Quashed

Mudassar Aziz Khan v. the State of Maharashtra and Others

Bombay HC3 Jul 2018WP/738/2018

Case brief

AI extract

What is this about?

This judgment declares the orders of externment passed against three petitioners under Section 55 of the Maharashtra Police Act, 1951 as illegal, arbitrary, and perverse. The Court quashed the orders due to lack of subjective satisfaction on the formation of a gang, reliance on acquittals, and selective enforcement against only a few members of the alleged gang.

What did the court decide?

The impugned order of externment passed by Respondent No.2 and confirmed by Respondent No.3 is quashed and set aside; Rule is made absolute.

Mudassar Aziz Khan Vs the State of Maharashtra and… — Writ and Judicial Review | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.737 OF 2018

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Sameer Jafar Khan
Age-31 years, Occu:Business,
R/o-Wable Colony,
Mukund Nagar, Ahmednagar.

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...PETITIONER

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 VERSUS

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1) The State of Maharashtra,
 Through Police Inspector,
 Police Station, Bhingar Camp,
 Ahmednagar,

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2) Superintendent of Police, Ahmednagar,

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3) The Divisional Commissioner,
 Nashik.

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...RESPONDENTS

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 WITH

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CRIMINAL WRIT PETITION NO.738 OF 2018

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Mudassar Aziz Khan,
Age-25 years, Occu:Business,
R/o-Naved Complex, Fakirwada,
Mukund Nagar, Ahmednagar.

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...PETITIONER

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 VERSUS
1) The State of Maharashtra,
 Through Police Inspector,
 Police Station, Bhingar Camp,
 Ahmednagar,
2) Superintendent of Police,
 Ahmednagar,
3) The Divisional Commissioner,
 Nashik.
...RESPONDENTS
 WITH
 CRIMINAL WRIT PETITION NO.739 OF 2018
Mujib Aziz Khan,
Age-28 years, Occu:Business,
R/o-Naved Complex, Fakirwada,
Mukund Nagar, Ahmednagar.
...PETITIONER
 VERSUS
1) The State of Maharashtra,
 Through Police Inspector,
 Police Station, Bhingar Camp,
 Ahmednagar,
2) Superintendent of Police,
 Ahmednagar,
3) The Divisional Commissioner,
 Nashik.
...RESPONDENTS

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...

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 Mr.Vijay Sharma Advocate for Petitioners
 in all the Petitions.

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 Mr.K.S. Hoke Patil, A.P.P. for Respondent
 Nos. 1 to 3 in all the Petitions.

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...

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CORAM: S.S. SHINDE AND
 V.K. JADHAV, JJ.

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DATE OF RESERVING JUDGMENT : 28TH JUNE, 2018

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 DATE OF PRONOUNCING JUDGMENT: 03rd JULY, 2018

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

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1. Rule. Rule made returnable forthwith and

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

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2.The facts in all these Petitions are
common, so also the orders under challenge are
common, hence all these Petitions were heard
together and are being disposed of by this common
Judgment.

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3.These Petitions are filed by the

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Petitioners praying therein to quash and set aside
the order of externment passed by Respondent No.2
- Superintendent of Police, Ahmednagar, externing
them from the boundaries of Ahmednagar District
for the period of one year, which is confirmed by
Respondent No.3 - Divisional Commissioner, Nashik.

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4.It is the case of the Petitioners that

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initially, on 21st June, 2017, Assistant
Superintendentof Police, City Division,

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Ahmednagar had issued notices to the Petitioners
under Section 56(1)(a)(b) of the Maharashtra

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Police Act, 1951 (for short "the Act of 1951"),
thereby proposing to extern them from the
boundaries of Ahmednagar District for the period
of two years. Again on 4th September, 2017,
Respondent No.2 had issued notices to the
Petitioners, under Section 55 of the Act of 1951,
stating therein that, all the three Petitioners

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were operating as a gang and their activities have
caused fear in the minds of common people and

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nobody is coming forward to depose against them.
By the said notice, Respondent No.2 called upon
the explanation from the Petitioners. Pursuant to
the said notice, the Petitioners submitted their
explanations.

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5.It is further the case of the Petitioners
that on 2nd January, 2018, Respondent No.2 has
passed impugned order of externment, thereby
externing the Petitioners from the boundaries of
Ahmednagar District for the period of one year.
Being aggrieved by the said order, the Petitioners

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have filed appeals before Respondent No.3. On 28th
March, 2018, Respondent No.3- the Divisional
Commissioner passed separate orders confirming the
order passed by Respondent No.2. Hence these
Petitions.

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6.Learned counsel appearing for the
Petitioners submits that the impugned orders
passed by the authorities below are perverse,

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arbitrary, and suffers from non application of
mind. The action taken against the Petitioners is
politically motivated as the maternal uncle of
the Petitioners is a Corporator in Municipal
Corporation, Ahmednagar. It is submitted that
Respondent No.2 has termed the Petitioners as a
gang, however, there is absolutely no evidence on
record to show that the Petitioners have
collectively committed any crime as a gang.
Therefore, the provisions of Section 55 of the Act
of 1951, are not at all attracted.

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7.Learned counsel further submitted that

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from the impugned order passed by Respondent No.2
it reveals that there is only a single offence

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i.e. Crime No.164 of 2015 wherein all the

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Petitioners are shown as accused. Except the said

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offence, no other offence is registered against
all the Petitioners collectively and therefore the

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allegations that the Petitioners operate as a gang
is absolutely false. It is submitted that in said

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Crime No.164 of 2015, there were in all five
accused and all the accused were acquitted of the
said offence, including the Petitioners. The said
aspect has not been considered by Respondent No.3
while passing the impugned orders. The Assistant
Superintendent of Police, has conducted enquiry
under the provisions of Section 56(1)(a)(b) of the
Act of 1951, and issued notices to the
Petitioners. However, the impugned orders were
passed under Section 55 of the Act of 1951,
therefore there is total non application of mind
by both the Respondent authorities. Respondent

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Nos.2 and 3 have not recorded the subjective
satisfaction that the Petitioners have formed a
gang and thereafter committed the offences.

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8.Learned counsel further submitted that

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there is no live link between the registration of
the offences and initiation of present externment

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proceedings, in as much as the offences registered
in the year 2008, 2009, 2010 and 2011 have also

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been relied upon while initiating the externment

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proceedings in the year 2017. Learned counsel
submits that though it is alleged by the

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Respondent authorities that a gang of five to six
persons, including the Petitioners is operating,
the action of externment is initiated against the
present Petitioners only. In support of his
submissions, learned counsel placed reliance upon
the exposition of law in the cases of Vijay Lalso
Jadhav V/s State of Maharashtra and others1,
Ahammad Mainuddin Shaikh V/s The State of
Maharashtra and another2, and Shri Rajwardhan
Babaso Patil V/s Shri Vijaysinha Jadhav and
another3.

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9.On other hand, learned A.P.P. appearing

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for the State, relying upon the averments in the

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affidavit-in-reply and the reasons assigned by
Respondent Nos.2 and 3 in the impugned orders,

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1 2014 All MR (Cri) 1277

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2 2013 All MR (Cri) 3804

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3 2015 All MR (Cri) 2936

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submits that the authorities, after adhering to
the provisions of Section 55 of the Act of 1951,
have rightly externed the Petitioners from the
boundaries of Ahmednagar District. It is submitted
that the Petitioners have formed a gang and
thereafter committed the crimes. The collective
activities of the Petitioners are causing danger
to the person and property of the common people.
Hence it is prayed that, the Petitions are liable
to be rejected.

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10.We have heard learned counsel appearing

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for the Petitioners 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 Petitions, annexures thereto,
replies filed by the Respondents, and the
original record of the case maintained by the
office of the Respondents. Upon careful perusal of

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the notice dated 21st June, 2017, issued by
Assistant Superintendent of Police, it is crystal

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clear that, the said notice was issued under the
provisions of Section 56(1)(a)(b) of the Act of
1951. Original record shows that, in the same
proceedings, again on 4th September, 2017, the
Superintendent of Police, Ahmednagar has issued
the notice under the provisions of Section 55 of
the Act of 1951. Thereafter, the order of
externment has been passed against the Petitioners
by Respondent No.2 under the provisions of section

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55 of the Act of 1951, and the Appellate

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Authority, after considering the provisions of
Section 55 of the Act of 1951, has confirmed the

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order passed by Respondent No.2. Therefore, we
find considerable force in the argument advanced
by learned counsel appearing for the Petitioners
that there is complete non-application of mind by
the authorities while passing the impugned orders.

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While initiating the proceedings and passing
impugned orders, the authorities were not sure,

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under which provisions the action was being taken.
In one proceeding of externment, the authorities

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have issued two notices, one under the provisions
of Section 56(1)(a)(b) and another under the
provisions of Section 55 of the Act of 1951.

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11.It appears from the perusal of the

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original record that while initiating the
externment proceedings in the year 2017, the
offences registered in the year 2008, 2009, 2010
and 2011 are also taken into consideration by the
Respondent authorities. Therefore, there is no
live link between the registration of the offences
and initiation of present externment proceedings.

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It is pertinent to note that, in all four crimes
mentioned herein above, all the accused persons
including the Petitioners have already been

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acquitted by the Competent Courts, and still the
Respondent authorities have relied upon the said
offences while initiating the present externment
proceedings.

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12.The proceedings are initiated against the

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Petitioners alleging that they are operating as a
gang. Perusal of the record shows that, in all
seven offences are relied upon by the authorities
while initiating the externment proceedings
against the present Petitioners. However, the
original record shows that in only one crime i.e.
Crime No.164/2015 registered with Bhingar Police
Station, all the three Petitioners are made
accused. In remaining six offences mentioned in
the impugned orders, all the three Petitioners
are not made accused in any of the offence.
Therefore, it is difficult to accept that the
Petitioners have formed a gang and thereafter they
have committed the offences. It is pertinent to
note that in the only offence being Crime No.164

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of 2015 wherein all the three Petitioners were
made accused, all the Petitioners have been

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acquitted by the competent Court on 3rd January,
2018, much before passing the impugned orders by

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the appellate authority. This aspect has not been
considered by the appellate authority while

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passing the impugned orders. While passing the
impugned orders, Respondent Nos.2 and 3 have not
recorded the subjective satisfaction that the
Petitioners have formed a gang and thereafter
committed the offences.

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13.It appears from the original record that
the allegations are made that gang of five to six
persons including the Petitioners, is operating.
However, the action is initiated only against the
present Petitioners and not against all the
members of the alleged gang. Therefore, while
initiating the action, the respondent authorities
have adopted the method of pick and choose. The
Division Bench of this Court in the case of Vijay
Jadhav (supra) in 8 of the order observed as
under:-

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"8............ Section 55 of the Bombay
Police Act contemplates collective action
against the gang or body of persons and
therefore, the final direction which is

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required to be issued in terms of the said
Section, will have to be necessarily
against each of the members of the gang and
not against one or a few of them on
selective basis. It is therefore, apparent
that an illegality has been committed by
both the Authorities, i.e. the Competent
authority and the Appellate Authority by
passing the externment order and confirming
the same only qua the petitioners and not
against the other members of the alleged
gang."

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.As already observed, in the present

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matters also the action is taken against the
Petitioners only. Therefore, it is apparent that
an illegality has been committed by both the
Authorities, i.e. the Competent authority and the
Appellate Authority by passing the externment
order and confirming the same only qua the
Petitioners and not against the other members of
the alleged gang.

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14.In view of the discussion made herein

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above, we are of the considered view that the
impugned orders passed by Respondent No.2 and
Respondent No.3 cannot legally sustain. Hence the
impugned orders passed by Respondent No.2, and
confirmed by Respondent No.3, are quashed and set
aside. Rule is made absolute in terms of prayer
clause "B)" of the Petitions. All the three Writ
Petitions stand disposed of accordingly.

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[V.K. JADHAV, J.] [S.S. SHINDE, J.]
asb/JUL18

Mudassar Aziz Khan v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Mudassar Aziz Khan v. the State of Maharashtra and Others

Case brief

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