Allowed

Ahmed Khan Karim Khan Pathan v. the State of Maharashtra and Others

Bombay HC14 Jun 2018WP/1684/2017

Case brief

AI extract

What is this about?

In a criminal writ petition challenging orders of externment from Aurangabad District for one year under the Maharashtra Police Act, 1951. The High Court quashed the impugned orders due to non-application of mind by the authorities regarding the nature of offences and pending legal procedures.

What did the court decide?

The impugned orders dated 22nd August, 2017 and 24th November, 2017 were quashed and set aside. Rule made absolute.

Ahmed Khan Karim Khan Pathan Vs the… — Constitutional and Fundamental Rights | Bombay HC (2018)

¶1

cwp1684.17

¶2

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶4

BENCH AT AURANGABAD

¶5

CRIMINAL WRIT PETITION NO.1684 OF 2017

¶6

Ahmed Khan Karim Khan Pathan,
Age-43 years, Occu:Electronic Mechanic,
R/o-House No.4-12-57, Khas Gate,
Near Hamja Masjid, Roshan Gate Road,
Aurangabad.
...PETITIONER
 VERSUS

¶7

1) The State of Maharashtra,
 Through Divisional Commissioner,
 Aurangabad Division, Aurangabad,

¶8

2) The Police Deputy Commissioner, Region-1, Aurangabad,

¶9

3) The Police Inspector, Police Station, Begampura, Aurangabad. ...RESPONDENTS

¶10

...

¶11

 Mr.Mohsin Latif Khan Pathan Advocate for
 Petitioner.

¶12

 Mr.K.S. Hoke Patil, A.P.P. for Respondent
 Nos. 1 to 3.

¶13

...

¶14

CORAM: S.S. SHINDE AND

¶15

 V.K. JADHAV, JJ.

¶16

cwp1684.17

¶17

¶18

DATE OF RESERVING JUDGMENT : 5TH JUNE, 2018.

¶19

 DATE OF PRONOUNCING JUDGMENT: 14TH JUNE, 2018.

¶20

JUDGMENT [PER S.S. SHINDE, J.]:

¶21

1. Rule. Rule made returnable forthwith and

¶22

heard finally with the consent of the learned
counsel appearing for the parties.

¶23

2.The Petitioner has taken exception to the
order dated 22nd August, 2017 passed by the Deputy
Commissioner of Police, Aurangabad and the order
dated 24th November, 2017 passed by the Divisional
Commissioner, Aurangabad, whereby he has been
externed from the boundaries of Aurangabad
District for the period of one year.

¶24

3.It is the case of the Petitioner that he

¶25

is the peace loving and law abiding person. The

¶26

Petitioner is doing the work of electronics
repairs in the name and style as "Ahmed

¶27

cwp1684.17

¶28

¶29

Electronics", and earns for the livelihood of his

¶30

family. The Petitioner is also a Mutawali of
Dargah Hajrat Syed Shah Mahemood Sahab (R.H.)
situate near University Gate. He is having good
reputation in the vicinity and his character and
integrity was never in question.

¶31

4.It is the case of the Petitioner that on

¶32

29th June, 2017, Assistant Police Commissioner,
City Region, Aurangabad has issued notice to the
Petitioner under Section 59 of the Maharashtra
Police Act, 1951 (in short "the Act of 1951"),
thereby seeking explanation from the Petitioner as
to why he should not be externed from the limits
of Aurangabad and Jalna Districts for two years.
In the said notice there is reference of nine
cases registered against the Petitioner.

¶33

5.It is the case of the Petitioner that he

¶34

has filed detail reply to the said show cause
notice on 21st July, 2017, wherein it is stated

¶35

cwp1684.17

¶36

¶37

that, out of nine offences mentioned in the
notice, seven cases are non cognizable and filed
by one and the same person on the allegation of
preventing him from grazing his goats in the land
of Dargah. It is the case of the Petitioner the
another cognizable offence was registered against
the Petitioner at Kranti Chowk Police Station,
Aurangabad for the offence punishable under
Section 392 of I.P.C., in which "B Summary Report

¶38

has been filed on 12th December, 2016. It is the
case of the Petitioner that only cognizable
offence which is pending against the Petitioner

¶39

has been registered with Begampura Police Station

¶40

for the offence punishable under Section 420 and
406 of the I.P.C. in respect of encroachment and
illegal alienation of wakf property. The
Petitioner has filed several complaints against
the encroacher.

¶41

6.It is the case of the Petitioner that

¶42

thereafter again on 7th August, 2017, the

¶43

cwp1684.17

¶44

¶45

Assistant Commissioner, Aurangabad issued show
cause notice. On 18th August, 2017, the Petitioner
had filed reply to the said notice. It is further
the case of the Petitioner that on 22nd August,
2017, the Deputy Commissioner of Police, Range-1,
Aurangabad has passed the impugned order externing
the Petitioner from the boundaries of Aurangabad
District for the period of one year. Being
aggrieved by the same, on 29th August, 2017, the
Petitioner has filed an appeal against the said
order of externment. Thereafter on 24th November,
2017, the Divisional Commissioner has passed the
order confirming the order of externment passed by
the Deputy Commissioner of Police, Aurangabad.
Hence this Petition is filed by the Petitioner.

¶46

7.Learned counsel appearing for the

¶47

Petitioner submits that the impugned orders passed
by both the authorities are against the law,
equity and good conscious. Both the authorities
failed to follow the principles of natural

¶48

cwp1684.17

¶49

¶50

justice. It is submitted that out of nine offences
mentioned in the notice, seven are non-cognizable
offences which are registered by one and the same
person and only two offences are cognizable. This
fact is totally ignored by the authorities while
passing the impugned orders. Learned counsel
further submitted that so far as Crime No.1283 of
2016 mentioned in the notice is concerned, B
Summary Report is already filed by the police
authorities, and the said fact is also ignored by
the authorities. It is submitted that all the
complaints have been filed against the Petitioner

¶51

because he is trying to stop the encroacher from
encroaching the wakf property. It is submitted
that the orders passed by the authorities are only
on assumption and presumption and hence the same
are liable to be quashed and set aside. Hence it

¶52

is prayed that the Petition may be allowed. In
support of his submissions, learned counsel placed

¶53

reliance upon the exposition of law in the case of
Balaji s/o Ganpati Chame vs. the State of

¶54

cwp1684.17

¶55

¶56

Maharashtra and others1, and Sopan Satappa Kore vs.
the State of Maharashtra and others2

¶57

8.On the other hand, learned A.P.P.

¶58

appearing for the Respondent - State, relying upon
the averments in the affidavit-in-reply and the
reasons assigned by Respondent Nos.1 and 2 in the
impugned orders, submits that the authorities,
after adhering to the procedure prescribed under
the provisions of Section 56(1)(a)(b) of the Act
of 1951, have rightly externed the Petitioner from
the boundaries of Aurangabad District.

¶59

9.We have heard learned counsel appearing
for the Petitioner, and learned A.P.P. appearing
for the Respondent – State at length. With their
able assistance we have carefully perused the
grounds taken in the Petition, annexures thereto,
reply filed by the Respondents, and original
record of the case maintained by the office of the

¶60

1 2017 ALL M.R. (Cri.) 719

¶61

2 2017 ALL M.R. (Cri.) 764

¶62

cwp1684.17

¶63

¶64

Respondents. Upon careful perusal of the contents
of the show-cause notice issued by the Assistant
Police Commissioner, Aurangabad to the Petitioner,
in the said notice in all nine offences have been
mentioned. It appears that, out of said nine
offences, six offences are non cognizable, and as
many as five offences have been filed by one and
the same person namely, Raju Khan Chand Khan. It
is specifically stated by the Petitioner in the
reply to the show-cause notice that, as the
Petitioner had prevented said Raju Khan from
grazing his goats in the land of Dargah, false

¶65

complaints have been filed against him. Upon
perusal of the impugned orders passed by
Respondent Nos.1 and 2, it appears that while
passing the impugned orders both the authorities
have not considered the fact that almost five non

¶66

cognizable complaints have been filed by said Raju
Khan. So far as Crime No.02 of 2012 registered

¶67

with Phulambri police station for the offence
under Section 420, 465, 466, 467, 471 read with

¶68

cwp1684.17

¶69

¶70

34 of the Indian Penal Code is concerned, the same
has been registered way back on 30th April, 2012,

¶71

and therefore there is no live link between the
registration of the said crime and initiation of
externment proceedings against the Petitioner.

¶72

10.So far as Crime No.1283 of 2016

¶73

registered with Kranti Chowk police station for
the offence punishable under Section 392 of the
Indian Penal Code, mentioned at serial No.2 in
the notice is concerned, upon perusal of the
original record it reveals that the police
authorities have already filed "B Summary Report"
in the said offence on 12th December, 2016. The
said fact is not at all taken into consideration
by the authorities below while passing the
impugned orders. Non-consideration of filing of "B
Summary Report by the police in the afore said
crime, amounts to total non-application of mind by
both the authorities.

¶74

cwp1684.17

¶75

¶76

11. While passing the externment order, the
authorities have relied upon another cognizable
offence registered with Begampura Police Station
bearing Crime No.122 of 2017, for the offence
punishable under Section 420 and 406 of the I.P.C.

¶77

Pursuant to the show-cause notice issued to the
Petitioner, he did file reply wherein it is
categorically stated that, the Petitioner has
filed several complaints against the encroachment

¶78

on wakf property and to counter the said
complaints, false complaints have been filed
against the petitioner.

¶79

12.The Appellate Authority i.e. Respondent
No.1 has confirmed the order of externment passed
by Respondent No.2 externing the Petitioner from
the boundaries of Aurangabad District. The
Appellate Authority did not consider the
proceduralirregularitiesandillegalities

¶80

committed by Respondent No.2 while passing the
impugned order. As observed earlier, it shows

¶81

cwp1684.17

¶82

¶83

complete non-application of mind to the facts of
the case by Respondent No.1.

¶84

13.In that view of the matter, we are of the
considered view that, the impugned orders passed
by Respondent Nos.1 and 2 cannot legally sustain.
Hence impugned orders are quashed and set aside.
Rule made absolute in terms of Prayer Clause "B)".

¶85

14.The Writ Petition stands disposed of

¶86

accordingly. No order as to costs.

¶87

[V.K. JADHAV, J.] [S.S. SHINDE, J.]
asb/JUN18

Ahmed Khan Karim Khan Pathan v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Ahmed Khan Karim Khan Pathan v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kisan Soma Rathod (C-8098) Central Prison, Aurangabad Vs Bapurao Ramrao More, Superintendent, Central Prison Aurangabad and Another

Lahu Gopinath Pawar Vs the State of Maharashtra

Savita Arun Rathod Vs Sunil Digambar Chavan U/G of Father Digambar Sukhlal Chavan and Others

Vijay S/O. Baburao Musale (C-7005) Vs the State of Maharashtra and Anr.

Subhash@Chabu Mahsuji Nikalje, C.NO.7315 Vs the State of Maharashtra

Sudam Sarangdhar Rajguru Vs the State of Maharashtra