Allowed

Kamalkishor S/O. Pusaram Bang v. the Superintendent of Police, Jalna and Others

Bombay HC12 Apr 2018WP/239/2018

Case brief

AI extract

What is this about?

The Court allowed the Criminal Writ Petition challenging the externment orders of the Superintendent of Police and the Divisional Commissioner. The orders were quashed because they relied exclusively on gambling offences which cannot form a basis for externment, failed to provide reasons for dropping proceedings against other accused persons, and omitted necessary details regarding in-camera witne

What did the court decide?

The writ petition was allowed and the impugned orders dated 27.10.2017 and 09.02.2018 were quashed and set aside.

Kamalkishor S/O. Pusaram Bang Vs the… — Pension and Retirement Benefits | Bombay HC (2018)

¶1

(Judgment) (1) Cri. W.P. No. 0239 of 2018

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

¶3

Criminal Writ Petition No. 0239 of 2018

¶4

District : Jalna

¶5

Kamalkishor s/o. Pusaram Bang,
Age : 57 years,
Occupation : Business,
R/o. Kalikurti Road, Jalna,
Taluka & Dist. Jalna. .. Petitioner.

¶6

versus

¶7

1. The Superintendent of Police, Jalna, Taluka & Dist. Jalna.

¶8

2. The State of Maharashtra, Through Police Inspector, Local Crime Branch, Jalna, Taluka & Dist. Jalna.

¶9

3. Sub-Divisional Police Officer, Jalna, Taluka & Dist. Jalna. .. Respondents.

¶10

...........

¶11

Mr. R.R. Chandak, Advocate, for the petitioner.

¶12

Mr. S.W. Munde, Addl. Public Prosecutor, for respondent nos.01 to 03.

¶13

...........

¶14

CORAM : PRASANNA B. VARALE &
 SMT. VIBHA KANKANWADI, JJ.

¶15

 DATE : 12TH APRIL 2018

¶16

JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :

¶17

Heard learned Advocate for the petitioner
and the learned Addl. Public Prosecutor for the
respondents.

¶18

(Judgment) (2) Cri. W.P. No. 0239 of 2018

¶19

02.Rule. Rule made returnable forthwith. By
consent, heard finally.

¶20

03.By this writ petition, the petitioner is
challenging the legality and validity of the order
dated 27.10.2017, passed by Superintendent of Police,
Jalna i.e. respondent no.01 and the order dated
09.02.2018, passed by Divisional Commissioner,
Aurangabad, confirming the order of the respondent
no.01, externing the petitioner under Section 55 of
the Maharashtra Police Act, 1951 [hereinafter referred
to as "the said Act"], for a period of one year from
entire Jalna District.

¶21

04.The petitioner has contended that the orders
those have been passed against him, externing him
from the entire Jalna District, suffer from serious
illegalities and arbitrariness. He submits that he
is in the business of general stores, by name, Suman
General Stores. It has been renamed as Suman Saree
Centre and Saraswati Collection. He received show
cause notice under Section 59 of the Maharashtra
Police Act, thereby seeking explanation from him and
other 24 persons on 05.08.2017. It was alleged in
the said notice, that the present petitioner and
other members of his gang are engaged in illegal
activities under the Maharashtra Prevention of
Gambling Act, 1887 and, therefore, why they should
not be externed. The petitioner gave reply to the
said notice on 22.08.2017 denying all the contents in

¶22

(Judgment) (3) Cri. W.P. No. 0239 of 2018

¶23

the said notice. A proposal for externment was
initiated by the police authorities on the imaginary
ground. The petitioner does not represent any gang
nor he is involved in illegal activity in Jalna city.
A fresh notice was issued under Section 59 of the
Maharashtra Police Act on 27.08.2017 to the
petitioner only and he was directed to file reply
within a period of five days. The notice was
received on 05.09.2017 and he has replied the same on
09.09.2017. He reiterated the facts which he had
already contended in his notice reply dated
27.08.2017. The petitioner was not supplied with the
report submitted by respondent no.03 nor the
statements of confidential witnesses were recorded.
A reasonable hearing was not, therefore, afforded to
the petitioner. However, the respondent no.01 passed
the impugned order dated 27.10.2017 externing him
from entire Jalna District for a period of one year.

¶24

05.The order dated 27.10.2017 was challenged by
the petitioner before the Divisional Commissioner,
Aurangabad. Initially stay was granted by the
learned Commissioner. Thereafter, hearing took
place. Without considering the material on record
and without following the principles laid down by
this Court in the catena of judgments, the Divisional
Commissioner by order dated 09.02.2018, dismissed the
appeal and confirmed the impugned order passed by
respondent no.01.

¶25

06.It is the contention of the petitioner, that

¶26

(Judgment) (4) Cri. W.P. No. 0239 of 2018

¶27

sufficient record of satisfaction as contemplated
under Section 55 of the Maharashtra Police Act is not
reflected in both the orders. In fact, though show
cause notice was issued to many persons, at the time
of final order, the action of externment is taken
against few persons only. Such kind of pick and
choose method cannot be adopted under Section 55 of
the said Act. At the time of passing the order, the
petitioner was acquitted from some of the offences
and the said fact has not been considered by both the
authorities. He, therefore, submitted that the
orders passed by the authorities are illegal and,
therefore, liable to be quashed.

¶28

07.Affidavit on behalf of respondent nos.01 to
03 has been filed. It has been submitted that the
petitioner is engaged in illegal activities, such as,
running Bombay/Kalyan Matka in Jalna city and nearby
area. The social environment is polluted due to such
gambling acts. The public at large is affected
having ill impact on young generation, labours,
agriculturists, etc. because they have fascinated in
playing the gambling. During the period of 2015 to
June 2017, in all 47 gambling crime cases have been
registered against the present petitioner. In some
of the offences, charge-sheets have been produced
before the court of law and some are yet under
investigation. The petitioner is repeating the crime
and, therefore, the Local Crime Branch had prepared a
proposal for externing the petitioner from Jalna
District. Even after giving notice, the petitioner

¶29

(Judgment) (5) Cri. W.P. No. 0239 of 2018

¶30

did not stop. Even after giving notice to the
petitioner, 21 gambling cases were registered against
him. Thus, at present, 72 crime cases against the
present petitioner are pending which are under the
Maharashtra Prevention of Gambling Act. The orders
passed by the authorities are perfectly legal.

¶31

08. It has been submitted on behalf of the petitioner, that the show cause notice was in fact issued against 24 persons. However, final order that has been passed by respondent no.01 is only against five persons. The impugned order of respondent no.01 does not give any reason as to why the action initiated against other persons has been dropped. He placed reliance on the decision in the matter of Ahammad Mainuddin Shaikh Vs. The State of Maharashtra & another [2013(4) Bom.C.R.(Cri.) 559] . The Division Bench of this Court has observed that upon careful reading of Section 55, it becomes clear that, whenever it appears to the competent authority that the movement or encampment of any gang or body of persons in the area under 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 of persons or by its members, such officer may by notification addressed to the leaders or chief men of such gang or body of persons and suitably published, issue two types of directions. The first direction is about regulating of conduct of such gang or body of persons in a manner prescribed in the direction in order to prevent violence and alarm. Such direction, in the alternative, can also be in the form of an order for dispersal of

¶32

(Judgment) (6) Cri. W.P. No. 0239 of 2018

¶33

members of such gang or body of persons. The second direction which follows the first one, is about removal of each of the members of the gang or body of persons outside the area within the local limits of jurisdiction of the competent authority. It has been further observed thus :-

¶34

"9. It may not be out of place to mention here that, in the case of Suraj Ramsing Bire & thers Vs. State of Maharashtra & others, Writ Petition No. 3572 of 2010 with Writ Petition No. 3573 of 2010, decided on 7th January, 2011, learned Single Judge of this Court has taken a view that for invoking the provisions of section 55 of Bombay Police Act, it has to be shown that persons are acting as gang or body of persons. This view commends to us."

¶35

Same decision was relied by this Court further in the matter of Vijay Lalso Jadhav Vs. State of Maharashtra [Mh.L.J. (Cri.) 2014(1) 457 = ALL MR (Cri.) 2014 (0) 1277] .

¶36

09. It has been further submitted by the learned Advocate appearing for the petitioner, that if we peruse the list of cases which have been shown to be pending against the present petitioner, they all are in respect of offence under Section 12(a) of the Maharashtra Prevention of Gambling Act. The externment order cannot be only on the basis of offences under the Maharashtra Prevention of Gambling Act. He relied on the decision of this Court in the matter of Nitin @ Babloo s/o. Bhagwant Gade Vs. Deputy

¶37

(Judgment) (7) Cri. W.P. No. 0239 of 2018

¶38

Commissioner of Police, Amravati & others [2016(4) Mh.L.J. (Cri.) 156] . Learned Advocate for the petitioner also submitted, that both the orders show that in-camera statements were recorded but the show cause notice had not mentioned about the same. For this purpose, he relied on the decision of this Court in the matter of Nitin @ Babloo s/o. Bhagwant Gade (supra) .

¶39

10. Learned Advocate for the petitioner further relied on decision of this Court at Nagpur Bench, in the matter of Sagarsingh Kesharsingh Bawari Vs. Ministry of Home Department, through its Principal Secretary (Special), Mantralaya, Mumbai, and 02 others , in Criminal Writ Petition No. 0355 of 2013. In the said case, perusal of the impugned orders showed that except one prosecution, all other prosecutions were under the provisions of the Bombay Prohibition Act and Maharashtra Prevention of Gambling Act, 1887 and, therefore, it was observed that the consideration of the prosecutions under the Bombay Prevention Act and Maharashtra Prevention of Gambling Act, 1887 by the authority vitiates the impugned order, inasmuch as it is the settled law that for the purposes of passing the externment order, these prosecutions cannot be taken into consideration .

¶40

11.Learned Advocate for the petitioner further
submitted that the co-accused / co-externee, namely,
Suresh s/o. Babulal Agrawal had filed an appeal
before the same Divisional Commissioner. The
Divisional Commissioner has allowed the appeal
partially on the basis that the externment order

¶41

(Judgment) (8) Cri. W.P. No. 0239 of 2018

¶42

cannot be passed only on the basis of offences
registered under the Maharashtra Prevention of
Gambling Act.

¶43

12. Learned Addl. Public Prosecutor for the
respondents submitted that a hearing was given to the
present petitioner after the show cause notice was
issued and the procedure that has been adopted is
perfectly legal. The petitioner was running a gang
and all of them were indulging in gambling
activities. Though initially the proposal was
against 24 persons, some of them had improved their
behaviour and, therefore, further proceedings has not
been taken up against them. That cannot be the
ground for setting aside the impugned orders. The
entire behaviour of the petitioner indulging in
gambling activities is a threat to the society and,
therefore, the said action was taken against him.

¶44

13.We find much substance in the arguments
advanced on behalf of the petitioner. It can be seen
from the record, that initially show cause notice was
issued on 05.08.2017 against the petitioner and in
all 24 persons. However, thereafter again, a fresh
show cause notice came to be issued on 27.08.2017,
though the petitioner had given reply to the earlier
show cause notice on 22.08.2017. The petitioner has
also replied to the second show cause notice on
09.09.2017. Perusal of the show cause notice does
not show that statements of in-camera witnesses were
recorded. However, in the appeal, it has been

¶45

(Judgment) (9) Cri. W.P. No. 0239 of 2018 specifically stated on behalf of Superintendent of Police, that because of the fear of the petitioner, the witnesses are not coming forward to give statement. The observations in the matter of Nitin @ Babloo s/o. Bhagwant Gade (supra) are definitely applicable to the present case. If there is no reference made to the in-camera statements of witnesses and only vague statement is made that the witnesses were not willing to come forward to depose against the petitioner, in the order, such order cannot be said to be legal one. A fair opportunity ought to have been given to the petitioner to put forth his say in respect of in-camera statements of the witnesses. Reliance of such statement only at the time f order is unjustified.

¶46

14. As regards dropping of the externment proceedings against other persons and only passing final order against five persons is also illegal and arbitrary. The order passed by respondent no.01 does not specifically state as to why action was dropped against other persons and in what way they had shown improvement in their behaviour. Therefore, the ratio laid down in the matter of Ahammad Mainuddin Shaikh (supra) would be applicable here.

¶47

15. The most important point is that, if we peruse the offences, those are against the present petitioner, they are only under Section 12(a) of the Maharashtra Prevention of Gambling Act. In the matter of Sagarsingh Kesharsingh Bawari (supra) , this Court

¶48

(Judgment) (10) Cri. W.P. No. 0239 of 2018

¶49

has taken a view that the prosecutions under the
Bombay Prohibition Act and Maharashtra Prevention of
Gambling Act cannot be the basis for passing
externment order. Based upon the said decision, in
fact, appeal of the co-accused has been allowed by
the Divisional Commissioner. He cannot take
different views in respect of similarly situated
appellants. Under such circumstance, the order that
has been passed by respondent no.01 and the order of
the appellate authority confirming the order of
respondent no.01 suffer from illegality, hence liable
to be quashed and set aside.

¶50

16.In the result, the criminal writ petition is
allowed.

¶51

The impugned order dated 27.10.2017, passed by
respondent no.01 i.e. Superintendent of Police,
Jalna, in file no. Outward/S.P./LCB/Externment/2017-
5033 and order dated 09.02.2018, passed by the
Divisional Commissioner, Aurangabad, are hereby
quashed and set aside.

¶52

17.Rule made absolute in the above terms.

¶53

( Smt. Vibha Kankanwadi ) ( Prasanna B. Varale )
JUDGE JUDGE

¶54

...........

¶55

puranik / CRIWP239.18

Kamalkishor S/O. Pusaram Bang v. the Superintendent of Police, Jalna and Others

Case brief

What is this about?

What did the court decide?

Kamalkishor S/O. Pusaram Bang v. the Superintendent of Police, Jalna 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

Rajebhau Nagorao Solunke (C-4582) Open Prison, Paithan and Another Vs Sachin Ramesh Salave, Superintendent, Open Prison, Paithan and Another

Parmeshwar Baburao Ghogre (C-8902) Vs the State of Maharashtra

The Manager M/S Hinduja Leyland Finance Vs the State of Maharashtra and Anr.

Gajanan S/O. Gulabrao Bul and Anr. Vs the State of Maharashtra and Anr.

The State of Maharashtra Vs Balaji Basuraj Kamthane

Trupti W/O. Bharat Wani @ Trupti D/O. Rajhans Gulve and Anr. Vs the State of Maharashtra