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2020 DIGILAW 1164 (BOM)

Mohan Sakharam Kharat v. State of Maharashtra

2020-10-12

M.G.SEWLIKAR, T.V.NALAWADE

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JUDGMENT : M.G. Sewlikar, J. 1. Rule. Rule made returnable forthwith. 2. By consent, heard both the sides for final disposal at admission stage. 3. Petitioners have preferred this writ petition under Articles 226 and 227 of the Constitution of India whereby the order of externment dated 14.07.2020 passed by the Member Externment Tribunal and Superintendent of Police, Ahmednagar (respondent No. 2) in Sthgusha/Externment-Akole Police Station/55/59/1625 of 2020, confirmed by the Divisional Commissioner (respondent No. 2) vide order dated 26.08.2020 in Externment Appeal No. 58/2020, is challenged. 4. Facts leading to this petition are that police inspector of Akole police station, District Ahmednagar, forwarded a proposal dated 19.03.2019 to the Superintendent of Police, for externment of petitioner Nos. 1 to 3 alleging that petitioner Nos. 2 and 3 are the real brothers and petitioner No. 1 is their cousin and they have formed a gang and it is operating in Akola Taluka. They have created a reign of terror in that locality. They assault people and damage their properties. They use wooden logs, stump and iron pipe for assaulting people. On the basis of this notice, the Sub-Divisional Police Officer - respondent No. 4 was directed to hold inquiry. The Sub-Divisional Police Officer issued show-cause notice on 26.06.2019 alleging therein that the petitioners have formed a gang. Details of the offences alleged to have committed by the petitioners are as follows:- It is further alleged in the show-cause notice that despite initiating preventive action against the petitioners, they are indulging in the same activities. Because of the criminal activities of the petitioners, atmosphere of terror is created in the locality. People are not ready to come forward to depose against them or to lodge complaint against them. The notice further alleges that in-camera statements of witnesses A and B were recorded and they have stated that the petitioners are jobless and they extort money from them and on releasing on bail again resort to the criminal activities. They have no fear of law and, therefore, it has become necessary to extern the petitioners from Ahmednagar district, Sinnar and Iganpuri Taluka from Nasik district, Shahpur Taluka from Thane district and Junnar Taluka from Pune district. Petitioners were called upon to explain why the action as proposed by police inspector, Akole police station, shall not be initiated against them. 5. Petitioners were called upon to explain why the action as proposed by police inspector, Akole police station, shall not be initiated against them. 5. Petitioners participated in the proceedings and fled their say stating therein that this action has been initiated against them as there are property disputes between the petitioners and their relatives from B 'havki'. Petitioner No. 2 is a press reporter in Daily Lokvedh published from Shrirampur. Petitioner No. 1 is a labour and earns his livelihood by doing labour work. Petitioner No. 3 is a member of Maharashtra State Electricity Corporation. They have further alleged that the wife of petitioner No. 2 is an Up-Sarpanch of the village, which is difficult for the informants to digest and, therefore, to wreck vengeance, these false proceedings have been initiated. They, therefore, prayed for dropping of the proceedings. 6. Inquiry was conducted by the Sub Divisional Police Officer - respondent No. 4. He submitted report. On consideration of the report and the submissions made by petitioners before the Externment Tribunal, vide order dated 14.07.2020, petitioner Nos. 1 and 2 were directed to be extended from Ahmednagar district for a period of 1 Yi years and petitioner No. 3 was extended for a period of one year. 7. Petitioners challenged this order by preferring Appeal No. 58/2020 before the Divisional Commissioner - respondent No. 2. Respondent No. 2 confirmed the order of Externment Tribunal vide order dated 26.08.2020. Both these orders are challenged by petitioners in this writ petition. 8. Heard Shri Shermale, learned counsel for the petitioners and Shri Salgare, learned APP for the State. 9. Learned counsel Shri Shermale argued that the allegations in the First Information Reports do not indicate that the petitioner No. 1 had formed a gang of which petitioner Nos. 2 and 3 are members. Petitioner Nos. 1 and 2 were acquitted of the offences levelled against them in CR No. 89/2015 R.C.C. No. 148/2015. He has further contended that respondent Nos. 2 and 3 have passed excessive order and, therefore, there was no subjective satisfaction on the part of respondent Nos. 2 and 3. 10. Shri Salgare, learned APP for the State contended that after having subjective satisfaction, respondent Nos. 2 and 3 have passed the order of externment of petitioners. There is ample evidence to show that petitioner Nos. 2 and 3 have passed excessive order and, therefore, there was no subjective satisfaction on the part of respondent Nos. 2 and 3. 10. Shri Salgare, learned APP for the State contended that after having subjective satisfaction, respondent Nos. 2 and 3 have passed the order of externment of petitioners. There is ample evidence to show that petitioner Nos. 1 to 3 have indulged in activities which will cause alarm, danger or harm to the person or property. He, therefore, prayed for the dismissal of the petition. 11. In the show-cause notice, the petitioners are alleged to have committed the offences, details of which are given above in tabular form. CR No. 89/2015 under Sections 143, 147, 148, 324, 452, 504 and 506 of the Indian Penal Code and Section 37(1)(3) of the Maharashtra Police Act was registered against petitioner Nos. 1 and 2. Show cause notice and the orders of Respondents No. 2 and 3 indicate that both the petitioners have been acquitted of the said offences. Petitioner No. 3 was not an accused in this offence. CR No. 5/2018 (RCC No. 52/2018) under Sections 143, 147, 148, 326, 324, 323, 452, 504, 506 of the Indian Penal Code and Section 37(1)(3) of Maharashtra Police Act is registered against the petitioners, which is pending. CR No. 86/2019 under Sections 143, 147, 148, 337, 324, 323, 504, 506 of the Indian Penal Code was registered against all the accused. Impugned orders show that this crime was under investigation till the time the appeal was decided by respondent No. 2. First Information Report of CR No. 86/2019 is produced on record. It shows that the incident took place on 11.03.2019. Allegations in the First Information Report show that the First Information Report was lodged by one Smt. Chhaya Kharat. Petitioner No. 2 Gulab is her next door neighbour. The allegations further show that on 11.03.2019 at about 12.00 noon, Savita - wife of petitioner No. 2 went in front of the house of Chhaya and started abusing as to why the son of informant's brother-in-law (husband's brother) Raosaheb assaulted the son of Savita. At that time, petitioner Nos. 1 to 3 along with others went there, abused them and beat them with stick and stones. At that time, petitioner Nos. 1 to 3 along with others went there, abused them and beat them with stick and stones. The chart further shows that on these allegations N.C. No. 1383/2018 under Sections 427, 323, 506 of the Indian Penal Code has been registered against the petitioners. 12. Allegations in CR No. 5/2018 show that the First Information Report was lodged by Dattatraya Kharat. Petitioners reside in the locality in which informant Dattatraya resides. The First Information Report further recites that the informant Dattatraya is not on good terms with the petitioners and others since last two years. On 10.01.2018, at about 6.30 pm, all the petitioners and others had assaulted the informant, his brother Anil and mother Laxmibai by means of iron rod and by kicks and fests blows. These allegations show that the petitioners had a quarrel with the persons who are their next door neighbors or the persons living in the locality. Both the First Information Reports show that the quarrel had taken place on account of property dispute between the informants in both First Information Reports and the petitioners. 13. In order to bring the case against the petitioners within the sweep of Sections 55 and 56 of the Maharashtra Police Act, it has to be established that they had formed a gang. Sections 55 and 56 of the Maharashtra Police Act read as under:- 55. 13. In order to bring the case against the petitioners within the sweep of Sections 55 and 56 of the Maharashtra Police Act, it has to be established that they had formed a gang. Sections 55 and 56 of the Maharashtra Police Act read as under:- 55. Dispersal of gangs and bodies of persons Whenever it shall appear in Greater Bombay and in other areas in which a Commissioner is appointed under section 7 to the Commissioner and in a district to the District Magistrate, the Sub-Divisional Magistrate or the [Superintendent] [* * *] empowered by the State Government in that behalf, that the movement or encampment of any gang or body of persons in the area in 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 or by members thereof, such officer may, by notification addressed to the persons appearing to be the leaders or chief men of such gang or body and published by beat of drum or otherwise as such officer thinks fit, direct the members of such gang or body so to conduct themselves as shall seem necessary in order to prevent violence and alarm or disperse and each of them to remove himself outside the area within the local limits of his jurisdiction [or such area and any district or districts, or any part thereof, contiguous thereto] within such time as such officer shall prescribe, and not to enter to area [for the areas and such contiguous districts, or part thereof, as the case may be,] or return to the place from which each of them was directed to remove himself. 56. 56. Removal of persons about to commit offence:- [(1)] Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate [* * *] empowered by the State Government in that behalf- (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or (b) that thee are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property or, [(bb) that there are reasonable grounds for believing that such person is acting or is about to act (I) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, antisocial and Other Dangerous Activities Act, 1980, or (2) in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980, or, (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm [or such prejudicial act] or the outbreak or spread o such disease or [notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the officer or not and whether continuous or not), by such route, and within such time, as the officer may specify and not to enter or return to the area or areas specified (hereinafter referred to as "the specified area or areas")) from which he was directed to remove himself]. [(2) An officer directing any person under sub- section (1) to remove himself from any specified area or areas in the State may further direct such person that during the period the order made against him is in force, as and when he resides in any other areas in the State, he shall report his place of residence to the officer in- charge of the nearest police station once in every month, even if there be no change in his address. The said officer may also direct that, during the said period, as and when he goes away from the State, he shall, within ten days from the date of his departure from the State send a report in writing to the said officer, either by post or otherwise, of the date of his departure, and as and when he comes back to the State he shall, within ten days, from the date of his arrival in the State, report the date of his arrival to the officer-in-charge of the police station nearest to the place where he may be staying.] 14. On plain reading of both these sections, it reveals that there must be a public movement or encampment of a gang. The expressions alarm, danger or harm to person or property must be interpreted to refer to alarm, danger or harm to person or property of the pub-he at large and not to individuals with whom the proposed extremes have property dispute or dispute on account of any other cause. If evidence in this regard is lacking, sections 55 and 56 of the Maharashtra Police Act cannot be pressed into service. It is impermissible for the authorities concerned to invoke sections 55 and 56 of Maharashtra Police Act when there is no evidence to show that the activities of the proposed extreme are likely to cause alarm, or danger to the persons living in the locality. 15. In the case of Pandharinath vs. Deputy Commissioner of Police, reported in AIR 1973 SC 630 , it has been held that the expression "alarm, danger or harm to person or property") which occurs in Section 56(a) of the Bombay Police Act, must if possible be so interpreted as to ensure that the provisions of that section are in conformity with the fundamental rights guaranteed by Article 19(1)(d) and (e) of the Constitution. It must follow that the expression "alarm, danger or harm to person or property") must be held to refer to the alarm, danger or harm to person or property of the public at large, and not of one or two individual among the public. In the case at hand, no evidence of this nature is forthcoming. On the basis of above referred two First Information Reports, one cannot come to the conclusion that the activities of the petitioners were causing alarm, danger or harm to person or property. Incident in CR No. 86/2019 took place on account of quarrel between the children. In CR No. 5/2019, quarrel had taken place on account of property dispute between the informant and the petitioners. Therefore, on the basis of such scanty evidence, it is hazardous to conclude that the activities of the petitioners are likely to cause alarm, danger or harm to person or property. 16. In the case of Altaf Rajekhan Pathana and others v. Divisional Commission, Pune and others, reported in 2018 (3) Bom C R (Cri.) 665 : (2018 (3) ABR(Cri) 873), it has been held as under:- "The said provision, as can be seen, can be invoked against the movement or encampment of any gang or body of persons in the area of a Commissioner in the commissionerate area, in a district by the District Magistrate, the Sub-Divisional Magistrate or the Superintendent empowered by the State Government in that behalf. Therefore, the sine qua non for Section 55 to apply is the movement or encampment of any gang or body of persons. Hence, the Section contemplates that there has to be a collective action or concerted action on the part of the gang members. Only when there is a collective or concerted action that the action of dispersal or removal of each of the gang members can be taken. The word "gang") has not been defined in the police act. It would therefore be useful to refer to the dictionary meaning of the said word "gang"). Black's Law Dictionary "Gang") means:- "A group of persons who go about together or act in concert, esp. The word "gang") has not been defined in the police act. It would therefore be useful to refer to the dictionary meaning of the said word "gang"). Black's Law Dictionary "Gang") means:- "A group of persons who go about together or act in concert, esp. for antisocial or criminal purposes.") Oxford Dictionary "Gang") means:- "an organized group of criminals or disorderly young people.") Hence going by the dictionary meaning of the word "gang") the same also indicates that a gang has to be a collection of persons or a body of persons who are acting in concert towards a common unlawful object and, just because an offence is registered against a gang leader and one member of a gang would not mean that they constitute a gang so as to come within the sweep of Section 55 of the police act. Even the meaning of the word "gang") in the Law Lexicon on which the learned Additional Public Prosecutor sought to place reliance cannot be said to be in deviation to the meaning in the other dictionaries as above. In fact the learned Additional Public Prosecutor sought to rely upon a line from the meaning in the Law Lexicon which in our view would be reading the said line out of context.") 17. In the case of Ahammad Mainuddin Shaikh v. State of Maharashtra and another, reported in 2013(4) Bom C R (Cri.) 559, it has been held that section 55 would be applicable when the persons are seen to be acting as members of the gang or body or persons and it is only then that action under Section 55 of the act can be taken and it is to be taken against all the members and not only against few of them selectively. In the case at hand, no evidence could be collected to show that the petitioners were acting as members of the gang or body or person and their activities were causing alarm or danger or harm to person or property. 18. Respondent No. 4 has recorded in camera statement of witnesses A and B. The orders of respondent Nos. 2 and 3 show that their statements are vague. Both of them have stated that petitioner No. 1 Mohan is jobless and extorts money from people. Petitioner No. 1 has the backing of petitioner Nos. 2 and 3. 18. Respondent No. 4 has recorded in camera statement of witnesses A and B. The orders of respondent Nos. 2 and 3 show that their statements are vague. Both of them have stated that petitioner No. 1 Mohan is jobless and extorts money from people. Petitioner No. 1 has the backing of petitioner Nos. 2 and 3. Petitioner No. 2 is in politics owing to which, people refrain from lodging First Information Report against him. Petitioner Nos. 1 to 3 threaten the people to implicate them in false atrocity cases. The statements of both the witnesses are vague. On the basis of such vague statements, extreme action of externment of petitioners cannot be justified. 19. It is, thus, clear that without there being any evidence of petitioners having formed a gang, the petitioners have been extended from Ahmednagar district. The orders of respondent Nos. 2 and 3 suffer from non-application of mind. Therefore, it cannot be said that after having subjectively satisfied themselves, respondent Nos. 2 and 3 passed the order of externment. 20. It is worth noting that petitioner Nos. 1 and 2 have been acquitted of the offences in CR No. 89/2015 (RCC No. 148/2015). Even then the same was considered for externment of the petitioners which shows non-application of mind on the part of respondent Nos. 2 and 3. 21. Record shows that petitioners' activities are restricted to Akole police station, District Ahmednagar, whereas, they have been extended from entire Ahmednagar district. No reasons are assigned for their externment beyond the area of their activities. Record further shows that petitioner Nos. 1 and 2 were extended for a period of 1½ years however, petitioner No. 3 was extended for a period of one year. No reason is assigned for this variance. In Sumit S/o. Ramkrishna Maraskolhe v. Deputy Commissioner of Police, Nagpur and another in Criminal Writ Petition No. 1002 of 2017 Reported in 2019 (1) ABR (CRI) 793), this question has been dealt with by the Full Bench and it has been held thus:- "26. No reason is assigned for this variance. In Sumit S/o. Ramkrishna Maraskolhe v. Deputy Commissioner of Police, Nagpur and another in Criminal Writ Petition No. 1002 of 2017 Reported in 2019 (1) ABR (CRI) 793), this question has been dealt with by the Full Bench and it has been held thus:- "26. The discussion made so far would lead us to record our conclusion as follows: (i) The externment order directing externment of a person from a much larger area than the one of his illegal activities, must be based upon some material which provides an objective criteria to the authority for reaching a subjective satisfaction regarding the need for externing a person to an expansive area though it may not always directly or elaborately refer to that material in the order itself, as it all depends upon facts and circumstances of the case which need be vetted through the judicial process of drawing of legitimate inference following the law of Pandharinath and Sanjeev alias Brittoo (supra). (ii) The order of externment need not necessarily refer to the details of the material considered by it so as to show independently that larger or additional area chosen by it is intimately connected with the actual area of the activities of the extreme due to improved or common means of transport and communication. (iii) Application o mind to the material present on record by the authority passing the externment order is necessary, but any refection of application of mind in the externment order in a specific manner, as if to pass a reasoned order, would not be necessary. It would be enough if the order discloses that the subjective satisfaction has been reached by considering the material available on record and it would and should be a matter of legitimate inference that the authority, while considering materials to satisfy itself about the need for and extent of externment to be ordered, also considered all the options available to it and selected in it's wisdom the one which it thought to be most appropriate. This would also mean that authority, in this way, can select a larger area for being covered under it's externment order, as one of the options available to it, whether such larger area has within it contiguous or inter-connected or intimately connected pockets of areas or not.") 22. This would also mean that authority, in this way, can select a larger area for being covered under it's externment order, as one of the options available to it, whether such larger area has within it contiguous or inter-connected or intimately connected pockets of areas or not.") 22. From the aforesaid observation, it is amply clear that before passing excessive order, reasons have to be given by the externing authority which compelled it to extern the proposed extreme from the entire district when his activities are confined to one police station. In the case at hand, no such reasons are assigned by the externing authority. On this count also, the order of externment cannot be sustained. 23. For the foregoing reasons, orders passed by respondent Nos. 2 and 3 cannot be sustained. Hence, the following order:- ORDER 1. Petition is allowed. 2. Relief is granted in terms of prayer clause "B"). 3. Order made by the Divisional Commissioner, Nashik Division, Nashik dated 26.08.2020 thereby confirming order dated 14.07.2020 passed by the Member Externment Tribunal and Superintendent of Police, Ahmednagar is quashed and set aside. 4. Rule made absolute in those terms.