Bombay High CourtShivraj S/O. Bhagwan Patil vs The Divisional Commissioner, ... on 10 July, 2018Author:V.K. JadhavBench:S. S. Shinde,V. K. JadhavCri WP 619 & 622 of 2018
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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                  CRIMINAL WRIT PETITION NO. 619 OF 2018


          Shivraj s/o Bhagwan Patil
          Age - 28 years, Occu. Agri.,
          R/o Barabhai Galli, Kaij,
          Tq. Kaij, District Beed.                      ...Petitioner

                  versus

 1.       The Divisional Commissioner,
          Aurangabad Division, Aurangabad.

 2.       The Externing Authority,
          and Superintendent of Police,
          Beed, Tq. & District Beed.

 3.       The Sub Divisional Police Officer,
          Police Station, Kaij,
          Tq. Kaij, Dist. Beed.                         ...Respondents

                                  WITH
                  CRIMINAL WRIT PETITION NO. 622 OF 2018


          Shaikh Chand s/o Shaikh Ismail,
          Age - 40 years, Occu. Agri.,
          R/o Near Shani Mandir,
          Mangalwar Peth, Kaij,
          Tq. Kaij, District Beed.                      ...Petitioner

                  versus

 1.       The Divisional Commissioner,
          Aurangabad Division, Aurangabad.

 2.       The Externing Authority,
          and Superintendent of Police,
          Beed, Tq. & District Beed.

 3.       The Sub Divisional Police Officer,
          Police Station, Kaij,
          Tq. Kaij, Dist. Beed.                         ...Respondents




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                                                        Cri WP 619 & 622 of 2018
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                                      .....
 Mr. S. J. Salunke, advocate for the petitioners.
 Mr. Y. G. Gujarathi, A.P.P. for respondent-State
                                     .....

                                             CORAM : S. S. SHINDE AND
                                                     V. K. JADHAV, JJ.

                                        Date of Reserving
                                              the Judgment : 29.06.2018

                                        Date of pronouncing
                                           the Judgment : 10.07.2018


 JUDGMENT (PER V.K. JADHAV, J.) :-1.        Rule. Rule made returnable forthwith and heard finally by

 consent of the learned counsel for the parties.2.       The facts being common to both these petitions, as are the

 orders under challenge, both petitions were heard together and are

 disposed of by this common judgment.3.       By way of these criminal writ petitions, the petitioners are

 taking exception to the judgment and orders dated 03.03.2018

 passed by the learned Divisional Commissioner, Aurangabad in File

 Nos.2017/GAD/Room-1/Pol-1/Extern/CR-115 and 2017/GAD/Room-

 1/Pol-1/Extern/CR-116, arising out of the judgment and order dated

 27.09.2017 passed by respondent no.2-Externing Authority and

 Superintendent of Police, Beed in File No.Extern/LCB/MPA/55/2976/

 2017.::: Uploaded on - 10/07/2018                      ::: Downloaded on - 11/07/2018 01:56:18 :::Cri WP 619 & 622 of 2018-3-4.       It is the case of the petitioners that the Sub Divisional Police

 Officer, Kaij issued notice to the petitioners dated 05.09.2017

 seeking their explanation in respect of their externment from four

 districts. Petitioners replied to the said notice on 08.09.2017 and

 gave details about the disposed of as well as pending crimes against

 them. The petitioners stated in their reply that there are no offences

 against them since 2015, they are not miscreant nor antisocial

 element and requested to drop the proceedings against them. Again

 on 18.09.2017, a notice was issued to them by the Externing

 Authority-respondent no.2, seeking their explanation on the proposal

 of their externment from four districts for a period of two years. The

 petitioners were directed to submit their explanations on 25.09.2017.

 On 25.09.2017, the petitioners, through their Advocate, sought time

 to submit their explanation to the notice dated 18.09.2017. Time was

 sought to submit certified copies of the proceedings to which

 reference was made in the said notice. However, on 27.09.2017, the

 Externing Authority passed the order of externment from Beed

 District for a period of one year against the petitioners. The said

 order was passed without extending an opportunity of being heard to

 the petitioners and without observing the principles of natural justice.

 Being aggrieved, the petitioners preferred separate appeals before

 the Divisional Commissioner, Aurangabad, who in turn has been

 pleased to erroneously reject the same on 03.03.2018.::: Uploaded on - 10/07/2018                   ::: Downloaded on - 11/07/2018 01:56:18 :::Cri WP 619 & 622 of 2018-4-5.       The learned counsel for the petitioners submits that the

 impugned judgment and orders are based on assumptions and

 presumptions. The Externing Authority i.e. respondent no.2 failed to

 consider that the petitioners have not committed any offence as

 alleged and they have been falsely implicated in the said crimes. The

 notices dated 05.09.2017 issued to the petitioners do not specify

 their criminal activities or do not show that the petitioners were

 members of a gang. Notices issued to the petitioners were defective.

 There is no material available to make out a case which involves the

 petitioners in collective criminal activities. The order of externment

 came to be passed in a haste and without giving an opportunity of

 hearing to the petitioners. Reliance placed by the authorities on the

 nature of antecedents to pass the order of externment is bad in law.

 The Externing Authority has exceeded the jurisdiction. The order of

 externment for the period of one year is excessive. The offences

 registered against the petitioners during last five years relate to only

 the provisions of theMaharashtra Prevention of Gambling Act, 1887and the same cannot be the basis for passing externment order.

 Hence, the impugned orders are bad in law and need to be quashed

 and set aside.6.       The learned counsel for the petitioners submits that, the

 petitioners are the only earning members in their families. Petitioners::: Uploaded on - 10/07/2018                 ::: Downloaded on - 11/07/2018 01:56:19 :::Cri WP 619 & 622 of 2018-5-are agriculturists by profession and their entire family members are

 dependent upon their income. Petitioners' presence in their field is

 necessary for agricultural works. The entire family of the petitioners

 will suffer if the impugned orders are not set aside.7.       The learned counsel for the petitioners, in order to substantiate

 his contentions, placed reliance on the following cases:1.Shri Rajwardhan Babaso Patil vs. Shri Vijaysinha
              Jadhav & Anr., reported in 2015 ALL MR (Cri) 2936,2.    Kamalkishor      s/o   Pusaram      Bang        vs.      The
              Superintendent of Police, Janla & Ors., (Criminal
              Writ Petition No. 0239 of 2018) decided on 12.04.2018
              by this Court and3.    Sagarsingh Kesharsingh Bawari vs. Ministry of
              Home Department, through its Principal Secretary
              (Special), Mantralaya, Mumbai, and Ors. (Criminal
              Writ Petition No. 355 of 2013) decided on 03.09.2013
              by this Court at Nagpur.8.       The learned APP, on the other hand, invites our attention to

 the notices issued to the petitioners and the reasons recorded in the

 externment orders to submit that the notices were duly served on the

 petitioners and after extending full opportunity of hearing to them, the

 externment orders came to be passed by the Externing Authority,::: Uploaded on - 10/07/2018                   ::: Downloaded on - 11/07/2018 01:56:19 :::Cri WP 619 & 622 of 2018-6-which are in conformity with the material placed on record and the

 provisions of theMaharashtra Police Act, 1951.9.       We have heard learned counsel appearing for the petitioners

 and learned A.P.P. for the respondents. With their able assistance,

 we have perused the pleadings in the petitions and annexures

 thereto. We have also perused the original record made available by

 the learned A.P.P. for perusal of this court, show cause notices and

 the orders impugned in these petitions.10.      We are in agreement with the learned counsel for the

 petitioners insofar as the offences registered against the present

 petitioners are only underSection 12(a)of the Maharashtra

 Prevention of Gambling Act, 1887 and the same cannot be the basis

 for passing externment order. In the case of Sagarsingh

 Kesharsingh Bawari (supra) relied upon the learned counsel for the

 petitioners, the Division Bench of this Court at Nagpur, in similar set

 of facts, has taken a view that the prosecution underBombay

 Prohibition Act, 1949andMaharashtra Prevention of Gambling Act,

 1887cannot be the basis for passing externment order. In para 2 of

 the judgment, it has been observed as under:"2. The petitioner challenges the externment order passed by
          the Sub-Divisional Magistrate and confirmed in appeal by the::: Uploaded on - 10/07/2018                    ::: Downloaded on - 11/07/2018 01:56:19 :::Cri WP 619 & 622 of 2018-7-State by which the petitioner has been externed from the
          districts of Wardha, Amravati and Yavatmal for two years. A
          show-cause notice was issued on 2.1.2012 asking for the
          explanation of the petitioner as to why he should not be
          externed. The order passed by the Sub-Divisional Magistrate
          dated 27.8.2012 takes into consideration as many as 26
          prosecutions alleged to be pending against the petitioner. The
          perusal of the impugned orders show that except one
          prosecution, all other prosecutions are under the provisions of
          theBombay Prohibition Act and Maharashtra Prevention of
          Gambling Act, 1887. The prosecution under Sections 326,
          324 read with 34 is of 2010. The consideration of the
          prosecutions         under   theBombay    Prohibition      Act     and
          Maharashtra Prevention of Gambling Act, 1887by the
          Authority vitiates the impugned order, inasmuch as it is the
          settled law that for the purposes of passing the externment
          order,     these       prosecutions      cannot    be     taken       into
          consideration.........."In the case of Kamalkishor s/o Pusaram Bang (supra), relied upon

 by learned counsel for the petitioners, the Division Bench of this Court, by

 referring the above observations in Sagarsingh Kesharsingh Bawari's

 case, has allowed the criminal writ petition challenging the externment

 order.11.      Upon careful reading ofSection 55of the Bombay Police Act,

 1951, 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::: Uploaded on - 10/07/2018                            ::: Downloaded on - 11/07/2018 01:56:19 :::Cri WP 619 & 622 of 2018-8-cause danger or alarm or giving rise to reasonable suspicion that

 unlawful designs are entertained by such gang, 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 the conduct of such gang in

 order to prevent violence and alarm, or in the alternative, can also be

 in the form of an order of 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 outside the area within

 the local limits of jurisdictional area of the competent authority. Thus,

 for invoking the provisions ofSection 55of the Maharashtra Police

 Act, 1951, it has to be shown that persons sought to be externed are

 acting as a gang or a body of persons.12.      In the instant petition, on perusal of the show-cause notices issued

 to the petitioners and also the impugned orders, it is apparent that all the

 crimes mentioned therein are under the provisions ofSection 12(a)of the

 Maharashtra Prevention of Gambling Act, 1887. There is also no live link in

 between the cases registered against the petitioners and the orders of

 externment. Thus, as per the ratio laid down in the cases cited supra, the

 order passed by respondent no.2-Externing Authority and the orders of the

 appellate      authority      i.e.   respondent   no.1-Divisional     Commissioner,

 confirming the order of Externing Authority, suffer from illegality and hence

 liable to be quashed and set aside.::: Uploaded on - 10/07/2018                          ::: Downloaded on - 11/07/2018 01:56:19 :::Cri WP 619 & 622 of 2018-9-13.      In the result, we pass the following order:-ORDER


        I. The criminal writ petitions are hereby allowed.II. The orders dated 03.03.2018 passed by the learned
           Divisional Commissioner, Aurangabad in File Nos.
           2017 /GAD/Room-1/Pol-1/Extern/CR-115 and 2017/GAD/
           Room-1/Pol-1/Extern/CR-116, arising out of the judgment
           and order dated 27.09.2017 passed by respondent no.2-
           Externing Authority and Superintendent of Police, Beed in
           File      No.Extern/LCB/MPA/55/2976/2017          are      hereby
           quashed and set aside.III. The criminal writ petitions are disposed of. Rule is
              accordingly made absolute.IV. Registry to issue authenticated copy of this judgment to
              the requesting party.(V. K. JADHAV, J.)                                ( S. S. SHINDE, J. )



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