Criminal Writ Petition No. 3513 of 2013,Criminal Writ Petition No. 3510 of 2013

13th November, 2013

Petitioner Counsel: Mr. R.A. LOKHANDE
Respondent Counsel: Mrs. A.S. PAI

Cases Cited:
Ahammad Mainuddin Shaikh Vs. The State of Maharashtra & Anr., 2013 ALL MR (Cri) 3804=W.P. No. 2385/2013 [Para 7,9]

JUDGMENT

REVATI MOHITE DERE, J. :- By these writ petitions, the petitioners take exception to the order dated 4th September, 2013 passed by the Secretary (Special), Home Department, Government of Maharashtra, in appeal No. EXT- 2013/109/SPL-3(B) confirming the order of externment, dated 25th July, 2013 passed by the Competent Authority i.e. the Superintendent of Police, Satara, externing the petitioners from Satara District for a period of one year, under Section 55 of the Bombay Police Act.

2. Both these petitions are heard finally at the stage of admission with the consent of the parties. Hence, rule made returnable forthwith.

3. We have heard Shri Lokhande, learned Counsel for the petitioners in both the aforesaid petitions and Ms. A. S. Pai, learned A.P.P. for the State.

4. The principal ground which is urged before us, by the petitioners for seeking quashing and setting-aside of the impugned orders dated 4th September, 2013 passed by the Secretary (Special), Home Department, Government of Maharashtra, in appeal No. EXT- 2013/109/SPL-3(B) and the order of externment dated 25th July, 2013 passed by the Competent Authority i.e. the Superintendent of Police, Satara, is the non-applicability of Section 55 of the Bombay Police Act to the petitioners, in the facts of the present case.

5. At the outset, it would be necessary to advert to the facts as are necessary for the determination of the aforesaid ground raised by the petitioners. A proposal to extern the petitioners was initiated by the Police Inspector, Waduj Police Station, Satara, under Section 55 of the Bombay Police Act. Accordingly, a notice dated 10th May, 2013 came to be issued under Section 59 of the Bombay Police Act to the petitioners, giving them an opportunity to present their case before the Sub-Divisional Police Officer, Dahiwadi Division Camp, Waduj, Satara. Pursuant to the said notice, the petitioners replied to the same notice and after considering the reply of the petitioners and the proposal of the Waduj Police Station, the Sub-Divisional Police Officer, Dahiwadi Division, submitted his report to the Externing Authority i.e. the Superintendent of Police, Satara. Before the Externing Authority, the petitioners were also given an opportunity to represent themselves against the proposed externment. After hearing the petitioners and after considering the report, the Externing Authority i.e. the Superintendent of Police, Satara passed the impugned order dated 25th July, 2013, externing the petitioners from Satara District for a period of one year.

6. Against the aforesaid order of externment dated 25th July, 2013 passed by the Superintendent of Police, Satara, the petitioners preferred an appeal being Appeal No.EXT-2013/109/SPL-3(B), under Section 60 of the Bombay Police Act to the Secretary (Special), Home Department, Government of Maharashtra. After hearing the parties, the Secretary (Special), Home Department, Government of Maharashtra, vide order dated 4th September, 2013 rejected the appeal filed by the petitioners and upheld the order passed by the Competent Authority i.e. the Superintendent of Police, Satara, externing the petitioners from Satara District for a period of one year.

7. The learned Counsel for the petitioners urged before us, that the impugned order dated 4th September, 2013 passed by the Secretary (Special), Home Department, Government of Maharashtra in Appeal, thereby confirming the order dated 25th July, 2013 passed by the Competent Authority i.e. the Superintendent of Police, Satara, externing the aforesaid two petitioners cannot be sustained under Section 55 of the Bombay Police Act, in as much as Section 55 applied to a gang/body of persons/all the members of the gang and not to individual persons and as such sought quashing and setting-aside of the said orders. According to the learned Counsel for the petitioners, the order passed by the Externing Authority and confirmed by the Appellate Authority is based on such material which is not sufficient to record a satisfaction under Section 55 of the Bombay Police Act. He relied on a Judgment of this Court passed in Criminal Writ Petition No. 2385/2013 : [2013 ALL MR (Cri) 3804] in the case of Ahammad Mainuddin Shaikh vs. The State of Maharashtra and Anr. and contended that the same squarely applies to the facts of the present case. Ms. Pai, learned A.P.P. fairly accepted and conceded to the same. She did not dispute the applicability of the Judgment in the case of Ahammad Mainuddin Shaikh, [2013 ALL MR (Cri) 3804] (supra), relied upon by the petitioners to the facts of the present case.

8. In the present case, Section 55 of the Bombay Police Act was invoked only as against the two petitioners and not against any gang/body of persons or members thereof, as is contemplated under the said Section. The details of cases relied upon as against the aforesaid two petitioners were set out in the externment order.

Petitioner No.1 -

110 / 2010 395, 326, 143, 147 of IPC 160 / 2011 395 of IPC 100 / 2012 324, 323, 504, 506, 143, 147, 148, 149, 427 of IPC 36 / 2013 295 of IPC 53 / 2013 395 of IPC 3 / 2013 3 of Damage to Properties Act

Petitioner No.2-

C.R. No. Sections 110 / 2010 395, 326, 143, 147 of IPC 160 / 2011 395 of IPC 100 / 2012 324, 143, 147, 148 of IPC 90 / 2012 324, 504, 506 of IPC 53 / 2013 395 of IPC

On a perusal of the aforesaid cases registered against the petitioners, it is evident that four were committed by them together and out of which two cases were committed by them along with others by engaging in an unlawful assembly / by being a member of the unlawful assembly to commit the alleged offences. It is pertinent to note, that apart from the aforesaid two petitioners, the aforesaid two cases were also registered as against other co-accused. It would be relevant to reproduce Section 55 of the Bombay Police Act, which reads as under :

"Dispersal of gangs and body of persons.- Whenever it shall appear in Greater Bombay and in 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 District Superintendent specially 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 3[or such area and any district, or districts or any part thereof, contiguous thereto] which in such time as such officer shall prescribe, and not to enter the area 4[or the area 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."

A perusal of the aforesaid Section shows that the object of Section 55 of the Bombay Police Act is "dispersal of gangs and body of persons" and therefore, the Competent Authority as well as the Appellate Authority had no power to direct any individual person to be externed outside any district or districts or any part thereof, inasmuch as it could only be directed against all the members of a gang or a body of persons, as contemplated under Section 55 of the Bombay Police Act. The language of 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 is calculated to cause danger or alarm or a reasonable suspicion that unlawful designs are entertained by such gang or body or by members thereof. It is, therefore, evident that Section 55 of the Bombay Police Act does not contemplate movement or encampment of 'a person' 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. It is thus, evident from the language of Section 55 of the Bombay Police Act, that it's application is directed not against 'any individual' but against any gang or body of persons or members of the gang.

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.

9. We have perused the Judgment relied upon by the learned Counsel for the petitioners in Ahammad Mainuddin Shaikh, [2013 ALL MR (Cri) 3804] (supra) and find that the ratio therein is squarely applicable to the facts of the present case. The relevant portion of the said Judgment is reproduced hereunder :

"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 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." (emphasis supplied)

10. We, are therefore of the opinion, that the requirements of Section 55 of the Bombay Police Act are not satisfied in the present case and on this count alone the order passed by the Externing Authority as well as the order passed by the Appellate Authority deserves to be quashed and set-aside.

11. In the light of what is aforestated, the impugned order of externment dated 25th July, 2013 passed by the Competent Authority i.e. the Superintendent of Police, Satara and the order dated 4th September, 2013 passed by the Secretary (Special), Home Department, Government of Maharashtra, in appeal No. EXT-2013/109/SPL-3(B), are quashed and set aside.

12. Rule made absolute in the above terms in both the petitions.

Petition allowed.