notice was issued by the Special Divisional Police Ofcer, Shirdi, Tq. Rahata, District Ahmednagar (respondent No. 3 herein) alleging that the activities of petitioner Nos. 1 and 2 have become dangerous and harmful to the society. Both of them have formed a gang and they are the leaders of the gang. Both of them are armed with knives. They have created reign of terror in the vicinity of police station Rahata. They physically assault any one. They harass doctors and government servants. Witnesses are not ready to come forward to give evidence against them. It is further alleged that in all six ofences are registered against them relating to human body and property. Their details are as under :

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5. The petitioners were called upon to explain as to why they should not be externed from the Districts of Ahmednagar, Nashik and Pune for a period of two years. It is further alleged that the petitioners are likely to commit similar ofences in future.

6. It is further alleged that witnesses are not coming forward to depose against the petitioners. In-camera statements of witnesses 'A' & 'B' were recorded. Their statements show that both the petitioners were armed with knives. They have no fear of law. They have formed a gang of vagabond boys. They beat any one without any reason and also assault doctors and the government servants.

7. The petitioners appeared in the externment proceedings, fled their say and denied all the allegations made against them. They alleged that in some of the cases they have been acquitted by the Court and remaining cases are pending before the Court. The petitioners are political activists and have political rivals in Rahata, owing to which these false proceedings are initiated. Therefore, they requested for dropping of the proceedings.

8. By the order dated 27.4.2019 respondent No. 3, externed petitioner Nos. 1 and 2 for a period of two years from the District of Ahmednagar. R-3 held that in all eight ofences are pending against

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the petitioners. The petitioners have formed a gang. They obstructed the doctors in the discharge of their duties. They committed criminal trespass and molested minor girls. He has also considered the preventive actions initiated under Section 107, 110 of the Maharashtra Police Act. Accordingly, both the petitioners were directed to be externed for a period of two years from Ahmednagar District.

9. This order was challenged before the Divisional Commissioner (respondent No. 1) by the petitioners by preferring externment appeal No. 77 of 2019. Respondent No. 1 confrmed the order of the respondent No. 3 by his order dated 24.01.2020. This order is impugned in this petition.

10. Heard S.S.Chapalgaonkar, learned Counsel for the Petitioners and Shri S.J. Salgare, learned A.P.P. for the Respondents.

11. Shri Chapalgaonkar, learned counsel for the petitioners submitted that extraneous material has been considered by respondent Nos. 1 and 3 while passing order of externment. According to him, this itself is a ground for setting aside the externment order. He has further stated that the petitioners are alleged to have formed a gang. It is alleged that they have formed a gang of vagabond boys but no action has been taken against those

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vagabond boys. He further argued that in two cases the petitioners have been acquitted. But those cases have been considered by respondent Nos. 1 & 3 for externing the petitioners. He has further argued that externment orders are excessive, as the activities of the petitioners are restricted to Rahata Police Station but they have been externed from entire district, for which no reasons are assigned. He has, therefore, prayed for setting aside the orders of respondent Nos. 1 and 3.

12. Shri Salgare, learned A.P.P. argued that the activities of the petitioners are dangerous and harmful to the society. The allegations show that they assault any one including doctors and government servants. They have created reign of terror in the locality. People are not coming forward to depose against them. Therefore, to have peace and harmony in the society, their externment is absolutely essential and therefore, they have been rightly externed from Ahmednagar district.

13. It is settled principle of law that before passing an externment order, the externing authorities must consider the material placed before it and must record subjective satisfaction, that the activities of the petitioners are dangerous and harmful to the society at large and to maintain peace in the society, it is necessary to keep

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them away from that locality for a certain period of time. If the order of externment shows that there was lack of subjective satisfaction, order of externment gets vitiated on this ground alone. It will have to be seen now, whether respondent Nos. 1 and 3 have correctly considered the material before them and recorded subjective satisfaction.

14. Order of respondent No. 3 Sub Divisional Police Ofcer shows that in Crime No. 93 of 2011 (RTC 27 of 2012), the petitioners have been acquitted. Similarly, in Crime No. 122 of 2014 (RTC 103 of 2015) the petitioners have been acquitted. In Crime No. 32 of 2015, after investigation non cognizable ofence was disclosed and therefore, N.C. case was fled. Thus, this shows that out of six cases mentioned in show cause notice, in two cases, the petitioners have been acquitted and in one case, non cognizable ofence was disclosed after investigation. Remaining cases are pending. This clearly shows that respondent Nos. 1 and 3 have considered the cases in which the petitioners have been acquitted and also have considered the cases in which the commission of non cognizable ofence was disclosed after investigation. When a competent Criminal Court has acquitted the petitioners, there was no reason for the Externing Authority to consider these cases for the externment of the petitioners. The cases which are pending are the Crime No. 87 of 2012 (STC 318 of 2012), Crime No.

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122 of 2012 (RTC 103 of 2015) and Crime No. 116 of 2017 (RCC 127 of 2018). This shows that these cases are of 2014-2015 and the last case is of 2018. The Externing Authority did not fnd it appropriate to initiate externment proceedings for a period of fve years and all of a sudden, externment proceedings were initiated in the year 2019.

15. Another aspect of the matter which needs to be addressed is consideration of extraneous material by respondent nos. 1 and 3. Respondent Nos. 1 and 3 considered following two cases, which are not mentioned in the show cause notice :-

1) Cr. No. 22 of 2018, under Section 354D & 506 of IPC and under Section 11 and 12 of the Juvenile Justice Act.

2) Cr. No. 53 of 2018, under Sections 353 and 323 read with Section 34 of the IPC (RCC No. 215 of 2018).

16. These two ofences have been considered by respondent Nos.1 and 3 for externing the petitioners though they are not incorporated in the show cause notice. The material which is not part of the show-cause notice, if it is considered by the Externing Authority, this itself is a ground to vitiate the externment proceedings. The basic purpose of issuing show-cause notice under Section 55 and 59 of the Maharashtra Police Act, is to enable the proposed externee to meet the

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allegations made against him. The purpose is to ofer him reasonable opportunity to answer the allegations that are made in the show-cause notice for externing petitioners. If the material which is not part of the show-cause notice, is considered by the Externing Authority, shows that without giving petitioners reasonable opportunity of being heard, this material is considered for externing the petitioners. This is an arbitrary exercise of powers by respondent Nos. 1 and 3. Similarly, against petitioner No. 1 two cases under Section 107 of Cr.P.C., one case under Section 144 (2) of Cr.P.C. and one case under Section 110

(e) (g) of Cr.P.C. have been initiated. Against petitioner No. 2 one case under Section 151 (3) of Cr.P.C. and one case under Section 110

(e) (g) of Cr.P.C. have been initiated.

17. Admittedly, these cases are not the part of show cause notice, but they have been considered by R-1 and R-3. This clearly indicates that extraneous material has been considered by R-1 and R-3. Notice gets vitiated on this ground also.

18. Show-cause notice alleges that the petitioners have formed a gang and both of them are leaders of that gang and the gang members are vagabond boys. The names of these vagabond boys are neither mentioned in the show-cause notice nor proceedings of externment are initiated against any of the vagabond boys. To

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appreciate these allegations Section 55 of the Maharashtra Police Act will have to be looked into. Section 55 of the Maharashtra Police Act reads as under :

"Whenever it shall appear in Greater Bombay and in other 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 the²[Superintendent]³* * * 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 ofcer may, by notifcation 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 ofcer thinks ft, 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 jurisdiction⁴[or such area and any district or districts, or any part thereof, contiguous thereto] within such time as such ofcer shall prescribe, and not to enter to area⁵[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."

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19. On careful reading of Section 55 it is clear that before invoking the provisions of Section 55 of the Maharashtra Police Act, there has to be some evidence before the Commissioner that the movement or any 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 the members thereof. Thus, before pressing into service Section 55, it must appear to the Commissioner that there is movement or encampment of any gang or body of persons. In the case of Ahammad Mainuddin Shaikh vs. State of Maharashtra and anr. - 2013 (4) Bom. C.R. (Cri) 559 it has been held as under :

"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 ofcer may by notifcation addressed to the leaders or chief men of such gang or body of persons and suitably published, issue two types of directions. The frst 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

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be in the form of an order for dispersal of members of such gang or body of persons. The second direction which follows the frst 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 its parts or together with contiguous districts or parts thereof. This second direction, in order to be reasonable, has to be passed for a defnite period of time. In the entire section, there is common thread of participation by all and collective action against all that holds together all its 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. "

20. Thus, for invoking Section 55, it has to he shown that the persons are acting as a gang or a body of persons. Bare reading of

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Section 55 of the Maharashtra Police Act indicates that the pre-condition for invoking Section 55 is movement or encampment of any gang or body of persons. The Section presupposes the collective action on the part of the gang members. Section 55 of the Act can be invoked only when the persons are seen to be acting as the members of the gang. It has been held in the case of Altaf Rajekhan Pathana and Others Vs. Divisional Commission, Pune and Others - 2018

(3) Bom. C.R. (Cri.) 665 as under :

"The said provision as can be seen can be invoked against the movement or encampment of any gang or body of persons in the area of a Commissioner in the commissionerate area, in a district by the District Magistrate, the Sub- Divisional Magistrate or the Superintendent empowered by the State Government in that behalf. Therefore the sine qua non for Section 55 to apply is the movement or encampment of any gang or body of persons. Hence the Section contemplates that there has to be a collective action or concerted action on the part of the gang members. Only when there is a collective or concerted action that the action of dispersal or removal of each of the gang members can be taken. The word "gang" has not been defned in the police act. It would therefore be useful to refer to the dictionary meaning of the said word "gang".

Black's Law Dictionary "Gang" means :-

"A group of persons who go about together or act

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in concert, esp. for antisocial or criminal purposes" .

Oxford Dictionary "Gang" means :-

"an organized group of criminals or disorderly young people".

Hence going by the dictionary meaning of the word

"gang" the same also indicates that a gang has to be a collection of persons or a body of persons who are acting in concert towards a common unlawful object and, just because an ofence is registered against a gang leader and one member of a gang would not mean that they constitute a gang so as to come within the sweep of Section 55 of the police act. Even the meaning of the word "gang" in the Law Lexicon on which the learned Additional Public Prosecutor sought to place reliance cannot be said to be in deviation to the meaning in the other dictionaries as above. In fact the learned Additional Public Prosecutor sought to rely upon a line from the meaning in the Law Lexicon which in our view would be reading the said line out of context."

Having noticed the requirements of Section 55 of the Act, it will have to be examined whether the impugned order fulflls these requirements of law or not.

21. Show-cause notice does not show that there was any

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movement or any encampment of any gang of body of persons which is causing danger alarm or reasonable suspicion that unlawful designs are formed by such gang or body of persons thereof. The notice is conspicuously silent about the movement or encampment of any gang or body of persons. The show-cause notice does not show as to who are the members of the gang. It is vaguely mentioned that the petitioners have formed a gang of vagabond boys. On such vague allegations, it cannot be said that there was any movement or encampment of a gang or body of persons.

22. The record before the Sub-Divisional Police Ofcer (respondent No. 3) and respondent No. 1 is produced by the learned A.P.P. It shows that the First Information Report in Crime No. 93 of 2011 is placed on record. It shows that there are four accused viz.

1) Kiran Bawake, 2) Rahul Gore, 3) Sagar Lute (Petitioner No. 2) and 4) Bhagwat Landge (Petitioner No. 1). In Crime No. 87 of 2012, names of the accused are 1) Bhagwat Landge, 2) Sagar Lute, 3) Rajendra Padhare, 4) Dilip Nikale, 5) Ganesh Jejurkar 6) Mangesh Jadhav. In Crime No. 30 of 2014 only petitioner No. 1 is an accused. The name of the other accused is unknown. In Crime No. 122 of 2014 names of accused are 1) Bhagwat Landge (Petitioner No. 1), 2) Sunil Gondkar, 3) Yogesh Jagtap and other 50-60 people. Thus, this shows that there are other accused in the aforementioned crimes. Despite this, no action

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was taken against any of them, whereas, externment proceedings are initiated against petitioner Nos. 1 and 2 selectively.

23. In the case of Ahammad Mainuddin Shaikh vs. State of Maharashtra and Anr. (supra), it has been held that 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 it is to be taken against all the members and not only against few of them selectively. In the case at hand the Externing Authority has selectively initiated action of externment against the petitioners. The other gang members have been spared for the reasons best known to the Externing Authority.

24. Thus, this shows that petitioner Nos. 1 & 2 have been singled out. Externment proceedings have been selectively initiated against them and not against other vagabond boys. Moreover, there is no evidence to show that petitioner Nos. 1 and 2 have formed a gang of which they are leaders. The Externing Ofcer has neither mentioned the names of other gang members nor any action is initiated against any of the gang members. On this ground also the externment proceedings stand vitiated.

25. The impugned order shows that the petitioners' activities

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are restricted to Rahata Police Station and they have been externed from the entire district. Full Bench of this Court in the case of Sumit s/o Ramkrishna Maraskolhe V/s. Deputy Commissioner of Police, Nagpur and Anr in Criminal Writ Petition No.1002 of 2017 has held as under :-

"28. The discussion made so far would lead us to record our conclusions as follows :

(i) The externment order directing externment of a person from a much larger area than the one of his illegal activities, must be based upon some material which provides an objective criteria to the authority for reaching a subjective satisfaction regarding the need for externing a person to an expansive area though it may not always directly or elaborately refer to that material in the order itself, as it all depends upon facts and circumstances of the case which need be vetted through the judicial process of drawing of legitimate inference following the law of Pandharinath and Sanjeev @ Brittoo (supra).

(ii) The order of externment need not necessarily refer to the details of the material considered by it so as to show independently that larger or additional area chosen by it is intimately connected with the actual area of the activities of the externee due to improved or common means of transport and communication.

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(iii) Application of mind to the material present on record by the authority passing the externment order is necessary, but any refection of application of mind in the externment order in a specifc manner, as if to pass a reasoned order, would not be necessary. It would be enough if the order discloses that the subjective satisfaction has been reached by considering the material available on record and it would and should be a matter of legitimate inference that the authority, while considering materials to satisfy itself about the need for and extent of externment to be ordered, also considered all the options available to it and selected in it's wisdom the one which it thought to be most appropriate. This would also mean that authority, in this way, can select a larger area for being covered under it's externment order, as one of the options available to it, whether such larger area has within it contiguous or inter-connected or intimately connected pockets of areas or not."

This authority of this Court shows that reasons have to be assigned for passing an excessive order. When activities of the

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26. Having regard to the reasons discussed above, it is evident that the impugned order sufers from vice of arbitrariness. Extraneous material has been considered by the Externing Authority and the Appellate Authority. The petitioners have been externed from an excessive area for which no reasons are recorded. Therefore, the impugned order cannot be sustained. Hence the following order is passed :

ORDER

1) The petition is allowed.

2) Relief is granted in terms of prayer clause (B).

3) Rule is made absolute in those terms.

(M.G. SEWLIKAR) (T.V. NALAWADE)

JUDGE JUDGE

mahajansb/

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