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2017 DIGILAW 2002 (BOM)

Vijay Kailas Bhosale v. State of Maharashtra

2017-09-25

R.M.SAVANT, SANDEEP K.SHINDE

body2017
JUDGMENT : SANDEEP K. SHINDE, J. 1. The Petitioners in all these three Petitions have challenged the legality of the externment order dated 3.2.2017 passed under Section 55 of the Maharashtra Police Act and the order dated 12.4.2017 passed by the Divisional Commissioner, Pune Division, Pune under Section 60 of the Act inter-alia confirming the externment of the Petitioners and hence, all the Petitions are taken up for final hearing at the admission stage. 2. The Deputy Commissioner of Police, Pimpri Division, Pune upon careful scrutiny of the proposal received upon the from PI Wakad, Pune, directed Assistant Commissioner of Police to hold enquiry and issue notice under Section 59 of the Act. Thereupon notices were issued under Section 59 of the Act to a gang leader and the members of his gang as to why they be not externed under Section 55 of the Said Act. It may 55 of the Said Act. It may be stated that notices were issued to Rakesh Popat Bharne gang leader and fourteen gang members in December, 2016 informing them general nature of material allegations against them general against them and affording opportunity of tendering explanation. It appears Ravindra Dhumal, a gang member could not be served despite persistent efforts. It appears after affording sufficient opportunity to Petitioners herein and other members of gang, to members of the Assistant Commissioner submitted his report dated 9.1.2017 to the Deputy Commissioner of Police along with replies filed by the Petitioners and other members of gang. It further appears the Deputy Commissioner of Police again issued notice dated 12.1.2017 whereby he called upon Petitioners to remain present before him for hearing. In response thereto, the Petitioners herein filed their counter. The Competent Authority after perusing the preliminary report submitted by the Assistant Commissioner of Police and after taking into consideration submissions of the externees vide order dated 3.2.2017 externed the gang leader and 13 members of his gang from the District: Pune for a period of year and half. It may be stated that two members who were the proposed externees namely, Jaydeep Sampat Mane, Vinayak Ramesh Gaikwad were dropped and excluded from the externment proceedings on the ground that they were to contest elections of the Pune Municipal Corporation. The said exclusion was conditional. 3. It may be stated that two members who were the proposed externees namely, Jaydeep Sampat Mane, Vinayak Ramesh Gaikwad were dropped and excluded from the externment proceedings on the ground that they were to contest elections of the Pune Municipal Corporation. The said exclusion was conditional. 3. It may be stated that the Externing Authority after adverting to material, i.e. offences registered against the leader of a gang and his members and also the individual offences registered against each of the members of the gang which were in the nature of offences punishable under Chapter XII, XVI of the Indian Penal Code, 1860 and after considering the in-camera statements of four witnesses externed the Petitioners from the limits of Pune District for a period of one and a half year. 4. That, the Appeals preferred under Section 60 of the Act against the said order of externment were partly allowed by the Divisional Commissioner, Pune Division, Pune, who vide order dated 12.4.2017 confirmed the externment of the Petitioners from limits of District: Pune but reduced the period of externment from year and half to a year. 5. The learned counsel for the Petitioners contended that admittedly the Petitioners were externed as members of a gang under Section 55 of the Said Act preceded by notice under Section 59 issued to 15 members of the gang including the gang leader. The learned counsel submitted that the Externing Authority while passing the order of externment had dropped the proceedings, against the two members namely, Jaydeep Mane and Vinayak Gaikwad which was not permissible. He submitted that Section 55 would be applicable only when persons are seemed to be acted as ‘members of gang’ or ‘body of persons’ and it is only then that action under Section 55 of the Act can be taken and further it is to be taken against all the members and not only a few of them selectively (emphasis supplied). It is Petitioners' submission that the Externing Authority cannot discriminate between the members of the gang particularly when collective criminal activity alleged on their part. On this premise, the learned counsel for the Petitioners would contend that the Externing Authority has had no powers to discriminate between the members of the gang, once the provisions of Section 55 of the the gang, once Section 55 of said Act are invoked. On this premise, the learned counsel for the Petitioners would contend that the Externing Authority has had no powers to discriminate between the members of the gang, once the provisions of Section 55 of the the gang, once Section 55 of said Act are invoked. In other words, the Petitioners would submit that exclusion up to two members of the gang though they were initially served with notice being members of the gang and thereafter excluding them from the proceedings for whatever reason was not permissible in terms of Section 55 of the Maharashtra Police Act and that itself vitiates entire proceedings under Section 55 of the Act. 6. The learned counsel would further submit that four offences were registered against the gang leader and the members of the gang namely, Crime No. 65/2000, 224/2007, 170/2007 and 3164/2007. The Petitioners further submitted that the above referred four offences were registered against gang leader and his members including the two gang members against whom proceedings were dropped for collective criminal activity. The Learned Counsel further submitted that in all the aforesaid four crimes, the gang leader and his members were acquitted by the Trial Court. In these circumstances they submitted that as on the date of issuance of notice against the Petitioners being members of the gang, the Respondents were precluded from relying on these four crimes being material for externing the Petitioners. 7. The learned counsel would further submit that when the re-course is taken to the provisions of Section 55 of the said Act, the authority could not have taken into consideration the offences registered against each of the Petitioners in their individual capacity. On this premise, the Petitioners submitted that approach of the Externing Authority was contrary to the of the Externing Authority was contrary to the scheme of Section 55 of the said Act. 8. On the other hand, the learned APP appearing for the State has supported the impugned orders and also filed an affidavit of one Shri Ganesh Shinde, Deputy Commissioner of Police, Zone-III, Pune City, District: Pune. 9. We have perused the orders passed by the Externing Authority; the notice dated 20.12.2016 issued under Section 59 and the order passed by the Divisional Commissioner, Pune Division, Pune in the Appeals under Section 60 of the said Act. 10. 9. We have perused the orders passed by the Externing Authority; the notice dated 20.12.2016 issued under Section 59 and the order passed by the Divisional Commissioner, Pune Division, Pune in the Appeals under Section 60 of the said Act. 10. The learned counsel for the Petitioners have relied upon judgment of the Division Bench of this Court in the case of Ahammad Mainuddin Shaikh v. The State of Maharashtra reported in reported in 2013 ALL MR Criminal 3804 and another judgment of the Division Bench in the case of Vijay Lalso Jadhav v. The State of Maharashtra reported in reported in 2014 All M.R. Criminal 1277. 11. In the aforesaid judgments, it was held “The language of the held Section 55 shows that the power given to the Competent Authority can be exercised only in relation to any gang or a body of persons, whenever it appears to the Competent Authority that the movement or encampment of any gang or body of persons in the area in his charge is causing or calculated to cause danger or alarm or a reasonable suspicion or alarm or a reasonable suspicion that unlawful designs are entertained by such gang or body or by members thereof. 12. It is, therefore, evident that Section 55 of the Maharashtra Police Act does not contemplate movement or encampment of ‘a person’ (emphasis supplied) causing or calculated to cause danger or alarm, but, refers to movement or encampment of any gang or body of persons causing or calculated to cause alarm, danger, etc. 13. It is, thus, evident from the language of Section 55 of the Maharashtra Police Act that its application is directed not against any individual but against any gang or body of persons or members of gang. 14. A close scrutiny of Section 55 makes it very clear that when the authority invokes the provisions of Section 55 of the said Act, it cannot exercise discretion selectively and exclude some of the members from the proceedings. 15. The language of the Section 55, therefore, mandates that when authority orders dispersal of the members of the gang, it has to remove ‘each’ of the members of the gang outside the area within the local limits of its jurisdiction. 15. The language of the Section 55, therefore, mandates that when authority orders dispersal of the members of the gang, it has to remove ‘each’ of the members of the gang outside the area within the local limits of its jurisdiction. Expression “each of them”, leaves no option to the Externing Authority but it has to extern all the members of the gang once the subjective extern of once satisfaction is reached by such authority. The provisions of Section 55 does not permit the Externing Authority to exercise the discretion on any count to exclude and/or to drop externment proceedings against any of the members of the gang. 16. In the case in hand, admittedly, notices were issued to fifteen members of the gang including it's leader. The said notice was issued to the proposed externees in the capacity as ‘members’ of a gang. The Externing Authority, however, excluded the two members namely, Jaydeep Mane and Vinayak Gaikwad from the externment proceedings on the ground that they were to contest the election of the Pune Municipal Corporation. In our view, the order passed by the Externing Authority is per-se illegal and contrary to the provisions of Section 55 of the said Act. The Externing Authority has had no jurisdiction and/or power to exclude and/or to drop the proceedings against any of the members of the gang and more particularly when they were served with notice to which they had responded to. That taking into consideration facts of the case and the view taken by the Division Bench in the aforesaid two cases, we are of the view Bench the aforesaid two are of that the order passed by the Externing Authority which has been confirmed by the Appellate Authority is not sustainable in law, being contrary to spirit of Section 50 of the said Act. 17. The submission urged on behalf of the petitioners, that the four cases as referred to hereinabove registered against the leader of the gang and his members could not have been taken recourse to for initiating proceedings against them as all of them were acquitted in all such four cases. We do not all of them were acquitted in all such four cases. We do not all of them were acquitted in all such four cases. We do not see any merit in the submission in as-much-as acquittal has no relevance to order under Section 55 of the Act and acquittal itself is no ground for not acting under Section 55 of the Act. 18. In view of the facts of the case and for the reasons stated here-in-above, the Petitions are allowed in terms of prayer clause (a) of Writ Petition No. 1811 of 2017 and Writ Petition No. 1812 of 2017 and prayer clause (b) of the Writ Petition No. 1836 of 2017.