FARUKH KHAN @PAPPU ZAHIR KHAN VS THE STATE OF MAHARASHTRA

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FARUKH KHAN @PAPPU ZAHIR KHAN VS THE STATE OF MAHARASHTRA

BENCH: JUSTICE V.K. JADHAVJUSTICE SANDIPKUMAR C. MORE
COURT: HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
DATE OF JUDGEMENT: 17 APRIL 2022
CASE TYPE: CRIMINAL WRIT PETITION NO. 1448 OF 2021
PETITIONER: 1. FARUKH KHAN @ PAPPU S/O ZAHIR KHAN QURESHI.2. NAYAB KHAN S/O ZAHIR KHAN QURESHI3. FEROZ KHAN S/O ZAHIR KHAN QURESHI4. SIKANDAR KHAN S/O ZAHIR KHAN QURESHI 5. FIRDAUS KHAN @ RAJU S/O ZAHIR KHAN QURESHI 6. SHAIKH MUSTAQEEM S/O SHAHABUDDIN QURESHI
RESPONDENT: THE STATE OF MAHARASHTRA THROUGH POLICE INSPECTOR, NANDURBAR POLICE STATION, TALUKA AND DIST. NANDURBAR
PETITIONER LEARNED COUNSEL: MR. S.P. BRAHME, ADVOCATE HOLDING FOR MR. RUCHIR S. WANI
RESPONDENT LEARNED COUNSEL: MR. M.M. NERLIKAR, A.P.P.
RELATED SECTION: SECTION 55 OF MAHARASHTRA POLICE ACTSECTION 59 OF MAHARASHTRA POLICE ACTSECTION 60 OF MAHARASHTRA POLICE ACT

FACT OF THE CASE:
The petitioners have challenged the order dated 09.09.2021 passed by the Superintendent of Police, Nandurbar and also challenged the order dated 06.12.2021 passed by the learned Divisional Commissioner, Nashik Division, Nashik in Externment Appeal No. 111/2021, whereby the earlier order dated 09.09.2021 is confirmed.
The respondent through Police Inspector, Nandurbar Police Station had sent externment proposal in respect of the petitioners under Section 55 of the Maharashtra Police Act. Since it was found that all the petitioners were involved in serious criminal activities being a gang in the jurisdiction of Nandurbar city police station and those criminal activities involved formation of unlawful assembly, use of dangerous weapons, commission of rioting, criminal trespass and the offences related to human body. Thereafter the Sub-Divisional Police Officer, Nandurbar conducted inquiry of the said externment proposal and proposed that the petitioners were required to be externed from the entire Nandurbar District for the period of two years.On the basis of the report submitted by the Sub-Divisional Police Officer, Nandurbar, issued notice

dated 15.07.2021 under Section 59 of the Act and asked all the petitioners as to why they should not be externed from Nandurbar District as proposed. All the petitioners submitted their replies by denying all the allegations made against them. However, the Superintendent of Police, Nandurbar under the impugned order dated 09.09.2021, externed the petitioners as aforesaid. Being aggrieved with the said order dated 09.09.2021, the petitioners even preferred appeal before the Divisional Commissioner, Nashik bearing Externment Appeal No. 111/2021 under Section 60 of the Act. However, learned Divisional Commissioner, Nashik was pleased to dismiss the same vide order 06.12.2021 by confirming the earlier impugned order dated 09.09.2021.
ARGUMENTS:

LEARNED COUNSEL FOR THE PETITIONER:
He submits that both the impugned orders are prima facie erroneous and against the provisions of law. He submits that the externment proposal against the petitioners is allowed by ignoring the settled principle of law and without there being any material to show that the petitioners acted together in the criminal acts being a gang or body of persons. He submits that the criminal activities of the petitioners considered by the Authorities below for their externment are individualistic in nature and not in collective form.He further submits that the Chapter cases shown against the petitioners are also fled in their individual capacity and not as a group. Further, the petitioner Nos.1 to 5 are brothers, and therefore, they cannot be termed as gang members or leader of such gang. In most of the crimes considered for externment of the petitioners are not committed collectively by the petitioners and in some of those crimes, the concerned petitioners are also acquitted. The main crimes which appear to be committed collectively by the petitioners, are the result of family dispute, and therefore, they cannot be said as the crimes against the public at large.
With these submissions the learned Counsel for the petitioners prayed for quashing of the impugned orders.
LEARNED COUNSEL FOR THE RESPONDENT:
Learned A.P.P. for the respondent-State strongly opposed the petition by filing an affidavit-in-reply of the Assistant Police Inspector, Local Crime Branch, Nandurbar. He supported both the impugned orders and submitted that the impugned orders are appropriately passed by considering the entire material on record in proper manner and He submits that there are various crimes registered against the petitioners in the area of Nandurbar City Police Station. Besides, the prohibitory action under Sections 110 and 107 of the Code of Criminal Procedure was also initiated against the petitioners considering their criminal activities. As such, he prayed for dismissal of the petition.

RELATED SECTION:
The externment proposal against the petitioners was sent in view of Section 55 of the Act. You can read from the bare. Which states that the main requirement for attracting section 55 is that the criminal cases against gang or group of persons must be collective in nature and the same should not be individualistic in nature. Further it has to be shown that the petitioners involved in criminal activities must be a member of a gang and there should be specific material on record showing that the persons are acting as a gang or body of persons. Section 55 of the act can only be invoked if all these aforesaid ingredients are present.
COURT OBSERVATION:
As learned counsel for the petitioner submitted that the crimes registered against the petitioners were not in the form of collective activities, but it is individualistic in nature. If we peruse the crimes registered against the petitioners, then it is evident that Crime No. 28/2020 under Sections 307, 143, 147, 148, 149, 324, 452 of the Indian Penal Code and under Sections 37 (1) (3) and 135 of the Maharashtra Police Act is registered against 12 accused persons, but only six accused, who are the present petitioners, are selected for externment. Further, on going through the F.I.R, it appears that there was dispute between family members and other party also lodged cross F.I.R. bearing Crime No. 29/2020. Similarly, in Crime No.281/2020 petitioner No.1 is not party in the said crime and rest of the petitioners are there along with other 11 accused. Further, on perusal of FIR it is clearly evident that the same has arisen out of family dispute and the rival party has also fled cross FIR bearing Crime No. 280/2020. Thus, it appears that though the petitioners are shown to be involved in Crime No. 28/2020 and Crime No. 281/2020, but those crimes are the result of family dispute and not against the public at large. Further, Crime No. 136/2015 is of old nature and it is only against petitioner Nos. 2 and 5. Moreover, petitioner Nos.2 and 5 have already been acquitted from the trial of the said.In crime No.425/2020 under Sections 268, 269, 289, 290 of I.P.C., under Section 5 (C) 9 (A) of Maharashtra Animal Preservation Act, under Section 11 of Prevention of Cruelty to Animal Act, 1960 and under Section 291 of Maharashtra Municipal Act only petitioner No.6 is accused and not petitioner No.2 as claimed in the order. Moreover, the said crime is also not against the public at large. Further, Crime No. 65/2015 under Sections 5 (C), 9 and 9(A) of the Maharashtra Animal Preservation Act is also not against the public at large and it is registered only against petitioner No.3. Moreover, on perusal of the judgement in the trial of the said crime, it appears that petitioner No. 3 has already been acquitted. Further, Crime No. 279/2020 appears to be under Section 160 and 268 of I.P.C. which is only against petitioner No.2 for not wearing a mask during the pandemic period. It further appears that petitioner has been convicted in the said crime only when he pleaded guilty. The said offences also cannot be said against the public at large. Further Crime No.1100/2020 is also under Sections 268, 269, 290 of I.P.C. and under Section 11 (G)(D) of Prevention of Cruelty to Animal Act 1960 and Section 119 of the Maharashtra Police Act. Thus, on perusal of entire material which is considered for the externment of the petitioners, it is clearly evident that the crimes registered against the petitioners are either separate crimes or they are more of individualistic nature.

JUDGEMENT:
After the observation court finds that there is no sufficient material on record to show that the petitioners have acted criminally as members of gang or body of persons. In the case of Sachin Bhaskar Badgujar vs. State of Maharashtra (supra), this Court has observed in para-9 as follows :There is no live link and proximity between the registration of the said offences and initiation of the present externment proceedings and this observation appears to be helpful in this case since there are certain crimes of 2015 appear to be considered in the instant case and the aspect of live link is also missing in the present case as per the aforesaid observation.

Thus on going through the entire material on record and in the light of the observations made by this Court the main requirements of Section 55 of the Act as mentioned in the opening para, are not fulfilled. It appears that both the Authorities below have considered the individual activities of the petitioners for their externment without application of mind. Moreover, both the Authorities below have wrongly come to the conclusion that such individual activities are a deterrent to the public at large. On the contrary, all the crimes registered against the petitioners appear to be of private nature and not sufficient to disturb the public tranquillity. Moreover, the crimes against the petitioners are registered only in City Police Station, Nandurbar and even though the petitioners are externed from the entire Nandurbar District. Such action on the part of both the Authorities below is therefore definitely excessive in nature. Further, there appears no subjective satisfaction on the part of those Authorities. After the above discussion court held that both the impugned orders are liable to be quashed and set aside. Hence, we pass the following order. (i) Criminal Writ Petition is hereby allowed in terms of prayer clause [B].(ii) Rule is made absolute in above terms. (iii) Criminal Writ Petition is accordingly disposed of.

WRITTEN BY ALI MOHD SAMADLEGAL INTERN AT LEGAL VIDHIYA.