[Cites 12, Cited by 0]

Bombay High Court

Vakil Khairati Khan vs The State Of Maharashtr And Ors on 30 January, 2026

Author: N. J. Jamadar

Bench: N. J. Jamadar

2026:BHC-AS:5029
23-WP3075-2025.DOC

Santosh

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 3075 OF 2025

Vakil Khairati Khan ...Petitioner
Versus
The State of Maharashtra & ors. ...Respondents

Mr. Sandesh More, a/w Akash Sawale, for the Petitioner.
SANTOSH
SUBHASH Mr. D. J. Haldankar, APP for the State.
KULKARNI
Digitally signed by
SANTOSH SUBHASH
KULKARNI
CORAM: N. J. JAMADAR, J.
Date: 2026.01.31
18:01:14 +0530
DATED: 30th JANUARY, 2026

Order:-

1. Rule. Rule made returnable forthwith and, with the

consent of the learned Counsel for the parties, heard finally.

2. By this petition under Articles 226 and 227 of the

Constitution of India, the petitioner assails the legality, propriety

and correctness of an order dated 2nd May, 2025, whereby an

appeal preferred by the petitioner against an order of

externment dated 13th September, 2024 passed by the Sub-

Divisional Magistrate, Ulhas Nagar, under Section 56(1)(b) of the

Maharashtra Police Act, 1951 ("the Police Act, 1951") came to be

dismissed.

3. A notice dated 20th July, 2023, under Section 59 of the

Police Act, 1951 was addressed to the petitioner calling upon
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him to show cause as to why an action of externment be not

initiated against the petitioner as the movements or acts of the

petitioner were causing or calculated to be cause alarm, danger

or harm to person or property and there were reasonable

grounds for believing that the petitioner was engaged or was

about to be engaged in the commission of offences involving

force or violence or for the offence punishable under Chapters

XVI and XVII of the Indian Penal Code, 1860 ("the Penal Code,

1860") and the witnesses were not willing to come forward to

give evidence in public against the petitioner on account of the

reign of terror created by the petitioner. A reference was made

to four crimes registered against the petitioner at Kulgaon Police

Station.

4. Eventually, after appraisal of the material on record

including the statements of two confidential witnesses and the

cause ascribed by the petitioner, the Sub-Divisional Magistrate

passed an order thereby directing the externment of the

petitioner from the limits of Thane, Raigad, Nashik and Mumbai

districts for a term of two years.

5. Being aggrieved, the petitioner preferred an appeal before

the Divisional Commissioner under Section 60 of the Police Act,

1951. By the impugned order dated 2nd May, 2025, the

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Divisional Commissioner dismissed the appeal finding no

infirmity in the order of externment passed by the Sub-

Divisional Magistrate.

6. Being further aggrieved, the petitioner has invoked the

writ jurisdiction.

7. I have heard Mr. Sandesh More, the learned Counsel for

the petitioner, and, Mr. D. J. Haldankar, the learned APP for the

State, at some length. With the assistance of the learned

Counsel for the parties, I have perused the material on record.

8. Mr. More, the learned Counsel for the petitioner,

submitted that the impugned order suffers from multifold

infirmities. Firstly, the order passed by the Sub-Divisional

Magistrate is vitiated by complete non-application of mind as in

two of the cases, arising out of the crimes arrayed against the

petitioner i.e. CR Nos.33/2010 and 13/2015, the petitioner has

been duly acquitted. Yet, in the show cause notice those cases

were shown to be subjudice. Secondly, there was no live-link

between the crimes registered against the petitioner and

measure of externment, as the first three crimes were registered

during the period 2010 to 2019. Thirdly, the order of

externment is arbitrary and excessive in nature as the petitioner

has been externed from an expansive area of four districts
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Thane, Raigad, Nashik and Mumbai, though the crimes have

been registered against the petitioner at Kulgaon Police Station

only. Lastly, no reason has been ascribed as to why the

petitioner has been externed for the full term of two years.

9. Per contra, Mr. Haldankar, the learned APP, endeavoured

to support the impugned order. It was submitted that

subjective satisfaction arrived at by the Competent Authority on

the basis of object material is not amenable to interference in

exercise of writ jurisdiction.

10. The measure of externment, by its very nature, is extra-

ordinary. It has the effect of forced displacement from the home

and surroundings. Often it affects the livelihood of the person

ordered to be externed, and the dependants on him. Thus, there

must exist justifiable ground to sustain an order of externment.

The order of externment, therefore, must be strictly within the

bounds of the statutory provisions. Under clause (a) of sub-

Section (1) of Section 56, the externing authority must be

satisfied on the basis of the objective material that the

movements or acts of the person to be externed are causing or

calculated to cause alarm, danger or harm to person or

property. Under clause (b), there must be an objective material

on the strength of which the externing authority must record

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subjective satisfaction that there are reasonable grounds for

believing that the externee is engaged or about to be engaged in

the commission of offences involving force or violence.

11. 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 Indian Penal Code. 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 effect,

to sustain an action of externment under sub-clause (b), the

offences the externee has engaged in must be under one of the

Chapters enumerated therein and that the acts or conduct of

the externee are such that the witnesses are terrified and

dissuaded from giving evidence against the externee in public

fearing safety of their person or property.

12. The following four crimes, registered against the petitioner,

were taken into account by the Sub-Divisional Magistrate:

Sr. No. Police C. R. No. Sections Court Case Current
Station No. status
1 Kulgaon 33 of 2010 302, 352, 34, 379, 47/2011 Order
427, 120(B) of IPC passed
and 3, 25, 27(3) of
the Arms Act

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2 Kulgaon 13 of 2015 147, 148, 149, 324, 397/2015 Order
323, 504, 506, 423 passed
of the IPC and
Section 37(1)(3) and
135 of the Mumbai
Police Act
3 Kulgaon 25 of 2019 353, 341, 332, 504 1183/ 2019 Pending
and 506 of IPC
4 Kulgaon 14 of 2019 387, 352, 504 and 954/ 2023 Pending
506 of the IPC

13. It could not be controverted that in RCC No.397 of 2015

arising out CR No.13/2015 registered with Kulgaon Police

Station, the petitioner was acquitted by the learned Magistrate

by a judgment and order dated 7 th July, 2023. Likewise, in

Sessions Case No.47/2011 arising out CR No.33 of 2010, the

petitioner was acquitted by a judgment and order dated 29 th

February, 2024, passed by the learned Sessions Judge, Kalyan.

14. In the order passed by the Sub-Divisional Magistrate,

though it is recorded that the petitioner has been acquitted in

those first two crimes, yet, it does not appear that the import

thereof was considered. Once the petitioner was acquitted in

the prosecutions arising out of the first two crimes, there was

no reason to take into account those two crimes in arriving at

the subjective satisfaction regarding the necessity of

externment.

15. Secondly, and, at any rate, not only the first two crimes

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but even the third i.e. CR No.25/2019 were registered in a

distant past. The live-link between those crimes and the

measure of externment was completely snapped. Resultantly, if

the first three crimes are eschewed from consideration, what

remains is CR No.14/2023, registered with Kulgaon Police

Station. Mr. More was, thus, justified in canvassing a

submission that the order of externment was passed on the

basis of material which could not have been legitimately taken

into account.

16. The challenge to the order on the ground of it being

arbitrary and excessive in relation to the area of externment

also cannot be brushed aside lightly. It is true in view of the full

Bench judgment in the case of Sumit s/o Ramkrishna

Maraskolhe vs Deputy Commissioner and anr.1, the Competent

Authority may extern the externee from a expansive area.

However, there ought to be material evincible from the record

which indicates that the Competent Authority applied its mind

to the necessity of externment from an expansive area. The

Court does not find that any reason, much less justifiable one,

has been ascribed for externing, the petitioner from such an

expansive area. The order of externment, thus, constitutes an

1 Criminal WP/1002/2017 Nagpur Bench, dated 8/2/2019.
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unreasonable restraint on the fundamental freedom of the

petitioner.

17. Lastly, it seems the Competent Authority was not at all

alive to the position that though under the provisions of Section

59 of the Police Act, 1951 an externee can be externed for the

maximum term of two years, however, it is for the Authority to

arrive at a subjective satisfaction whether the externee should

be externed for the full term of two years or a lesser period on

the basis of objective material. No reason has been ascribed by

the Competent Authority to extern the petitioner for the full

terms of two years.

18. A useful reference in this context can be made to the

judgment of the Supreme Court in the case of Deepak s/o

Laxman Dongre V/s. State of Maharashtra and Ors. 2, wherein

the Supreme Court, after adverting to the provisions of Section

58 of the Act, 1951, underscored the necessity of arriving at the

subjective satisfaction regarding the term of externment also on

the basis of objective material. It was ruled that, where the

externee is externed for a maximum permissible period of two

years, without recording the subjective satisfaction regarding

the necessity of the externment for a full term, it would amount

2 (2023) 14 SCC 707.
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to imposing unreasonable restrictions on the fundamental

rights guaranteed under clause (d) of Article 19(1) of the

Constitution of India. The observations in paragraph No.16 of

the said judgment are instructive, and, hence, extracted below:

"16. 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 two years, the order of
extrnment 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 15 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."
(emphasis supplied)

19. The order of externment, thus, suffers from multiple legal

infirmities. The Appellate Authority failed to correct those

manifest errors. Therefore, both the orders deserve to be

quashed and set aside.

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20. Hence, the following order:

:ORDER:

(i) The writ petition stands allowed.

(ii) The impugned order dated 2nd May, 2025 as well as the

order dated 13th September, 2024 passed by the

Competent Authority externing the Petitioner stand