Allowed

Shaikh Chand S/O. Shaikh Ismail v. the Divisional Commissioner, Aurangabad Divisions, Aurangabad and Others

Bombay HC10 Jul 2018WP/622/2018

Case brief

AI extract

What is this about?

This common judgment disposed of two criminal writ petitions challenging orders of externment passed against petitioners. The court quashed the orders, holding that offences under the Maharashtra Prevention of Gambling Act cannot form a valid basis for externment under Section 55 of the Bombay Police Act.

What did the court decide?

The impugned orders dated 03.03.2018 passed by the Divisional Commissioner arising out of the orders of the Externing Authority were quashed and set aside.

Shaikh Chand S/O. Shaikh Ismail Vs the Divisional… — Writ and Judicial Review | Bombay HC (2018)

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Cri WP 619 & 622 of 2018 -1-

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 619 OF 2018

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Shivraj s/o Bhagwan Patil Age – 28 years, Occu. Agri., R/o Barabhai Galli, Kaij, Tq. Kaij, District Beed. ...Petitioner versus 1. The Divisional Commissioner, Aurangabad Division, Aurangabad. 2. The Externing Authority, and Superintendent of Police, Beed, Tq. & District Beed. 3. The Sub Divisional Police Officer, Police Station, Kaij, Tq. Kaij, Dist. Beed. ...Respondents WITH CRIMINAL WRIT PETITION NO. 622 OF 2018 Shaikh Chand s/o Shaikh Ismail, Age – 40 years, Occu. Agri., R/o Near Shani Mandir, Mangalwar Peth, Kaij, Tq. Kaij, District Beed. ...Petitioner versus 1. The Divisional Commissioner, Aurangabad Division, Aurangabad. 2. The Externing Authority, and Superintendent of Police, Beed, Tq. & District Beed. 3. The Sub Divisional Police Officer, Police Station, Kaij, Tq. Kaij, Dist. Beed. ...Respondents

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Cri WP 619 & 622 of 2018

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Mr. S. J. Salunke, advocate for the petitioners. Mr. Y. G. Gujarathi, A.P.P. for respondent-State

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CORAM : S. S. SHINDE AND

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V. K. JADHAV, JJ.

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Date of Reserving the Judgment : 29.06.2018

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Date of pronouncing the Judgment : 10.07.2018

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JUDGMENT (PER V.K. JADHAV, J.) :-

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Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the parties.

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The facts being common to both these petitions, as are the orders under challenge, both petitions were heard together and are disposed of by this common judgment.

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By way of these criminal writ petitions, the petitioners are taking exception to the judgment and orders dated 03.03.2018 passed by the learned Divisional Commissioner, Aurangabad in File Nos.2017/GAD/Room-1/Pol-1/Extern/CR-115 and 2017/GAD/Room1/Pol-1/Extern/CR-116, arising out of the judgment and order dated 27.09.2017 passed by respondent no.2-Externing Authority and Superintendent of Police, Beed in File No.Extern/LCB/MPA/55/2976/ 2017.

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Cri WP 619 & 622 of 2018 -3-

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It is the case of the petitioners that the Sub Divisional Police Officer, Kaij issued notice to the petitioners dated 05.09.2017 seeking their explanation in respect of their externment from four districts. Petitioners replied to the said notice on 08.09.2017 and gave details about the disposed of as well as pending crimes against them. The petitioners stated in their reply that there are no offences against them since 2015, they are not miscreant nor antisocial element and requested to drop the proceedings against them. Again on 18.09.2017, a notice was issued to them by the Externing Authority-respondent no.2, seeking their explanation on the proposal of their externment from four districts for a period of two years. The petitioners were directed to submit their explanations on 25.09.2017. On 25.09.2017, the petitioners, through their Advocate, sought time to submit their explanation to the notice dated 18.09.2017. Time was sought to submit certified copies of the proceedings to which reference was made in the said notice. However, on 27.09.2017, the Externing Authority passed the order of externment from Beed District for a period of one year against the petitioners. The said order was passed without extending an opportunity of being heard to the petitioners and without observing the principles of natural justice. Being aggrieved, the petitioners preferred separate appeals before the Divisional Commissioner, Aurangabad, who in turn has been pleased to erroneously reject the same on 03.03.2018.

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Cri WP 619 & 622 of 2018 -4-

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The learned counsel for the petitioners submits that the impugned judgment and orders are based on assumptions and presumptions. The Externing Authority i.e. respondent no.2 failed to consider that the petitioners have not committed any offence as alleged and they have been falsely implicated in the said crimes. The notices dated 05.09.2017 issued to the petitioners do not specify their criminal activities or do not show that the petitioners were members of a gang. Notices issued to the petitioners were defective. There is no material available to make out a case which involves the petitioners in collective criminal activities. The order of externment came to be passed in a haste and without giving an opportunity of hearing to the petitioners. Reliance placed by the authorities on the nature of antecedents to pass the order of externment is bad in law. The Externing Authority has exceeded the jurisdiction. The order of externment for the period of one year is excessive. The offences registered against the petitioners during last five years relate to only the provisions of the Maharashtra Prevention of Gambling Act, 1887 and the same cannot be the basis for passing externment order. Hence, the impugned orders are bad in law and need to be quashed and set aside.

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The learned counsel for the petitioners submits that, the

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petitioners are the only earning members in their families. Petitioners

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Cri WP 619 & 622 of 2018 -5-

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are agriculturists by profession and their entire family members are dependent upon their income. Petitioners' presence in their field is necessary for agricultural works. The entire family of the petitioners will suffer if the impugned orders are not set aside.

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The learned counsel for the petitioners, in order to substantiate his contentions, placed reliance on the following cases:

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Shri Rajwardhan Babaso Patil vs. Shri Vijaysinha Jadhav & Anr ., reported in 2015 ALL MR (Cri) 2936 ,

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Kamalkishor s/o Pusaram Bang vs. The Superintendent of Police, Janla & Ors. , (Criminal Writ Petition No. 0239 of 2018) decided on 12.04.2018 by this Court and

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Sagarsingh Kesharsingh Bawari vs. Ministry of Home Department, through its Principal Secretary (Special), Mantralaya, Mumbai, and Ors. (Criminal Writ Petition No. 355 of 2013) decided on 03.09.2013 by this Court at Nagpur.

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The learned APP, on the other hand, invites our attention to the notices issued to the petitioners and the reasons recorded in the externment orders to submit that the notices were duly served on the petitioners and after extending full opportunity of hearing to them, the externment orders came to be passed by the Externing Authority,

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Cri WP 619 & 622 of 2018 -6-

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which are in conformity with the material placed on record and the provisions of the Maharashtra Police Act, 1951.

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We have heard learned counsel appearing for the petitioners and learned A.P.P. for the respondents. With their able assistance, we have perused the pleadings in the petitions and annexures thereto. We have also perused the original record made available by the learned A.P.P. for perusal of this court, show cause notices and the orders impugned in these petitions.

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We are in agreement with the learned counsel for the petitioners insofar as the offences registered against the present petitioners are only under Section 12(a) of the Maharashtra Prevention of Gambling Act, 1887 and the same cannot be the basis for passing externment order. In the case of Sagarsingh Kesharsingh Bawari (supra) relied upon the learned counsel for the petitioners, the Division Bench of this Court at Nagpur, in similar set of facts, has taken a view that the prosecution under Bombay Prohibition Act, 1949 and Maharashtra Prevention of Gambling Act, 1887 cannot be the basis for passing externment order. In para 2 of the judgment, it has been observed as under:

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“2. The petitioner challenges the externment order passed by the Sub-Divisional Magistrate and confirmed in appeal by the

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Cri WP 619 & 622 of 2018

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State by which the petitioner has been externed from the districts of Wardha, Amravati and Yavatmal for two years. A show-cause notice was issued on 2.1.2012 asking for the explanation of the petitioner as to why he should not be externed. The order passed by the Sub-Divisional Magistrate dated 27.8.2012 takes into consideration as many as 26 prosecutions alleged to be pending against the petitioner. The perusal of the impugned orders show that except one prosecution, all other prosecutions are under the provisions of the Bombay Prohibition Act and Maharashtra Prevention of Gambling Act, 1887. The prosecution under Sections 326, 324 read with 34 is of 2010. The consideration of the prosecutions under the Bombay Prohibition 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..........”

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In the case of Kamalkishor s/o Pusaram Bang (supra), relied upon by learned counsel for the petitioners, the Division Bench of this Court, by referring the above observations in Sagarsingh Kesharsingh Bawari 's case, has allowed the criminal writ petition challenging the externment order.

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Upon careful reading of Section 55 of the Bombay Police Act, 1951, 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

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Cri WP 619 & 622 of 2018 -8-

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cause danger or alarm or giving rise to reasonable suspicion that unlawful designs are entertained by such gang, 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 the conduct of such gang in order to prevent violence and alarm, or in the alternative, can also be in the form of an order of dispersal of 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 outside the area within the local limits of jurisdictional area of the competent authority. Thus, for invoking the provisions of Section 55 of the Maharashtra Police Act, 1951, it has to be shown that persons sought to be externed are acting as a gang or a body of persons.

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In the instant petition, on perusal of the show-cause notices issued to the petitioners and also the impugned orders, it is apparent that all the crimes mentioned therein are under the provisions of Section 12(a) of the Maharashtra Prevention of Gambling Act, 1887. There is also no live link in between the cases registered against the petitioners and the orders of externment. Thus, as per the ratio laid down in the cases cited supra, the order passed by respondent no.2-Externing Authority and the orders of the appellate authority i.e. respondent no.1-Divisional Commissioner, confirming the order of Externing Authority, suffer from illegality and hence liable to be quashed and set aside.

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Cri WP 619 & 622 of 2018 -9-

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In the result, we pass the following order:-

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O R D E R

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I. The criminal writ petitions are hereby allowed.

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II. The orders dated 03.03.2018 passed by the learned Divisional Commissioner, Aurangabad in File Nos. 2017 /GAD/Room-1/Pol-1/Extern/CR-115 and 2017/GAD/ Room-1/Pol-1/Extern/CR-116, arising out of the judgment and order dated 27.09.2017 passed by respondent no.2Externing Authority and Superintendent of Police, Beed in File No.Extern/LCB/MPA/55/2976/2017 are hereby quashed and set aside.

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III. The criminal writ petitions are disposed of. Rule is accordingly made absolute.

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IV. Registry to issue authenticated copy of this judgment to the requesting party.

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(V. K. JADHAV, J.) ( S. S. SHINDE, J. )

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vre/

Shaikh Chand S/O. Shaikh Ismail v. the Divisional Commissioner, Aurangabad Divisions, Aurangabad and Others

Case brief

What is this about?

What did the court decide?

Shaikh Chand S/O. Shaikh Ismail v. the Divisional Commissioner, Aurangabad Divisions, Aurangabad and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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