Bombay High Court
Nitin Anna Dhivar vs The State Of Maharashtra And Others on 30 March, 2022
Author: V. K. Jadhav
Bench: V. K. Jadhav
1 judgment wp 1418-21 & 1419-21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1418 OF 2021
Nitin s/o Anna Dhivar,
Age : 33 years, Occu.: Labour,
R/o.: Bhimnagar, Shirdi, Taluka Rahata,
District : Ahmednagar. .... PETITIONER
VERSUS
1. The State of Maharashtra
Through the Secretary,
Department of Home,
Maharashtra State,
Mantralaya, Mumbai
2. The Special Executive Magistrate-
Cum-Police Offcer,
Local Crime Branch, Ahmednagar
3. The Sub-Divisional Police Offcer,
Shrirampur Sub-Division,
Shrirampur, Taluka Shrirampur,
District Ahmednagar
4. The Superintendent of Police,
Ahmednagar
5. The Divisional Commissioner,
Nashik Division, Nashik ... RESPONDENTS
.....
Senior Advocate for Petitioner : Mr. Rajendrraa Deshmukh a/w
Mr. Vishal Chavan i/b Mr. Devang R. Deshmukh
APP for Respondents-State : Mr. M. M. Nerlikar
....
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2 judgment wp 1418-21 & 1419-21
AND
CRIMINAL WRIT PETITION NO.1419 OF 2021
Sachin s/o Sitasram Gaikwad,
Age : 32 years, Occu.: Labour,
R/o.: Bhimnagar, Shirdi, Taluka Rahata,
District : Ahmednagar. .... PETITIONER
VERSUS
1. The State of Maharashtra
Through the Secretary,
Department of Home,
Maharashtra State,
Mantralaya, Mumbai
2. The Special Executive Magistrate-
Cum-Police Offcer,
Local Crime Branch, Ahmednagar
3. The Sub-Divisional Police Offcer,
Shrirampur Sub-Division,
Shrirampur, Taluka Shrirampur,
District Ahmednagar
4. The Superintendent of Police,
Ahmednagar
5. The Divisional Commissioner,
Nashik Division, Nashik ... RESPONDENTS
.....
Senior Advocate for Petitioner : Mr. Rajendrraa Deshmukh a/w
Mr. Vishal Chavan i/b Mr. Devang R. Deshmukh
APP for Respondents-State : Mr. S. J. Salgare
....
CORAM : V. K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
RESERVED ON : 16/03/2022
PRONOUNCED ON : 30/03/2022
....
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3 judgment wp 1418-21 & 1419-21
JUDGMENT :(Per : Sandipkumar C. More, J.) :
1. Rule. Rule made returnable forthwith. By consent, heard fnally at admission stage.
2. Both the petitioners have challenged the order dated 18/08/2021 passed by respondent no.4, whereby they are externed for a period of 18 months from entire Ahmednagar District. The petitioners also challenged the order dated 26/10/2021 passed by respondent no.5 i.e. i.e. Divisional Commissioner, Nashik Region, Nashik in their respective appeals bearing Appeal No.90 of 2021 and Appeal No. 91 of 2021, whereby the earlier order dated 18/08/2021 of respondent no.4 is confrmed. Therefore, we fnd it proper to dispose of both these petitions with common judgment.
3. Background facts are as under :
The petitioners are permanent residence of Bhimnagar, Shirdi, Taluka Rahata, District Ahmednagar and they belong to a respectable family and also involved in active social work, such as organizing blood donation camps, helping the poor and needy persons. However, respondent no.3 Sub-Divisional Police Offcer, Shrirampur, issued notice under Section 59 of the Maharashtra Police Act, 1951 (hereinafter referred to as "the Act") on 13/01/2021 ::: Uploaded on - 30/03/2022 ::: Downloaded on - 31/03/2022 19:30:38 ::: 4 judgment wp 1418-21 & 1419-21 calling upon the petitioners as to why they should not be externed from Ahmednagar and Aurangabad Districts and also from Yeola Taluka of Nashik District for a period of two years. The petitioners replied the said notice on 27/01/2021 and requested to drop the same. However, thereafter, respondent no.4 issued another notice dated 04/08/2021 to the petitioners calling their explanation as to why they should not be externed for a period of two years from Ahmednagar District and its adjacent Talukas, Niphad, Yeola and Sinnar from Nashik District and Vaiapur Taluka from Aurangabad District. The petitioners again replied the said notice under reply dated 13/08/2021 but respondent no.4 then passed the impugned order dated 18/08/2021 for the externment of the petitioners as mentioned above. Both the petitioners then challenged the said order dated 18/08/2021 under their respective appeal No.90 of 2021 and Appeal No. 91 of 2021 before respondent No.5 but under order dated 26/10/2021 respondent No.5 was pleased to dismiss the appeals by confrming the earlier order dated 18/08/202.
4. Learned counsel for the petitioners submits that though there are so many other persons, who are involved in more than two crimes, registered with Shirdi Police Station, but only the petitioners were chosen for initiating externment proposal and that too merely ::: Uploaded on - 30/03/2022 ::: Downloaded on - 31/03/2022 19:30:38 ::: 5 judgment wp 1418-21 & 1419-21 on the basis of two crimes. Learned counsel for the petitioners further submits that both the petitioners are social workers and engaged in various activities of social nature in helping the poor and needy. He further submits that out of two offences registered against the petitioners, not a single crime is resulted into their conviction.
Moreover, the order of externment is also excessive in nature. As such, the learned counsel for the petitioners prayed for dismissal of the impugned orders since the same are passed erroneously by both the authorities below.
5. On the contrary, the learned APP strongly opposed the petitions by fling a common reply in Criminal Writ Petition No. 1419 of 2021. The learned APP submits that both the authorities below have strictly followed the procedure according to the law and implemented the provisions of the Act in proper perspective while externing the petitioners. Moreover, the authorities below have also applied their minds properly and considered the material on record rightly. As such, he prayed for rejection of both the petitions.
6. We have carefully gone through the impugned orders and also say of the petitioners in respect of the entire proceeding and externment against them. On perusal of notice dated 04/08/2021 ::: Uploaded on - 30/03/2022 ::: Downloaded on - 31/03/2022 19:30:38 ::: 6 judgment wp 1418-21 & 1419-21 following crimes appear to be registered against both the petitioners in Shirdi Police Station:
Sr. Police Station and Name of the Court Case Status of the No. Crime No. accused No. crime
1. Shirdi Police 1. Nitin Anna RCC No. Subjudice Station, Crime No. Dhivar 440 of 2019 803 of 2019, under 2. Sachin Sitaram Sections 143, 147, Gaikwad 148 and 149 of IPC
2. Shirdi Police 1. Nitin Anna Under Under Station, Crime No. Dhivar investig- investig-
154 of 2020, under 2. Sachin Sitaram ation ation
Sections 143, 147, Gaikwad
148, 323, 326, 504
and 506 of IPC
3. Shirdi Police Nitin Anna Dhivar Under Under
Station, Crime No. investig- investig-
305 of 2020, under ation ation
Sections 307, 324,
323, 504 r.w. 34 of
IPC and under
Section 4/25 of
the Arms Act
Besides, information regarding chapter cases registered in Shirdi Police Station against both the petitioners is also mentioned therein. On perusal of the same, it is evident at least two crimes namely Crime No. 803 of 2019 and Crime No. 154 of 2020 appear to be committed jointly by the petitioners are there on record. Further, the offence punishable under Section 307 of the IPC along with other sections and Section 4/25 under Arms Act, is registered additionally against the petitioner Nitin Anna Dhiwar. On going ::: Uploaded on - 30/03/2022 ::: Downloaded on - 31/03/2022 19:30:38 :::
7 judgment wp 1418-21 & 1419-21 through the allegations in the said crime, it appears that both these petitioners have committed severe crimes involving beatings, formation of unlawful assembly, criminal trespass, destruction of property etc. Moreover, the petitioners were also involved in offences against human body. Both the offences jointly committed by the petitioners are at the stage of investigation and pending before the court. Besides, there are also confdential statements of witnesses on record, who are reluctant to lodge complaint openly against the petitioners due to their deterrent behaviour. Further, both the authorities below have also verifed the statements, wherein two persons have made allegations that the petitioners and their gang members abused and beat them. Thus, it is clearly evident that the petitioners are involved in serious criminal activities such as formation of unlawful assembly, criminal trespass, causing damage to the property of public, using dangerous weapons for causing injuries and attempt to commit murder etc. Further, both these offences are of the year 2019 and 2020 respectively.
7. Learned counsel for the petitioners vehemently argued that only two crimes have been registered against the petitioners and no conviction is recorded against them in any of those offences. However, the externment proceeding initiated against the petitioners ::: Uploaded on - 30/03/2022 ::: Downloaded on - 31/03/2022 19:30:38 ::: 8 judgment wp 1418-21 & 1419-21 is under Section 55 of the Act and it is not at all necessary to extern them only in case of conviction. Section 55 of the Act is applicable if it is found that the persons are involved in serious criminal activities being a gang and their activities must involve breach of law and order and grievance to public at large. As such, the submission of the learned counsel for the petitioners that in absence of any conviction, they cannot be externed, cannot be considered in view of scope of Section 55 of the Act. The learned counsel for the petitioners also vehemently argued that the petitioners are social workers and conducted so many social activities for the help of needy and poor specially in the pandemic period. He also placed on record various letters issued by respectable persons of Shirdi attached to various political parties. However, all these letters, total six in number, appear to be issued on same date i.e. 13/08/2021. Thus, the possibility cannot be ruled out that the petitioners have obtained such letters of their good character from the concerned persons only for the sake of creating their good image to avoid their future externment.
8. Further, on perusal of both the impugned orders it is clearly apparent that the replies of the petitioners have been considered by both the authorities below and appropriate reasons are also given as ::: Uploaded on - 30/03/2022 ::: Downloaded on - 31/03/2022 19:30:38 ::: 9 judgment wp 1418-21 & 1419-21 to why the same are not believable. It is to be noted that the initial proposal of externment against the petitioners was in fact for larger area than the area of Ahmednagar District but after considering the material against the petitioners, the authorities below, have restricted the area of externment only to Ahmednagr District. As such, there appears application of mind by the authorities below. Moreover, every aspect before passing such order appears to be considered by the authorities by giving reasonable opportunity of being heard to the petitioners. This defnitely indicates subjective satisfaction of the authorities. Further, the crimes considered for externment of the petitioners are of the year 2019 and 2020 and just after the commission of crime in the year 2020 by the petitioners, the externment proposal was initiated. As such, there appears live link in the instant matter.
9. Thus, considering all the material on record and in view of our aforesaid discussion, we come to the conclusion that the authorities below have rightly externed the petitioners considering their criminal background and activities in proper sense. There is prima facie material on record against the petitioners as to how their criminal activities are dangerous to public at large and how they are committing crimes as a gang in the area mentioned therein. Though ::: Uploaded on - 30/03/2022 ::: Downloaded on - 31/03/2022 19:30:38 ::: 10 judgment wp 1418-21 & 1419-21 the criminal activities of the petitioners are restricted to the area under Shirdi Police Station, but the Full Bench of this Court in case of Sumit s/o Ramkrishna Maraskolhe vs. Deputy Commissioner of Police Zone-1, reported in 2019(2) Mh.L.J. 745 , has already made it clear that even though criminal activities of the externee is limited to certain area, he can be externed from larger area than that in view of the advance mode of transportation. Therefore, the impugned orders do not appear as an excessive orders. Hence, we proceed to pass the following order.
ORDER
I) Criminal Writ Petition No. 1418 of 2021 and
Criminal Writ Petition No.1419 of 2021 are hereby dismissed and disposed of accordingly.
II) Rule stands discharged accordingly.
(SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)
vsm/-
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