Bombay High Court
Aslam Shabbir Shaikh Bunty Jahagirdar vs The State Of Maharashtra And Others on 4 February, 2025
2025:BHC-AUG:2983
Cri-WP-844-2024.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 844 OF 2024
Aslam Shabbir Shaikh @ Bunty Jahagirdar
Age: 52 years, Occupation: business,
R/o. Madina, Masjid Road, Ward No.2,
Shrirampur, Tq. Shrirampur,
Dist. Ahmednagar ... PETITIONER
VERSUS
1. The State of Maharashtra
Through its Principal Secretary,
Home Department,
Mantralaya, Mumbai
2. The Divisional Commissioner,
Nashik Division, Nashik
3. The Sub-Divisional Officer,
Shrirampur Division,
Shrirampur, District Ahmednagar
4. The Deputy Superintendent of Police,
Shrirampur Division, Shrirampur ... RESPONDENTS
....
Ms Pradnya Talekar, Advocate i/b Talekar and Associates for the
Petitioner
Mr. S. M. Ganachari, APP for Respondent - State
....
CORAM : Y. G. KHOBRAGADE, J.
RESERVED ON : 27.01.2025
PRONOUNCED ON : 04.02.2025
1 of 23
(( 2 )) Cri-WP-844-2024
JUDGMENT :
-
1. Rule. Rule made returnable forthwith. With consent of
both the sides, heard finally at the stage of admission.
2. By the present Petition under Article 227 of the
Constitution of India R/w Sec. 482 of the Code of Criminal
Procedure, the Petitioner takes exception to the order dated
28.03.2024 passed by Respondent No.2, Divisional Commissioner,
Nashik, in Externment Appeal No.19 of 2024 and whereby affirmed
the order passed by Respondent No.3 for externing the Petitioner
from Ahmednagar and Pune Districts instead of five districts viz;
Ahmednagar, Pune, Nashik, Aurangabad and Beed, for a period of
two years.
3. On face of record it appears that, the Respondent Police
Authorities have sought to invoke Section 56(1)(a)(b) of the
Maharashtra Police Act, 1951. In pursuance of the proposal for
externment of the Petitioner u/sec. 56(1)(a)(b) of the Act, 1951, the
Sub-Divisional Police Officer, Shrirampur was authorised under letter
dated 21.12.2023 to conduct the enquiry. Accordingly, on
13.01.2024, the Sub-Divisional Police Officer (S.D.P.O.), Shrirampur,
2 of 23
(( 3 )) Cri-WP-844-2024
conducted primary inquiry and submitted it's report stating that,
several offences are registered against the present Petitioner with
Police Stations i.e. Bhiwandi, Manmad, Newasa, Shrirampur city,
Deccan Police Station, Pune. The S.D.P.O., had called the witnesses A
and B and recorded their statements as per their say. However, the
SDPO found that both the witnesses A and B are frightened to give
statement against the Petitioner, so also, no one coming forward to
give any statement against the Petitioner due to his criminal activities.
Under the said show cause notice, the Petitioner was called upon to
submit explanation as to why he should not be externed for a period
of two years from above Five Districts with description of series of
crimes registered against him. In response to the said notice, the
Petitioner submitted his written say and contended that, intentionally
false crimes are registered against him. He never indulged into any
such criminal activities. The police authorities have shown about
registration of crime No.69 of 2002, but he already acquitted by the
Sessions Court, Mumbai, on 17.01.2015. He further submits that,
Crime No.3057 of 2006 is registered prior to 18 years, but the trial of
said crime is still pending. He acquitted in Crime No.175 of 2011
vide judgment and order dated 29.06.2013. He also acquitted in
3 of 23
(( 4 )) Cri-WP-844-2024
Crime No.247 of 2012 on 03.12.2012 by the learned J.M.F.C.,
Shrirampur. The trial of Crime No.168 of 2012 is pending against
him since last 12 years. The Crime Nos. 406 of 2023 and 407 of 2023
are falsely registered against him and no charge-sheets have been
filed till issuance of the notice.
4. The Petitioner further contended that, previously he was
externed for a period of two years vide order dated 25.04.2017
passed in Externment case No.14 of 2016. However, on 17.07.2017,
this Court passed an order in Criminal Writ Petition No.857 of 2017
and set aside the said externment order. But, again the Police
Authorities were initiated externment proceeding under Section 55 of
the Maharashtra Police Act. But the Respondent No.2 Appellate
Authority passed an order on 19.01.2019 and quashed said
externment proceeding on ground that, the externment proceeding
came to be initiated on the same ground on which this Court quash
and set aside order of externment on 17.07.2017 in Cri. W. P. No.857
of 2017. Therefore, prayed for drop of externment proceeding.
5. On 31.01.2024, the Respondent No.3 Sub-Divisional
Officer, Shrirampur, passed an order holding that, there are seven
4 of 23
(( 5 )) Cri-WP-844-2024
offences registered with various Police Stations viz; Bhiwandi,
Manmad, Newasa, Shrirampur city, Deccan Police Station, Pune, etc..
Due to dangerous activities of the present Petitioner, there is harm to
the citizens and their properties. Further, due to petitioner's criminal
activities, the witnesses are not willing to come forward to give
evidence in public against him. Therefore, considering the nature of
offences as well as report submitted by the S.D.P.O., the Respondent
No.3 passed an order and externed the Petitioner for a period of two
years from entire districts of Ahmednagar, Pune, Nashik, Aurangabad
and Beed.
6. Being aggrived by said order, the Petitioner invoked u/s
60 of Act, 1951 and filed externment Appeal No.19 of 2024, before
Respondent No.2 Appellate Authority. On 28.03.2024, the Appellate
Authority passed the impugned order affirming order of externment
of the Petitioner for the period of two years to the extent of Districts
Ahmednagar and Pune only.
7. The Petitioner has challenged his externment order on the
following grounds:-
(i) Once the externment order is set aside, then externment
of the Petitioner on the same ground is not maintainable;
5 of 23
(( 6 )) Cri-WP-844-2024
(ii) The Petitioner already acquitted for some of the offences
on which basis the proposal for externment of the
Petitioner submitted;
(iii) There is no live link with the offences registered against
the Petitioner and the offences allegedly described in the
proposal for externment.
(iv) Two new offences registered against the Petitioner have
been considered, but the prosecution has not filed charge-
sheet against the Petitioner for the said two offences till
issuance of the externment notice.
(v) In the externment notice under Section 56 of the
Maharashtra Police Act, the statement of witnesses
allegedly recorded in camera, but the details of said
witnesses have not been described in the notice.
(vi) As per the provisions of Section 56 of the Maharashtra
Police Act, maximum period of externment is provided
two years, however, while externing the Petitioner for the
maximum period of two weeks, the authorities have not
given sufficient elaborative reasons and not explained as
to why the Petitioner is required to be externed for a
maximum period of two years.
8. The learned counsel for the Petitioner submits that as per
the show cause notice, following crimes are registered against the
Petitioner:-
6 of 23
(( 7 )) Cri-WP-844-2024
Sr. Police Stations Crime No. Offences Current Status
No. u/s
1 Bhiwandi I-69/2002 302, 120(B), 34 of IPC, Trial Pending
Taluka 3/25 of Arms Act
2 Manmad I-3057/2006 120, 121of IPC, 3, 9 Trial Pending
Official Secret Act, 1923
3 Newasa I-175/2011 143, 147, 148, 149, 295, Trial Pending
307, 326, 333, 436, 336,
337, 452, 504, 506,
120(B) of IPC, 3/25,
4/25 of Arms Act, 37(1)
(3), 135 of the Bombay
Police Act, 3 of the
Prevention of Damage to
Public Property Act
4 Shrirampur City I-247/2012 147, 148, 324 of IPC, Trial Pending
37(1)(3), 135 of the
Bombay Police Act.
5 Deccan Police I-168/2012 307, 427, 120B of IPC, 3, Trial Pending
Station, Pune 4, 5 of Indian Explosive
Anti Terrorist Substance Act, 16 & 18
Cell, Mumbai of Unlawful Activities
(Prevention) Act and
Crime No.09/2012 307,
435, 120B of IPC, 3, 4 &
5 of Indian Explosive
Substance Act, 3/25 of
Arms Act, 16(1)B, 18,
20, 23, 38 & 39 of
Unlawful Activities
(Prevention) Act, 3(1),
(ii)3, (2) and 3(4) of
MCOCA
6 Shrirampur City I-406/2023 143, 147, 148, 149, 323, Police
504 of IPC, 3(1)(r) & Investigation
3(1)(s) of SC & ST
(Prevention of Atrocities)
Act
7 Shrirampur City I-407/2023 143, 147, 148, 149, 323, Police
504, 506 of IPC Investigation
7 of 23
(( 8 )) Cri-WP-844-2024
9. However, the Petitioner is acquitted in Crime Serial Nos.
1, 3 and 4, whereas, Crime Serial Nos. 2, 5, 6 and 7 are stale offences.
So also, as per Judgment and order dated 27.07.2017 passed by this
Court in Criminal Writ Petition No.857 of 2017, the crime Serial Nos.
2 and 5 are not having live link in 2024. The prosecution has not filed
charge-sheet against the petitioner in respect of Crime Serial Nos. 6
and 7 as on date of service of externment show cause notice. The
previous externment order has been set aside by Respondent No.3 on
the ground that, the externment proceeding came to be initiated on
the same grounds, which this Court set aside.
10. The learned counsel for the Petitioner further canvassed
that Respondent Nos. 2 and 3 have failed to consider material
available on record to connect live link with the offences which are
registered against the Petitioner while service of notice under Section
56 of the Maharashtra Police Act. Further, without filing the charge-
sheet in crimes which are subsequently registered, therefore, grounds
set out in the externment notice are not sound and valid reasons.
Therefore, prayed to quash and set aside the impugned order arising
out of the order passed by Respondent No.3.
8 of 23
(( 9 )) Cri-WP-844-2024
11. To buttress these submissions, the learned counsel for the
Petitioner placed reliance on the following case laws.
(i) Deepak Laxman Dongre Vs State of Maharashtra and Ors.,
AIR 2022 SC 1241;
(ii) Imtiyaz Hussain Sayyad Vs. State of Maharashtra and
others, 2024 SCC OnLine Bom 442;
(iii) Subhash Ganu Bhoir Vs. K. P. Raghuwanshi and another,
1986 SCC OnLine Bom 124 : (1987) 1 Bom CR 425;
(iv) Imran Abdul Wahid Hasmi Vs. Dy. Commissioner of Police
and Others, 2016 SCC OnLine Bom 3868 : (2016) 3 AIR
Bom R (Cri) 358;
(v) Iqbal Hussain Abid Hussain Qureshi Vs. The State of
Maharashtra & Ors., 1998 SCC OnLine Bom 727 : (1999)
101 (1) Bom LR 631;
(vi) Deepak Kailas Aglave Vs. The State of Maharashtra and
others, Judgment dated 02.09.2024 delivered by this Court
(Coram: S. G. Mehare, J.) in Criminal Writ Petition No.1190
of 2024.
12. Per contra, the learned APP canvassed that, on
31.01.2024, the Sub-Divisional Magistrate passed the order after
following due procedure of law and externed the Petitioner for a
period of two years from five Districts (i) Ahmednagar, (ii) Pune, (iii)
Nashik, (iv) Aurangabad and (v) Beed, because of criminal,
dangerous activities of the petitioner in all Districts. The Petitioner
challenged said order in Externment Appeal No.19 of 2024, however,
the Respondent No.2 Appellate Authority passed the impugned order
dated 28.03.2024 and affirmed the order passed by Respondent No.3.
9 of 23
(( 10 )) Cri-WP-844-2024
13. Since number of crimes are registered against the present
Petitioner due to his criminal activities and tranquility in the society
and the offences are registered against the Petitioner relating to the
human body, which resulted in breach of peace and harm to the
society at large. Therefore, the Respondents Police Authority issued a
notice by following the principles of natural justice by giving an
opportunity of being heard and the Respondent Authorities have
passed the administrative order and externed the Petitioner.
Therefore, there is no infirmity and material placed on record
sufficient to extern the Petitioner from Ahmednagar and Pune
Districts.
14. In support of these submissions, the learned APP placed
reliance on the case of N.C.T. of Delhi and Anr. V/s. Sanjeev alias
Bittoo; AIR 2005 SC 2080, wherein it has been held that, the Courts
will be slow in interfering in the matters relating to administrative
functions unless decision is tainted by any vulnerability like illegality,
irrationality and procedural impropriety.
15. It is pertinent to note here that, the Respondent Police
authorities have sought to invoke provisions of Section 55 and 56 of
10 of 23
(( 11 )) Cri-WP-844-2024
the Maharashtra Police Act and while passing the order of
externment, considered the following offences: -
(1) Crime No.134 of 2023, registered on 15.02.2023 against the
Petitioner for the offence punishable under Section 384 and
the investigation of said crime is in progress;
(2) Crime No.410 of 2022, registered on 30.04.2022 for the
offence punishable under Section 341, 323, 324, 504, 506
read with Section 34 of I.P.C. and the trial of said offence is
pending;
(3) N.C. No.1078 of 2022, registered on 14.05.2022 for the
offences under Section 323, 504, 506 read with Section 34
of I.P.C. and
(4) Chapter Case No.213 of 2021 for the offence punishable
under Section 107 of Cr.P.C. registered on 08.09.2021 as
well as report of cancellation of bond dated 15.05.2022.
16. Section 55 and 56 of the Maharashtra Police Act provides
as under:-
"55. Dispersal of gangs and bodies of persons.
Whenever it shall appear in Greater Bombay and in other areas in
which Commissioner is appointed under section 7 to the Commissioner
and in a district to the District Magistrate, the Sub-Divisional Magistrate
or the 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 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
11 of 23
(( 12 )) Cri-WP-844-2024
such area and any district or districts, or any part thereof, contiguous
thereto within such time as such officer shall prescribe, and not to enter
to 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.
56. Removal of persons 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 specially empowered by the State Government in
that behalf
(a) that the movements or acts of any person are causing or calculated
to cause alarm, 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 of an offence
involving force or violence or an offence punishable under Chapter XII,
XVI or XVII of the Indian Penal Code, or in the abatement of any such
offence and when in the opinion of such 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) that there are reasonable grounds for believing that such person is
acting or is about to act
(1)in any manner prejudicial to the maintenance of public order
as defined in the Maharashtra Prevention of Communal, Antisocial and
other Dangerous Activities Act, 1980 or
(2) in any manner prejudicial to the maintenance or supplies of
commodities essential to the community as defined in the Explanation
to sub-section (1) of section 3 of the Prevention of Blackmarketing and
Maintenance of Supplies of Essential Commodities Act, 1980, or
(3) that an outbreak of epidemic disease is likely to result from
the continued residence of an immigrant, the said office may, by an
order in writing duly served on him or by beat of drum or otherwise as
he thinks fit, direct such person or immigrant so to conduct himself as
12 of 23
(( 13 )) Cri-WP-844-2024
shall seem necessary in order to prevent violence and alarm or such
prejudicial act, or the outbreak or spread of such disease or
notwithstanding anything contained in this Act or any other law for the
time being in force, to remove himself outside such area or areas in the
State of Maharashtra (whether within the local limits of the jurisdiction
of the officer or not and whether contiguous or not), by such route, and
within such time, as the officer may specify and not to enter or return
to the area or areas specified (hereinafter referred to as "the specified
area or areas ") from which he was directed to remove himself.
(2) An officer directing any person under such-section (1) to remove
himself from any specified area or areas in the State may further direct
such person that during the period the order made against him is in
force, as and when he resides in any other areas in the State, he shall
report his place of residence to the officer-in-charge of the nearest
police station once in every month, even if there be no change in his
address. The said officer may also direct that, during the said period, as
and when he goes away from the State, he shall, within ten days from
the date of his departure from the State send a report in writing to the
said officer, either by post or otherwise, of the date of his departure,
and as and when he comes back to the State he shall, within ten days,
from the date of his arrival in the State, report the date of his arrival to
the officer-in-charge of the police station nearest to the place where he
may be staying."
17. On plain reading of Section 56(1)(a)(b) of the Act of
1951, it would show that subjective satisfaction for passing of
externment order cannot be recorded on the basis of offences/crimes
under which the present Petitioner already tried and acquitted by the
competent Court.
18. The action for externment of the Petitioner certainly takes
his liberty as an individual guaranteed under Articles 19 of the
13 of 23
(( 14 )) Cri-WP-844-2024
Constitution of India. Therefore, the grounds for externment of the
Petitioner provided under clause (a) of sub-section (1) of Section 56
must show that, the Petitioner causing or is calculated to cause
danger or alarm or harm to a person or property. As per clause (b) of
sub-section (1) of Section 56, the grounds for externment must
believe that the Petitioner is engaged or is about to be engaged in the
commission of an offence involving affairs or violence or an offence
punishable under Chapter XII, XVI, XVII of I.P.C. or abatement of any
such offence. Further, the competent authority is empowered to pass
order or externment if any is known the witnesses are not willing to
come forward to give evidence in public against the Petitioner.
19. In the case of Deepak Laxman Dongre cited (supra) on
behalf of the Petitioner, the Hon'ble Supreme Court considered the
scope of Section 56 of the Maharashtra Police Act and held in
paragraphs 11 to 13, as under:-
"11. In the facts of the case, the non-application of mind is apparent on
the face of the record as the order dated 2nd June 2020 of the learned
Judicial Magistrate is not even considered in the impugned order of
externment though the appellant specifically relied upon it in his reply.
This is very relevant as the appellant was sought to be detained under
sub-section (3) of Section 151 of Cr.PC for a period of 15 days on the
basis of the same offences which are relied upon in the impugned order
of externment. As mentioned earlier, from 2nd June 2020 till the
14 of 23
(( 15 )) Cri-WP-844-2024
passing of the impugned order of externment, the appellant is not
shown to be involved in any objectionable activity. The impugned order
appears to have been passed casually in a cavalier manner. The first
three offences relied upon are of 2013 and 2018 which are stale
offences in the sense that there is no live link between the said offences
and the necessity of passing an order of externment in the year 2020.
The two offences of 2020 alleged against the appellant are against two
individuals. The first one is the daughter of the said MLA and the other
is the said Varsha Bankar. There is material on record to show that the
said Varsha Bankar was acting as per the instructions of the brother of
the said MLA. The said two offences are in respect of individuals. There
is no material on record to show that witnesses were not coming
forward to depose in these two cases. Therefore, both clauses (a) and
(b) of subsection (1) of Section 56 are not attracted.
12. As the order impugned 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. Considering
the bare facts on record, the said order shows non-application of mind
and smacks of arbitrariness. Therefore, it becomes vulnerable. The
order cannot be sustained in law.
13. Section 58 of the 1951 Act reads thus:
"58. Period of operation of orders under section 55, 56, 57 and
57A - A direction made under section 55, 56,57 and 57A not to
enter any particular area or such area and any District or
Districts, or any part thereof, contiguous thereto, or any specified
area or areas as the case maybe, 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
15 of 23
(( 16 )) Cri-WP-844-2024
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 two 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 externment 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."
20. In the case of Imtiyaz Hussain Sayyad (supra), it is held
that, mere registration of a number of offences by itself does not
sustain an externment under Section 56(1)(b) of the Act. The
offences must either involve elements of force or violence or fall
under Chapters XII, XVI and XVII of the I.P.C. and in addition, the
externing authority must record satisfaction that the witnesses are not
willing to come forward to give evidence in public against the
externee by reason of apprehension on their part as regards the safety
of their person or property. In paragraph 19, this Court held that two
crimes are registered, but those are under investigation and no
16 of 23
(( 17 )) Cri-WP-844-2024
charge-sheet has been filed. Hence, the same cannot be taken into
consideration as depending upon the outcome of the investigation,
the investigating agency may or may not send the accused for trial.
So also, there must be live link between the cases filed against the
Petitioner and the externment order.
21. In the case of Subhash Ganu Bhoir cited (supra), this
Court has observed in paragraph 5, as under:-
"5. In the petition a specific statement has been made by the petitioner
that the earlier externment order passed against him was quashed by
the Court in Criminal Writ Petition No. 720 of 1982. It is also alleged
that the first three allegations made in the impugned show cause notice
were also the subject matter of the earlier order. In the judgment of this
Court in Criminal Writ Petition No. 720 of 1982 decided on 6th of
December, 1982 by Kurdukar and D.B. Deshpande, JJ., it was observed
that there was an allegation that the externee had committed one
murder, but it was not disputed that he was honourably acquitted by
the Session Court. Inspite of these observations of this Court in
Criminal Writ Petition No. 720 of 1982, again the said allegation is
repeated in the show cause notice as instance No. 1. In other matters
also the externee was acquitted and it is the case of the petitioner that
it was a honourable acquittal. To say the least the said instances are too
remote and stale. As to why the chapter cases instituted against the
petitioner came to be dropped, is also not explained. In these
circumstances by talking recourse to old and stale instances, which
were the subject matter of the earlier proceedings, no order could have
been passed under section 56(a) and (b) of the Bombay Police Act. In
our view some of the grounds which were the subject matter of the
earlier externment proceedings in Criminal Writ Petition No. 720 of
1982, could not have been made basis of the present externment
proceedings in view of the decision of this Court in Criminal Writ
Petition No. 720 of 1982. Once this finding is recorded, then the whole
order must get vitiated."
17 of 23
(( 18 )) Cri-WP-844-2024
22. In the case of Imran Abdul Wahid Hasmi, cited (supra),
the Division Bench of this Court held in paragraph 10, as under:-
"10. On perusal of the order of externment as well as the show-cause
notice, it is apparent that the action was initiated in exercise of powers
under Section 56 (1)(a) and (b) of the said Act. In the notice, it has
been mentioned that since 2011, the petitioners movements and
activities had caused or calculated to cause danger, harm and alarm to
the persons and properties of the residents, shop owners and
businessmen from the area of Sanjay Nagar Hutments, Sant Nirankari
Hutments at Shivaji Nagar, Vainganwadi, Govandi and adjoining areas.
The petitioner was also informed that he was involved in commission of
offences and the cases are pending against him as well as one case is
under investigation. It is further mentioned that the petitioner has
committed serious offences within the areas mentioned therein and
have committed offences punishable under Chapters 16 and 17 of the
Indian Penal Code. The notice further refers to the statements of two
witnesses who are not willing to come forward to depose against him
on account of fear which was recorded in-camera. In paragraph 4 of the
notice, it is mentioned that the witnesses referred to in paragraph 2(a)
and (b) are victims at the hands of the petitioners and they are not
willing to come forward to depose against the petitioner in public. It is
pertinent to note that the aforesaid assertion is in respect to the
activities referred by witnesses (a) and (b) whose statements were
recorded in-camera. Hence, as far as the other allegations referred to in
the notice, there is no satisfaction therein that the witnesses in
connection with said activities are not willing to come forward to
depose against the petitioner in public. The notice spells out the
activities which forms the grounds under Clause (a) and clause (b) of
Section 56 (1) of the said Act, however, the satisfaction that the
witnesses are not willing to come forward to depose against the
petitioner is recorded only in respect of the activities reflected in
paragraph nos. 2(a) and 2(b) of the notice. No such satisfaction is spelt
out in respect of the activities reflected in the introductory paragraph
1(a) of the notice."
18 of 23
(( 19 )) Cri-WP-844-2024
23. In the case of Iqbal Hussain Abid Hussain Qureshi
(supra), it has been held that, once it is held that the Petitioner was
denied the reasonable opportunity the said ground could not have
been the basis of formation of opinion. It is also clear that when the
order of externment is based on the several grounds and one of the
grounds cannot be sustained, the Court cannot decide which ground
weights with the Externing Authority and it cannot substitute the
decision over that of the Externing Authority. The order on that count
is liable to be quashed and set aside.
24. In the Judgment dated 02.09.2024, delivered by this
Court in Cri. W. P. No.1190 of 2024, it has been observed in
paragraphs 11 and 12, as under:-
"11. Not mentioning the general nature of material in a show cause
notice invalidates such notice. It must mention the fact that the
witnesses are not coming forward to give the evidence against him in
public for the reason of apprehension as regards to the safety to his
person and property. The law is well settled that the camera statement
of the witnesses should mention the specific details regarding the time,
place, and month of the incident. If such statements are vague, the
externment order should be considered invalid.
12. The pronouncement of the Hon'ble Supreme Court and the
Bombay High Court on section 56 of the Act would be summarized as
follows;
a) The show cause notice under section 59 of the Act should
mention the details of crimes registered against the proposed
externee.
19 of 23
(( 20 )) Cri-WP-844-2024
b) The show cause notice should disclose the facts that the
witnesses are not willing to come forward to give the evidence
against the proposed externee in public by reason of
apprehension on their part as regards the safety of their person
or property.
c) The Authority should believe that there are reasonable
grounds to form an opinion that such person is engaged or is
about to be engaged in the commission of an offence involving
force or violence or an offences punishable under Chapters XII,
XVI and XVII of the Indian Penal Code and abetment thereof.
d) The principle of natural justice by granting fair hearing to
such person shall be followed.
e) There shall be live link and proximity in crime and the action
of the externment. There should be no abnormal delay in passing
externment orders from the last offence registered against him.
f) The Authority shall be subjectively satisfied with the objective
material.
g) The cases registered and pending against such a person
should not be stale and old.
h) The orders should not be for excessive areas of externing such
a person from larger areas and while passing such orders, the
authority must assign the reasons for extering him beyond the
area of operation.
i) The authority can not consider the extraneous material which
was not disclosed in the show cause notices.
j) The camera statements of the witnesses should not be vague
and identical. The order should reflect the application of mind. "
25. In case in hand, it is not in dispute that, the Petitioner
served with the show-cause notice under Section 56(a)(b) of the
Maharashtra Police Act because of registration of series of crimes for
various offence under the Indian Penal Code, Official Secrets Act,
Prevention of Damage to the Public Property, Indian Arms Act,
20 of 23
(( 21 )) Cri-WP-844-2024
Maharashtra Police Act, Anti Terrorist Act, MCOC Act,1999 etc., as
described in para 7 referred above. Further, recently, Crime numbers
406 of 2023 and 407 of 2023 are registered against the petitioner
with Shrirampur Police Station for the offences u/s 143, 147, 148,
149, 323, 504, 506 of IPC and Sec. 3(1)(r),3(1)(s) of SC,ST Atrocities
Act. However, in both these crimes no charge sheets are filed against
the petitioner till date of service of externment notice. Therefore, as
per the dictum laid down by this Court in the case of Imtiyaz Hussain
Sayyad, cited (supra), said crimes cannot be considered for
externment of the Petitioner.
26. Further, the Respondents Police Authorities are fail to bring
substantial materil on record to connect live link between the cases
registered against the Petitioner and the externment order. The
Petitioner is acquitted in Crime Serial Nos. 1, 3 and 4, whereas, Crime
Serial Nos. 2, 5, 6 and 7 are stale offences. As per Judgment dated
27.07.2017 passed by this Court in Criminal Writ Petition No.857 of
2017, the crime Serial Nos. 2 and 5 are not having live link in 2024.
Therefore, said offences in which the Petitioner already acquitted,
cannot be considered for externment. However, Respondent No.3
Externing Authority considered statement of witnesses (A) and (B),
21 of 23
(( 22 )) Cri-WP-844-2024
recorded in camera, but there is no satisfactorily explanation about
statements of said witnesses to show that, due to criminal activities of
the petitioner the witnesses are not willing to come forward to depose
against the Petitioner in public. There is no live link and proximity
between last crime registered against the Petitioner and action
initiated under Section 56(1)(a)(b) of the Maharashtra Police Act.
27. Needless to say that, in past the Petitioner was externed
on the same set of facts and set order of externmnt came to be
quashed by this Court vide Judgment dated 17.07.2017 in Criminal
Writ Petition No.857 of 2017. Not only this but subsequent
externment order also quashed by the Respondent No.2. Therefore,
in my view the Respondents Police Authorities are fail to bring cogent
material on record to connect live link and proximity between the last
crime registered against the Petitioner and proposed action of
externment u/s 56(1)(a)(b) of the Act,1951.
28. It is further submitted that, Sec. 56 provides maximum
period of externment is two years. In case of Deepak Laxman Dongre
cited (supra) it is held that, when the competent authority passes an
order for the maximum period of two years it is necessary to record
22 of 23
(( 23 )) Cri-WP-844-2024
subjective satisfaction about imposing such period and must disclose an
application of mind for passing an order of externment for the maximum
period of two years based on material available on record and in
absence of explanation it will amount to imposing unreasonable
restrictions on the fundamental right guaranteed under clause (d) of
Article 19(1) of the Constitution of India. However, in case-in-hand, the
Externing authority fail to give any explanation for externment of the
petitioner for the maximum period of two years, hence, it is violative of
right of the petitioner granted under Art. 19 (1) of the Constitution of
India.
29. In the light of above discussions, I proceed to pass the
following order:
::ORDER::
(i) Rule is made absolute.
(ii) The impugned orders dated 28.03.2024 passed by
Respondent No.2, Divisional Commissioner, Nashik, in
Externment Appeal No.19 of 2024 and order dated
31.01.2024 passed by Respondent No.3 Sub-Divisional
Officer, Shrirampur, are quashed and set aside.
[ Y. G. KHOBRAGADE, J. ]
SMS
23 of 23
