Bombay High Court
Bhupendra S/O Mohan Gilorkar vs The State Of Maharashtra Through Its ... on 23 April, 2025
2025:BHC-NAG:4648
J Cr.WP-986-2024.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.986 OF 2024
PETITIONER : Bhupendra S/o Mohan Gilorkar,
Age 34 years, Occ: Labour, R/o Hanuman
Nagar, Tumsar, Tq. Tumsar, Dist. Bhandara.
..VERSUS..
RESPONDENTS : 1 State of Maharashtra,
through its Superintendent of Police,
Bhandara.
2 Divisional Commissioner, Nagpur Division,
Nagpur.
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Mr A. K. Madane, Advocate for Petitioner.
Mr U. R. Phasate, APP for Respondents/State.
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CORAM : M. W. CHANDWANI, J.
DATED : 23rd APRIL, 2025.
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith. Heard finally with
the consent of the learned counsels appearing for the parties.
2. By this petition, the petitioner challenges the order dated
05.04.2024 passed in Externment Case No.1543 of 2024 by the
Superintendent of Police, Bhandara, under Section 55 of the
Maharashtra Police Act, 1951, thereby externing the petitioner from
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Bhandara District for two years. The petitioner also challenges the
order dated 14.11.2024 passed by the Divisional Commissioner,
Nagpur Division, Nagpur, thereby dismissing the appeal of the
petitioner against the order of externment passed by the
Superintendent of Police, Bhandara.
3. The petitioner was served with a notice under Section 59
of the Maharashtra Police Act, 1951 (hereinafter referred to as, "the
Act of 1951") as to why he should not be externed from Bhandara
District. Subsequently, by impugned order dated 05.04.2024, the
petitioner was externed from Bhandara District for a period of two
years. The petitioner challenged the said order before the Appellate
Authority by preferring an appeal under Section 60 of the Act of
1951. The said appeal came to be dismissed by the Appellate
Authority by its order dated 14.11.2024.
4. Though, various grounds have been raised in this
petition, the two grounds have been canvassed before this Court.
Firstly, that the notice issued by the Superintendent of Police,
Bhandara under Section 59 of the Act of 1951 depicts only three
crimes. Whereas, the impugned order dated 05.04.2024 passed
J Cr.WP-986-2024.odt
under Section 55 of the Act of 1951 externing the petitioner speaks
about five crimes. Therefore, the entire material was not informed
to the petitioner by way of notice, so an effective reply could not be
filed by the petitioner. Next, the learned counsel for the petitioner
submitted that the order of externment stands vitiated since no
reason has been mentioned as to why the petitioner has been
externed from Bhandara District for a period of two years.
According to him, it is necessary that there should be application of
mind on the part of the Competent Authority for deciding the
duration of the restraint order under Section 56 of the Act, 1951,
but no subjective satisfaction has been recorded by the
Superintendent of Police, Bhandara as to why the petitioner should
be externed for a maximum period of two years. This shows the non
application of mind on the part of the Authority. To buttress his
submission he seeks to rely on the case of Deepak S/o Laxman
Dongre vs The State of Maharashtra and Ors., 2022 LiveLaw (SC)
93, wherein the Hon'ble Supreme Court in para 13 has observed as
under :
"13. Section 58 of the 1951 Act reads thus :
"58. Period of operation of orders under Sections 55, 56, 57 and
57A- A direction made under Sections 55, 56, 57 and 57A not to
enter any particular area or such area and any District or Districts, or
J Cr.WP-986-2024.odt
any part thereof, contiguous thereto, or any specified area or areas as
the case may be, shall be for such period as may be specified therein
and shall in no case exceed a period of two years from the date on
which the person removes himself or is removed from the area,
District or Districts or part aforesaid or from the specified area or
areas as the case may be".
On a plain reading of Section 58, it is apparent that while
passing an order under Section 56, the competent authority must
mention the area or District or Districts in respect of which the order
has been made. Moreover, the competent authority is required to
specify the period for which the restriction will remain in force. The
maximum period provided for is of two years. Therefore, an
application of mind on the part of the competent authority is
required for deciding the duration of the restraint order under
Section 56. On the basis of objective assessment of the material on
record, the authority has to record its subjective satisfaction that the
restriction should be imposed for a specific period. When the
competent authority passes an order for the maximum permissible
period of tow years, the order of externment must disclose an
application of mind by the competent authority and the order must
record its subjective satisfaction about the necessity of passing an
order of exernment for the maximum period of two years which is
based on material on record. Careful perusal of the impugned order
of externment dated 15th December 2020 shows that it does not
disclose any application of mind on this aspect. It does not record
the subjective satisfaction of the respondent no.2 on the basis of
material on record that the order of externment should be for the
maximum period of two years. If the order of externment for the
maximum permissible period of two years is passed without
recording subjective satisfaction regarding the necessity of extending
the order of externment to the maximum permissible period, it will
amount to imposing unreasonable restrictions on the fundamental
right guaranteed under clause (d) of Article 19(1) of the
Constitution of India."
5. Per contra, Mr. U. R. Phasate, learned Additional Public
Prosecutor for respondents/State submitted that though, the initial
notice did not contain all the offences registered against petitioner,
according to him, one more notice dated 19.03.2024 was issued to
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the petitioner mentioning the entire crime which has been relied
upon in the impugned order. Therefore, the ground of not
providing the details of all the five crimes is not sustainable.
6. Having heard the learned counsels appearing on behalf of
the respective parties and having gone through the orders
impugned, it transpires that the Competent Authority issued a show
cause notice to the petitioner giving details of the crimes, wherein
petitioner alongwith other group members including the head are
alleged to be involved in the crime and also sought an explanation
from the petitioner and other members of the group as to why an
externment order should not be passed. The petitioner replied.
Finding no plausible explanation, the Competent Authority passed
the order of externment.
7. Perusal of the record produced by the learned A.P.P.
reveals that though, in the initial notice only three offences
registered against petitioner were mentioned. However, the record
also shows that another notice dated 19.03.2024 came to be issued
to the petitioner and other members of the group which was
received by the petitioner on 21.03.2024, wherein all five crimes
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which have been relied upon by the Competent Authority in the
impugned order are informed to petitioner. Therefore, the ground
raised by petitioner is not sustainable.
8. So far as the next ground of non-recording of subjective
satisfaction by the Competent Authority for externing the petitioner
for two years is concerned, in view of the provisions of the Act of
1951 particularly, Section 58 of the Act of 1951, it is incumbent on
the part of the Competent Authority for deciding the duration of
externment under Section 55 of the Act of 1951 and to record
subjective satisfaction on the objective assessment of the period for
which externment order is to be passed. The impugned order
nowhere depicts the fulfillment of this essential condition of
subjective satisfaction with regard to the period of externment.
Thus, no reason is mentioned as to why the petitioner was externed
for the maximum period provided under Section 55 of the Act of
1951. The petitioner has already suffered externment for one year.
As held in the case of Deepak Laxman Dongre (supra), if no
subjective satisfaction has been recorded by the Competent
Authority, it would amount to imposing unreasonable restrictions
on the fundamental right guaranteed under Clause (d) of Article
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19(1) of the Constitution of India. Hence, the petition is allowed.
9. In view of the above, the impugned order dated
05.04.2024 passed in Externment Case No.1543 of 2024 by the
Superintendent of Police, Bhandara, under Section 56 of the
Maharashtra Police Act, 1951, is hereby quashed and set aside.
Consequently, the order dated 14.11.2024 passed by the Divisional
Commissioner, Nagpur Division, Nagpur, is also quashed and set
aside.
(M. W. CHANDWANI, J.)
Tambe
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 03/05/2025 16:15:43
