Quashed

Yasin Khan Masum Khan Multani v. the State of Maharashtra and Anr.

Bombay HC22 Jun 2018WP/448/2018

Case brief

AI extract

What is this about?

In this criminal writ petition, the High Court quashed an order of externment issued against the petitioner from multiple districts. The Court held that the order was excessive as it barred the petitioner from districts where no crimes were alleged, violating the principles of Section 56 of the Bombay Police Act, 1951.

What did the court decide?

The impugned order of externment dated 10.08.2017 was quashed and set aside. The rule was made absolute.

Yasin Khan Masum Khan Multani Vs the State of… — Civil Procedure and Limitation | Bombay HC (2018)

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448.18WP.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 448 OF 2018

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Yasin Khan Masum Khan Multani
Age : 47 years, Occ : Business,
R/o Ganeshpuri, Mehrun, Jalgaon.

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PETITIONER

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 VERSUS

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1. State of Maharashtra Through Sub-Divisional Police Officer, Jalgaon.

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2. Sub-Divisional Magistrate, Jalgaon.

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RESPONDENTS

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...

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Mr.Vijay Sharma, Advocate for the Petitioner
Mr.D.R. Kale, APP for Respondent/State.

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...

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CORAM: S.S.SHINDE &

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V.K. JADHAV,JJ.

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Reserved on : 14.06.2018
 Pronounced on : 22.06.2018

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JUDGMENT: (Per S.S.Shinde, J.):

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This Petition is filed praying
therein to quash and set aside the order of

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externment dated 10.08.2017 issued by the 2nd
Respondent herein under Section 56 of the

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Bombay Police Act, 1951 in Externment
Proceedings bearing No.05/2017.

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2.It is the case of the petitioner

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that, on 29thMarch, 2017, the Police

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Inspector Police Station MIDC, Jalgaon
submitted the proposal to the Sub-Divisional
Police Officer, Jalgaon, stating therein that

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there are 10 crimes registered against the
petitioner and in usual course of law, it
becomes difficult to put a check on his

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activities, and hence, he proposed that, the
petitioner should be externed from Jalgaon,
Dhule, Buldhana and Aurangabad districts for

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a period of one year. On 15th May, 2017, the

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Sub-Divisional Police Officer, Jalgaon has
informed Respondent No.2 that after making

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enquiry, he found that the petitioner is a
man of criminal tendency and he is habituated

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to commit offences against human body and
property. So also, there is likelihood of
breach of peace, as such it is recommended to
extern the petitioner from Jalgaon district
for a period of two years. It is the case of
the petitioner that, respondent no.2 issued
show-cause notice on 23rd June, 2017 and the
petitioner submitted his reply to the said
show-cause notice on 17th July, 2017, stating
therein that the false cases have been
registered against him and he has been
falsely implicated into those cases.
Thereafter on 10th August, 2017, Respondent
No.2 has passed an externment order, thereby
externing the petitioner from Jalgaon, Dhule
and Bhuldhana districts for a period of two
years. Hence this Petition.

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3.At the outset, learned counsel
appearing for the petitioner submits that, on

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the very same and in identical set of facts

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448.18WP.odt

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of the present externment proceedings,
Respondent No.2 had externed the petitioner
vide order dated 18th September, 2014 for a
period of two years from six districts i.e.
Jalgaon, Dhule, Nashik, Aurangabad, Jalna and
Buldhana. Being aggrieved by the said order,
the petitioner had approached High Court by
filing Criminal Writ Petition No.1166/2014.
In the said Writ Petition, the High Court
quashed and set aside the said order of
externment, on 2nd December, 2014. Therefore,
he submits that, the impugned order passed by
Respondent No.2 now on the same set of facts

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is illegal, and may be quashed and set aside.
It is submitted that, there is nothing in the
impugned order to show or support the

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subjective satisfaction arrived at by the
competent authority, and the reasons as why
his externment is required from the districts
of Dhule and Buldhana. Learned counsel

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appearing for the petitioner submits that,

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there is no reference of recording of in
camera statements by the authority and hence
the impugned order is contrary to the
provisions of the law.It is further

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submitted that the impugned order is passed
without adhering to the provisions of section
56 of the Maharashtra Police Act, 1951. In
support of aforesaid contentions, learned
counsel pressed into service the exposition
of law in the cases of Umar Mohamed Malbari

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V/s K.P. Gaikwad, Dy. Commissioner of Police
and Anr.1and Sayeed Firoz S/o. Sayeed Noor
V/s The State of Maharashtra2.

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4.On the other hand, the learned
A.P.P. appearing for respondent/State,

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relying upon the reasons assigned by
respondent no.2 in the impugned order,
submits that, Respondent No.2 has adhered to
the proper procedure and has passed the

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1 2000 All MR (Cri) 578

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2 2016 All MR (Cri) 3410

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impugned order. He invites our attention to
the reasons assigned in the impugned order
and also original record in relation to an
externment proceedings and submits that the
Petition may be rejected.

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5.We have considered the submissions

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of learned counsel appearing for the
petitioner, and learned APP appearing for the
respondent – State. With their able
assistance, we have carefully perused the
grounds taken in the petition, annexures
thereto and also the original record
maintained by the office of Respondent No.2,
and the reasons assigned by respondent no.2
in the impugned orders.

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6.At the outset, it is necessary to
state that, the impugned order dated 10th
August, 2017 is passed by Respondent No.2 –
Sub-Divisional Magistrate, Jalgaon and the

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said order has to be challenged before the
Appellate Authority i.e. the Divisional
Commissioner. However, the Division Bench of
this Court (Coram : Prasanna B. Varale & Smt.
Vibha Kankanwadi, JJ) has passed the order on
16th April, 2018, thereby issuing Rule in the
matter. Hence, in the peculiar facts and
circumstances of this case, we are not
inclined to relegate the petitioner to
approach the appropriate authority.

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7.Upon careful perusal of the reasons

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assigned in the impugned order, it appears

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that, the provisions of Section 56(1)(b) of

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the Maharashtra Police Act, 1951 has not been
followed/adhered to by Respondent No.2 while

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passing the impugned order. Though there is
reference in the impugned order that, in
camera statements of the witnesses were

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recorded, from the perusal of the original
record, it reveals that, statements of both

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the witnesses are stereotype with similar
contents.

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At this juncture, it would be apt to
make reference to the provisions of Section
56(1)(a)(b) of the Act of 1951, which reads
thus:

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56.Removal of persons about

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to commit offence

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(1)....

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(a)that the movements or acts
of any person are causing or
calculated to cause alarm,
danger or harm to person or
property or

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(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

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Chapters XII, XVI or XVII of the Indian Penal Code, or in

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the abetment 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”

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8.Upon careful perusal of the

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aforesaid provisions, an order of externment
can be passed against a person whose
movements or acts are causing or calculated

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to cause alarm, danger or harm to person or
property as provided in clause (a). The order
of externment can also be passed against a
person if there are reasonable grounds for
believing that such a person is engaged or is
about to be engaged in the commission of an
offence involving force or violence as
provided in clause (b). An order of

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externment can also be passed against a
person if that person is engaged or about to
be engaged in the commission of an offence
punishable under Chapter XII, or Chapter XVI,

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or Chapter XVII of the Indian Penal Code.

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9.The Division Bench of the Bombay
High Court [at Principal seat] in the case of
Yeshwant Damodar Patil Vs. Hemant Karkar, Dy.
Commissioner of Police & another3had
occasion to consider the scope of provisions
of Section 56 [1] [a] and [b] of the Bombay
Police Act. It would be gainful to reproduce
herein below para 3 of the said judgment:

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3. Section 56 (i) of the Bombay Police Act visualises

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three situations in which the order of externment could be

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passed by the designated officer. We will, however, ignore, for the purpose of the disposal of this petition the

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3 1989 (3) Bom.C.R. 240

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third type of situation and only analyse the two situations which are covered by Clauses (a) and (b) of section 56 (i) of the Act. An order of externment can be passed against a person whose movements or acts are causing or calculated to cause alarm, danger or harm to person or property. That is what is provided in clause (a). The order of externment can also be passed against a person if there are reasonable grounds for believing that such a person is engaged or is about to be engaged in the commission of an offence involving force or violence. It is so provided in the first part of clause (b) of section 56 (i) of the Act. An order of externment can also be passed against a person if that person is engaged or about to be engaged in the commission of an offence punishable under Chapter XII, of Chapter XVI, or

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Chapter XVII of the Indian Penal Code. This is so provided in the latter part of clause (b) of section 56 (i) of the Act. But it is not enough that these conditions alone are satisfied. In addition to this the designated officer should be of the opinion that 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.

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10.It appears that, the authority has

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not made discussion in the impugned order
showing live link and proximity in between

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the initiation of externment proceedings by
respondent no.2. Further though the eleven
offences have been mentioned in the impugned
order passed by respondent no.2 which have
been registered at Jalgaon and Raigad

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districts, the petitioner was externed by
respondent no.2 from Jalgaon, Dhule and
Buldhana districts, without assigning any
reasons why his externment was necessary from
Dhule and Buldhana districts. So also there
is no discussion or subjective satisfaction
disclosed in the impugned order, why the
externment of the petitioner from Dhule and
Buldhana districts is necessary. Therefore,
the impugned order passed by Respondent No.2
is excessive.

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11.The point raised in this Petition is

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no longer res integra and covered by the exposition of law by this Court in the case of Nisar @ Nigro Bashir Ahmed Khan V/s Dy. Commissioner of Police & ors reported in 2013(3) Bom.C.R.(Cri.) 566 . The paragraph nos. 9 to 11 of the said judgment read as under :-

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“9. The point raised by the learned
Counsel for the Petitioner that the
externment order is excessive, in as
much as, the alleged activities against
the Petitioner, which are alleged in the
show cause notice are confined to the
jurisdiction of the Shivaji Nagar Police
Station and within the area of Greater
Bombay, therefore, externment of the
Petitioner from aforesaid other three
Districts is excessive, is no more res
integra and is covered by the
authoritative pronouncements of the
Hon'ble Supreme Court as well as by this
Court. The Hon'ble Supreme Court in the
case of (Pandharinath Shridhar Rangnekar
Vs. Dy. Commissioner of Police, State of
Maharashtra), reported in 1973 Mh.L.J.
413, in Paragraph 16, held as under :

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"16.Anexcessiveordercan
undoubtedly be struck down because no
greater restraint on personal liberty
can be permitted than is reasonable in
the circumstances of the case. The
decision of the Bombay High Court in
(Balu Shivling Dombe v. The Divisional
Magistrate, Pandharpur) 1969 Mh.L.J.

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387 is an instance in point where an
externment order was set aside on the
ground that it was far wider than was
justified by the exigencies of the
case. The activities of the externee
therein were confined to the city of
Pandharpur and yet the externment
order covered an area as extensive as
the districts of Sholapur, Satara and
Poona. These areas are far widely
removed from the locality in which the
externee had committed but two
supposedly illegal acts. The exercise
of the power was, therefore, arbitrary
and excessive, the order having been
passed without reference to the
purpose of the externment."

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10. This Court had also occasion to
consider the same point involved in this
Petition in the case of Balu Vs. The
DivisionalMagistrate,Pandharpur,
reported in 1969 Mh.L.J. 387, while
appreciating the facts involved in that
case, this Court held that extending the
area of externment not only outside
Pandharpur Taluka but to the Districts

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of Solapur, Pune and Satara is illegal
since the alleged activities against the
Petitioner therein, as stated in the
show cause notice, were confined to the
Pandharpur City. In the case of Punjaji
Dagdu Gaikwad Vs. State of Maharashtra
and Ors., reported in 2001(Supp.2)
Bom.C.R. 611(N.B.): 2001 (3) Mh.L.J.
926, in the facts of that case, this
Court held that the Petitioner's area of
activities is confined to Buldhana
District, but the Petitioner is externed
from Buldhana District as well as
Districts of Akola, Washim, Jalna,
Parbhani and Jalgaon. Order suffered
from vice of excessive externment from
five Districts in respect of which no
data was placed and the entire
externmentorderwasinthe

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circumstances liable to be quashed. Yet

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in another exposition of this Court, in
the case of Ganpat @ Ganesh Tanaji
Katare Vs. Assistant Commissioner of
Police and Ors., reported in 2006 (1)
Bom.C.R. (Cri.) 44, in the facts of that
case, this Court held that the alleged
activities of the Petitioner therein are
restricted to particular District.

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Therefore, an externemnt order of the
respective Petitioners from other
District except Greater Bombay and
adjoining Districts of Thane is
excessive.

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11.In the background of aforesaid
discussion and upon perusal of facts of
this case, when the crimes registered
against the Petitioner are confined to
Shivaji Nagar Police Station within the
limits of Greater Bombay, by impugned
order, the Petitioner is externed from
Greater Bombay, New Bombay, Thane and
Raigad Districts for two years.”

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12.Once this Court has reached to the
conclusion that, the externment order is
excessive, the same deserves to be quashed in
its entirety.

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13.While issuing the show-cause notice
and passing the impugned order, Respondent
No.2 has relied upon as many as eleven
offences registered against the present

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`petitioner, namely,`	`Crime`	`No.5/2010`	`dated`
`03.02.2010, Crime`	`No.`	`236/2013`	`dated`
`11.09.2013, Crime`	`No.`	`169/2013`	`dated`
`23.06.2013,` `Crime`	`No`	`.39/2014`	`dated`
`16.02.2014, Crime`	`No.`	`39/2016`	`dated`
`04.02.2016, Crime`	`No.`	`26/2017`	`dated`
`31.01.2016, Crime No.`	`4/2013`	`dated 22.0`	`8.2013,`
`Crime No. 8/2014 dat`	`ed 05.0`	`1.2014, Cr`	`ime No.`
`137/2014 dated 28.0`	`8.2014`	`and Crim`	`e No.`
`59/2014 dated 05.02.`	`2014. O`	`ut of abov`	`e said`

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eleven offences, the offence at Sr. No.1 is
registered as long back as in the year 2010,
Sr. Nos.2, 3 and 7 are registered in the year
2013, Sr. Nos.4, 8, 9 and 10 are registered
in the year 2014. Therefore, there is no live
link between the registration of the said

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offences and initiation of the present
externment proceedings.

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14.In that view of the matter, we are
of the considered view that, the impugned

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order passed by respondent no.2 is excessive
and cannot legally sustain, hence the order
is quashed and set aside. Rule is made
absolute on above terms. The petition stands
disposed of accordingly. No order as to
costs.

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SAG

Yasin Khan Masum Khan Multani v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Yasin Khan Masum Khan Multani v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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