Shaikh Fakhre Alam Laique Ali vs the Divisional… — Writ and Judicial Review

By this Petition under Articles 226 and 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973, the Petitioner calls in question the legality, propriety and correctness of the order dated 2 May

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2025 passed by the Divisional Commissioner, Konkan Division, in Appeal No.174 of 2024, whereby the appeal preferred by the Petitioner against an order of externment passed by the Deputy Commissioner of Police, Zone I, Thane, under Section 55 of the Maharashtra Police Act, 1951 (the Police Act, 1951), for a term of 18 months from Thane and Mumbai Suburban Districts, came to be dismissed by affirming the said order of externment.

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A notice was served on the Petitioner, the alleged gang leader, and

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Azam Laik Ali Shaikh, Fakre Alam Badre Alam and Mosin Mobin Khan, the alleged other gang members, calling upon them to show cause as to why action under Section 55 of the Act, 1951 shall not be taken against the gang leader and the members of the alleged gang. It was, inter alia, alleged that multiple crimes were registered against the Petitioner and other members of the said gang and their movements were causing or calculated to cause danger or alarm or reasonable suspicion that unlawful designs were entertained by such gang or members thereof.

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Eventually, the Competent Authority passed an order of externment externing the Petitioner and other members of the gang from Thane and Mumbai Suburban Districts for a term of 18 months.

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The Petitioner preferred an appeal before the Divisional Commissioner. By the impugned judgment and order, the Divisional Commissioner dismissed the Appeal.

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Being further aggrieved, the Petitioner has invoked the writ jurisdiction.

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I have heard Mr. Sayed, learned Counsel for the Petitioner, and Mrs. Tendulkar, learned APP for the State. With the assistance of the learned Counsel for the parties, I have perused the material on record.

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Mr. Sayed, learned Counsel for the Petitioner, submitted that, by an order dated 21 April 2025 in WP No.1638 of 2025, this Court has quashed and set aside the impugned order of externment qua Fakrey Alam Badre

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Alam, the alleged member, and by another order dated 23 December 2025 in wP No.2866 of 2025, this court has quashed and set aside the impugned order of externment qua Azam Laik Ali Shaikh, another alleged member of the gang. Thus, on parity of reasons, the impugned orders are required to be quashed and set aside qua the Petitioner also.

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Mr. Sayed submitted that, though the Petitioner has been arrayed as the gang leader, yet, the copies of the FIR in the crimes arrayed against the Petitioner would indicate that the offences are individualistic in nature rather than the product of a concerted group of action. Secondly, the reason which weighed with this Court in quashing the impugned order qua Azam Laik Ali Shaikh in WP No.2866 of 2025, namely, the action of externment was selective, governs the case of the instant Petitioner.

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In opposition to this, Mrs. Tendulkar, learned APP sought to support the impugned order. It was urged that the crimes registered against the Petitioner indicate that the Petitioner has been indulging in bodily offences and resorting to violence as the leader of the gang.

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First and foremost, it is necessary to note the reasons which weighed with this court in quashing and setting aside the externment order qua Fakrey Alam Badre Alam, the alleged member of the very same gang. The relevant observations in the order dated 21 April 2025 in WP No.1638 of 2025 read as under :

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“8. A careful reading of Section 55 reveals a consistent underline theme of collective participation and unified action against all involved. The Section begins by referring to a gang or body of persons, highlights the threat posed by their movement or encampment, and culminates in a directive for the removal of each member of such a group. This element of collective responsibility is central to the provision and reflects the clear legislative intent. Section 55 of the Act is thus applicable only when individuals are shown to be acting as part of a gang or body of persons.

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The impugned orders show that an offence vide CR No.525 of 2023 was registered against the petitioner, which, at the time of passing the externment order, was still under investigation. Beyond this single case, there is no indication of any other criminal activity involving the petitioner. Neither the documents on record nor the submissions of the learned APP point to any additional cognizable offences linked to the petitioner, except for certain non-cognisable offences, and even those do not reflect any involvement as part of a gang. Given that the action was initiated under Section 55 of the Act, the externing authority also referred to criminal cases registered against other individuals alleged to be part of the same gang as the petitioner. However, this lone case (CR No.525 of 2023) appears to be the only common thread connecting the petitioner with the remaining four alleged gang members. The record shows that five cases have been registered against the second alleged member, Fakrey Alam Layak Ali Shaikh; four cases each against the third and fourth alleged members, Azam Layak Ali Shaikh and Mosin Mobin Khan. In contrast, only one criminal case has been attributed

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to the petitioner, and even that case is not uniquely associated with gang activity. This disparity in the nature and number of offences suggests that the criminal acts attributed to the alleged gang members are more individualistic rather than collective in nature, thereby failing to demonstrate any coordinated or group-based criminal conduct.

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Furthermore, the impugned order does not contain any material suggesting that the petitioner is either the leader or a functioning member of a gang or body of persons. In the absence of such essential findings, the foundational requirement of Section 55, that action be taken against individuals acting collectively as a gang is clearly not fulfilled in this case. Therefore, in light of the absence of collective criminal activity and the lack of material implicating the petitioner as a gang member, the impugned orders cannot be sustained. On this ground alone, they deserve to be quashed and set aside qua the petitioner.

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The learned Counsel for the petitioner has also raised several additional contentions, however, in the present context, it is not necessary to examine each of these submissions in detail. This is because once it is established that the impugned orders are vitiated by fundamental legal errors, these other arguments lose their significance. The foundational defects in the orders, going to the statutory requirement under Section 55 are sufficient, in and of themselves, to warrant the quashing of the impugned orders qua the petitioner. As such, the remaining contentions, though not without merit, do not require separate adjudication.”

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It is true, in the aforesaid order, the learned Single Judge took note of the fact that in only one crime i.e. C.R.No.525 of 2023, Fakrey Alam Badre Alam, the Petitioner therein, was arraigned along with the Petitioner herein and other accused. However, the learned Single Judge also observed that the criminal acts attributed to the alleged gang members were more individualistic rather than collective in nature and lacked element of coordinated or group based criminal conduct. The impugned orders were vitiated by the foundational legal errors. In view of the foundational defects, the impugned orders were quashed qua the Petitioner therein.

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I find substance in the submission of Mr. Sayed that the aforesaid observations apply with equal force to the challenge mounted by the Petitioner, as well.

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The submission of Mr. Sayed that the offences in which the Petitioner has been arraigned are more individualistic in nature rather than representing the concerted group action, appears sustainable. If the allegations in the FIR in four crimes arrayed against the Petitioner are evaluated, it would be difficult to draw an inference that the Petitioner and alleged other gang members were acting as members of the gang or body of persons. The vice of selective action impairs the impugned order of externment. In C.R.No.432 of 2018, the Petitioner has been arraigned alongwith Azam Laik Ali Shaikh and two other co-accused namely Usman Ahmed Shafique and Mohd. Raza

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Sabanali Sayed. In C.R.No.537 of 2023, apart from the Petitioner and Azam Laik Ali Shaikh, Gulnar Shaikh is shown to have been implicated as coaccused. However, no action was initiated against the other co-accused.

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In the case of Ahammad Mainuddin Shaikh V/s. The State of Maharashtra and Anr.¹ , a Division Bench of this Court had an occasion to consider the import of the provisions contained in Section 55 of the Act, 1951, After analyzing the provisions of the Act, 1951, the Division Bench observed that Section 55 would be applicable only when the persons are seen to be acting as members of the gang or body of persons and it is only then that action under Section 55 of the Act can be taken and which is to be taken against all members and not only a few of them selectively. The observations in paragraphs 8 and 14 read as under :

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“8…...Upon a careful reading of this section, 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 cause danger or alarm or reasonable suspicion that unlawful designs are entertained by such gang or body of persons or by its members, 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 of conduct of such gang or body of persons in a manner prescribed in the direction in order to prevent violence and

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alarm. Such direction, in the alternative, can also be in the form of an order for 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 or body of persons outside the area within the local limits of jurisdiction of the competent authority. In suitable cases, the order of removal can also be from district or it's parts or together with contiguous districts or parts thereof. This second direction, in order to be reasonable, has to be passed for a definite period of time. In the entire section, there is common thread of participation by all and collective action against all that holds together all it's parts. The section starts with gang or body of persons, sails through the dangerous impressions that the movement or encampment of gang or body of persons creates and ends with a direction of removal passed against each of the members of the gang or body of persons. This common thread is the essence of Section 55 and that is the mandate of the legislature. In other words, Section 55 would be applicable only when the persons are seen to be acting as members of the gang or body of persons and it is only then that action under Section 55 of the Act can be taken and which is to be taken against all members and not only a few of them selectively.

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The illegality so committed by both authorities does not stop here. The externing authority, while passing the final order which has been confirmed by the appellate authority, has directed externment only against the petitioner and not the remaining 5 members of his alleged gang, for a period of one year from the district of Kolhapur. Such discrimination

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between members of the gang is not permissible in law, particularly, when collective criminal activity is alleged on their part by arraigning at least some of them, as accused along with the petitioner. Section 55 of the Act contemplates a collective action against the gang or body of persons and, therefore, the final direction that is required to be issued in terms of this section, would also have to be necessarily against each of the members of the gang and not against one or a few of them on selective basis. So, on this ground also, we find that the impugned orders are absolutely illegal and cannot be sustained in law.” (emphasis supplied)

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16. In the case of Vijay Lalaso Jadhav V/s. State of Maharashtra and

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Ors.² , another Division Bench of this Court enunciated the law 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 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.” (emphasis supplied)

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Applying the aforesaid principles to the facts of the case at hand,

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on the one hand, the Competent Authority has not proceeded against the co-

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accused who are arraigned in the crimes against the Petitioner and the alleged members of the gang. On the other hand, this Court found that the order of externment qua the alleged members of the gang was vitiated by legal defects as the alleged offences were not in pursuance of the concerted

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group action but more individualistic rather than collective in nature.

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In the aforesaid view of the matter, I am impelled to hold that the impugned orders cannot be sustained qua the Petitioner also. Resultantly, the Petition deserves to be allowed.

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