Bombay High Court
Asgar @ Azhar Khan @ Bablu Don Safdar Khan vs State Of Maharashtra Thr Sub Divisional ... on 9 September, 2025
2025:BHC-NAG:8862
wp 670.25.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 670/2025
Asgar @ Azhar Khan @ Bablu Don
Safdar Khan, aged about 33 yrs.,
Occ. Business,, R/o. Peth Mohalla,
Nandura, Buldhana.
...PETITIONER
VERSUS
1. State of Maharashtra,
through Sub-Divisional Magistrate,
Malkapur, Buldhana.
2. State of Maharashtra,
through Sub-Divisional Police Officer,
Malkapur, Dist. Buldhana.
...RESPONDENTS
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Mr. M.N. Ali, Advocate for the petitioner.
Mr. S.S. Hulke, Additional Public Prosecutor for respondents.
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CORAM : M. M. NERLIKAR, J.
DATE : 09.09.2025
ORAL JUDGMENT :
Heard.
wp 670.25.odt 2
2. Issue Rule, returnable forthwith. Mr. S.S. Hulke, learned A.P.P. waives service for respondents. With consent of learned counsel for the parties, the petition is taken up for final hearing.
3. The petitioner by this petition filed under Article 226 of the Constitution of India, is challenging the order dated 07.04.2025 passed by respondent No.1-Sub-Divisional Magistrate, Malkapur, District Buldhana, wherein the petitioner was externed from Malkapur, Nandura and Motala Talukas for a period of six months. He is also challenging the order dated 16.07.2025 passed by Divisional Commissioner, Amravati Division, Amravati, wherein the appeal preferred by the petitioner under Section 60 of the Maharashtra Police Act ("the said Act") was dismissed, thereby confirming the order dated 07.04.2025 passed by respondent No.1.
4. It reveals from the record that the petitioner received a show cause notice on 08.04.2024 issued by respondent No.2, wherein the petitioner was called upon to show cause as to why wp 670.25.odt 3 the order of externment should not be passed under Section 56(1)(a)(b) of the said Act, thereby externing him for a period of two years from Buldhana District. The petitioner also received a show cause notice dated 17.05.2024 issued by respondent No.1 and by the said notice again the petitioner was called upon to show cause as to why the order of externment should not be passed under Section 56(1)(a)(b) of the said Act and why the petitioner should not be externed from Buldhana District for a period of two years. In pursuance of aforesaid show cause notices, the petitioner appeared and filed his reply, thereby denying all the adverse allegations made against him. It is also submitted that the petitioner had mentioned in his reply that he has been acquitted in five crimes i.e. crime at Serial Nos. 1 to 5 as mentioned in the notice and also supplied copy of judgment acquitting him in the crimes at Serial Nos. 3 to 5. The following are the offences committed by the petitioner, so also preventive action taken by the authorities:-
v dza- iksyhl LVs'ku vi- ua- o dye@izfrca/kd dkjokbZ ln;kfLFkrh bLrsxk'kk uacj o dye 1 ukanqjk 80@2011 d 341] 323 Hkknfo funksZ"k wp 670.25.odt 4 2 ukanqjk 119@2013 d 143] 147] 148] vkilkr 149] 324 Hkknfo lgd- 135 eiksdk 3 ukanqjk 194@2017 d 143] 147] 148] dksVZ izyachr 149] 341] 504] 506] 427 Hkknfo 4 ukanqjk 354@2017 d 324] 506 Hkknfo dksVZ izyachr 5 ukanqjk 381@2018 d 324] 504] 506] 34 dksVZ izyachr Hkknfo 6 ukanqjk 381@2021 d 395 Hkknfo lgd 3] Ikksyhl izyachr 25 vkeZ vWDV 7 ukanqjk 776@2021 d 188] 269] 270 dksVZ izyachr Hkknfo lgd 135 eiksdk 8 ukanqjk 160@2023 d 109] 336] 143] Ikksyhl izyachr 148] 149 Hkknfo lgd fdz- ykW vWDV 7] 135 eiksdk Preventive action taken by the authorities:-
v dza- iksyhl LVs'ku vi- ua- o dye@izfrca/kd dkjokbZ ln;kfLFkrh bLrsxk'kk uacj dye 1 ukanqjk bLrs ua 220@2021 d 107] 116¼3½ & tkQkS-
2 ukanqjk bLrs ua 09@2017 d 110 tkQkS- & 3 ukanqjk bLrs ua 15@2018 d 110 tkQkS- & 4 ukanqjk 12@2023 d 110¼b½¼x½ tkQkS- &
5. The respondent No.1 by his order dated 07.04.2025 considered the record and passed an order, thereby directing the petitioner to be externed from Malkapur, Nandura and Motala Talukas for a period of six months under the provisions wp 670.25.odt 5 of Section 56(1)(a)(b) of the said Act. As against the said order, the petitioner preferred an appeal under Section 60 of the said Act, which came to be dismissed vide order dated 16.07.2025 and therefore, the petitioner is challenging above impugned orders by way of present writ petition.
6. The learned counsel for petitioner has challenged the impugned orders on following grounds - that respondent No.1 has failed to take into consideration the acquittal of the petitioner in five crimes i.e. crime at Serial Nos. 1 to 5 as mentioned in the notice. He further submits that so far as Crime No.776/2021 is concerned, the same does not fall under Chapters XII, XVI and XVII of the Indian Penal Code as it is registered under Sections 188, 269, 270 of the Indian Penal Code read with Section 135 of the Maharashtra Police Act and Crime Nos.381/2021 so also 160/2023 were committed long back before passing of the impugned order and therefore, there is no live link between the date of commission of offence and passing of order of externment. He further submits that though in-camera statements were recorded, however there is no wp 670.25.odt 6 reference of those in-camera statements in the findings recorded by respondent No.1 and therefore, considering the above facts, there is no subjective satisfaction. He further submits that in show casue notice dated 08.04.2024 issued by respondent No.2, there is also no reference of in-camera statements and therefore, it is doubtful whether in-camera statements are recorded prior to issuance of notice or not. He further submits that the Divisional Commissioner, Amravati Division, Amravati while dealing with the appeal under Section 60 of the said Act, has not dealt with any of the grounds raised by the petitioner, and therefore a cryptic order has been passed.
7. So as to substantiate the above contentions, the learned counsel for petitioner has relied on the decision of this Court in case of Umesh Ashok Pawar Vs. Deputy Commissioner of Police, Zone-I, Amravati and anr., 2019 ALL MR (Cri) 4710 , wherein this Court has observed in para No. 7 which reads as under:-
"7. If the law expects of us to see as to whether or not there is any live-link between criminal activities and wp 670.25.odt 7 subjective satisfaction of the authority, we must also know what is the concept of subjective satisfaction. The expression "subjective satisfaction" means the satisfaction of a reasonable man and it can be arrived at on the basis of some such material as would enable a rational mind to subjectively or through mental process arrive at some decision. Undoubtedly, the impugned order is based upon the criminal activities of the petitioner and the last of his criminal activity is reflected in Crime No. 720/2016 registered with Police Station, Gadge Nagar, Amravati on 20th September 201 for the offences punishable under Sections 452, 448 and 427 read with Section 34 of the Indian Penal Code. After this September 2016, admittedly, no other crime has been registered against the petitioner.
The first show-cause notice in the present case has been issued by respondent no. 2 on 30th January 2018 and the subsequent show-cause notice was issued on 3rd March 2018. The impugned order has been passed on 27th March 2018. Thus, there was a gap of about fifteen months between registration of last crime against the petitioner and the date of issuance of show-cause notice. This time gap was further extended by three months when the impugned order dated 27th March 2018 was passed in the present case. So, the time lag was about 16-18 months in this case and during this period, admittedly, no criminal case or offence came to be registered against the petitioner. One would then question, as to how could it be said that there exists a ground to reasonably believe in this case that the petitioner is engaged or is about to engage in wp 670.25.odt 8 the commission of offence involving force, violence or an offence mentioned in Section 56(1)(b) of the Act, 1951? The question would have to be answered in the negative for the sheer gap of time and absence of any criminal activity in between and as such, we are of the opinion that the impugned orders suffer from arbitrariness. These orders do not show any live-link between subjective satisfaction of the authority and the alleged criminal activities. We thus, find substance in the petition and it will have to be allowed."
8. The learned counsel for petitioner has also relied on another decision of this Court in case of Ajay @ Golu Shyam Solanki Vs. State of Maharashtra and another, 2019 ALL MR (Cri) 702, wherein this Court has observed in para Nos. 3 and 4 which read as under:-
"3. Petition deserves to be allowed on a very short ground. Perusal of Section 56 of the Maharashtra Police Act, would reveal that, when jurisdiction is sought to be exercised under Section 56(1)(b), it is necessary that, the authority exercising its jurisdiction should arrive at subjective satisfaction that a 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 wp 670.25.odt 9 give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property.
4. Perusal of the impugned order would reveal that, there is not even a whisper in the impugned order that the authority has come to a subjective satisfaction that, witnesses are not willing to come forward to give evidence against the Petitioner in public. It could thus be seen that, the very basic ingredient on which the jurisdiction can be exercised under Section 56(1)(b) of the said Act is lacking in the present matter."
9. On the other hand, learned APP submits that as many as eight crimes were committed by the petitioner, however he was acquitted in five crimes, even if these five crimes are ignored, still the impugned orders can be sustained on three crimes and two in-camera statements. He further submits that Authorities have applied their mind so as to arrive at subjective satisfaction and thereafter, orders under challenge are passed.
10. The original record of the externment proceeding has been placed before me. I have gone through the same. The externment order was passed by relying upon the provisions of wp 670.25.odt 10 Section 56 of the Act of 1951. It would be necessary to reproduce the said section. Section 56 reads thus:
"56. Removal of person 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 alram, danger or harm to person or property or
(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission or 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 wp 670.25.odt 11 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 (1) 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 of the community as defined in the Explanation to sub-section (1) of Sec. 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 other wise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alram [ or such prejudicial act] or the outbreak or wp 670.25.odt 12 spread of 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 contiguous or not), by such route, and within such time as the officer may specify and not to enter or return to the said area or areas specified (hereinafter referred to as "the specified are or areas") from which he was directed to remove himself]."
11. It is not out of place to mention that against the petitioner, the externment order came to be passed by relying upon clauses (a) and (b) of Section 56 sub-section (1) of the Act of 1951. The ground under clause (a) provides that the movements or act of any person must be causing or calculated to cause alarm, danger or harm to the person or property. The ground under clause (b), requires that on the basis of the material it must be established that there are reasonable grounds for believing that person sought to be externed is engaged or is about to be engaged in the commission of an wp 670.25.odt 13 offence involving force or violence or an offence punishable under Chapters XII, XIV or XVII of the Indian Penal Code or abetment of any such offence. The second part of clause (b), which is required to be read with first part, clearly provides that the competent authority empowered to pass an order should form an opinion that the witnesses are not willing to come forward to give evidence in public against such person, only because of an apprehension on their part as regards safety of their person or property. The conjoint reading of clauses (a) and (b) would, therefore, show that in arriving at subjective satisfaction as to the grounds, there must be objective material on record before the authority and the same must be considered in accordance with law.
12. Upon perusal of the record, it appears that show cause notice dated 08.04.2024 issued by respondent No.2 under Section 59 of the said Act shows that eight crimes are registered and four preventive actions were taken against the petitioner. Pursuant to the said show cause notice, the petitioner filed his reply stating that he has already been acquitted in five crimes.
wp 670.25.odt 14 Copies of acquittal orders placed on record before respndent No.2. He further submitted that so far as Crime No.776/2021 is concerned, the same does not fall under Chapters XII, XVI and XVII of the Indian Penal Code so as to warrant action of externment. He further stated that even other crimes i.e. Crime Nos. 381/2021 and 160/2023 cannot form basis for externment, as those are stale offences. Thereafter, respondent No.2 forwarded the report dated 20.04.2024 to the respondent No.1 recommending the externment of the petitioner from Buldhana District for a period of two years.
13. It is a matter of record that respondent No.1 also issued show cause notice to the petitioner on 17.05.2024 to show cause, as to why petitioner should not be externed as per the recommendation of the respondent No.2. The petitioner submitted his reply on 17.10.2024. After considering the record, respondent No.1 was pleased to pass the impugned order.
wp 670.25.odt 15
14. I have perused the report dated 20.04.2024 wherein there is no mention that in five cases, the petitioner was acquitted. Though this fact was brought to the notice by the petitioner to respondent No.2 when the inquiry under Section 59 of the said Act was going on, which is a fact finding inquiry, wherein an opportunity is to be given to the proposed externee to put-forth his case on the basis of notice. The petitioner has also placed on record the orders of acquittal. When the report was forwarded by respondent No.2 to respondent No.1, it was incumbent on respondent No.2 to refer the cases wherein the petitioner was acquitted, however the report lacks those details and therefore, the entire inquiry under Section 59 of the said Act can said to be vitiated.
15. So far as in-camera statements are concerned, the show cause notice issued by respondent No.2 dated 08.04.2024 does not disclose recording of in-camera statements. However, the report submitted to respondent No.1 by respondent No.2, wp 670.25.odt 16 Clause 3 of the same discloses about recording of in-camera statements of witnesses.
16. However, when the notice itself does not indicate that in-camera statements were recorded, then it can be said that no opportunity was given to the petitioner to put-forth his case and to counter the allegations in the in-camera statements and therefore he was deprived of his rights.
17. It is needless to mention that strict compliance of Section 59 of the Act of 1951 is required to be made. It is further to be noted that the order of externment deprives the citizen of his fundamental right of free movement throughout the territory of India.
18. So far as the impugned order is concerned, no subjective satisfaction is arrived at by the Externing Authority either on in-camera statements or on the offences committed by the petitioner. Bare perusal of the impugned orders depicts that respondent No.1 has only reproduced the contents from wp 670.25.odt 17 the report of respondent No.2. There is no independent application of mind, nor there is subjective satisfaction. It is to be borne in mind that as it is a question of personal liberty of a person, same cannot be taken away in such a casual manner. The best example of non-application of mind by respondent No.1 is that, it is observed in the impugned order that crimes at Serial Nos. 3 to 7 are pending for further adjudication in the Court. It is further observed that though the petitioner in his say has submitted that in crimes at Serial Nos. 3 to 5 in the chart, he was acquitted, however in support of this, the petitioner has not placed anything on record. It is necessary to mention at this juncture that all the copies of acquittal are placed by the petitioner before respondent No.2 during inquiry under Section 59 of the said Act. It is further necessary to mention that there is only a passing reference to recording of two in-camera statements, however there is nothing to show that those in-camera statements are considered in order to arrive at subjective satisfaction. There is no whisper about the same. Section 59 enquiry, vitiated, as enquiry was not wp 670.25.odt 18 condcuted on the facts. Though formality of giving notice is completed, but the respondent No.2 has not taken pains to state in the notice dated 08.04.2024 about receiving of in- camera statements. Further, after the reply filed by the petitioner to the show cause notice dated 08.04.2024, respondent No.2 submitted his report dated 20.04.2024, even in that report, it is not stated that out of eight crimes, petitioner was acquitted in five crimes. Further, it is to be noted that stale crimes are taken into consideration though last crime was shown to be committed in the year 2023. It is to be noted that the last crime committed by the petitioner on 05.03.2023. Notice under Section 59 of the said Act was issued by respondent No.2 on 20.04.2024. Reply to the same was submitted by the petitioner along with documents. Again respondent No.1 issued show cause notice on 17.05.2024. Reply to the said notice was submitted on 17.10.2024. However, the order was passed o 07.04.2025. Therefore, from the date of the issuance of notice under Section 59 of the said Act till passing of the final order dated 07.04.2025, the wp 670.25.odt 19 respondent No.1 has taken almost one year. Therefore, from the date of last committed crime till the passing of the final order, almost two years have lapsed and therefore, the very object of externing the petitioner was frustrated. The order of externment cannot be passed on the basis of these stale crimes and therefore, live link of these crimes and the order of externment would get completely snapped. It is further to be noted that the respondent No.1 relied upon the stale crimes to form his subjective satisfaction and therefore, the respondent No.1 miserably failed to take into consideration the very object of Section 56 of the said Act.
19. The petitioner preferred an appeal against the order of externment passed by the respondent No.1 to the Divisional Commissioner, Amravati Division, Amravati. However, even that order is cryptic as the same does not consider anything. Even the Divisional Commissioner has failed to exercise its appellate powers in its true perspective. The appeal is not an empty formality and it should be borne in mind by the Appellate Authority. I am surprised by the observations made wp 670.25.odt 20 by the Divisional Commissioner that eight crimes are considered for upholding the order of externment. Therefore, it creates a doubt about whether really the Divisional Commissioner at Amravati has perused the record or not. Had it been a case that the Divisional Commissioner perused the record, the aforesaid observation would not be there as the petitioner was already acquitted in five crimes. Not only that there is no finding about the subjective satisfaction. In-fact, I would not be hesitating in saying that the Divisional Commissioner has not perused the record and therefore, the order passed by the Divisional Commissioner is unreasoned order which cannot sustain in law. As I have already observed that appeal is an important remedy and the matters wherein personal liberty is involved, the same should be dealt with utmost seriousness and due care.
20. I have also gone through the original record, wherein I find that two in-camera statements are there in sealed envelopes. In order to satisfy myself, I have opened those envelopes, however, there is no endorsement either by wp 670.25.odt 21 respondent No.2 or by respondent No.1 and therefore, it creates doubt whether those statements have even been gone through by respondent No.1 or 2. Not only that, those are kept in sealed envelopes as it is which means that the Authority has not even taken pain to open the envelopes. Therefore, it could be gathered from the sealed condition of envelopes that for the first time I opened these envelopes. After opening of the envelopes, I find that except Police Sub-Inspector, Police Station Nandura, there are no signatures/endorsements of respondent Nos. 1 and 2 and therefore, it can safely said that both the respondents never perused the in-camera statements. Therefore, upon careful perusal of the entire record, and in view of above observations, I find that the impugned orders warrant interference under Article 226 of the Constitution of India. Hence, following order is passed:-
(I) Criminal Writ petition stands allowed.
(II) The order dated 07.04.2025 passed by respondent No.1- Sub-Divisional Magistrate, Malkapur, District Buldhana and order dated 16.07.2025 passed wp 670.25.odt 22 by the Divisional Commissioner, Amravati Division, Amravati are hereby quashed and set aside.
21. Rule is made absolute in above terms.
( M. M. NERLIKAR , J.) Gohane Signed by: Mr. J. B. Gohane Designation: PS To Honourable Judge Date: 09/09/2025 18:06:45