Act of 1951.
11. The provisions of Sections 55, 56 and 57 of the Act of
1951 have to be applied in different factual situations. There is a
difference in these provisions. The competent authority is required to
bear this fact in mind while invoking the particular section. Section 55
contemplates collective action against the gang or body of persons and
therefore, the final directions, which are required to be issued in terms
of this Section will have to be necessarily against each of the members of
the gang and not against one or a few of them on a selective basis. In
the backdrop of the factual position, I conclude that the subjective
satisfaction recorded by respondent no.3 while passing final order and
by respondent no.2 while deciding the appeal, is vitiated. On this count
alone, the orders are required to be set aside.
12. It is further seen that the offences registered against the
petitioners are at Old City police station, Akola. They have been
directed to remove themselves out of entire Akola district. The order of
11 CRIWP429.24 (J).odt
externment directly infringes of the fundamental right of movement of
an individual. The externment is for a period of two years. No reasons
have been recorded to warrant their externment out of entire Akola
district for two years. It is, therefore, apparent that the orders suffer
from vires of excessiveness.
13. Accordingly, the Criminal Writ Petition is allowed.
i] The order dated 02.11.2023, passed by respondent no.3 -
Superintendent of Police, Akola, externing the petitioners out of entire
Akola district for two years, is quashed and set aside.
ii] Similarly, the order 26.03.2024, passed by respondent
no.2 - Divisional Commissioner, Amravati Division, Amravati,
dismissing the appeal filed by the petitioners is also quashed and set
aside.
14. Rule is made absolute. The petition stands disposed of in
the aforesaid terms.
( G. A. SANAP, J. )
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 11/10/2024 17:13:15
