Quashed

Rajvardhan Babaso Patil and Ors. v. Sub Divisional Police Officer and Ors.

Bombay HC4 Sept 2013WP/459/2013

Case brief

AI extract

What is this about?

In two common criminal writ petitions, the Bombay High Court quashed an appellate order confirming an externment order passed against four petitioners under the Bombay Police Act, 1951. The court found the order arbitrary, based on outdated offences, and vitiated by the non-disclosure of in-camera evidence in the show-cause notice, failing to prove concerted gang conduct.

What did the court decide?

The appellate order of 30th November 2012 and the order of externment of 6th February 2012 are quashed and set aside. Rule is made absolute in terms of the prayer clause.

Rajvardhan Babaso Patil and Ors. Vs Sub… — Constitutional and Fundamental Rights | Bombay HC (2013)

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CRIWP399-459-13-F

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Shephali

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.399 OF 2013

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Shri Rajwardhan Babaso Patil , Age 22 years, occ: agriculturist, R/at Near Old Kolhapur Octroi Post, Peth Vadgaon, Tal: Hatkanangale, Dist: Kolhapur …Petitioner

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versus

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Shri Vijaysinha Jadhav ,

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The Superintendent of Police, Kolhapur 2 The State of Maharashtra …Respondents

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Mr. S.V. Kotwal, Advocate, i/b Mr. Hrishikesh Mundargi, Advocate for the Petitioners.

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Mr. K.V. Saste for the Respondents.

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ALONG WITH

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CRIMINAL WRIT PETITION NO.459 OF 2013

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Shri Rajvardhan Babaso Patil , Age: Adult, occ: agriculture, R/o Near Old Kolhapur Octroi Post, Peth Vadgaon, Tal: Hatkanangale, Dist: Kolhapur

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Shri Sanjay Tanaji Kothavale @ More , Age: Adult, occ: agriculturist, R/o. Peth Vadgaon, Tal: Hatkanangale, Dist: Kolhapur

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Shri Mahesh Anil Patl @ Waghire , Age: Adult, occ: agriculturist, R/o. Savarkar Chowk, Peth Vadgaon, Tal: Hatkanangale, Dist: Kolhapur 4. Shri Sagar Jaysinghrao Bhosale , Age: Adult, occ: agriculture, R/o. Shivaji Chowk, Peth Vadgaon, Tal: Hatkanangale, Dist: Kolhapur

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…Petitioners

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versus

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Sub-Divisional Officer , Shahuwadi Division, Kolhapur

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Superintendent of Police , Kolhapur

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The State of Maharashtra Through the Secretary (Special), Home Department, Government of Maharashtra …Respondents

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Mr. S.V. Kotwal, Advocate, i/b Mr. Ujwal Agandsurve, Advocate for the Petitioners.

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Mr. K.V. Saste for the Respondents.

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CORAM : S.C. Dharmadhikari, & G.S.Patel, JJ.

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JUDGEMENT RESERVED ON : 26th August 2013 JUDGEMENT PRONOUNCED ON : 4th September 2013

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JUDGMENT : (Per G.S. Patel, J.)

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Rule, returnable forthwith. Mr. Saste, Learned AGP, waives service on behalf of the Respondents. By consent, taken up for hearing and final disposal.

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The Petitioner in Writ Petition No.399 of 2013 is the first of the four Petitioners in Writ Petition 459 of 2013. The facts are common to both petitions, as are the orders under challenge; hence, both Petitions were heard together and are disposed of by this common judgment.

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These Petitions are directed against the Appellate Order dated 30th November 2012 passed by the Secretary–Special, Home Department, Government of Maharashtra (the 3rd Respondent in Writ Petition No.459 of 2012) in Appeal No. EXT-2012/110/SPL-3(B). That appellate order confirms an Externment Order No. 22LCB/Externment/276/2012 dated 6th February 2012 passed by the Superintendent of Police, Kolhapur (the 1st Respondent in Writ Petition 399 of 2013 and the 2nd Respondent in Writ Petition 459 of 2013), by which the Petitioners in both matters were ordered to be externed from Kolhapur District for two years.

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On the basis of a previous externment petition from the Police Officer of the Jaysingpur Division and an enquiry report from the Sub Divisional Police Officer of the Shahuwadi Sub-Division, the Superintendent of Police, Kolhapur Division issued a notice dated 1st

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June 2011 to the Petitioners calling on them to show cause why they should not be ordered to be externed from the Kolhapur District. The Petitioners replied to this notice and were heard. In respect of the Petitioner in Writ Petition 399 of 2012, there seems also to have been a second show cause notice, dated 11 November 2011, a matter of some consequence to the Petitioners’ submissions before us. The Superintendent of Police, Kolhapur, passed an order dated 6th February 2012, ordering the externment of the Petitioners from the Kolhapur District for two years. There followed, at least in the matter of the first of the two Petitions at hand, some intervening litigation in the writ courts. These litigations are not immediately relevant, for they resulted in orders directing that statutory appeals be filed and heard within a court-mandated period. Ultimately, the Petitioners filed an appeal before the Secretary-Special, Home Department, Government of Maharashtra (the Appellate Authority), who, on 30th November 2012, passed the impugned appellate order confirming the order of externment.

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Mr. Kotwal, Learned Counsel for the Petitioners, canvassed several grounds of challenge before us. The impugned appellate order and the externment order are both, he says, based on extraneous considerations: the externment order refers to the alleged misconduct of the 1st Petitioner in WP 459/2013 (the Petitioner in WP 399/2013), Rajvardan Babaso Patil (“ Patil ”), said to be a gang-leader, and a warning issued to him by the police for his wayward behaviour; all matters absent in the show cause notice. The externment order also

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alleges that the Patil has been enticing and drawing youth to his gang, a matter wholly outside the purview of Section 55 of the Bombay Police Act, 1951 under which the externment order is passed. A number of alleged offences and criminal cases are bundled into the same show cause notices issued to more than one externee and it is, therefore, not possible to segregate with the required exactitude who stands accused of having done what in concert with whom as part of a gang or body of persons, apart from the fact that in some of the cited criminal cases, the noticees have been acquitted while others are being compromised. There were in fact two show cause notices issued to Patil as the alleged gang-leader, one dated 1st June 2011 and the second of 11 November 2011; it is, at this stage, in his submission, not possible to tell which of these, if either, has been subsumed into the subsequent orders or whether one of them is still outstanding. There is, he next submits, a mention in the externment order of the evidence given by in-camera witnesses, not to be found in the show cause notice/s. The Superintendent of Police appears to have misconducted himself and treated the proceedings before him as judicial proceedings, including forming a generalised opinion that this is the “rarest of rare” cases justifying such an order of externment.

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The impugned appellate order, in Mr. Kotwal’s submission, does not satisfactorily address the issues at hand. It merely notes that Patil is said to be the leader of the “Raj gang” and that there are various allegations against him, and that criminal cases have been filed against him and others to whom notices were issued. The status of

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those cases is not noted. Patil, for instance, has been acquitted in all cases except for one that is still pending. For the other Petitioners, the criminal cases are old, ranging from 2008 to 2011. In most of these, those Petitioners have been granted bail. In others, they have, after the issuance of the show cause notices, been acquitted. But, viewed from any angle, none of those cases are so recent as to warrant the extreme action of externment. In any event, in his submission, a pending criminal case can never form the basis of an externment order. The appellate authority has only noted the want of “improvement” in the behaviour of the Petitioners despite “preventive action” and, on this basis, the appellate authority has concluded that the show cause notice under Section 59 of the Bombay Police Act, 1951 and the Externment Order under appeal were unambiguous. The reference in the impugned Appellate Order to in-camera statements shows, Mr. Kotwal says, a total non-application of mind since it was pointed out that the show-cause notice/s had no reference to these. The in-camera statements relied on by both authorities are without the requisite particulars of date, time and place of alleged incidents. In any event, the show cause notices of 1st June 2011 to the Petitioners other than Patil do not mention in-camera witness statements at all; these come for the first time in the externment order.

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Mr. Saste, Learned APP, took us through the Affidavits in Reply in both Petitions, submitting that given the criminal activities and antecedents of the Petitioners, action under Section 55 of the Bombay Police Act, 1951 was entirely justified. The Raj Gang’s criminal

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activities, he submitted, are not confined to certain localities but are geographically dispersed; and, despite repeated warnings, cautions and action by the police, there has been no improvement in the Petitioners’ conduct.

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Section 55 of the Bombay Police Act, 1951 relates to the “dispersal of gangs and bodies of persons”. It postulates several requirements; all must be met for a valid order under that section. Within the command areas specified in the section, there must be a gang or body of persons whose movement or encampment causes, or is calculated to cause, danger, alarm, or to give rise to a reasonable suspicion of unlawful designs by this gang or body of persons. If this be found to be so, the designated authority can, in his discretion, issue two kinds of directions. The first is preventive: to regulate the conduct of the gang/body of persons in the manner prescribed. It is intended to prevent violence and alarm. The second is to actually order the defenestration of every member of the gang from the competent authority’s local jurisdictional limits. This could be an entire district or part of it, or even the whole or part of contiguous districts. The second kind of direction is evidently a more extreme form of action. Being a restriction imposed on, or a curtailment of, fundamental Constitutional liberties, it must, for that reason, must be reasonable, not arbitrary, and based on cogent material. It also cannot be indefinite, nor can its duration be unreasonable in the context of the facts at hand. The unifying factor in the section is, first, the concerted or collective engagement by those who are sought to be externed in one

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or more of the offending acts; and, second, action taken collectively against every member of the gang or body of persons. The second, collective action against the group, is a logical corollary to the first, their shared participation in offending acts. It follows, therefore, that in passing an order of externment under Section 55, it must be demonstrable from the record that the persons sought to be externed are acting in concert as a gang or a body of persons.¹ Disjunct or disparate actions, however criminal, do not justify action under Section 55. The gang’s acts that form the basis of any such order must also be continuous and incessant, not ones going well back in time.

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The show cause notices tabulate criminal cases registered against the Petitioners. These range from 2008 to 2011. By the time the externment order was passed, these could not be said to have retained any immediacy. We note, too, that in many of the cases, in the intervening period between the show cause notices and the externment order, many of the Petitioners were acquitted in several cases and obtained bail in others, leaving only a few still pending. This, to our mind, is a consideration that both authorities entirely overlooked. In the Affidavit in Reply in Writ Petition 399 of 2013, the fact of such acquittals and compromises is admitted, but the contention is that this was achieved by “turning witnesses hostile on the point of fear”.² There is no such finding in either the externment order or the

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1 Suraj Ramsing Bire & Ors., vs State of Maharashtra & Ors , Writ Petition Nos. 3572 of 2010 and 3573 of 2010, decided on 7th January 2011; Ahammad Mainuddin Shaikh v State of Maharashtra & Anr , Writ Petition 2385 of 2013, decided on 16th August 2013.

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2 Para 15, Affidavit in Reply in Writ Petition 399 of 2013

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appellate order. From the externment order, it appears that some of the Petitioners are co-accused in some criminal cases, while others are not; and it is, therefore, difficult to ascertain consistent, continuous, collective offences by all the Petitioners. Had the Petitioners each been dealt with separately and, perhaps, under some other section of the Bombay Police Act, matters may have been different. But as soon as all the Petitioners were joined together in a single externment order, one said to be under Section 55, it was incumbent on the authorities to show that their actions were that of a gang or body of persons acting as such; and that these actions bear a temporal proximity to the externment order.

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There is, we find, a very long gap between the time of issuance of the show cause notices on 1st June 2011 and the externment order of 6th February 2012.³ There is no explanation for this at all in the Affidavit in Reply in Writ Petition 399 of 2013. In paragraph 13 of the Affidavit in Reply in the second matter, Writ Petition 459 of 2103, we are told that the delay was because there were multiple proposed externees in a single proposal; service of notices took time; the externees sought adjournments; the externing authority, having other duties, was also busy attending to VIPs and VVIPs, emergent law and order situations elsewhere, security arrangements during festivals and

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3 There is also a delay of several months from the date of the externment order (6th February 2012) and the date of the appellate order (30th November 2012), but this, we believe, is not fatal; for some of that time was spent in litigation against the externment order and there was, too, the fire at the Mantralaya that is said to have damaged or destroyed some of the files in question.

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so on. We find this unacceptable. There is not only no specific material of repeated adjournments, but it surely cannot be suggested that the travel plans of a VIP or, for that matter, a VVIP, outweigh constitutional guarantees of fundamental rights.

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As to the in-camera statements relied on by both the externing authority and the appellate authority, it seems not to be denied that there is no reference to these at all in the show cause notices; that these were stereotyped and lacking in material particulars with only minor changes in dates and places. The in-camera witness statements are also widely disparate in time and in the nature of acts alleged, as also divergent in those said to be involved in each act. The so-called offending actions range from a quarrel or scuffle outside a liquor bar on the matter of the amount of the bill and subsequent damage to property within, to altercations and incidents during unconnected festivities and events.

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We expected to find material that the appellate authority had carefully weighed and considered all these, and other, factors. Unfortunately, we do not. The appellate order itself seems formulaic, even to the point of being unthinking. There is no appreciation at all of the issue of delay; the question of the relevance of the criminal cases and the fact that many have ended in acquittals; or the disjointed nature of the evidence of in-camera witnesses. For instance, 5(f) of the appellate order says:

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“f) I have seen the in-camera statements carefully. The Appellant uses sharp weapon to injure persons. The in-camera statements recorded against the appellant disclose the criminal attitude of the appellant and the contents from said in-camera statements necessary to have the idea of the incident are provided to the appellant. The contents provided to the appellant are sufficient enough. Hence contention of the Appellants that the details of in-camera statements are not furnished is not true.”

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The problems of such a finding are so many that it is hard to know where to begin. There was not just one appellant; there were four. Which of these “uses sharp weapon [ sic ] to injure persons”? Do all of them do this, or just Patil? Do all witnesses say so, in the appellate authority’s ‘careful’ reading of the in-camera statements? An altercation at a permit room, or even damage to the premises, is not necessarily evidence of the concerted criminal intent of a gang or body of persons. How do the in-camera witness statement correlate so as to point to a consistent pattern of criminal conduct of the Petitioners as a gang? This was a necessary finding, and it is altogether absent in the appellate order. That order consistently refers to a single appellant, his “bullying nature” and so on. This is evidently a reference to Patil, but if Section 55 was to be invoked, it was necessary to delineate his conduct as the leader of a gang, not an individual, as also the conduct of the other Petitioners as members of that gang. We find nothing of this in the appellate authority’s order. There is, instead, only an unacceptable casualness wholly inimical to the stringent standards expected in all externment proceedings.

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It is not possible to sustain the appellate order of 30th November 2012 that upholds the the order of externment of 6th February 2012. The appellate order in both Petitions is quashed and set aside. Rule is made absolute in both Petitions in terms of prayer clause (a). There will be no order as to costs.

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(S.C. Dharmadhikari, J.)

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(G.S. Patel, J.)

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Rajvardhan Babaso Patil and Ors. v. Sub Divisional Police Officer and Ors.

Case brief

What is this about?

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Rajvardhan Babaso Patil and Ors. v. Sub Divisional Police Officer and Ors.

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