Sheikh Javed Sheikh Mushtaq @ Pahelwan Vs the State of Maharashtra through Secretary Home Department Mantralaya Mumbai

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2025:BHC-NAG:9188

Judgment

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

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CRIMINAL WRIT PETITION NO.830 OF 2024

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Sheikh Javed Sheikh Mushtaq @ Pahelwan,
aged 47 years, occupation municipal councilor in
M.C.Digras, tahsil Digras, district Yavatmal,
r/o Wahab Nagar, Digras, tahsil Digras,
district Yavatmal.
Aadhar Card No.2935 0421 1113.
Mobile No.8379932525. ….. Petitioner.

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:: V E R S U S ::

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1. State of Maharashtra, through Secretary
Home Department, Mantralaya,
Mumbai-400032.

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2. The Divisional Commissioner,
Amravati Division, Amravati.

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3. The Superintendent of Police Yavatmal,
tahsil and district Yavatmal.

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4. The Sub Divisional Officer & Sub
Divisional Magistrate (SDM) Pusad,
tahsil Pusad, district Yavatmal,
Email [email protected]

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5. The Sub Divisional Police Officer (SDPO),
Darwha, tahsil Pusad, district Yavatmal.

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6. The Police Inspector, Local Crime Branch
(LCB), Yavatmal, tahsil and district Yavatmal.

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7. The Police Station Officer, Police Station
.
Digras, tahsil Digras, district Yavatmal. ….. Respondents

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Shri Sudhir Malode, Counsel for the Petitioner.
Shri M.J.Khan, Addl.P.P. for Respondents/State.

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CORAM : URMILA JOSHI-PHALKE, J. CLOSED ON : 14/08/2025 PRONOUNCED ON : 16/09/2025

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JUDGMENT

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Heard learned counsel Shri Sudhir Malode for

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the petitioner and learned Additional Public Prosecutor
Shri M.J.Khan for the State. Rule. Heard finally by

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consent.

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In this writ petition, the petitioner has prayed for quashing of externment order passed by the Sub Divisional Officer dated 26.3.2024 and confirmed by the

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Divisional Commissioner, Amravati externing the

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petitioner for a period of one year.

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Facts of the case are that, the petitioner is resident of Digras, district Yavatmal, having background of social work and was also elected as Councilor of Municipal Council, Digras in the year 2006 and since then he is working as Councilor of the said Municipal Council. His wife was also elected as President in the year 2016 as well as his mother was also elected as Councilor of the Municipal Council, Digras. Thus, the entire family is in politics. The criminal cases filed against him are of political rivalry on the say of the Minister elected from Darwah-Digras Constituency. The inspector of the Digras Police Station forwarded externment proposal No.2/2022 under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 (the said Act) to the Sub Divisional Officer. The Sub Divisional Officer, Pusad, by issuing notice, by holding the enquiry, as per the provisions of Section 59, of the said Act, passed the externment order.

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Being aggrieved and dissatisfied with the same, the petitioner challenged the said order before the Divisional Commissioner, Amravati. The Divisional Commissioner, Amravati confirmed the said order holding that there is continuous involvement of the petitioner in the illegal activities.

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Hence, this writ petition.

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The said petition is strongly opposed by the

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State on the ground that the order passed by respondent

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No.4 - the Sub Divisional Officer and Sub Divisional
Magistrate, Pusad that the movement of the petitioner is
causing or calculated to cause alarm, danger or harm to
individual in the locality and, therefore, passed the order
of externment from the jurisdiction of districts Yavatmal

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and Washim. Around 12 serious crimes have been

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registered against the petitioner and from Crime

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Nos.3044/2009 and 173/2016 he is acquitted. There was
mutual settlement in Crime Nos.255/2006 and 211 of
2015. Thereafter also, 7 offences are still pending against
the petitioner. The Police Inspector of Digras Police
Station submitted proposal that the petitioner is engaged
in criminal activities and total 12 offences were pending
against him, out of which 7 offences are still pending
against him which are in the nature of serious crimes.
The petitioner is a politician and working on the post of
Vice President, Digras. In the year 2006, he was
prosecuted for hurting religious sentiments, assembling
group of miscreants, abusing people, threatening
Scheduled Tribe and the Scheduled Caste Communities.

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The crimes such as threatening, damaging the
Government properties, injuring, and obstructing are
recorded. Therefore, the order of Sub Divisional Officer

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confirmed by the Divisional Commissioner is proper and
legal one. No interference is called for.

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Learned counsel for the petitioner submitted that due to the political rivalry and being the political figure, the petitioner is implicated in the alleged offence. The proposal of the externment of the petitioner was initiated at the instance of the Police Inspector, Police Station, Digras, Yavatmal under Section 56 of the said Act. Accordingly, show cause notice was given to the petitioner which was replied by him on 8.5.2024. Thus, after getting an opportunity, he had explained the reasons being implicated in various offences. In fact, he is falsely implicated in the various offences. Crime Nos.255/2006; 120/2008, 3045/2008; 3044/2009; 143/2011; 3023/2013; 186/2019; 211/2015; 527/2016; 173/2016; 1291/2021, and 340/2022, out of which in connection

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with Crime Nos.255/2006 and 211/2015, the dispute is
settled by amicable settlement. In Crime Nos.173/2016
and 3044/2009 wherein he is acquitted. The rest of the
crimes are registered under Sections 353 and 332 of the
IPC. Not a single offence is registered against the
petitioner which is of a nature for which the punishment
for more than seven years is provided. There is no
subjective satisfaction recorded by the authorities and,
therefore, the orders passed by the Divisional
Commissioner and the Sub Divisional Magistrate are
liable to be set aside.

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Learned Additional Public Prosecutor for the

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State, strongly opposed the petition and submitted that
out of 12 offences, 7 crimes have been pending, out of
which, one crime is registered under Section 307(5) of
the IPC, which is a serious offence. The petitioner is of

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habitual offender. If the records of the petitioner and the
registered cases are considered, many cases have been
registered against him. In view of that, the petition
deserves to be dismissed.

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After heaving both the sides and perusing the record, it reveals that the proposal was sent to extern the petitioner from Yavatmal district for one year. Accordingly, notice was issued under Section 56(1)(a)(b) of the said Act to the petitioner, which was replied by him. The order passed by the Authority shows that in all 12 offences are registered against the petitioner, out of which in 2 offences, i.e. Crime Nos. 255/2006 and 211 of 2015, the matter was settled amicably. In 2 offences, i.e. Crime Nos.3044/2009 and 527/2016, he is already acquitted. Rest of the offences are registered under Sections 294, 323, 341, 353, and 506 of the IPC. Crime

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No.173/2016 is registered under Sections 186, 504, 506,
and 353 and Crime No.1291/2021 is registered under
Sections 353, 323, 504, 506, and Crime No.340/2022 is
registered under Sections 341, 292, 323, and 506 and
Crime No.527/2016 is registered under Sections 134 and
135 of the said Act and under Section 188 of the IPC, and
Crime No.143/2011 is registered under Sections 452,
354, 294, 427, 504 , and 506 read with 34 of the IPC.
Crime No.3023/2013 is registered under Sections 290,
294, 504, and 506 read with 34 of the IPC. Crime
No.186/2019 is registered under Sections 143, 353, 379,
504, and 427 of the IPC and under Sections 3 and 4 of
the Prevention of Damage to Public Property Act, 1984.
Crime No.120/2008 is registered under Sections 143,
148, 307, 323, read with 149 of the IPC and under
Sections 4 and 25 of the Arms Act.

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Perusal of the order of the Authority shows that considering various offences registered against the petitioner, it was recorded that offence under Section s 307(5) of the IPC is a serious offence. The petitioner’ involvement is in continuous illegal activities and there is no improvement in his behaviour despite preventive action is taken against him. Considering the nature of the offence, some preventive action is required and, therefore, he is externed.

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As far as this observation is concerned, no specific instances or the statements of the secret witnesses are mentioned in the order. The general allegations appear to be levelled that the complaints are received against the petitioner alleging that the petitioner is of a criminal nature and habitual offender involved in the offence like harassing, abusing public officers, creating

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obstructions to the public officers while there were
discharging official duties, constituting unlawful assembly,
and disturbing public peace.

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As far as the order of the externment is

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concerned, by its very nature, is extraordinary. It has the
effect of force displacement from the home and
surroundings. Often, it affects the livelihood of the
person in ordered to be externed.

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Thus, there must exist justifiable grounds to

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sustain the order of externment. The order of
externment, therefore, must be strictly within the bounds
of the statutory provisions.

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Under clause (a) of sub-Section (1) of Section

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56, the externing authority must be satisfied on the basis

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of the objective material that the movements or acts of

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the person to be externed are causing or calculated to
cause alarm, danger or harm to person or property.

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Under clause (b), there must be an objective

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material on the strength of which the externing authority
must record subjective satisfaction that there are
reasonable grounds for believing that the externee is
engaged or about to be engaged in the commission of
offences involving force or violence. Mere registration of a
number of offences by itself does not sustain an
externment under Section 56(1)(b) of the Act.

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The offences must either involve in events or

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force or violence or fall under Chapter XII and XVI of the
IPC. In addition, the externing Authority must record
satisfaction that the witnesses are notwithstanding are
not willing to come forward to lead evidence in public

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against the externee by reasons of apprehension on their
part as regards the safety of their person or property.

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14. To sustain an action of externment, under sub

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clause (b), the offences, the externee has engaged in,
must be under one of the Chapters enumerated therein

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and the acts and conduct of the externee must be such
that the witnesses are terrified and dissuaded from giving
evidence in public hearing due to fear for the safety of
their person or property.

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15. In the light of the above requirement under
Section 56(1)(a) and 56(1)(b) of the said Act, the
aforementioned challenged deserve to be appreciated.

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16. In order to appreciate the argument of learned
Additional Public Prosecutor for the State, reference has

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to be made to the provisions of Section 59 of the said Act.
It provides that before action is taken under Sections 55,

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56, and 57 of the Act, the authority entrusted with the
duty of passing orders under any one of those sections or
any officer above the rank of an Inspector authorized by

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that officer or authority shall inform the person proceeded
against in writing "of the general nature of the material
allegations against him" in order to give him a reasonable
opportunity' of explaining his conduct.

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17. In the present case, the externing Authority has
considered 7 cases against the petitioner, out of Crime
No.340/2022 wherein investigation was in progress and
rest of the crimes wherein the crimes are pending. The
considerable period has already elapsed from registration
of the aforesaid crimes as the last crime was registered
against the petitioner is in the year 2022 i.e. Crime
No.340/2022. Since initiation of the action for
externment, the purpose of externment is not punitive.

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to disable a person by moving him away from
surroundings which prove favourable for the commission
of the offences and thereby disarmed the influence in the

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said area. Thus, there ought to be lively acts of the
externee and the action of the externment. If the order
passed by the externing Authority as well as the Appellate
Authority is considered, there is no subjective satisfaction
recorded by both the Authorities. Moreover, the reply
filed by the petitioner appears to have been considered by
the Authority, which was not considered. The application
of mind to the material of record by authority passing
externment order is necessary. The grievance is made
that the substance of the statement of confidential
witnesses was not mentioned in the externment order.

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18. Perusal of the externment order shows that

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cursory reference was made as to the statements of the

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confidential witnesses. The substance of that statements
was not briefly stated in the externment order. In order
to grant a fair and reasonable opportunity to the person
who is proposed to be externed has right to know the
material relied upon against him as well as opportunity to
effectively and meaningfully deal with the said matter. It
is seen that on this count, a fair and reasonable
opportunity was not granted to effectively and
meaningfully deal with relied material before passing the
order. In my view, on these grounds also, the externment
order is liable to be quashed and set aside.

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19. The term satisfaction relates to the "thinking"
of the detaining authority. The term has a reference to the
mental element of the subject i.e. the desires or feelings of
the detaining authority. In a wider sense the term
"satisfaction" may include "pleasure". However, in the

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context in which the term 'satisfaction' has been used
indicates that there must be a state of mind which has
satisfied or contented occasioned by some facts, events or
state of things.

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20. Bearing in mind the above said dictionary
meaning of “subjective satisfaction” means in the first
instance personal satisfaction of the concerned detaining
authority himself only and none else as a necessary
corollary thereof and in the second instance, therefore it
cannot be tested on the objective test.

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21. In view of the above facts and circumstances of

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the case, the petitioner has made out a case in his favour.
Accordingly, I proceed to pass following order:

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ORDER

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(1) The Writ Petition is allowed.

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(2) The order passed by the Sub Divisional Officer dated
26.3.2024 and confirmed by the Divisional Commissioner,

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Amravati externing the petitioner for the period of one
year is quashed and set aside.

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Petition stands disposed of. Rule is made

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absolute in the aforesaid terms.

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( URMILA JOSHI-PHALKE, J. )

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!! BrWankhede !!

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Sheikh Javed Sheikh Mushtaq @ Pahelwan v. the State of Maharashtra through Secretary Home Department Mantralaya Mumbai

Case brief

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What did the court decide?

Sheikh Javed Sheikh Mushtaq @ Pahelwan v. the State of Maharashtra through Secretary Home Department Mantralaya Mumbai

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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