Bombay High Court
Rajesh Tribhuvandas Gupta vs The State Of Maharashtra And Ors on 19 December, 2024
2024:BHC-AS:50419-DB
P.H. Jayani 906 WPST24106.2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST.) NO. 24106 OF 2024
Rajesh Tribhuvandas Gupta
Age : 47 years, Occupation : Business,
Having address at Room No.76/A,
Ashok Nagar, Opp. Shivsena Office,
Vashi-Naka, Chembur, Mumbai ..... Petitioner
v/s.
1. The State of Maharashtra
Through Home Department,
Mantralaya, Mumbai.
2. Divisional Commissioner, Kokan Division,
Belapur, Navi Mumbai,
Government of Maharashtra
Having Office at :
Karmaveer Bhaurao Patil Marg,
Near Dr. Ambedkar Statue, Mantralaya,
Fort, Mumbai, Maharashtra - 400 032.
3. Deputy Commissioner of Police,
Zone - VI, Chembur, Mumbai
4. Assistant Commissioner of Police,
Zone - VI, Trombay Division, Chembur,
Mumbai, Maharashtra.
5. Senior Inspector of Police,
R.C.F. Police Station, Chembur,
Mumbai, Maharashtra ..... Respondents
Mr. Shashikant P. Chaudhari a/w. Ms. Snehal Chaudhari, Mr. Pranot
Pawar, Mr. Gyanprakash Pal and Mr. Nitan D. Mayekar i/b.
Maharashtra Law Associates for the Petitioner.
Mr. N.B. Patil, APP for the State.
Mr. Chetan Sulake, PSI and Mr. H.T. Kedari, PSI, RCF Police Station, present.
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CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 13th DECEMBER, 2024.
PRONOUNCED ON : 19th DECEMBER, 2024.
JUDGMENT :-
. Present Petition mounted a challenge to an Order dated 25 th June 2024, passed by the Respondent No.3 thereby the Petitioner has been externed from the limits of the Districts of Mumbai City, Mumbai Suburbans and Thane, for a period of 12 months and the Order dated 11th November, 2024 passed by Respondent No.2 thereby Externment Appeal No.125/2024 filed by the Petitioner assailing the Order of Externment has been dismissed.
2) Heard. Perused the record.
3) Rule. Rule is made returnable forthwith. Heard finally with consent of the parties.
4) Background facts are that on 6th May 2024, Senior Police Inspector of RCF Police Station submitted a proposal before Respondent No.3. The proposal conveyed that the Petitioner has formed a gang of persons with criminal mentality. The Petitioner as the gang leader and its members namely Rahul Ramu Pille and Avinash Rajendra Patel have committed the offences of robbery by causing hurt, uttering words to outrage modesty, voluntarily causing hurt by dangerous weapons, rioting, unlawful assembly, wrongful restraint, wrongful confinement, damaging property, threatening and abusing, etc. within RCF Police Station and its 2/16 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:30:50 ::: P.H. Jayani 906 WPST24106.2024.doc adjacent areas. Record revealed that the aforesaid three, either collectively or individually, continuously committing crimes. They have been moving within the area of RCF Police Station and its vicinity, which has surfaced danger there. That, the said acts of the Petitioner's gang and said gang members were covered under Section 55 of the Maharashtra Police Act ('the Act' for short) and it resulted in causing insecurity in the minds of general public. Therefore, externment of the three from Mumbai, Mumbai Suburbans and Thane, is essential.
5) The proposal was sent for preliminary inquiry by Respondent No.4-Assistant Commissioner of Police, Trombay Division (' the ACP', short), under Section 59 of the Act. In turn, the ACP gave a notice dated 07th May, 2024 to the Petitioner and two others and called upon them, to show cause as to why they should not be externed. In response, the trio attended before the ACP on the given date, along with their Advocate and witnesses. Further, the three gave their statement and adduced defence evidence. After evaluating the material on record and the in-camera statements of the confidential witnesses, the ACP held that the case was made out to extern the three. Hence, the ACP returned the proposal containing his advice, accordingly.
6) As a result, the Respondent No.3 called upon the Petitioner and his associates for hearing on 18/06/2024 and 24/06/2024. The Petitioner did not attend for the inquiry. However, Rahul Ramu Pille and 3/16 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:30:50 ::: P.H. Jayani 906 WPST24106.2024.doc Avinash Rajendra Patel did attend and gave their statement in which they confessed to have committed a couple of crimes i.e., C.R.No.55/2020 & C.R.No.80/2015 respectively alongwith common C.R.No.110/2024. On appraisal of the material, the Respondent No.3 convinced that there is a sufficient case to extern the three. Hence, the Respondent No.3 passed the impugned Order of Externment dated 25 th June 2024. Petitioner's Appeal against his externment came to be dismissed on 11th November 2024, by Respondent No.2. Hence, Petition.
7) Details of the cognizable offences, the preventive actions taken and the in-camera statement considered against the Petitioner and two others are as under :-
History of crimes :-
Sr. Police C.R.Nos. and Name of the accused Current No. Station Sections status
1. R.C.F. C.R.No.80/2015 1)Rajesh Tribhuvandas Gupta Acquitted Police Sections 324, 323, (gang leader) Station 504, 34 of IPC 2) Avinash Rajendra Patel dated 29/03/2015 (gang member) P.W.1709/2015
2. R.C.F. C.R.No.55/2020 1)Rajesh Tribhuvandas Gupta Subjudice Police Sections 509, 323, (gang leader) Station 504, 506, 427, 34 of 2) Rahul Ramu Pille ( gang IPC and Section 12 member) of POCSO Act, 2012 dated 12/02/2020 Special Sessions Case No.61/2021
3. R.C.F. C.R.No.54/2022 1) Rajesh Tribhuvandas Gupta Acquitted Police Section 354, 509,323, (gang leader with associates) -
Station 342, 504, 34 of IPC 2) Manoj Tribhuvandas Gupta dated 08/02/2022 3) Ajay Rajkumar Jaiswal P.W.2966/2022 4) Surekha Harikesh Gupta
5) Seema Ashish Jaiswal
6) Rekha Rajkumar Jaiswal 4/16 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:30:50 ::: P.H. Jayani 906 WPST24106.2024.doc
4. R.C.F. C.R.No.525/2023 1) Rajesh Tribhuvandas Gupta Subjudice Police Sections 143, 147, (gang leader with associates) -
Station 509, 323, 504, 506 of 2) Sona Shivbabu Singh
IPC 3) Manoj Tribhuvandas Gupta
Dated 12/09/2023 4) Ajay Rajkumar Jaiswal
P.W.No.382/2024 5) Surekha Harikesh Gupta
6) Seema Ashish Jaiswal
7) Rekha Rajkumar Jaiswal
8) Sunita Rajesh Gupta
9) Rakhi Tribhuvandas Gupta
10) Seetadevi Tribhuvandas
Gupta
5. R.C.F. C.R.No.50/2024 1) Rajesh Tribhuvandas Gupta Under
Police Sections 394, 354(a), (gang leader) Investigation
Station 509, 504, 506, 34 of 2) Sona Shivbabu Singh
IPC
dated 16/01/2024
6. R.C.F. C.R.No.110/2024 1) Rajesh Tribhuvandas Gupta Under
Police Sections 188, 505(1) (gang leader) Investigation
Station (b), 34 of IPC and 2) Rahul Ramu Pille
Sections 3, 5 of (gang member)
Prevention of 3) Avinash Rajendra Patel
Damage to Public (gang member)
Property Act, 1984 4) Sona Shivbabu Singh
dated 19/02/2024
Preventive action taken against Petitioner (gang leader) :-
Sr. Police Chapter Act and Bond No. Station Case No. Sections 1. R.C.F. Chapter Case Section 107 Dated 26/11/2022 as the case lapsed Police No.42/2022 of Cr.P.C. and a settlement was reached with Station the witness, the witness gave a letter of understanding, the case was closed under the impression of maintaining peace. 2. R.C.F. Chapter Case Section 107 Proposal filed on 03/08/2023 Police No.116/2023 of Cr.P.C. Station
Preventive action taken against Avinash R. Patel (gang member) :-
Sr. Police Chapter Act and Bond No. Station Case No. Sections 1. R.C.F. Chapter Case Section 107 A bond of Rs.10,000/- for the period
Police No.51/2015. of Cr.P.C. of one year taken on 24/04/2015.
Station
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8) Now turning to the in-camera statements. Witness-A revealed
that he is working as a Contractor in BPCL and HPCL Company. There is a great terror of the Petitioner and his associates in Gavhan Pada, Vishnu Nagar areas. That, they habitually extort money from labour contractor, parking contractor, transport godown owners, etc. If someone objects, they threaten to kill him. Therefore, no one dare to lodge a report with the police. One day, at about 07:30 p.m., in the last week of February 2024, the Petitioner and the two externees entered into the office of witness-A and robbed him of Rs.4,000/- by assaulting, abusing and threatening when the said witness-A objected to pay extortion money to run his business. The witness-B disclosed that, he is doing contract work for BMC in Shankar Deula, Gavhan Pada and Mahulgaon area. The Petitioner and his associates are extorting money from the new businessmen in the area and threaten to assault them if they do not give money. The witness-B further revealed that, one day at about 08:00 p.m., in the 1st week of March 2024, the witness was present in his office. The Petitioner and the two externees came there. Then the three abused and threatened the witness as he refused to give extortion money to run his business. However, the witnesses 'A' and 'B' did not lodge a report with the police due to fear and threatening by the three externees.
9) Mr. Chaudhari, the learned Advocate for Petitioner submitted that, the Order of Externment has been based on the crimes in which the 6/16 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:30:50 ::: P.H. Jayani 906 WPST24106.2024.doc Petitioner was acquitted and which were under investigation. The in- camera statements were not verified by the concern, before relying upon the same to extern the Petitioner. A live-link was snapped in between certain crimes and the Order of Externment. Said Order is excessive and unreasonable. Lastly, Mr. Chaudhari submitted that, Section 55 of the Act applied to a gang or body of persons i.e., the leader and all the members of the gang and not to an individual member thereof. Yet, the impugned 'Order of Externment' is passed only against the three. He submits that, this is not permissible in law. As such, the Order of Externment is illegal. However, the same is upheld in the Appeal ignoring or without dealing with the aforesaid aspects. As a result, the impugned Order of dismissing the Appeal is also illegal. Hence, Both the orders be quashed.
10) In contrast, Mr. Patil, the learned APP urged that, looking at the crimes committed in the past by the Petitioner and his associates, it is evident that the Petitioner is the gang leader and others are members thereof. The Petitioner was figured in all the said crimes, thus, he has been habitually committing different serious crimes. This is confirmed by the in-camera statement of the confidential witnesses. The two associates of the Petitioners have confessed certain crimes. The Petitioner has no fear of law. The acts of the Petitioner and his gang members are dangerous and likely to cause alarm to the members of public. It has created terror in the area concerned. People are not coming forward to 7/16 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:30:50 ::: P.H. Jayani 906 WPST24106.2024.doc give their statement against culprits. The preventive actions were insufficient to restrain the Petitioner and his gang members from committing further crimes. As a result, case was made out to extern the Petitioner and his associates. Accordingly, the Order of Externment has been passed and based on the same material, the said Order has been upheld in the Appeal. In short, according to the learned APP there was more than adequate objective material to record the subjective satisfaction for passing the Order of Externment. Thus, both impugned Order are lawful.
11) It is settled law that, the measure of externment by its very nature is extraordinary. It has the effect of forced displacement from the home and surroundings. Often it affects the livelihood of the person ordered to be externed. Thus, there must exist justifiable grounds to sustain an Order of Externment. In other words, there must be sufficient objective material on the strength of which the externing authority wants to record the subjective satisfaction to pass the Order of Externment.
12) In the backdrop and considering the rival submissions, first, it is necessary to refer the Section 55 of the Act, which reads as under :
"55. Dispersal of gangs and body of persons.- Whenever it shall appear in Greater Bombay and in the other areas in which a Commissioner is appointed under Section 7 to the Commissioner and in a district to the District Magistrate, the 2 3 Sub-Divisional Magistrate or the [Superintendent] [***] 8/16 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:30:50 ::: P.H. Jayani 906 WPST24106.2024.doc 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 4[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 5[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."
13) Now coming to the crimes which have been accepted as an objective material. In all, six crimes were registered against the Petitioner, the two gang members and other associates of the Petitioner. However, in the crime at Sr. Nos.1 and 3 the Petitioner and others were acquitted. As held by this Court in Madhusudan alias Bandu Yeshwantrao Uparkar v/s. Divisional Commissioner, Nagpur Division, Nagpur and Ors.1, the crimes in which the externee was acquitted, could not be taken into consideration. Therefore, on this count, the subjective satisfaction to
1. AIROnline 2023 BOM 1351.
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P.H. Jayani 906 WPST24106.2024.doc warrant the externment has been dented.
14) The crime at Sr.No.2 was registered in 2020. As such, it was a stale crime. The crime at Sr. No.4 was registered on 12th September 2023. The proposal of externment was submitted on 6 th May, 2024. Thus, there was considerable gap between the crime at Sr. No.4 and Order of Externment. In order to justify the externment order, there is need of urgency and promptness on the part of an Officer in initiating the proceeding and taking the proceeding to the logical end, at the earliest. That apart, the impugned Order of Externment indicates that the preventive action initiated before registration of the crime at Sr. No.4, did not move further. In so far as the crime at Sr. Nos.5 and 6 are concerned, said crimes were still under investigation when the Order of Externment was passed. As such, the last two crimes could not have been taken into consideration.
14.1) In Sachin s/o. Sanjay Raut v/s. The Divisional Commissioner, Amravati Division & Ors.2, in all 8 crimes were considered to direct the externment. The last four crimes were under investigation, therefore, the same were excluded from consideration. The remaining crimes were registered in the year 2018, 2019 and 2020 respectively, two years prior to the issuance of notice. Therefore, the said crimes were held as stale and not sufficient to establish the live-link for passing the externment order.
2. Cril.WP No.253 OF 2023, (Nag. DD. 10/07/2023).
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P.H. Jayani 906 WPST24106.2024.doc To arrive at this conclusion, this Court noted that in order to justify the live-link, the serious nature of the crime has been made the bone of contention. The serious nature of the stale crime cannot be made the foundation to establish the live-link. The object of externment proceeding is to prevent a person from indulging in such offences repetitively in future, so that, peace and tranquility in the society is maintained. On this Count, no justifiable reason was stated in the externment order. Hence, it is held that, the aforesaid aspect would largely reflect upon the subjective satisfaction asserted in the proceeding by the Respondents and this basic lacuna is sufficient to set aside the externment. Similarly, in the decision between Imtiyaz Hussain Sayyad Vs. The State of Maharashtra and Ors. 3, it is held that, "It is trite, the crimes which are still under investigation cannot be taken into consideration as depending upon the outcome of the investigation, the investigating agency may or may not send the accused for trial".
15) Mr. Chaudhari pressed one more ground i.e., non-verification of the in-camera statements of the confidential witnesses. The in-camera statements bear endorsement as "seen". However, nothing is pointed out from record to show that, truthfulness of the in-camera statements was personally verified either by the ACP or by the Respondent No.3. Yet the said statements have been relied upon by the Respondents as an objective
3. AIR Online 2024 BOM 84.
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P.H. Jayani 906 WPST24106.2024.doc material to record the satisfaction to justify the externment. Needless to state that, without such verification said statement have caused a serious prejudice to the Petitioner because he could not successfully deal with the incriminating material in the said statements, either during the externment inquiry or in the Appeal. To justify this conclusion, support can be taken of a decision in Ashish Samadhan Makeshwar v. State Of Maharashtra and Ors4, cited by Mr. Chaudhari, the learned Advocate for the Petitioner. In that case, the learned Single Judge of this Court held that, it is obligatory on the part of the ACP or the Externment Authority to make a confidential inquiry with people of the locality to cross-check the veracity of the aforestated confidential witnesses. Similarly, the Externment Authority is under an obligation to personally verify those statements or the facts stated in the statements by the witnesses. Said exercise was not done in that case. Therefore, the in-camera statements were over-looked/not considered.
16) Now coming to the question of duration of externment. In Deepak s/o Laxman Dongre v/s. State of Maharashtra and Ors.5, the Hon'ble Supreme Court held that, an application of mind on the part of the competent authority is required for deciding the duration of the restraint order under Section 56 of the Act. On the basis of objective assessment of the material on record, the authority has to record its
4. AIROnline 2023 BOM 292.
5. 2022 ALL.M.R.(Cri.) 761 (S.C.).
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P.H. Jayani 906 WPST24106.2024.doc subjective satisfaction that the restriction should be imposed for a specific period. In the case in hand, the Petitioner has been externed for a period of twelve months and the two others, for a period of six months each. However, no reason is recorded as to why the period of externment should be different, even though the facts and circumstances against the three were same, to proceed under Section 55 of the Act. Thus, on the count of inequality in the period of externment, the impugned Order of externment has received a serious dent.
17) It is pertinent to note that all the crimes were registered in RCF Police Station. As noted in the Order of Externment, the movement or encampment of the Petitioner and his gang was within RCF Police Station area only, which had caused danger there. Comparatively, this area is much smaller than the total area covered by the limits of the three Districts i.e., Mumbai City, Mumbai Suburbans and Thane. In fact, area- wise, Thane is one of the largest Districts in Maharashtra. Nevertheless, not a single compelling and satisfactory reason is recorded in the impugned orders to direct the Petitioner to remove himself out the limits of the said three Districts. Hence, I have no hesitation to hold that the Order of Externment is excessive as well as unreasonable. To fortify this conclusion it is apt to depend upon the decision rendered by the Division Bench of this Court in Pappu alias Akhilesh Shivshankar Mishra v/s. State 13/16 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:30:50 ::: P.H. Jayani 906 WPST24106.2024.doc of Maharashtra and Ors.6, cited by Mr. Chaudhari, wherein, on pondering over various earlier decisions, the Division Bench of this Court in paragraph 26 held as under :-
"26. It appears that before amendment to Section 56[1] by Act No.8/1981, externment was possible from local limits of jurisdiction of respective authority and contagious area. Statement of object and reasons/SOR of Amendment Act reveals that there was improvement in transport facilities and means of communications which consequently reduced efficacy of the provisions. By said amendment, the Authority is now empowered to order externment from areas falling not only within the local limits of its jurisdiction, but, also from other areas, even if such other areas are not contagious to its jurisdictional area. There is no challenge to this provision. The amendment therefore gives teeth to the Authority ordering externment and may effectively check return of the externed person to the area of his influence. Thus, facts & factors looked into by the Authority for reaching subjective satisfaction as envisaged under Section 56[1] must be capable of supporting the need of ordering externment beyond the area of jurisdiction of such authority. If larger area is being selected, need thereof must also be evaluated by that authority, and such an evaluation which constitutes the "application of mind", has to surface in the impugned order. Externment is a measure which operates against the fundamental right and therefore, order of externment must be a reasonable order. It has to demonstrate that externment has been ordered only from the area which is necessary to give effect to it and not from unnecessarily larger
6. AIR Online 2024 BOM 84.
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P.H. Jayani 906 WPST24106.2024.doc area. Precedents looked into by us show that this application of mind, qua the extent of area also constitutes one of the essential ingredients of a test used to uphold the provisions of externment as a reasonable restriction on fundamental right of the externee. Various precedents looked into by us show that where order of externment is found not to contain any material for ordering externment from a larger area, the same have been quashed and set aside."
18) Upshot of the aforesaid discussion is that, the six crimes considered by the authorities were not sufficient as an objective material to record the subjective satisfaction to pass the Order of Externment. Since the in-camera statements were not verified, the same were not available to support the externment. No just reason is recorded for disparity in the period of externment. The Petitioner has been externed from the limits of three Districts which is undoubtedly a very larger area. However, the reason for the same is not discernible from the record. As such, the Order of Externment was excessive and unreasonable. However, the same has been upheld by Respondent No.2, dismissing the Appeal. In the backdrop, both the impugned orders are not sustainable in law and liable to be quashed and set aside. The Petition succeeds, thus. Hence, following Order :-
ORDER
(a) Writ Petition (St.) No.24106 of 2024 is allowed.
(b) The impugned Order of Externment dated 25th June,
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2024 passed by the Respondent No.3 - the Deputy
Commissioner of Police, Chembur, Mumbai and the impugned Order of Externment dated 11th November, 2024 passed by the Respondent No.2 - Divisional Commissioner, Kokan Division, Belapur, Navi Mumbai thereby dismissing the Petitioner's Externment Appeal No.125/2024, are quashed and set-aside.
19) Petition stands disposed of in above terms. Rule is made absolute.
PREETI HEERO JAYANI (SHYAM C. CHANDAK, J.) Digitally signed by PREETI HEERO JAYANI Date: 2024.12.21 14:08:59 +0530 16/16 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:30:50 :::