Allowed

Sunny Mansur Shaikh v. the Divisional Commissioner Appellate Authority Nashik Division and Ors.

Bombay HC18 Aug 2021WP/1566/2021

Case brief

AI extract

What is this about?

The Bombay High Court allowed a writ petition challenging an externment order under the Maharashtra Police Act. The Court quashed the order, holding it violated the petitioner's fundamental right to freedom of movement and residence and was passed without requisite application of mind and justification.

What did the court decide?

The externment order of 16/10/2020 and the dismissal of the appeal by Divisional Commissioner on 01/02/2021 are quashed and set aside.

Sunny Mansur Shaikh Vs the Divisional… — Pension and Retirement Benefits | Bombay HC (2021)

¶1

BHAGYAWANT TATYARAO PUNDE

¶2

WP-1566-2021.doc

¶3

1 / 8

¶4

Digitally signed by BHAGYAWANT TATYARAO PUNDE Date: 2021.08.18 17:53:52 +0530

¶5

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

¶6

CRIMINAL WRIT PETITION NO.1566 OF 2021

¶7

Mr. Sunny Mansur Shaikh Age 25 years, Occ: Worker, Permanently R/at: Patilwada, Sarafbazar, Nashik. Presently residing at: Walunj Mahanagar, Police Station Talukar Gangapur, Dist. Aurangabad Opposite. M.I.D.C. road, More Chowk. ... PETITIONER

¶8

Versus

¶9

The Divisional Commissioner/ Appellate Authority, Nashik Division, Nashik.

¶10

The Dy. Commissioner of Police, Zone-I, Nashik City, Nashik.

¶11

The State of Maharashtra ... RESPONDENTS

¶12

Mr. Prashant D. Patil for Petitioner. Mr. J.P. Yagnik, APP for State.

¶13

... CORAM : S. S. SHINDE &

¶14

N. J. JAMADAR, JJ.

¶15

RESERVED ON : 12^th AUGUST, 2021. PRONOUNCED ON: 18^th AUGUST, 2021.

¶16

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

¶17

Rule. Rule made returnable forthwith and heard with the

¶18

consent of learned counsel appearing for the parties.

¶19

This petition is filed with following substantive prayer:-

Bhagyawant Punde

WP-1566-2021.doc

2 / 8

(a) This Hon’ble Court be pleased to quash and set aside the Order dated 01/02/2021 passed by Divisional Commissioner, Nashik Division, Nashik in Externment Appeal No. 91/2020 and Externment Order No. Circle/ Zone1/ Externment / 56 / 5173/2020 dated 16/10/2020 passed by Dy. Commissioner of Police, Zone-1, Nashik City;

¶24

It is the case of the petitioner that on 6^th July, 2020, the Assistant Police Commissioner, Nashik City issued notice under Section 56(1)(a)(b) of the Maharashtra Police Act for initiating the externment proceeding to extern the petitioner for 2 years from the revenue boundaries of Nashik district. On 10^th July, 2020, the petitioner filed reply to the said notice. On 1^st October, 2020, the Respondent No. 2 issued show cause notice to extern the petitioner for 2 years from the revenue boundaries of Nashik district. On 14^th October, 2020, the Petitioner filed reply to the said show cause notice. Thereafter, On 16^th October, 2020, Respondent No. 2 by order, externed the Petitioner under Section 56(1)(a)(b) of the Maharashtra Police Act for a period of two years from the revenue boundaries of Nashik district. In the month of October, 2020, the petitioner filed appeal before Respondent No. 1- The Divisional Commissioner, Nashik. On 1^st February, 2021, the appellate authority dismissed the appeal filed by the petitioner. Hence, this

Bhagyawant Punde

WP-1566-2021.doc

3 / 8

petition.

Learned counsel for the petitioner submits that after 18^th May, 2019, not a single offence has been registered against the petitioner and the show cause notice was issued on 6^th July, 2020 i.e. after lapse of more than one year, hence, there is no live link between the offences registered and the proceedings initiated for externment. At the relevant time, it is pointed out to the Respondent No. 1 that in respect of C.R. No. 52/2018 registered with the Gangarpur Police Station, the Criminal Case No. 707/2019 was registered and the trial of the same has been concluded on 15/10/2020 wherein the petitioner has been acquitted, however, the same has not been considered and in the judgment passed by the said authority it was shown that the said offence is still pending. This clearly shows the non application of mind on the part of respondent-authorities in passing the impugned orders. It is submitted that it was shown that the petitioner and his friends are threatening the public and there is no one coming forward to give complaint against them. However, neither the names of the friends of the petitioner were mentioned nor the action has been taken against them.

¶30

It is further submitted that in-camera statements of two witnesses are not reliable as general statements are made in the

Bhagyawant Punde

WP-1566-2021.doc

4 / 8

said in-camera statements and no particulars of date and time of offence has been mentioned. Therefore, it is clear that the said statements are created by the respondent-authorities only with an intention to extern the petitioner. It is submitted that the alleged offences have been registered against the petitioner within the vicinity of Nashik city only, however, the respondents have externed the petitioner from the area of entire Nashik district for a period of two years which is unjust, unreasonable, excessive and harsh.

¶35

On the other hand, Mr. Yagnik, the learned APP appearing for Respondents relying upon the original record and the reasons assigned by the respondents in the impugned judgment submits that the petitioner has been rightly externed from the revenue boundaries of Nashik district. In-camera statements of two witnesses would unequivocally demonstrate that the alleged activities of the petitioner are causing danger to the public order. It is submitted that as many as five offences are mentioned in the impugned order and in addition to the said offences, the authorities have considered the statements of two witnesses recorded incamera.

Bhagyawant Punde

WP-1566-2021.doc

5 / 8

We have given careful consideration to the submissions of learned counsel for the petitioner and the learned APP appearing for respondents. With their able assistance, we have perused the pleadings and grounds in the petition, annexures thereto and the original record in relation to the externment proceedings submitted by the concerned authorities. Admittedly, the petitioner was acquitted by the order dated 15^th October, 2020 passed by the Chief Judicial Magistrate in Regular Criminal Case No. 707/2019 arising out of C.R. No. 52/2018 registered with Sarkarwada Police Station. The order passed by the Deputy Commissioner of Police, Zone-I, Nashik City, was on 16^th October, 2020 and the petitioner came to be acquitted from the aforesaid crime on 15^th October, 2020. The petitioner incorporated specific ground in the appeal memo before the appellate authority i.e. Divisional Commissioner, Nashik. However, from the perusal of the order passed by both the respondent-authorities, it is clear that they have relied upon the said crime while passing the impugned orders. It shows non application of mind on the part of respondent-authorities.

¶40

We have carefully perused the statements of witness (A) and (B). So far as, witness (A) is concerned, he stated that he was cracking joke, at that time the petitioner went near him and asked

Bhagyawant Punde

WP-1566-2021.doc

6 / 8

him that why the said witnesses have started laughing after seeing the petitioner. Witness (B) stated that his way was obstructed by keeping Activa motorcycle in horizontal direction and without any reason the petitioner abused the witness (B). The aforesaid version of two witnesses not even remotely indicate that the said alleged activities of the petitioner posed danger to the public order. The said statements of aforesaid witness were recorded in-camera on 10^th June, 2020. However, the impugned order of externing the petitioner from the revenue boundaries of Nashik district has been passed on 16^th October, 2020. There is no explanation offered by the respondent-authorities for delay in passing the impugned order from the date of recording statements of witnesses in-camera. From the perusal of the impugned orders, the authorities failed to demonstrate the live link between the offences registered against the petitioner and initiation of externment proceedings. The respondents have invoked Section 56(1)(a)(b) of the Maharashtra Police Act. One of the requirement of the said section is that the externing authority has to arrive at subjective satisfaction that the witnesses are unwilling to come forward in public to give evidence against the the petitioner by reason of apprehension to safety of their part, persona and property.

Bhagyawant Punde

WP-1566-2021.doc

7 / 8

In the light of discussion in foregoing paragraphs, we are of the opinion that, because of externing the petitioner from revenue boundaries of Nashik district, by the impugned order, the fundamental right of the petitioner to reside at the place of his choice or move from one place to another has been curtailed and taken away for the period mentioned in the said order. Therefore, this is a fit case wherein interference under writ jurisdiction is warranted. Hence, we are of the considered view that the impugned order passed by the externing authority, thereby externing the petitioner from the revenue boundaries of Nashik district, cannot legally sustained and same deserves to be quashed and set aside. Hence, the following order.

¶49

ORDER

¶50

The writ petition is allowed.

¶51

The order dated 01/02/2021 passed Divisional Commissioner, Nashik, Division Nashik, in Externment Appeal No. 91/2020

¶52

and Externment Order No. Circle/Zone-1/Externment/56/5173/2020 dated 16/10/2020 passed by Deputy Commissioner of Police, Zone-I, Nashik City, are quashed and set aside.

¶53

Rule is made absolute to above extent.

Bhagyawant Punde

WP-1566-2021.doc

8 / 8

The writ petition stands disposed of.

¶58

Parties to act upon an authenticated copy of this order.

¶59

( N. J. JAMADAR, J.)

¶60

(S. S. SHINDE, J.)

¶61

Bhagyawant Punde

Sunny Mansur Shaikh v. the Divisional Commissioner Appellate Authority Nashik Division and Ors.

Case brief

What is this about?

What did the court decide?

Sunny Mansur Shaikh v. the Divisional Commissioner Appellate Authority Nashik Division and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ashish Bharat Jadhav Vs Director General of Police (Prison) and Ors.

Satyajit Shreshthachandra Burman Vs the State of Maharashtra and Ors.

Aman Ajay Tiwari and Ors. Vs the State of Maharashtra and Ors.

Tayyabali Usufali Shaikh Vs the State of Maharashtra and Anr.

Mohsin Mukhtar Shaikh and Anr. Vs the State of Maharashtra and Anr.

Sagar Ganpatrao Lohar Vs the State of Maharashtra and Ors.