Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2454 OF 2018
1] Shri Altaf Rajekhan Pathan ]
Age : Adult, Occu. Nil, ]
R/o. 97, Mangalwar Peth, ]
Tal. Karad, District – Satara ]
]
2] Shri Shahid Aslam Pathan ]
Age. Adult, Occu. Nil ]
R/o. 82/83, Mangalwar Peth, ]
Tal. Karad, District – Satara ]
]
3] Shri Amir Salim Tamboli ]
Age. Adult, Occu. Nil ]
R/o. Hatarmachi, Tal. Karad, ]
District – Satara ]
]
4] Shri Ravi Shivanand Dodamani ]
Age. Adult, Occu. Nil ]
R/o. Shanivar Peth, Karad, ]
District – Satara ]
]
5] Shri Ramesh Sadashiv Aundhe ]
Age. Adult, Occu. Nil ]
R/o. Oagalewadi, Tal. Karad, ]
District – Satara ]
]
6] Shri Sunil Pralhad Khaire ]
Age. Adult, Occu. Nil ]
R/o. Malakapur, Tal. Karad, ]
District – Satara ]
]
7] Shri Rohit Rajendra Masal ]
Age. Adult, Occu. Nil ]
R/o. Malakapur, Tal. Karad, ]
District – Satara ]
]
8] Shri Ramdas Rajaram Kavare ]
Age. Adult, Occu. Nil ]
R/o. Malakapur, Tal. Karad, ]
District – Satara ]
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]
9] Shri Aabuti Umar Pariyar ]
Age. Adult, Occu. Nil ]
R/o. Shastrinagar, Malakapur ]
Tal. Karad, District – Satara ]
]
10] Shri Ganesh Sanjay Waydande ]
Age. Adult, Occu. Nil ]
R/o. Budhawar Peth, Karad ]
Tal. Karad, District – Satara ]
]
11] Shri Hiragesh Somanna Hiramani ]
Age. Adult, Occu. Nil ]
R/o. Daulat Colony, Karad ]
Tal. Karad, District – Satara ]..... Petitioners.
versus
1] The Divisional Commission, Pune ]
Division Pune, ]
]
2] Superintendent of Police, ]
Satara, Dist. Satara ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITI0N NO.275 OF 2018
1] Zakir Abdul Mirajakar, ]
Age : 48 yrs Occ : Business ]
R/o Shamraonagar, Sangli ]
Dist : Sangli ]..... Petitioner.
Versus
1] The Divisional Commissioner, Pune ]
Division Pune ]
]
2] Superintendent of Police, ]
Sangli, Dist. Sangli ]
]
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3] The State of Maharashtra ]
Department of Home ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.305 OF 2018
1] Aadam Moula Pathan ]
Age, Adult, Occu. Nil, ]
R/o, Tarale Galli, Kupwad ]
District Sangli ]
]
2] Shri Sanjay Vithoba Chavan ]
Age, Adult, Occu. Nil, ]
R/o, Dattanagar, Bamnoli, ]
Tal. Miraj, District Sangli ]
]
3] Uday Dashrath Kengare ]
Age, Adult, Occu. Nil, ]
R/o, Prakashnagar, Kupwad ]
Tal. Miraj, District Sangli ]
]
4] Sachin Pandurang Salunkhe ]
Age, Adult, Occu. Nil, ]
R/o, Near Marathi School, ]
Bamnoli,Tal. Miraj, ]
District Sangli ]
]
5] Ashok Rajaram Parab ]
Age, Adult, Occu. Nil, ]
R/o, Shamnagar, Kupwad ]
Tal. Miraj, District Sangli ]
]
6] Mahesh Sitaram Chogule ]
Age, Adult, Occu. Nil, ]
R/o, Bajrangnagar, Kupwad ]
Tal. Miraj, District Sangli ]..... Petitioners
Versus
1] The Divisional Commissioner Pune ]
Division Pune ]
]
2] Superintendent of Police ]
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Sangli, Dist Sangli ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.1359 OF 2018
1] Firoz Hussain Pathan ]
Age 47, Occu. Business ]
R/o. Alishan Chouk, Sangli, ]
District Sangli. ]
]
2] Vikram Dattatray Dhobale ]
Age 49, Occu. Business ]
R/o. Lalage Galli, Khanbhag, ]
Sangli, District Sangli. ]
]
3] Faruk Amin Mujawar ]
Age 29, Occu. Business ]
R/o. Opp. Rajjak Garage, 100 ft. Road ]
Sangli, District Sangli. ]
]
4] Rahul Mahesh Ghodage ]
Age 34, Occu. Business ]
Th
R/o. 12 Galli, Jaysingpur ]
District Kolhapur. ]..... Petitioners
Versus
1] The Divisional Commissioner Pune ]
Division Pune ]
]
2] Superintendent of Police ]
Sangli, Dist Sangli ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.1546 OF 2018
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1] Shri Altaf Rajekhan Pathan ]
Age : Adult, Occu. Nil, ]
R/o. 97, Mangalwar Peth, ]
Tal. Karad, District – Satara ]
]
2] Shri Shahid Aslam Pathan ]
Age. Adult, Occu. Nil ]
R/o. 82/83, Mangalwar Peth, ]
Tal. Karad, District – Satara ]
]
3] Shri Amir Salim Tamboli ]
Age. Adult, Occu. Nil ]
R/o. Hatarmachi, Tal. Karad, ]
District – Satara ]
]
4] Shri Ravi Shivanand Dodamani ]
Age. Adult, Occu. Nil ]
R/o. Shanivar Peth, Karad, ]
District – Satara ]
]
5] Shri Ramesh Sadashiv Aundhe ]
Age. Adult, Occu. Nil ]
R/o. Oagalewadi, Tal. Karad, ]
District – Satara ]
]
6] Shri Sunil Pralhad Khaire ]
Age. Adult, Occu. Nil ]
R/o. Malakapur, Tal. Karad, ]
District – Satara ]
]
7] Shri Rohit Rajendra Masal ]
Age. Adult, Occu. Nil ]
R/o. Malakapur, Tal. Karad, ]
District – Satara ]
]
8] Shri Ramdas Rajaram Kavare ]
Age. Adult, Occu. Nil ]
R/o. Malakapur, Tal. Karad, ]
District – Satara ]
]
9] Shri Aabuti Umar Pariyar ]
Age. Adult, Occu. Nil ]
R/o. Shastrinagar, Malakapur ]
Tal. Karad, District – Satara ]
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]
10] Shri Ganesh Sanjay Waydande ]
Age. Adult, Occu. Nil ]
R/o. Budhawar Peth, Karad ]
Tal. Karad, District – Satara ]
]
11] Shri Hiragesh Somanna Hiramani ]
Age. Adult, Occu. Nil ]
R/o. Daulat Colony, Karad ]
Tal. Karad, District – Satara ]..... Petitioners.
versus
1] The Divisional Commission, Pune ]
Division Pune, ]
]
2] Superintendent of Police, ]
Satara, Dist. Satara ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.4849 OF 2017
1] Shri Sudhir Mahadeo Shinde ]
Age. 47, Occu. Rickshaw Driver ]
R/o. Bharatnagar, Kolhapur Road, Snagli]
Tal. Miraj, District – Sangli ]
]
2] Shri Shivram Dhula Gadade ]
Age. 45, Occu. Agriculturist, ]
R/o. Nandre, Tal. Miraj, ]
District – Sangli ]
]
3] Shri Anil Maruti Desai ]
Age. 31, Occu. Panpatti ]
R/o. Valiv, Tal.Gaonbhag, Snagli ]
Tal. Miraj, District – Sangli ]
]
4] Shri Babasaheb Dhondiram Shendage ]
Age. 45, Occu. Agriculturist ]
R/o. Kolhapur Road, Behind Kabade ]
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Hospital, Sangli, ]
Tal. Miraj, District – Sangli ]
]
5] Shri Annasaheb Piraji Shelake ]
Age. 42, Occu. Watchman ]
R/o. Dattanagar, Vishrambag, Snagli ]
Tal. Miraj, District – Sangli ]
]
6] Shri Vinayak Sudhakar Halyale ]
Age. 20, Occu. Labourer, ]
R/o. Behind Kabade Hospital, ]
Kolhapur Road, Sangli ]
Tal. Miraj, District – Sangli ]
]
7] Shri Javed Balu Shaikh ]
Age. 33, Occu. Driver ]
R/o. Sutar Plot, Kolhapur Road, Snagli ]
Tal. Miraj, District – Sangli ]
]
Versus
1] The Divisional Commissioner Pune ]
Division Pune ]
]
2] Superintendent of Police ]
Sangli, Dist Sangli ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.4850 OF 2017
1] Baban @ Mubarak Ilai Mujawar ]
Age 45, Occu. Rickshaw Driver ]
R/o, Shamrao Nagar, Kolhapur ]
Road, Sangli, Tal Miraj ]
District Sangli ]
]
2] Imtiyaz Abdul Sattar Jamadar ]
Age 52, Occu. Labourer ]
R/o, Latif Pathan Colony, ]
Tal Miraj, District Sangli ]
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]
3] Jamir Shakeel Dandekhana ]
Age 27, Occu. Labourer ]
R/o, Sarwan Galli, Khanbhag ]
Sangli, Tal Miraj District Sangli ]
]
4] Mohammad Gous Mullani ]
Age 50, Occu. Watchman ]
R/o, Vinayak Nagar, 50 ft. Road ]
Sangli, Tal Mira District Sangli ]
]
5] Santosh Dilip Gaikwad ]
Age 32, Occu. Panpatti Business ]
R/o, Near Maruti Mandir, ]
Panchsheel Nagar, Sangli, ]
Tal Miraj, District Sangli ]
]
6] Mahesh Ashok Bhise ]
Age 32, Occu. Panpatti Business ]
R/o, Shridhar Nagr, Behind ]
Akashwani, Sangli, ]
Tal Miraj, District Sangli ]
]
7] Noormohammad Ahemad Shaikh ]
Age 70, Occu. Labourer ]
R/o, Hanuman Nagar, 100 ft. ]
Road, Sangli, Tal Miraj ]
District Sangli ]
]
8] Azaruddin Bhola Beg ]
Age 30, Occu. Business ]
R/o, Sarwan Galli, Khanbhag ]
Sangli, Tal Miraj, ]
District Sangli ]
]
9] Nisar Wahab Mula ]
Age 51, Occu. Nil (Handicap) ]
R/o, Near Laxmi Mandir, ]
Kupwad Road, Sangli, ]
Tal Miraj, District Sangli ]..... Petitioners
Versus
1] The Divisional Commissioner Pune ]
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Division Pune ]
]
2] Superintendent of Police ]
Sangli, Dist Sangli ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.5113 OF 2017
1] Ajij Mehbub Sheikh ]
Age 36, Occu. Agriculture ]
R/o. Dhamani, Tal. Miraj, ]
District – Sangli ]
]
2] Taimur Liyakat Sheikh ]
Age : 24, Occ : Business ]
R/o. Varnali, Galli No.3, Sangli ]
Dist : Sangli ]..... Petitioners.
Versus
1] The Divisional Commissioner Pune ]
Division Pune ]
]
2] Superintendent of Police ]
Sangli, Dist Sangli ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.5339 OF 2017
1] Irfan Abdulsattar Pakhali ]
Age 21, Occu. Driver ]
R/o, 100 Footy Road, Vishrambag, ]
Tal Miraj, District Sangli ]
]
2] Dattatreya Gunda Pawar ]
Age 50, Occu. Painter ]
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R/o, Hanumannagar, ]
District Sangli ]
]
3] Irshad Ajij Sheikh ]
Age 40, Occu. Business ]
R/o, Khanbag, District Sangli ]..... Petitioners
Versus
1] The Divisional Commissioner Pune ]
Division Pune ]
]
2] Superintendent of Police ]
Sangli, Dist Sangli ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.4953 OF 2017
1] Avinash Subhash Bhagat ]
Age : 39 years, residing at Kalambi ]
Tal. Miraj, Dist. Sangli. ]
]
2] Sanjay Murlidhar Wadavne ]
Age : 40 years, residing at Limb ]
Tal. Tasgaon, Dist. Sangli ]
]
3] Tanaji Yedu Nalavade ]
Age : 50 years, residing at Limb ]
Tal. Tasgaon, Dist. Sangli ]
]
4] Jamal Ibrahim Shikalgar ]
Age : 62 years, residing at Limb ]
Tal. Tasgaon, Dist. Sangli ]
]
5] Ranjit Bilal Aware ]
Age : 45 years, residing at Vasumbe ]
Tal. Tasgaon, Dist. Sangli ]
]
6] Mohd. Hanif Amuddin Tamboli ]
Age : 26 years, residing at Kasar Galli ]
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Tasgaon, Tal. Tasgaon, Dist. Sangli ]
]
7] Laxman Zendu Chavan ]
Age : 38 years, residing at Dongarsoni ]
Tal. Tasgaon, Dist. Sangli ]
]
8] Pradip Patangrao Pol ]
Age : 47 years, residing at Shivaji Chowk ]
Savlaj Tal. Tasgaon, Dist. Sangli ]
]
9] Mansur Balekhan Nadaf ]
Age : 40 years, residing at Bhagwan Chowk]
Tasgaon, Tal. Tasgaon, Dist. Sangli ]
]
10] Akram Sayyed Tasewale ]
Age : 51 years, residing at Momin Galli, ]
Tasgaon, Tal. Tasgaon, Dist. Sangli ]
]
11] Khandu alias Chandrakant Vasant Kadam]
Age : 35 years, residing at Varche Galli, ]
Tasgaon, Tal. Tasgaon, Dist. Sangli ]
]
12] Aziz Shahanur Sheikh ]
Age : 52 years, residing at KavtheEkand, ]
Tal. Tasgaon, Dist. Sangli ]
]
13] Maruti Ramchandra Aadmuthe ]
Age : 32 years, residing at KavtheEkand, ]
Tal. Tasgaon, Dist. Sangli ]
]
14] Iqbal Shahabuddin Pathan ]
Age : 38 years, residing at Yelavi, ]
Tal. Tasgaon, Dist. Sangli ]
]
15] Shital Sanjay Vadavne ]
Age : 30 years, residing at Joshi Galli, ]
Tasgaon, Tal. Tasgaon, Dist. Sangli ]
]
16] Vijay Rajgonda Patil ]
Age : 33 years, residing at Wasagade, ]
Tal. Palus, Dist. Sangli ]..... Petitioners.
versus
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1] The State of Maharashtra, ]
through the Superintendent of Police, ]
Sangli, ]
]
2] Divisional Commissioner and Appellate ]
Authority, Pune Division, having office ]
at Vidhan Bhavan, Pune ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.4820 OF 2017
1] Mr. Vilas Jagannath Jadhav ]
Age – 40 years, Occ – Agriculturist ]
R/o – Chinchni, Tal – Tasgaon, ]
Dist. Sangli. ]
]
2] Mr. Appaso Shankar Patil ]
Age – 39 years, Occ – Agriculturist ]
R/o – Shirgaon, Tal – Tasgaon, ]
Dist. Sangli. ]
]
3] Mr. Dashrath Mansing Nikam ]
Age – 40 years, Occ – Agriculturist ]
R/o – Rajapur, Borgaon, Tal – Tasgaon, ]
Dist. Sangli. ]
]
4] Mr. Dadaso Dattu Shirtode ]
Age – 50 years, Occ – Agriculturist ]
R/o – Kavathe Yakand, Tal – Tasgaon, ]
Dist. Sangli. ]
]
5] Mr. Maruti Rama Mali ]
Age – 59 years, Occ – Labourer ]
R/o – Bapuwadi, Tal – Tasgaon, ]
Dist. Sangli. ].....Petitioners.
Versus
1] Divisional Commissioner, Pune Division ]
At Pune, Appellate Authority, ]
Pune Division, at Pune and others ]
]
2] State of Maharashtra ]
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Through Police Inspector, ]
Tasgaon Police Station, ]
Tal – Tasgaon, Dist. Sangli ]
]
3] Externment Authority ]
Superintendent of Police, Sangli ]
Superintendent of Police Office, Sangli ]
Vishrambag, Sangli – 416416 ]..... Respondents.
ALOGN WITH
CRIMINAL WRIT PETITION NO.5455 OF 2017
]
1] Shri Ranjit Tanaji Aarte ]
Age 30 years, occup – Business/farmer ]
Residing at – Bhilwadi, Tal. Palus, ]
Dist – Sangali. ]
]
2] Mr. Ashok Shankar Ware ]
Age 52 years, Occup – farmer ]
Residing at – Ankalkhop, Tal. Palus, ]
Dist – Sangali ]
]
3] Mr. Hanumant Bhagwan Kambale ]
Age 29 years, Occup – farmer ]
Residing at – Malwadi, Tal. Palus, ]
Dist – Sangali ]
]
4] Mr.Narendra Bharma Ranjane ]
Age 49 years, Occup – farmer ]
Residing at – Bhilwadi, ]
Tal. Palus, Dist – Sangali ]
]
5] Mr.Hanumant Maruti Nalwade ]
Age 35 years, Occup – farmer ]
Residing at – Malwadi, ]
Tal. Palus, Dist – Sangali ]
]
6] Mr.Amol Rajendra Jangam ]
Age 21 years, Occup – farmer ]
Residing at – Bhilwadi, ]
Tal. Palus, Dist – Sangali ]
]
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7] Mr.Gulab Yasin Salamat ]
Age 69 years, Occup – farmer ]
Residing at – Bhilwadi, ]
Tal. Palus, Dist – Sangali ]
]
8] Mr.Shivaji Yashwant Salunkhe ]
Age 54 years, Occup – farmer ]
Residing at – Malwadi, ]
Tal. Palus, Dist – Sangali ].... Petitioners.
versus
1] State of Maharashtra ]
Through Principal Secretary, ]
Home Department, Maharashtra State ]
Mantralaya, Mumbai – 400 032 ]
]
2] Superintendent of Police, Sangali ]
Vishrambag, National Highway 204, ]
Tal – Miraj, Sangali – 416 416 ]
]
3] Divisional Commissioner ]
Divisional Commissioner Office, ]
Pune. ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.5116 OF 2017
Nasir Mhamulal Sandi ]
Age : 43 years, Occ : Agriculturist ]
R/o. Yelavi, Tal. Tasgaon, Dist. Sangli ]..... Petitioner.
Versus
1] Divisional Commissioner, Pune Division ]
at Pune @ Appellate Authority, ]
Pune Division at Pune, Having office at ]
Council Hall, Bandgarden, Pune ]
]
2] State of Maharashtra ]
Through Police Inspector, ]
Tasgaon Police Station, Tasgaon ]
Dist. : Sangli ]
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]
3] Externment Authority @ ]
Superintendent of Police, Sangli ]
Superintendent of Police Office, Sangli ]
Vishrambag, Sangli – 416 416 ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.5040 OF 2017
1] Mr. Amar Prakash Kulguti ]
Age – 32, Occupation – Labour, ]
R/at Charcha Road, Mangalwar Peth ]
Miraj, Tal – Miraj, Dist – Sangli, ]
]
2] Mr. Jaykumar Shivappa Shastri ]
Age – 42 years, occupation – Painter ]
Residing at Sangli Ves, Miraj, ]
Taluka Miraj, Dist. Sangli ]
]
3] Mr. Javeed Allabaksha Beg, ]
Age – 33 years, Occupation – Rickshaw ]
Driver, residing at – Kaman Ves, ]
Mali Gali, Miraj, Dist. Sangli – 416410. ]..... Petitioners.
versus
1] The State of Maharashtra ]
Through Chief Secretary of Home ]
Department, Mumbai. ]
]
2] The Divisional Commissioner ]
Pune Division, Pune ]
]
3] Superintendent of Police Sangli ]
Dist. Sangli. ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION 1025 OF 2018
]
1] Vicky @ Vikrant Sudhir Rasal ]
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Age 35 years, Occ : Business ]
Residing at Subhash Nagar, Barshi, ]
Taluka – Barshi, District – Solapur, ]
]
2] Chandrakant Dagdu Kadam ]
Age 54 years, Occupation : Labour ]
Residing at Upali Road Barshi, ]
District – Solapur, ]
]
3] Parmeshwar Vasudev Gholap ]
Age 43 years, Occupation : Agriculturist ]
Residing at Mahagaon, ]
Taluka – Barshi, District – Solapur, ]
]
4] Sudhakar Vishwanath Lakal ]
Age 39 years, Occupation : Labour ]
Residing at Mangade Chawl Barshi, ]
District – Solapur, ]
]
5] Subhash Siddhling Rajmane ]
Age 39 years, Occupation : Labour ]
Residing at Upali Road ]
Barshi, District – Solapur, ]
]
6] Satish Bansilal Sahane ]
Age 40 years, Occupation : Labour ]
Residing at Subhash Nagar ]
Barshi, District – Solapur, ]
]
7] Santosh Kisan Salunke ]
Age 33 years, Occupation : Business ]
Residing at Rana Colony ]
Barshi, District – Solapur, ]
]
8] Umesh Kisan Salunke ]
Age 41 years, Occupation : Business ]
Residing at Rana Colony ]
Barshi, District – Solapur, ]
]
9] Sachin Shivaji Mane ]
Age 33 years, Occupation : Labour ]
Residing at Subhash Nagar ]
Barshi, District – Solapur, ]
]
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10] Bhagwan Ramling Wagh ]
Age 54 years, Occupation : Labour ]
Residing at Kazzi Galli ]
Barshi, District – Solapur, ]..... Petitioners.
Versus
1] The State of Maharashtra ]
(Through Home Department ]
Mantralaya, Mumbai) ]
]
2] Police Superintendent ]
Solapur Rural ]
]
3] SubDivisional Police Officer, ]
Akkalkot, District – Solapur. ]
]
4] Divisional Commissioner ]
Pune Division, Pune ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.2164 OF 2018
1] Shri Vishal Shantaram Bebale, ]
Age ; 27 years, Occ : Daily wages, ]
R/at : Ramnagar, Tal & Dist. Satara ]
]
2] Shri Dattatraya Ramchandra Ingawale, ]
Age : 45 years, Occ : Daily wages, ]
R/at : Saidapur, Tal : Satara, ]
Dist : Satara ]
]
3] Shri Nitin Bajirao Hirve ]
Age : 32 years, Occ : Daily wages, ]
R/at : Satara, Tal : Satara, ]
Dist : Satara. ]
]..... Petitioners.
Versus
1] State of Maharashtra ]
]
2] Hon'ble Divisional Commissioner, ]
Pune Region Pune ]
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]
3] The Superintendent of Police, ]
(Externment Authority) ]
Satara ]
]
4] Divisional Police Inspector, ]
Satara Division, Dist : Satara ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.1625 OF 2018
1] Mehbub Abdul Karim Shaikh ]
Age : 40 years ]
R/o. Gajanan Colony, Takali Road ]
Sangli ]..... Petitioner.
Versus
1] SubDivisional Police Officer, ]
Division Miraj, District : Miraj ]
]
2] Superintendent of Police ]
Office of Superintendent of Police ]
Sangli at Sangli ]
]
3] Police Inspector, ]
Mahatma Gandhi Chowk, ]
Police Station, Miraj, Tal. Miraj ]
District : Miraj ]
]
4] The Divisional Commissioner, ]
Pune Division Pune ]
]
5] The State of Maharashtra ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.4934 OF 2017
1] Niyaj Mirasaheb Bairagadar ]
Age : 32 years, Occ : Worker ]
R/o. Kama Wes, Miraj, Tal. Miraj, ]
District : Sangli ]
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]
2] Aslam Gudulal Beg ]
Age : Adult, Occ : Worker ]
R/o. Kamanves, Mali Galli ]
Tal. Miraj, Dist. Sangli ]..... Petitioners.
Versus
1] SubDivisional Police Officer, ]
Division Miraj, District : Miraj ]
]
2] Superintendent of Police ]
Office of Superintendent of Police ]
Sangli at Sangli ]
]
3] Police Inspector, ]
Mahatma Gandhi Chowk, ]
Police Station, Miraj, Tal. Miraj ]
District : Miraj ]
]
4] The Divisional Commissioner, ]
Pune Division Pune ]
]
5] The State of Maharashtra ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.4945 OF 2017
1] Maksud Ilai Ghodimar ]
Age : 41 years, Occ : Labour ]
R/o. Guruwar Peth, Miraj ]
]
2] Ramjan Shabbir Sharikmaslat ]
Age : 39 years, Occ : Labour, ]
R/o. Darga Parisad, Miraj ]
]
3] Tohid Nazir Shaikh ]
Age : 31 years, Occ : Labour ]
R/o. Station Road, Miraj ]
]
4] Faizpeer Usmangani Aaga ]
Age : 41 years, Occ : Labour ]
R/o. Darga Parisad, Miraj ]
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]
5] Noormohhamad Gaus Jindi ]
Age : 42 years, Occ : Labour ]
R/o. Jaribaug, Miraj ]
]
6] Ramesh Dadu Sathe ]
Age : Adult, Occ : Labour ]
R/o. Sanjay Gandhi Nagar Slum, ]
Miraj, District : Sangli ]
]
7] Gaus Noormohammad Khalifa ]
Age : Adult, Occ : Labour ]
R/o. Kapshikar Building Miraj ]
]
8] Gundurao Satish Kamble ]
Age : Adult, Occ : Labour ]
R/o. Near Zaribaug Hospital, ]
Miraj, Tal. Miraj, Dist : Sangli ]
]
9] Amin Khudbuddin Patwegar ]
Age : Adult, Occ : _______ ]
R/o. Budhwar Peth, Kanwadkar ]
Houd, Patil Galli, Miraj. ]..... Petitioners.
Versus
1] SubDivisional Police Officer, ]
Division Miraj, District : Miraj ]
]
2] Superintendent of Police ]
Office of Superintendent of Police ]
Sangli at Sangli ]
]
3] Police Inspector, ]
Mahatma Gandhi Chowk, ]
Police Station, Miraj, Tal. Miraj ]
District : Miraj ]
]
4] The Divisional Commissioner, ]
Pune Division Pune ]
]
5] The State of Maharashtra ]..... Respondents.
ALONG WITH
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CRIMINAL WRIT PETITION NO.5055 of 2017
1] Bhavin Kedarlal Shah ]
Age : 39 years, ]
R/o. Gaon Bhag Sangli, Tal. Miraj ]
District : Sangli ]..... Petitioner.
Versus
1] SubDivisional Police Officer, ]
Division Miraj, District : Miraj ]
]
2] Superintendent of Police ]
Office of Superintendent of Police ]
Sangli at Sangli ]
]
3] Police Inspector, ]
Mahatma Gandhi Chowk, ]
Police Station, Miraj, Tal. Miraj ]
District : Miraj ]
]
4] The Divisional Commissioner, ]
Pune Division Pune ]
]
5] The State of Maharashtra ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.61 OF 2018,
1] Hayat Rafioddin Vijapure ]
Age : 52 years, Occ : Agriculture ]
Residing at House No.589, ]
Sakhar Peth, Solapur ]
]
2] Jilani Ibrahim Shaikh, ]
Residing at 235, Telangi Pacha Peth, ]
Solapur. ]..... Petitioners.
Versus
1] State of Maharashtra ]
Through ]
The Divisional Commissioner, ]
Pune Division, Pune ]
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]
2] The Deputy Commissioner of Police(Zone)]
Solapur City, Solapur ]
]
3] The Additional Police Commissioner, ]
Division1, Solapur City. ]
]
4] The Inspector of Police ]
Jail Road Police Station, Solapur. ]..... Respondents.
Shri U R Mankapure for Petitioners in W P Nos. 2454/2018, 275/2018,
305/2018, 1359/2018, 1546/2018, 4849/2017, 4850/2017, 5113/2017,
and 5339/2017.
Shri Satyavrat Joshi i/b Shri Sumant Deshpande for the Petitioners in W P
No.4953/2017.
Mrs Anita Wakchaure i/b Shri V R Shinde for the Petitioners in W P
Nos.5455/2017 & 4820/2017.
Shri Manoj A Patil for the Petitioners in W P No. 5116/2017.
Shri D B Shinde i/b Shri S A Kashid, for the Petitioners in W P
No.5040/2017.
Shri V N Tripathi i/b Shri Ritesh Thobde for the Petitioners in W P
No.1025/2018.
Shri Rahul Kadam for Petitioners in W P No.2164/2018.
Shri K U Nikam, for the Petitioners in W P No.1625/2018, 4934/2017,
4945/2017 and 5055/2017,
Shri Veerdhaval Kakade for the Petitioners in W P No.61/2018
Mrs A S Pai, Addl PP for the Respondent/State in W P Nos.275/2018,
4820/2017, 4945/2017, 5040/2017, 5055/2017.
Shri Deepak Thakare, PP a/w Shri K V Saste, Addl PP for the
Respondent/State.
Shri K V Saste, Addl PP for Respondent/State in W P Nos.4953/2017,
1359/2018, 1546/2018, 1625/2018, 4934/2017, 5113/2017, 5116/2017
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Mrs P P Shinde, APP for Respondent/State in W P Nos.5339/2017,
5455/2017, 4849/2017, 4850/2017
CORAM : R. M. SAVANT &
REVATI MOHITE DERE, JJ.
th
Reserved on : 25 June 2018
th
Pronounced on : 12 July 2018
JUDGMENT : [Per R. M. Savant, J.]
1 Rule in all the above Writ Petitions, with the consent of the
learned counsel for the Petitioners and the learned Additional Public
Prosecutor made returnable forthwith and heard.
2 The above group of 21 Writ Petitions challenge the orders passed
by the Appellate Authority in the Appeals filed by the Petitioners under Section
60 of the Maharashtra Police Act (for short “the police act”) by which orders
the externment orders passed by the Externing Authority came to be confirmed
save and except to the extent mentioned in the operative part of the orders
passed by the Appellate Authority in some cases. All the Petitions involve
identical facts and raise the same issues and are therefore heard together and
disposed of.
3 The orders of externment passed against the Petitioners in each of
the above Writ Petitions are under Section 55 of the police act. The Petitioners
in the above Writ Petitions were issued a show cause notice under Section 59
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of the police act calling upon them to show cause as to why they should not be
externed under Section 55 of the police act for a period of 2 years from the
Districts which are mentioned in each of the show cause notices viz. Sangli,
Satara, Kolhapur and Solapur. The said show cause notices referred to the
offences registered against the Petitioners who are alleged to be gang leaders
and members only under Section 12A of the Maharashtra Prevention of
Gambling Act (for short “the gambling act”). Hence the premise for proceeding
against the Petitioners is that they constitute a “gang” within the meaning of
Section 55 of the police act. It seems that most of the Petitioners showed cause
pursuant to the show cause notices issued to them and questioned the issuance
of the show cause notice having regard to the fact that the offences mentioned
in the show cause notices were offences registered under the gambling act. In
the said background it was the case of the Petitioners in their reply that the
provisions of Section 55 of the police act could not be invoked.
4 The Externing Authority considered the material on record and
passed the orders of externment in respect of the Petitioners amongst whom
are the persons who are alleged to be the gang leaders. In the process of
externing the Petitioners, the Externing Authority reached a subjective
satisfaction that having regard to the activity of the Petitioners which was to
lure the people towards gambling in the form of “Matka” thereby having an
adverse effect on the society as the said gambling activity has the potential to
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cause addiction amongst the people and thereby having an effect on their
financial well being and since there was no chance of the Petitioners reforming
themselves, the Externing Authority was of the view that it was necessary to
extern the Petitioners. The Externing Authority in some of the cases has also
referred to the incamera statements of the witnesses whose statements have
been referred to in the show cause notices in some of the cases.
5 The Petitioners aggrieved by the orders of the Externing Authority
passed against them filed Appeals under Section 60 of the police act before the
Appellate Authority. The Appellate Authority has passed the impugned orders
in each of the above Petitions dismissing the Appeals, however, in some cases
has reduced the period of externment from the one prescribed by the Externing
Authority.
6 In the above Writ Petitions, especially in Writ Petition No.2454 of
2018 an issue which has been raised is, whether for the offences under the
gambling act the provisions of Section 55 of the police act could be invoked.
However, one issue which is common in all the Writ Petitions is the issue
whether having regard to the offences registered against the persons
purportedly to be the gang leader and other persons who are alleged to be the
members of the gang, they could qualify to be a gang or a body of persons as
postulated in Section 55 of the police act so as to enable the authorities to
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invoke the provision of Section 55 of the police act. The other issue raised was
interalia as regards the particulars in respect of when the incamera
statements of the witnesses recorded etc. were absent and therefore no
effective representation could be made by the Petitioners (In Writ Petition
No.4953 of 2018). However, the fundamental issue which has been raised by
the Petitioners in the above Writ Petitions are impinging upon the existence of
the jurisdictional facts so as to entitle the authority to invoke Section 55 of the
police act.
7 The issue as to whether the provisions of Section 55 could be
invoked on the basis of the offences registered under the gambling act has
been raised by the learned counsel for the Petitioners Shri U R Mankapure
appearing in Writ Petition No.2454 of 2018 as also the other Petitioners except
the Petitioners in Writ Petition No.4953 of 2018 who are represented by
learned counsel Shri Satyavrat Joshi, who fairly conceded that even for the
offences registered under the gambling act, Section 55 of the police act could
be invoked.
8 In respect of the said issue the learned counsel for the Petitioners
Shri Umesh Mankapure made the following submissions :
A] That the offences under the gambling act can be said to be petty
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offences and therefore the same could not be taken into
consideration for externing a person by invoking Section 55 of the
police act.
B] The second submission of the learned counsel Shri Umesh
Mankapure was that the first portion of Section 55 is parimateria
to Section 56(1)(a) of the police act and if for invoking Section
56(1)(a) the offences punishable under Chapter Nos.XII, XVI or
XVII of the Indian Penal Code are necessary, then the logical
corollary of the same would be that for the invocation of the
provisions of Section 55 the requirement would have to be the
same viz. that Section 55 can be invoked only if there are offences
punishable under Chapters XII, XVI or XVII which are alleged
against the noticee.
9 In so far as the said issue is concerned, the submissions of the
learned Additional Public Prosecutor Mrs. A S Pai appearing on behalf of the
Respondent/State were as under :
i] That there have to be cases registered for the offences punishable
under Chapters XVI and XVII of the Indian Penal Code is not a
requirement for invocation of Section 55 of the police act.
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ii] That the requirement as can be seen from a reading of Section 55
is that there is a movement or encampment of any gang or body of
persons which 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.
iii] That Section 55 stands in contradistinction to Section 56 both in
its objects and contents, whereas Section 55 covers dispersal of
gangs and bodies of persons. Section 56 is directed towards
removal of persons about to commit an offence. Whereas Section
55 can be invoked in respect of unlawful designs. Section 56 can
be invoked in respect of any person causing or calculated to cause
alarm, danger or harm to person or property or that such 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.
10 In view of the issue raised as regards whether Section 55 of the
police act could be invoked in respect of the offences punishable under the
gambling act, it would be necessary to address the said issue at the outset.
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11 In the said context it would be necessary to refer to Sections 55
and 56 of the police act which for the sake of ready reference are reproduced
herein under :
55. Dispersal of gangs and body of persons:
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 SubDivisional Magistrate
or the [Superintendent][] 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 of
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 [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 [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.
56. Removal of persons 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 Gazzette, extend the
provisions of this section, to the District Magistrate, or
the SubDivisional Magistrate [*] empowered by the
State Government in that behalf (a) that the
movements or acts of any person are causing or
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calculated to cause alarm, 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 of an offence involving
force or violence or an offence punishable under
Chapter XII, XVI, or XVII of the Indian Penal Code (XLV
of 1860), or in the abetment of any such offence and
when in the opinion of such officer witnesses are not
willing to come 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, ( Mah. VII VII of 1981), or (2) in any
manner prejudicial to the maintenance of supplies of
commodities essential to the community as defined in
the Explanation to subsect ion (1) of Section 3 of the
Prevention of Blackmarketing and Maintenance of
Supplies of Essential Commodities Act, 1980 (7 of
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 otherwise as
he thinks fit, direct such person or immigrant so to
conduct himself as shall seem necessary in order to
prevent violence and alarm [or such prejudicial act], or
the outbreak or 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 area or areas
specified (hereinafter referred to as “the specified area
or areas') from which he was directed to remove
himself].
[(2) An officer directing any person under subsection
(1) to remove himself from any specified area or areas
in the State may further direct such person that during
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the period the order was made against him is in force,
as and when he resides in any other areas in the State,
he shall report his place of residence to the officer in
charge of the nearest police station once in every
month, even if there be no change in his address. The
said officer may also direct that, during the said period,
as and when he goes away from the State, he shall,
within ten days from the date of his departure from the
State send a report in writing to the said officer, either
by post or otherwise, of the date of his departure, and
as and when he comes back to the State he shall,
within ten days, from the date of his arrival in the
State, report the date of his arrival to the officer in
charge of the police station nearest to the place where
he may be staying]”
12 It is required to be noted that Sections 55 and 56 of the police act
are contained in Chapter V whose title is “Special Measures for Maintenance of
Public Order and Safety of State”. Section 55 provides for dispersal of gangs
and bodies of persons. It contemplates that the Commissioner in a
Commissionerate area and in a district the District Magistrate, the Sub
Divisional Magistrate or the Superintendent empowered by the State
Government in that behalf can invoke the said provision if 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.
Hence the overarching aspect is the danger or alarm or reasonable suspicion
that unlawful designs are being entertained by such gang or body of persons.
The unlawful designs would include an act which is illegal that is against the
provisions of any law, which makes it unlawful.
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13 In the instant case, the allegation against the Petitioners is of
carrying out the activity of “Matka” which is a form of gambling which is
prohibited and which falls foul of the gambling act. Hence the said activity of
“Matka” being in violation of the gambling act, the same would come within
the sweep of an “unlawful design” which is contemplated in Section 55 of the
police act. The words “alarm” or “danger” in the said provision which precede
the word “reasonable suspicion” have to be read together with “unlawful
designs” meaning thereby the danger is on account of unlawful designs as also
the alarm would also be on account of unlawful designs of the gang or body of
persons.
14 In our view, from a plain reading of Section 55 of the police act it
can be concluded that any “unlawful design” of a gang or body of persons
would be covered by Section 55 of the police act.
15 Now coming to the contentions of the learned counsel for the
Petitioner Shri Umesh Mankapure that having regard to the wording of Section
56(1)(a) of the police act and the opening part of Section 55, the same being
parimateria. It is only if an offence punishable under Chapters XII, XVI or XVII
of the Indian Penal Code is registered against the noticee, then only Section 55
can be invoked. In our view, the said submission is misconceived. As indicated
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herein above, Sections 55 and 56 have different objects whereas Section 55 is
for dispersal of gangs and bodies of persons who are entertaining unlawful
designs. Section 56 is for removal of persons about to commit an offence.
Secondly Section 56(1)(a) is not identical to the opening part of Section 55
though the words “alarm” or “danger” are appearing in both the provisions.
Section 56(1)(a) contemplates the movements or acts of any person causing
or calculated to cause alarm, danger or harm to person or property. The
offences against the person or property are those covered by Chapters XVI or
XVII which find a place in Section 56(1)(b), which contemplates a person
engaged in or about to be engaged in an offence involving force or violence or
an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code.
Since Sections 56(1)(a) and 56(1)(b) are part of the same Section 56, the
requirement mentioned in Section 56(1)(b) would have to be read into Section
56(1)(a). Hence Section 56(1)(a) can be invoked if the allegation against the
noticee is in respect of “alarm”, “danger” or “harm” to a person or property,
meaning thereby the allegation against the person would have to be in respect
of an offence which is punishable under Chapters XVI or XVII of the Indian
Penal Code.
Hence it is not possible to accept the contention of the learned
counsel for the Petitioners Shri Umesh Mankapure that only if an offence
punishable under Chapters XVI or XVII is registered, then the provisions of
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Section 55 of the police act can be invoked against a gang or body of persons.
16 As regards the submission of the learned counsel for the
Petitioners Shri Umesh Mankapure that the offence of gambling being a petty
offence it cannot attract Section 55 of the police act, it is required to be noted
that in Section 55 there is no specific reference to any law under which the
offences are required to be registered and punishable. In view thereof,
reference could be made to Section 57 of the police act which is the succeeding
Section which can be said to be an indicia as what can be said to be covered by
Section 55.
Section 57 covers removal of persons convicted of certain offences.
Section 57(b) covers a person convicted twice or more of an offence under the
Bombay Prohibition Act and Section 57(a)(v) contemplates a person convicted
of an offence under the Bombay Prevention of gambling act now the
Maharashtra Prevention of Gambling Act . Hence reading of Section 57
discloses that even the offences under the Bombay Prohibition Act and the
Bombay Prevention of Gambling Act are viewed seriously and the conviction
under the said Acts can entail an externment under Section 57. Hence Section
57 in a way fortifies that “unlawful designs” would include the offences under
the gambling act. In our view, therefore even for the offences under the
gambling act, the provisions of Section 55 can be invoked. Hence we reject the
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said contention of the learned counsel Shri U R Mankapure.
17 In so far as the said issue is covered, the learned counsel Shri
Umesh Mankapure initially sought to place reliance on the judgment of a
Division Bench of this Court sitting at Aurangabad (Coram : Prasanna B Varale
& Smt. Vibha Kankanwadi, JJ) in Criminal Writ Petition No.0239 of 2018 in
the matter of Kamalkishor s/o. Pusaram Bang v/s. The Superintendent of
Police, Jalna and ors dated 12/04/2018. However, having regard to the
judgment of the Division Bench of this Court sitting at Nagpur in Criminal
Writ Petition No.355 of 2013 in the matter of Sagarsingh Kesharsingh
Bawari v/s Ministry of Home Department, through its Principal Secretary
(Special), Mantralaya, Mumbai32 and ors. Dated 03/09/2013 on which
reliance was placed by the Division Bench at Aurangabad and the facts
involved in the case before the Division Bench at Nagpur which was a case
involving an externment under Section 56 of the police act, the learned
counsel gave up the said reliance.
18 The second issue which arises for our consideration and which is
raised in all the above Writ Petitions is whether the Petitioners can be said to
constitute a “gang” within the meaning of Section 55 of the police act. The said
issue therefore encompasses within itself the existence of the jurisdictional fact
enabling the authorities to exercise powers under Section 55 of the police act.
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19 It was the submission of the learned counsel for the Petitioners
Shri Satyavrat Joshi that the word gang or body of person being collective in
nature, the offences which are registered have to be against the gang members
collectively or at least a substantial number of gang members. Such is not the
case in the instant Writ Petitions. It was also the submission of the learned
counsel for the Petitioners that to cause an apprehension as regards the danger
or alarm or reasonable suspicion that unlawful designs are being entertained
by such gang or body of person, the offences registered against a gang leader
and the members has to be in close proximity to each other whereas in the
instant case the offences registered are one in a year in respect of the gang
leader and a member, in some cases from the year 2012 dating up to the year
2017.
Reliance was sought to be placed by the learned counsel Shri
Satyavrat Joshi on the judgment of a Division Bench of this Court (Coram :
S.C.Dharmadhikari and S B Shukre, JJ) in Criminal Writ Petition No.2385 of
2013 in the matter of Ahammad Mainuddin Shaikh v/s. The State of
Maharashtra and anr , dated 16/08/2013.
The said submission of Shri Satyavrat Joshi was reiterated by the
learned counsel Shri Rahul Kadam who submitted that though there are
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offences registered against the person who is alleged to be the gang leader and
a member there is not a single offence registered against all the gang members
collectively, and therefore, the basic requirement of there being a gang or body
of persons was not fulfilled.
The learned counsel Shri V. N. Tripathi for the Petitioners in Writ
Petition No.1025 of 2018 would also contend that there has to be a collective
participation for the activities to come within the sweep of Section 55. Reliance
was placed by him on the judgment of a Division Bench of this Court reported
in 2014 ALL MR (Cri) 1277 in the matter of Vijay Lalso Jadhav v/s. State of
Maharashtra and ors .
20 Per contra it was the submission of the learned Additional Public
Prosecutor Mrs. A S Pai for the Respondent/State that since the offences have
been registered against the gang leader and a member, the gang leader and the
members qualify to be a gang, though there is no offence registered collectively
against the gang leader and the other members.
The learned Additional Public Prosecutor sought to place reliance
on the dictionary meaning of the word “gang” as appearing in Law Lexicon
which reads thus :
“A number of people closely associated; a set of
persons working together in a squad or shift; a
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company of persons working together for anti
social purposes”
Relying on the said meaning the learned Additional Public
Prosecutor would contend that a number of people closely associated would be
covered so as to constitute a gang.
The learned Additional Public Prosecutor would seek to place
reliance on the judgment of a Division Bench of this Court sitting at
Aurangabad reported in 2017(2) Bom.C.R. (Cri) 653 in the matter of Balu @
Balasaheb Jagannath Jadhav v/s. Divisional Commissioner, Aurangabad &
ors. in support of her said contention.
21 In the context of the aforesaid issue, Section 55 would have to be
revisited, the said provision has already been reproduced in the earlier part of
this Judgment. 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 SubDivisional Magistrate or the Superintendent empowered by
the State Government in that behalf. Therefore the sinequanon 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
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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 defined 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
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
offence 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.
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It is required to be noted that in all the above Petitions, the
offence under the gambling act is registered against the gang leader “A” with
the alleged member of the gang being “B”, against “A” with “C”, “A” with “D”,
“A” with “E”, but not against A, B, C, D, or E collectively or even against a
substantial number of gang members collectively. It is also required to be
noted that in some cases the offence registered against “A” and “B” is much
anterior in point of time to the offences registered against “A” and “E” and
therefore there is no proximity between the offences and therefore the test of
there being a collective participation is not satisfied as they are all
individualistic cases registered against the alleged gang leader and a member.
22 The learned Additional Public Prosecutor Mrs. A S Pai on the basis
of the facts which are involved in each of the above Writ Petitions sought to
distinguish the facts in Writ Petition No.1546 of 2018 and Writ Petition
No.5113 of 2017. It was the submission of the learned Additional Public
Prosecutor that in so far as the said two Writ Petitions are concerned, the cases
registered against the gang leader and the gang members which are adverted
to in the show cause notices disclose that more than one offence is registered
under the gambling act against the alleged gang leader Altaf Rajekhan Pathan
and the gang member Shahid Aslam Pathan and, the gang leader Altaf
Rajekhan Pathan and the gang member Ramdas Rajaram Keware in Writ
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Petition No.1546 of 2018. In so far as Writ Petition No.5113 of 2017 is
concerned, more than one offence is registered against the alleged gang leader
Ajij Mehbub Shaikh and the gang member Taimur Liyakat Shaikh, gang leader
Ajij Mehbub Shaikh and the gang member Tejas Dattatray Ghalage and the
gang leader Ajij Mehbub Shaikh and the gang member Dattatray Gunda Pawar.
Reliance is sought to be placed on the Division Bench judgment of this Court in
Balu alias Balasaheb Jagannath Jadhav's case (supra).
23 We have gone through the FIRs which have been registered in the
said two Writ Petitions. No doubt there are one or more cases registered
against the gang leaders and the gang members in the said two Writ Petitions,
however, there is no case registered collectively against all the members who
allegedly constitute the gang or even a substantial number of them. In our
view, therefore, the said cases also fall short of the requirements of there being
a collective participation by all the gang members in the unlawful activity.
Hence in our view, the said cases cannot be differentiated from the other cases
which as indicated above are involving the singular cases only against the
alleged gang leader and a member and not collectively against all the members
who constitute a gang or at least a substantial number of them.
The reliance placed on the judgment of the Division Bench in Balu
alias Balasaheb Jagannath Jadhav's case (supra) is misplaced, as the said
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judgment is turning on the facts of the said case where offences were
registered not only under the gambling act but also under the Indian Penal
Code against the Petitioner who was the gang leader and the other five
members of the case. In the facts and circumstances of the case, the Division
Bench held that the requirements of Section 55 of the police act were fulfilled.
Pertinently the issue as to what would constitute a “gang” was not required to
be addressed by the Division Bench.
24 Now coming to the judgment of the Division Bench of this Court
Ahammad Mainuddin Shaikh's case (supra). In the said case the facts were
that the offences were registered against the gang leader and one member of
the gang and no offences were registered collectively against all the gang
members. It is in the said context that the Division Bench held that the
Petitioner in the said Petition and the other members did not constitute a gang
as there is no collective participation by the gang leader and the alleged
members. The said judgment is holding the field since the year 2013. A similar
note was sounded by the Division Bench in Vijay Lalso Jadhav's case (supra).
The facts in the case of Ahammad Mainuddin Shaikh (supra) can
be said to be identical to the facts in the instant cases, as in the instant cases
also the offences under the gambling act have been individually registered
against the gang leader and one member as can be seen from the show cause
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notices which are issued to the Petitioners in all the above Writ Petitions.
There is no offence registered against all the gang members collectively or even
against a substantial number of the members collectively so as to constitute a
gang. In our view, therefore the Petitioners in all the above Writ Petitions can
hardly be said to constitute a gang so as to entitle the authorities to invoke the
provisions of Section 55 of the police act. Hence it would have to be held that
there is an absence of the essential jurisdictional fact of there being a gang, so
as to entitle the authorities to exercise powers under Section 55 of the police
act. In our view, since the externment order impinges upon the personal liberty
of an individual, the provisions have to be strictly construed and by a
convoluted process the provisions cannot be made applicable.
25 In so far as Writ Petition No.4953 of 2017 is concerned, a
submission was also made that the incamera statements which have been
referred to in the show cause do not contain the particulars for the Petitioner
to make an effective representation against the show cause notice and
therefore the order of externment is vitiated on the said ground. In support of
the said contention reliance is placed on the judgment of the Division Bench of
this Court (Coram A.S.Oka & S.C.Gupte, JJ) in Criminal Writ Petition
No.3544 of 2013 in the matter of Imtiyaz Afzal Hussain Shaikh v/s. The
Asst. Commissioner of Police, Wanavadi Division, Pune and ors dated
04/12/2013. A contention was also raised that extraneous material has been
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taken into consideration whilst passing the order of externment. In support of
which contention reliance was placed on the judgment of the Division Bench of
this Court reported in 1980 Cri.LJ 1547 in the matter of Ganu v/s. M. V.
Chitale and another . As also the contention that the incamera statements
have been referred to in the externment order though they are not part of the
show cause notice for which reliance is placed on the judgment of a Division
Bench of this Court in 2015 ALL MR (Cri.) 2936 in the matter of Rajwardhan
Babaso Patil & ors. V/s. Vijaysinha Jadhav & ors. Though such contentions
have also been raised in some of the other Writ Petitions, it is not necessary for
us to dvelve into the said contentions as we are of the view that the basic
requirement of there being a gang or a body of persons is not satisfied in the
instant cases, the Petitioners would therefore have to succeed on the said
ground.
26 For the reasons aforestated the above Writ Petitions are required
to be allowed and are accordingly allowed. The orders passed by the Externing
Authority as well as the Appellate Authority i.e. the Divisional Commissioners
are quashed and set aside. Resultantly Rule is made absolute in the above Writ
Petitions as follows :
[1] Writ Petition No.2454 of 2018 in terms of prayer clause (a).
[2] Writ Petition No.275 of 2018 in terms of prayer clause (a).
[3] Writ Petition No.305 of 2018 in terms of prayer clause (a).
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[4] Writ Petition No.1359 of 2018 in terms of prayer clause (a).
[5] Writ Petition No.1546 of 2018 in terms of prayer clause (a).
[6] Writ Petition No.4849 of 2017 in terms of prayer clause (a).
[7] Writ Petition No.4850 of 2017 in terms of prayer clause (a).
[8] Writ Petition No.5113 of 2017 in terms of prayer clause (a).
[9] Writ Petition No.5339 of 2017 in terms of prayer clause (a).
[10] Writ Petition No.4953 of 2017 in terms of prayer clauses (a) & (b).
[11] Writ Petition No.4820 of 2017 in terms of prayer clause (b).
[12] Writ Petition No.5455 of 2017 in terms of prayer clause (b).
[13] Writ Petition No.5116 of 2017 in terms of prayer clause (b).
[14] Writ Petition No.5040 of 2017 in terms of prayer clauses (a) & (b).
[15] Writ Petition No.1025 of 2018 in terms of prayer clauses (b) & (c).
[16] Writ Petition No.2164 of 2018 in terms of prayer clause (A).
[17] Writ Petition No.1625 of 2018 in terms of prayer clause (a).
[18] Writ Petition No.4934 of 2017 in terms of prayer clause (a).
[19] Writ Petition No.4945 of 2017 in terms of prayer clause (a).
[20] Writ Petition No.5055 of 2017 in terms of prayer clause (a).
[21] Writ Petition No.61 of 2018 in terms of prayer clause (a).
The parties are left to bear their respective costs.
[REVATI MOHITE DERE, J] [R.M.SAVANT, J]
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2454 OF 2018
1] Shri Altaf Rajekhan Pathan ]
Age : Adult, Occu. Nil, ]
R/o. 97, Mangalwar Peth, ]
Tal. Karad, District – Satara ]
]
2] Shri Shahid Aslam Pathan ]
Age. Adult, Occu. Nil ]
R/o. 82/83, Mangalwar Peth, ]
Tal. Karad, District – Satara ]
]
3] Shri Amir Salim Tamboli ]
Age. Adult, Occu. Nil ]
R/o. Hatarmachi, Tal. Karad, ]
District – Satara ]
]
4] Shri Ravi Shivanand Dodamani ]
Age. Adult, Occu. Nil ]
R/o. Shanivar Peth, Karad, ]
District – Satara ]
]
5] Shri Ramesh Sadashiv Aundhe ]
Age. Adult, Occu. Nil ]
R/o. Oagalewadi, Tal. Karad, ]
District – Satara ]
]
6] Shri Sunil Pralhad Khaire ]
Age. Adult, Occu. Nil ]
R/o. Malakapur, Tal. Karad, ]
District – Satara ]
]
7] Shri Rohit Rajendra Masal ]
Age. Adult, Occu. Nil ]
R/o. Malakapur, Tal. Karad, ]
District – Satara ]
]
8] Shri Ramdas Rajaram Kavare ]
Age. Adult, Occu. Nil ]
R/o. Malakapur, Tal. Karad, ]
District – Satara ]
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]
9] Shri Aabuti Umar Pariyar ]
Age. Adult, Occu. Nil ]
R/o. Shastrinagar, Malakapur ]
Tal. Karad, District – Satara ]
]
10] Shri Ganesh Sanjay Waydande ]
Age. Adult, Occu. Nil ]
R/o. Budhawar Peth, Karad ]
Tal. Karad, District – Satara ]
]
11] Shri Hiragesh Somanna Hiramani ]
Age. Adult, Occu. Nil ]
R/o. Daulat Colony, Karad ]
Tal. Karad, District – Satara ]..... Petitioners.
versus
1] The Divisional Commission, Pune ]
Division Pune, ]
]
2] Superintendent of Police, ]
Satara, Dist. Satara ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITI0N NO.275 OF 2018
1] Zakir Abdul Mirajakar, ]
Age : 48 yrs Occ : Business ]
R/o Shamraonagar, Sangli ]
Dist : Sangli ]..... Petitioner.
Versus
1] The Divisional Commissioner, Pune ]
Division Pune ]
]
2] Superintendent of Police, ]
Sangli, Dist. Sangli ]
]
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3] The State of Maharashtra ]
Department of Home ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.305 OF 2018
1] Aadam Moula Pathan ]
Age, Adult, Occu. Nil, ]
R/o, Tarale Galli, Kupwad ]
District Sangli ]
]
2] Shri Sanjay Vithoba Chavan ]
Age, Adult, Occu. Nil, ]
R/o, Dattanagar, Bamnoli, ]
Tal. Miraj, District Sangli ]
]
3] Uday Dashrath Kengare ]
Age, Adult, Occu. Nil, ]
R/o, Prakashnagar, Kupwad ]
Tal. Miraj, District Sangli ]
]
4] Sachin Pandurang Salunkhe ]
Age, Adult, Occu. Nil, ]
R/o, Near Marathi School, ]
Bamnoli,Tal. Miraj, ]
District Sangli ]
]
5] Ashok Rajaram Parab ]
Age, Adult, Occu. Nil, ]
R/o, Shamnagar, Kupwad ]
Tal. Miraj, District Sangli ]
]
6] Mahesh Sitaram Chogule ]
Age, Adult, Occu. Nil, ]
R/o, Bajrangnagar, Kupwad ]
Tal. Miraj, District Sangli ]..... Petitioners
Versus
1] The Divisional Commissioner Pune ]
Division Pune ]
]
2] Superintendent of Police ]
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Sangli, Dist Sangli ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.1359 OF 2018
1] Firoz Hussain Pathan ]
Age 47, Occu. Business ]
R/o. Alishan Chouk, Sangli, ]
District Sangli. ]
]
2] Vikram Dattatray Dhobale ]
Age 49, Occu. Business ]
R/o. Lalage Galli, Khanbhag, ]
Sangli, District Sangli. ]
]
3] Faruk Amin Mujawar ]
Age 29, Occu. Business ]
R/o. Opp. Rajjak Garage, 100 ft. Road ]
Sangli, District Sangli. ]
]
4] Rahul Mahesh Ghodage ]
Age 34, Occu. Business ]
Th
R/o. 12 Galli, Jaysingpur ]
District Kolhapur. ]..... Petitioners
Versus
1] The Divisional Commissioner Pune ]
Division Pune ]
]
2] Superintendent of Police ]
Sangli, Dist Sangli ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.1546 OF 2018
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1] Shri Altaf Rajekhan Pathan ]
Age : Adult, Occu. Nil, ]
R/o. 97, Mangalwar Peth, ]
Tal. Karad, District – Satara ]
]
2] Shri Shahid Aslam Pathan ]
Age. Adult, Occu. Nil ]
R/o. 82/83, Mangalwar Peth, ]
Tal. Karad, District – Satara ]
]
3] Shri Amir Salim Tamboli ]
Age. Adult, Occu. Nil ]
R/o. Hatarmachi, Tal. Karad, ]
District – Satara ]
]
4] Shri Ravi Shivanand Dodamani ]
Age. Adult, Occu. Nil ]
R/o. Shanivar Peth, Karad, ]
District – Satara ]
]
5] Shri Ramesh Sadashiv Aundhe ]
Age. Adult, Occu. Nil ]
R/o. Oagalewadi, Tal. Karad, ]
District – Satara ]
]
6] Shri Sunil Pralhad Khaire ]
Age. Adult, Occu. Nil ]
R/o. Malakapur, Tal. Karad, ]
District – Satara ]
]
7] Shri Rohit Rajendra Masal ]
Age. Adult, Occu. Nil ]
R/o. Malakapur, Tal. Karad, ]
District – Satara ]
]
8] Shri Ramdas Rajaram Kavare ]
Age. Adult, Occu. Nil ]
R/o. Malakapur, Tal. Karad, ]
District – Satara ]
]
9] Shri Aabuti Umar Pariyar ]
Age. Adult, Occu. Nil ]
R/o. Shastrinagar, Malakapur ]
Tal. Karad, District – Satara ]
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]
10] Shri Ganesh Sanjay Waydande ]
Age. Adult, Occu. Nil ]
R/o. Budhawar Peth, Karad ]
Tal. Karad, District – Satara ]
]
11] Shri Hiragesh Somanna Hiramani ]
Age. Adult, Occu. Nil ]
R/o. Daulat Colony, Karad ]
Tal. Karad, District – Satara ]..... Petitioners.
versus
1] The Divisional Commission, Pune ]
Division Pune, ]
]
2] Superintendent of Police, ]
Satara, Dist. Satara ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.4849 OF 2017
1] Shri Sudhir Mahadeo Shinde ]
Age. 47, Occu. Rickshaw Driver ]
R/o. Bharatnagar, Kolhapur Road, Snagli]
Tal. Miraj, District – Sangli ]
]
2] Shri Shivram Dhula Gadade ]
Age. 45, Occu. Agriculturist, ]
R/o. Nandre, Tal. Miraj, ]
District – Sangli ]
]
3] Shri Anil Maruti Desai ]
Age. 31, Occu. Panpatti ]
R/o. Valiv, Tal.Gaonbhag, Snagli ]
Tal. Miraj, District – Sangli ]
]
4] Shri Babasaheb Dhondiram Shendage ]
Age. 45, Occu. Agriculturist ]
R/o. Kolhapur Road, Behind Kabade ]
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Hospital, Sangli, ]
Tal. Miraj, District – Sangli ]
]
5] Shri Annasaheb Piraji Shelake ]
Age. 42, Occu. Watchman ]
R/o. Dattanagar, Vishrambag, Snagli ]
Tal. Miraj, District – Sangli ]
]
6] Shri Vinayak Sudhakar Halyale ]
Age. 20, Occu. Labourer, ]
R/o. Behind Kabade Hospital, ]
Kolhapur Road, Sangli ]
Tal. Miraj, District – Sangli ]
]
7] Shri Javed Balu Shaikh ]
Age. 33, Occu. Driver ]
R/o. Sutar Plot, Kolhapur Road, Snagli ]
Tal. Miraj, District – Sangli ]
]
Versus
1] The Divisional Commissioner Pune ]
Division Pune ]
]
2] Superintendent of Police ]
Sangli, Dist Sangli ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.4850 OF 2017
1] Baban @ Mubarak Ilai Mujawar ]
Age 45, Occu. Rickshaw Driver ]
R/o, Shamrao Nagar, Kolhapur ]
Road, Sangli, Tal Miraj ]
District Sangli ]
]
2] Imtiyaz Abdul Sattar Jamadar ]
Age 52, Occu. Labourer ]
R/o, Latif Pathan Colony, ]
Tal Miraj, District Sangli ]
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]
3] Jamir Shakeel Dandekhana ]
Age 27, Occu. Labourer ]
R/o, Sarwan Galli, Khanbhag ]
Sangli, Tal Miraj District Sangli ]
]
4] Mohammad Gous Mullani ]
Age 50, Occu. Watchman ]
R/o, Vinayak Nagar, 50 ft. Road ]
Sangli, Tal Mira District Sangli ]
]
5] Santosh Dilip Gaikwad ]
Age 32, Occu. Panpatti Business ]
R/o, Near Maruti Mandir, ]
Panchsheel Nagar, Sangli, ]
Tal Miraj, District Sangli ]
]
6] Mahesh Ashok Bhise ]
Age 32, Occu. Panpatti Business ]
R/o, Shridhar Nagr, Behind ]
Akashwani, Sangli, ]
Tal Miraj, District Sangli ]
]
7] Noormohammad Ahemad Shaikh ]
Age 70, Occu. Labourer ]
R/o, Hanuman Nagar, 100 ft. ]
Road, Sangli, Tal Miraj ]
District Sangli ]
]
8] Azaruddin Bhola Beg ]
Age 30, Occu. Business ]
R/o, Sarwan Galli, Khanbhag ]
Sangli, Tal Miraj, ]
District Sangli ]
]
9] Nisar Wahab Mula ]
Age 51, Occu. Nil (Handicap) ]
R/o, Near Laxmi Mandir, ]
Kupwad Road, Sangli, ]
Tal Miraj, District Sangli ]..... Petitioners
Versus
1] The Divisional Commissioner Pune ]
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Division Pune ]
]
2] Superintendent of Police ]
Sangli, Dist Sangli ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.5113 OF 2017
1] Ajij Mehbub Sheikh ]
Age 36, Occu. Agriculture ]
R/o. Dhamani, Tal. Miraj, ]
District – Sangli ]
]
2] Taimur Liyakat Sheikh ]
Age : 24, Occ : Business ]
R/o. Varnali, Galli No.3, Sangli ]
Dist : Sangli ]..... Petitioners.
Versus
1] The Divisional Commissioner Pune ]
Division Pune ]
]
2] Superintendent of Police ]
Sangli, Dist Sangli ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.5339 OF 2017
1] Irfan Abdulsattar Pakhali ]
Age 21, Occu. Driver ]
R/o, 100 Footy Road, Vishrambag, ]
Tal Miraj, District Sangli ]
]
2] Dattatreya Gunda Pawar ]
Age 50, Occu. Painter ]
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R/o, Hanumannagar, ]
District Sangli ]
]
3] Irshad Ajij Sheikh ]
Age 40, Occu. Business ]
R/o, Khanbag, District Sangli ]..... Petitioners
Versus
1] The Divisional Commissioner Pune ]
Division Pune ]
]
2] Superintendent of Police ]
Sangli, Dist Sangli ]
]
3] The State of Maharashtra ]
Department of Home ]..... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.4953 OF 2017
1] Avinash Subhash Bhagat ]
Age : 39 years, residing at Kalambi ]
Tal. Miraj, Dist. Sangli. ]
]
2] Sanjay Murlidhar Wadavne ]
Age : 40 years, residing at Limb ]
Tal. Tasgaon, Dist. Sangli ]
]
3] Tanaji Yedu Nalavade ]
Age : 50 years, residing at Limb ]
Tal. Tasgaon, Dist. Sangli ]
]
4] Jamal Ibrahim Shikalgar ]
Age : 62 years, residing at Limb ]
Tal. Tasgaon, Dist. Sangli ]
]
5] Ranjit Bilal Aware ]
Age : 45 years, residing at Vasumbe ]
Tal. Tasgaon, Dist. Sangli ]
]
6] Mohd. Hanif Amuddin Tamboli ]
Age : 26 years, residing at Kasar Galli ]
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Tasgaon, Tal. Tasgaon, Dist. Sangli ]
]
7] Laxman Zendu Chavan ]
Age : 38 years, residing at Dongarsoni ]
Tal. Tasgaon, Dist. Sangli ]
]
8] Pradip Patangrao Pol ]
Age : 47 years, residing at Shivaji Chowk ]
Savlaj Tal. Tasgaon, Dist. Sangli ]
]
9] Mansur Balekhan Nadaf ]
Age : 40 years, residing at Bhagwan Chowk]
Tasgaon, Tal. Tasgaon, Dist. Sangli ]
]
10] Akram Sayyed Tasewale ]
Age : 51 years, residing at Momin Galli, ]
Tasgaon, Tal. Tasgaon, Dist. Sangli ]
]
11] Khandu alias Chandrakant Vasant Kadam]
Age : 35 years, residing at Varche Galli, ]
Tasgaon, Tal. Tasgaon, Dist. Sangli ]
]
12] Aziz Shahanur Sheikh ]
Age : 52 years, residing at KavtheEkand, ]
Tal. Tasgaon, Dist. Sangli ]
]
13] Maruti Ramchandra Aadmuthe ]
Age : 32 years, residing at KavtheEkand, ]
Tal. Tasgaon, Dist. Sangli ]
]
14] Iqbal Shahabuddin Pathan ]
Age : 38 years, residing at Yelavi, ]
Tal. Tasgaon, Dist. Sangli ]
]
15] Shital Sanjay Vadavne ]
Age : 30 years, residing at Joshi Galli, ]
Tasgaon, Tal. Tasgaon, Dist. Sangli ]
]
16] Vijay Rajgonda Patil ]
Age : 33 years, residing at Wasagade, ]
Tal. Palus, Dist. Sangli ]..... Petitioners.
versus
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1] The State of Maharashtra, ]
through the Superintendent of Police, ]
Sangli, ]
]
2] Divisional Commissioner and Appellate ]
Authority, Pune Division, having office ]
at Vidhan Bhavan, Pune ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.4820 OF 2017
1] Mr. Vilas Jagannath Jadhav ]
Age – 40 years, Occ – Agriculturist ]
R/o – Chinchni, Tal – Tasgaon, ]
Dist. Sangli. ]
]
2] Mr. Appaso Shankar Patil ]
Age – 39 years, Occ – Agriculturist ]
R/o – Shirgaon, Tal – Tasgaon, ]
Dist. Sangli. ]
]
3] Mr. Dashrath Mansing Nikam ]
Age – 40 years, Occ – Agriculturist ]
R/o – Rajapur, Borgaon, Tal – Tasgaon, ]
Dist. Sangli. ]
]
4] Mr. Dadaso Dattu Shirtode ]
Age – 50 years, Occ – Agriculturist ]
R/o – Kavathe Yakand, Tal – Tasgaon, ]
Dist. Sangli. ]
]
5] Mr. Maruti Rama Mali ]
Age – 59 years, Occ – Labourer ]
R/o – Bapuwadi, Tal – Tasgaon, ]
Dist. Sangli. ].....Petitioners.
Versus
1] Divisional Commissioner, Pune Division ]
At Pune, Appellate Authority, ]
Pune Division, at Pune and others ]
]
2] State of Maharashtra ]
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Through Police Inspector, ]
Tasgaon Police Station, ]
Tal – Tasgaon, Dist. Sangli ]
]
3] Externment Authority ]
Superintendent of Police, Sangli ]
Superintendent of Police Office, Sangli ]
Vishrambag, Sangli – 416416 ]..... Respondents.
ALOGN WITH
CRIMINAL WRIT PETITION NO.5455 OF 2017
]
1] Shri Ranjit Tanaji Aarte ]
Age 30 years, occup – Business/farmer ]
Residing at – Bhilwadi, Tal. Palus, ]
Dist – Sangali. ]
]
2] Mr. Ashok Shankar Ware ]
Age 52 years, Occup – farmer ]
Residing at – Ankalkhop, Tal. Palus, ]
Dist – Sangali ]
]
3] Mr. Hanumant Bhagwan Kambale ]
Age 29 years, Occup – farmer ]
Residing at – Malwadi, Tal. Palus, ]
Dist – Sangali ]
]
4] Mr.Narendra Bharma Ranjane ]
Age 49 years, Occup – farmer ]
Residing at – Bhilwadi, ]
Tal. Palus, Dist – Sangali ]
]
5] Mr.Hanumant Maruti Nalwade ]
Age 35 years, Occup – farmer ]
Residing at – Malwadi, ]
Tal. Palus, Dist – Sangali ]
]
6] Mr.Amol Rajendra Jangam ]
Age 21 years, Occup – farmer ]
Residing at – Bhilwadi, ]
Tal. Palus, Dist – Sangali ]
]
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7] Mr.Gulab Yasin Salamat ]
Age 69 years, Occup – farmer ]
Residing at – Bhilwadi, ]
Tal. Palus, Dist – Sangali ]
]
8] Mr.Shivaji Yashwant Salunkhe ]
Age 54 years, Occup – farmer ]
Residing at – Malwadi, ]
Tal. Palus, Dist – Sangali ].... Petitioners.
versus
1] State of Maharashtra ]
Through Principal Secretary, ]
Home Department, Maharashtra State ]
Mantralaya, Mumbai – 400 032 ]
]
2] Superintendent of Police, Sangali ]
Vishrambag, National Highway 204, ]
Tal – Miraj, Sangali – 416 416 ]
]
3] Divisional Commissioner ]
Divisional Commissioner Office, ]
Pune. ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.5116 OF 2017
Nasir Mhamulal Sandi ]
Age : 43 years, Occ : Agriculturist ]
R/o. Yelavi, Tal. Tasgaon, Dist. Sangli ]..... Petitioner.
Versus
1] Divisional Commissioner, Pune Division ]
at Pune @ Appellate Authority, ]
Pune Division at Pune, Having office at ]
Council Hall, Bandgarden, Pune ]
]
2] State of Maharashtra ]
Through Police Inspector, ]
Tasgaon Police Station, Tasgaon ]
Dist. : Sangli ]
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]
3] Externment Authority @ ]
Superintendent of Police, Sangli ]
Superintendent of Police Office, Sangli ]
Vishrambag, Sangli – 416 416 ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.5040 OF 2017
1] Mr. Amar Prakash Kulguti ]
Age – 32, Occupation – Labour, ]
R/at Charcha Road, Mangalwar Peth ]
Miraj, Tal – Miraj, Dist – Sangli, ]
]
2] Mr. Jaykumar Shivappa Shastri ]
Age – 42 years, occupation – Painter ]
Residing at Sangli Ves, Miraj, ]
Taluka Miraj, Dist. Sangli ]
]
3] Mr. Javeed Allabaksha Beg, ]
Age – 33 years, Occupation – Rickshaw ]
Driver, residing at – Kaman Ves, ]
Mali Gali, Miraj, Dist. Sangli – 416410. ]..... Petitioners.
versus
1] The State of Maharashtra ]
Through Chief Secretary of Home ]
Department, Mumbai. ]
]
2] The Divisional Commissioner ]
Pune Division, Pune ]
]
3] Superintendent of Police Sangli ]
Dist. Sangli. ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION 1025 OF 2018
]
1] Vicky @ Vikrant Sudhir Rasal ]
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Age 35 years, Occ : Business ]
Residing at Subhash Nagar, Barshi, ]
Taluka – Barshi, District – Solapur, ]
]
2] Chandrakant Dagdu Kadam ]
Age 54 years, Occupation : Labour ]
Residing at Upali Road Barshi, ]
District – Solapur, ]
]
3] Parmeshwar Vasudev Gholap ]
Age 43 years, Occupation : Agriculturist ]
Residing at Mahagaon, ]
Taluka – Barshi, District – Solapur, ]
]
4] Sudhakar Vishwanath Lakal ]
Age 39 years, Occupation : Labour ]
Residing at Mangade Chawl Barshi, ]
District – Solapur, ]
]
5] Subhash Siddhling Rajmane ]
Age 39 years, Occupation : Labour ]
Residing at Upali Road ]
Barshi, District – Solapur, ]
]
6] Satish Bansilal Sahane ]
Age 40 years, Occupation : Labour ]
Residing at Subhash Nagar ]
Barshi, District – Solapur, ]
]
7] Santosh Kisan Salunke ]
Age 33 years, Occupation : Business ]
Residing at Rana Colony ]
Barshi, District – Solapur, ]
]
8] Umesh Kisan Salunke ]
Age 41 years, Occupation : Business ]
Residing at Rana Colony ]
Barshi, District – Solapur, ]
]
9] Sachin Shivaji Mane ]
Age 33 years, Occupation : Labour ]
Residing at Subhash Nagar ]
Barshi, District – Solapur, ]
]
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10] Bhagwan Ramling Wagh ]
Age 54 years, Occupation : Labour ]
Residing at Kazzi Galli ]
Barshi, District – Solapur, ]..... Petitioners.
Versus
1] The State of Maharashtra ]
(Through Home Department ]
Mantralaya, Mumbai) ]
]
2] Police Superintendent ]
Solapur Rural ]
]
3] SubDivisional Police Officer, ]
Akkalkot, District – Solapur. ]
]
4] Divisional Commissioner ]
Pune Division, Pune ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.2164 OF 2018
1] Shri Vishal Shantaram Bebale, ]
Age ; 27 years, Occ : Daily wages, ]
R/at : Ramnagar, Tal & Dist. Satara ]
]
2] Shri Dattatraya Ramchandra Ingawale, ]
Age : 45 years, Occ : Daily wages, ]
R/at : Saidapur, Tal : Satara, ]
Dist : Satara ]
]
3] Shri Nitin Bajirao Hirve ]
Age : 32 years, Occ : Daily wages, ]
R/at : Satara, Tal : Satara, ]
Dist : Satara. ]
]..... Petitioners.
Versus
1] State of Maharashtra ]
]
2] Hon'ble Divisional Commissioner, ]
Pune Region Pune ]
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]
3] The Superintendent of Police, ]
(Externment Authority) ]
Satara ]
]
4] Divisional Police Inspector, ]
Satara Division, Dist : Satara ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.1625 OF 2018
1] Mehbub Abdul Karim Shaikh ]
Age : 40 years ]
R/o. Gajanan Colony, Takali Road ]
Sangli ]..... Petitioner.
Versus
1] SubDivisional Police Officer, ]
Division Miraj, District : Miraj ]
]
2] Superintendent of Police ]
Office of Superintendent of Police ]
Sangli at Sangli ]
]
3] Police Inspector, ]
Mahatma Gandhi Chowk, ]
Police Station, Miraj, Tal. Miraj ]
District : Miraj ]
]
4] The Divisional Commissioner, ]
Pune Division Pune ]
]
5] The State of Maharashtra ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.4934 OF 2017
1] Niyaj Mirasaheb Bairagadar ]
Age : 32 years, Occ : Worker ]
R/o. Kama Wes, Miraj, Tal. Miraj, ]
District : Sangli ]
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]
2] Aslam Gudulal Beg ]
Age : Adult, Occ : Worker ]
R/o. Kamanves, Mali Galli ]
Tal. Miraj, Dist. Sangli ]..... Petitioners.
Versus
1] SubDivisional Police Officer, ]
Division Miraj, District : Miraj ]
]
2] Superintendent of Police ]
Office of Superintendent of Police ]
Sangli at Sangli ]
]
3] Police Inspector, ]
Mahatma Gandhi Chowk, ]
Police Station, Miraj, Tal. Miraj ]
District : Miraj ]
]
4] The Divisional Commissioner, ]
Pune Division Pune ]
]
5] The State of Maharashtra ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.4945 OF 2017
1] Maksud Ilai Ghodimar ]
Age : 41 years, Occ : Labour ]
R/o. Guruwar Peth, Miraj ]
]
2] Ramjan Shabbir Sharikmaslat ]
Age : 39 years, Occ : Labour, ]
R/o. Darga Parisad, Miraj ]
]
3] Tohid Nazir Shaikh ]
Age : 31 years, Occ : Labour ]
R/o. Station Road, Miraj ]
]
4] Faizpeer Usmangani Aaga ]
Age : 41 years, Occ : Labour ]
R/o. Darga Parisad, Miraj ]
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]
5] Noormohhamad Gaus Jindi ]
Age : 42 years, Occ : Labour ]
R/o. Jaribaug, Miraj ]
]
6] Ramesh Dadu Sathe ]
Age : Adult, Occ : Labour ]
R/o. Sanjay Gandhi Nagar Slum, ]
Miraj, District : Sangli ]
]
7] Gaus Noormohammad Khalifa ]
Age : Adult, Occ : Labour ]
R/o. Kapshikar Building Miraj ]
]
8] Gundurao Satish Kamble ]
Age : Adult, Occ : Labour ]
R/o. Near Zaribaug Hospital, ]
Miraj, Tal. Miraj, Dist : Sangli ]
]
9] Amin Khudbuddin Patwegar ]
Age : Adult, Occ : _______ ]
R/o. Budhwar Peth, Kanwadkar ]
Houd, Patil Galli, Miraj. ]..... Petitioners.
Versus
1] SubDivisional Police Officer, ]
Division Miraj, District : Miraj ]
]
2] Superintendent of Police ]
Office of Superintendent of Police ]
Sangli at Sangli ]
]
3] Police Inspector, ]
Mahatma Gandhi Chowk, ]
Police Station, Miraj, Tal. Miraj ]
District : Miraj ]
]
4] The Divisional Commissioner, ]
Pune Division Pune ]
]
5] The State of Maharashtra ]..... Respondents.
ALONG WITH
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CRIMINAL WRIT PETITION NO.5055 of 2017
1] Bhavin Kedarlal Shah ]
Age : 39 years, ]
R/o. Gaon Bhag Sangli, Tal. Miraj ]
District : Sangli ]..... Petitioner.
Versus
1] SubDivisional Police Officer, ]
Division Miraj, District : Miraj ]
]
2] Superintendent of Police ]
Office of Superintendent of Police ]
Sangli at Sangli ]
]
3] Police Inspector, ]
Mahatma Gandhi Chowk, ]
Police Station, Miraj, Tal. Miraj ]
District : Miraj ]
]
4] The Divisional Commissioner, ]
Pune Division Pune ]
]
5] The State of Maharashtra ]..... Respondents.
ALONG WITH
CRIMINAL WRIT PETITION NO.61 OF 2018,
1] Hayat Rafioddin Vijapure ]
Age : 52 years, Occ : Agriculture ]
Residing at House No.589, ]
Sakhar Peth, Solapur ]
]
2] Jilani Ibrahim Shaikh, ]
Residing at 235, Telangi Pacha Peth, ]
Solapur. ]..... Petitioners.
Versus
1] State of Maharashtra ]
Through ]
The Divisional Commissioner, ]
Pune Division, Pune ]
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]
2] The Deputy Commissioner of Police(Zone)]
Solapur City, Solapur ]
]
3] The Additional Police Commissioner, ]
Division1, Solapur City. ]
]
4] The Inspector of Police ]
Jail Road Police Station, Solapur. ]..... Respondents.
Shri U R Mankapure for Petitioners in W P Nos. 2454/2018, 275/2018,
305/2018, 1359/2018, 1546/2018, 4849/2017, 4850/2017, 5113/2017,
and 5339/2017.
Shri Satyavrat Joshi i/b Shri Sumant Deshpande for the Petitioners in W P
No.4953/2017.
Mrs Anita Wakchaure i/b Shri V R Shinde for the Petitioners in W P
Nos.5455/2017 & 4820/2017.
Shri Manoj A Patil for the Petitioners in W P No. 5116/2017.
Shri D B Shinde i/b Shri S A Kashid, for the Petitioners in W P
No.5040/2017.
Shri V N Tripathi i/b Shri Ritesh Thobde for the Petitioners in W P
No.1025/2018.
Shri Rahul Kadam for Petitioners in W P No.2164/2018.
Shri K U Nikam, for the Petitioners in W P No.1625/2018, 4934/2017,
4945/2017 and 5055/2017,
Shri Veerdhaval Kakade for the Petitioners in W P No.61/2018
Mrs A S Pai, Addl PP for the Respondent/State in W P Nos.275/2018,
4820/2017, 4945/2017, 5040/2017, 5055/2017.
Shri Deepak Thakare, PP a/w Shri K V Saste, Addl PP for the
Respondent/State.
Shri K V Saste, Addl PP for Respondent/State in W P Nos.4953/2017,
1359/2018, 1546/2018, 1625/2018, 4934/2017, 5113/2017, 5116/2017
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Mrs P P Shinde, APP for Respondent/State in W P Nos.5339/2017,
5455/2017, 4849/2017, 4850/2017
CORAM : R. M. SAVANT &
REVATI MOHITE DERE, JJ.
th
Reserved on : 25 June 2018
th
Pronounced on : 12 July 2018
JUDGMENT : [Per R. M. Savant, J.]
1 Rule in all the above Writ Petitions, with the consent of the
learned counsel for the Petitioners and the learned Additional Public
Prosecutor made returnable forthwith and heard.
2 The above group of 21 Writ Petitions challenge the orders passed
by the Appellate Authority in the Appeals filed by the Petitioners under Section
60 of the Maharashtra Police Act (for short “the police act”) by which orders
the externment orders passed by the Externing Authority came to be confirmed
save and except to the extent mentioned in the operative part of the orders
passed by the Appellate Authority in some cases. All the Petitions involve
identical facts and raise the same issues and are therefore heard together and
disposed of.
3 The orders of externment passed against the Petitioners in each of
the above Writ Petitions are under Section 55 of the police act. The Petitioners
in the above Writ Petitions were issued a show cause notice under Section 59
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of the police act calling upon them to show cause as to why they should not be
externed under Section 55 of the police act for a period of 2 years from the
Districts which are mentioned in each of the show cause notices viz. Sangli,
Satara, Kolhapur and Solapur. The said show cause notices referred to the
offences registered against the Petitioners who are alleged to be gang leaders
and members only under Section 12A of the Maharashtra Prevention of
Gambling Act (for short “the gambling act”). Hence the premise for proceeding
against the Petitioners is that they constitute a “gang” within the meaning of
Section 55 of the police act. It seems that most of the Petitioners showed cause
pursuant to the show cause notices issued to them and questioned the issuance
of the show cause notice having regard to the fact that the offences mentioned
in the show cause notices were offences registered under the gambling act. In
the said background it was the case of the Petitioners in their reply that the
provisions of Section 55 of the police act could not be invoked.
4 The Externing Authority considered the material on record and
passed the orders of externment in respect of the Petitioners amongst whom
are the persons who are alleged to be the gang leaders. In the process of
externing the Petitioners, the Externing Authority reached a subjective
satisfaction that having regard to the activity of the Petitioners which was to
lure the people towards gambling in the form of “Matka” thereby having an
adverse effect on the society as the said gambling activity has the potential to
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cause addiction amongst the people and thereby having an effect on their
financial well being and since there was no chance of the Petitioners reforming
themselves, the Externing Authority was of the view that it was necessary to
extern the Petitioners. The Externing Authority in some of the cases has also
referred to the incamera statements of the witnesses whose statements have
been referred to in the show cause notices in some of the cases.
5 The Petitioners aggrieved by the orders of the Externing Authority
passed against them filed Appeals under Section 60 of the police act before the
Appellate Authority. The Appellate Authority has passed the impugned orders
in each of the above Petitions dismissing the Appeals, however, in some cases
has reduced the period of externment from the one prescribed by the Externing
Authority.
6 In the above Writ Petitions, especially in Writ Petition No.2454 of
2018 an issue which has been raised is, whether for the offences under the
gambling act the provisions of Section 55 of the police act could be invoked.
However, one issue which is common in all the Writ Petitions is the issue
whether having regard to the offences registered against the persons
purportedly to be the gang leader and other persons who are alleged to be the
members of the gang, they could qualify to be a gang or a body of persons as
postulated in Section 55 of the police act so as to enable the authorities to
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invoke the provision of Section 55 of the police act. The other issue raised was
interalia as regards the particulars in respect of when the incamera
statements of the witnesses recorded etc. were absent and therefore no
effective representation could be made by the Petitioners (In Writ Petition
No.4953 of 2018). However, the fundamental issue which has been raised by
the Petitioners in the above Writ Petitions are impinging upon the existence of
the jurisdictional facts so as to entitle the authority to invoke Section 55 of the
police act.
7 The issue as to whether the provisions of Section 55 could be
invoked on the basis of the offences registered under the gambling act has
been raised by the learned counsel for the Petitioners Shri U R Mankapure
appearing in Writ Petition No.2454 of 2018 as also the other Petitioners except
the Petitioners in Writ Petition No.4953 of 2018 who are represented by
learned counsel Shri Satyavrat Joshi, who fairly conceded that even for the
offences registered under the gambling act, Section 55 of the police act could
be invoked.
8 In respect of the said issue the learned counsel for the Petitioners
Shri Umesh Mankapure made the following submissions :
A] That the offences under the gambling act can be said to be petty
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offences and therefore the same could not be taken into
consideration for externing a person by invoking Section 55 of the
police act.
B] The second submission of the learned counsel Shri Umesh
Mankapure was that the first portion of Section 55 is parimateria
to Section 56(1)(a) of the police act and if for invoking Section
56(1)(a) the offences punishable under Chapter Nos.XII, XVI or
XVII of the Indian Penal Code are necessary, then the logical
corollary of the same would be that for the invocation of the
provisions of Section 55 the requirement would have to be the
same viz. that Section 55 can be invoked only if there are offences
punishable under Chapters XII, XVI or XVII which are alleged
against the noticee.
9 In so far as the said issue is concerned, the submissions of the
learned Additional Public Prosecutor Mrs. A S Pai appearing on behalf of the
Respondent/State were as under :
i] That there have to be cases registered for the offences punishable
under Chapters XVI and XVII of the Indian Penal Code is not a
requirement for invocation of Section 55 of the police act.
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ii] That the requirement as can be seen from a reading of Section 55
is that there is a movement or encampment of any gang or body of
persons which 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.
iii] That Section 55 stands in contradistinction to Section 56 both in
its objects and contents, whereas Section 55 covers dispersal of
gangs and bodies of persons. Section 56 is directed towards
removal of persons about to commit an offence. Whereas Section
55 can be invoked in respect of unlawful designs. Section 56 can
be invoked in respect of any person causing or calculated to cause
alarm, danger or harm to person or property or that such 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.
10 In view of the issue raised as regards whether Section 55 of the
police act could be invoked in respect of the offences punishable under the
gambling act, it would be necessary to address the said issue at the outset.
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11 In the said context it would be necessary to refer to Sections 55
and 56 of the police act which for the sake of ready reference are reproduced
herein under :
55. Dispersal of gangs and body of persons:
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 SubDivisional Magistrate
or the [Superintendent][] 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 of
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 [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 [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.
56. Removal of persons 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 Gazzette, extend the
provisions of this section, to the District Magistrate, or
the SubDivisional Magistrate [*] empowered by the
State Government in that behalf (a) that the
movements or acts of any person are causing or
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calculated to cause alarm, 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 of an offence involving
force or violence or an offence punishable under
Chapter XII, XVI, or XVII of the Indian Penal Code (XLV
of 1860), or in the abetment of any such offence and
when in the opinion of such officer witnesses are not
willing to come 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, ( Mah. VII VII of 1981), or (2) in any
manner prejudicial to the maintenance of supplies of
commodities essential to the community as defined in
the Explanation to subsect ion (1) of Section 3 of the
Prevention of Blackmarketing and Maintenance of
Supplies of Essential Commodities Act, 1980 (7 of
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 otherwise as
he thinks fit, direct such person or immigrant so to
conduct himself as shall seem necessary in order to
prevent violence and alarm [or such prejudicial act], or
the outbreak or 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 area or areas
specified (hereinafter referred to as “the specified area
or areas') from which he was directed to remove
himself].
[(2) An officer directing any person under subsection
(1) to remove himself from any specified area or areas
in the State may further direct such person that during
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the period the order was made against him is in force,
as and when he resides in any other areas in the State,
he shall report his place of residence to the officer in
charge of the nearest police station once in every
month, even if there be no change in his address. The
said officer may also direct that, during the said period,
as and when he goes away from the State, he shall,
within ten days from the date of his departure from the
State send a report in writing to the said officer, either
by post or otherwise, of the date of his departure, and
as and when he comes back to the State he shall,
within ten days, from the date of his arrival in the
State, report the date of his arrival to the officer in
charge of the police station nearest to the place where
he may be staying]”
12 It is required to be noted that Sections 55 and 56 of the police act
are contained in Chapter V whose title is “Special Measures for Maintenance of
Public Order and Safety of State”. Section 55 provides for dispersal of gangs
and bodies of persons. It contemplates that the Commissioner in a
Commissionerate area and in a district the District Magistrate, the Sub
Divisional Magistrate or the Superintendent empowered by the State
Government in that behalf can invoke the said provision if 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.
Hence the overarching aspect is the danger or alarm or reasonable suspicion
that unlawful designs are being entertained by such gang or body of persons.
The unlawful designs would include an act which is illegal that is against the
provisions of any law, which makes it unlawful.
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13 In the instant case, the allegation against the Petitioners is of
carrying out the activity of “Matka” which is a form of gambling which is
prohibited and which falls foul of the gambling act. Hence the said activity of
“Matka” being in violation of the gambling act, the same would come within
the sweep of an “unlawful design” which is contemplated in Section 55 of the
police act. The words “alarm” or “danger” in the said provision which precede
the word “reasonable suspicion” have to be read together with “unlawful
designs” meaning thereby the danger is on account of unlawful designs as also
the alarm would also be on account of unlawful designs of the gang or body of
persons.
14 In our view, from a plain reading of Section 55 of the police act it
can be concluded that any “unlawful design” of a gang or body of persons
would be covered by Section 55 of the police act.
15 Now coming to the contentions of the learned counsel for the
Petitioner Shri Umesh Mankapure that having regard to the wording of Section
56(1)(a) of the police act and the opening part of Section 55, the same being
parimateria. It is only if an offence punishable under Chapters XII, XVI or XVII
of the Indian Penal Code is registered against the noticee, then only Section 55
can be invoked. In our view, the said submission is misconceived. As indicated
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herein above, Sections 55 and 56 have different objects whereas Section 55 is
for dispersal of gangs and bodies of persons who are entertaining unlawful
designs. Section 56 is for removal of persons about to commit an offence.
Secondly Section 56(1)(a) is not identical to the opening part of Section 55
though the words “alarm” or “danger” are appearing in both the provisions.
Section 56(1)(a) contemplates the movements or acts of any person causing
or calculated to cause alarm, danger or harm to person or property. The
offences against the person or property are those covered by Chapters XVI or
XVII which find a place in Section 56(1)(b), which contemplates a person
engaged in or about to be engaged in an offence involving force or violence or
an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code.
Since Sections 56(1)(a) and 56(1)(b) are part of the same Section 56, the
requirement mentioned in Section 56(1)(b) would have to be read into Section
56(1)(a). Hence Section 56(1)(a) can be invoked if the allegation against the
noticee is in respect of “alarm”, “danger” or “harm” to a person or property,
meaning thereby the allegation against the person would have to be in respect
of an offence which is punishable under Chapters XVI or XVII of the Indian
Penal Code.
Hence it is not possible to accept the contention of the learned
counsel for the Petitioners Shri Umesh Mankapure that only if an offence
punishable under Chapters XVI or XVII is registered, then the provisions of
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Section 55 of the police act can be invoked against a gang or body of persons.
16 As regards the submission of the learned counsel for the
Petitioners Shri Umesh Mankapure that the offence of gambling being a petty
offence it cannot attract Section 55 of the police act, it is required to be noted
that in Section 55 there is no specific reference to any law under which the
offences are required to be registered and punishable. In view thereof,
reference could be made to Section 57 of the police act which is the succeeding
Section which can be said to be an indicia as what can be said to be covered by
Section 55.
Section 57 covers removal of persons convicted of certain offences.
Section 57(b) covers a person convicted twice or more of an offence under the
Bombay Prohibition Act and Section 57(a)(v) contemplates a person convicted
of an offence under the Bombay Prevention of gambling act now the
Maharashtra Prevention of Gambling Act . Hence reading of Section 57
discloses that even the offences under the Bombay Prohibition Act and the
Bombay Prevention of Gambling Act are viewed seriously and the conviction
under the said Acts can entail an externment under Section 57. Hence Section
57 in a way fortifies that “unlawful designs” would include the offences under
the gambling act. In our view, therefore even for the offences under the
gambling act, the provisions of Section 55 can be invoked. Hence we reject the
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said contention of the learned counsel Shri U R Mankapure.
17 In so far as the said issue is covered, the learned counsel Shri
Umesh Mankapure initially sought to place reliance on the judgment of a
Division Bench of this Court sitting at Aurangabad (Coram : Prasanna B Varale
& Smt. Vibha Kankanwadi, JJ) in Criminal Writ Petition No.0239 of 2018 in
the matter of Kamalkishor s/o. Pusaram Bang v/s. The Superintendent of
Police, Jalna and ors dated 12/04/2018. However, having regard to the
judgment of the Division Bench of this Court sitting at Nagpur in Criminal
Writ Petition No.355 of 2013 in the matter of Sagarsingh Kesharsingh
Bawari v/s Ministry of Home Department, through its Principal Secretary
(Special), Mantralaya, Mumbai32 and ors. Dated 03/09/2013 on which
reliance was placed by the Division Bench at Aurangabad and the facts
involved in the case before the Division Bench at Nagpur which was a case
involving an externment under Section 56 of the police act, the learned
counsel gave up the said reliance.
18 The second issue which arises for our consideration and which is
raised in all the above Writ Petitions is whether the Petitioners can be said to
constitute a “gang” within the meaning of Section 55 of the police act. The said
issue therefore encompasses within itself the existence of the jurisdictional fact
enabling the authorities to exercise powers under Section 55 of the police act.
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19 It was the submission of the learned counsel for the Petitioners
Shri Satyavrat Joshi that the word gang or body of person being collective in
nature, the offences which are registered have to be against the gang members
collectively or at least a substantial number of gang members. Such is not the
case in the instant Writ Petitions. It was also the submission of the learned
counsel for the Petitioners that to cause an apprehension as regards the danger
or alarm or reasonable suspicion that unlawful designs are being entertained
by such gang or body of person, the offences registered against a gang leader
and the members has to be in close proximity to each other whereas in the
instant case the offences registered are one in a year in respect of the gang
leader and a member, in some cases from the year 2012 dating up to the year
2017.
Reliance was sought to be placed by the learned counsel Shri
Satyavrat Joshi on the judgment of a Division Bench of this Court (Coram :
S.C.Dharmadhikari and S B Shukre, JJ) in Criminal Writ Petition No.2385 of
2013 in the matter of Ahammad Mainuddin Shaikh v/s. The State of
Maharashtra and anr , dated 16/08/2013.
The said submission of Shri Satyavrat Joshi was reiterated by the
learned counsel Shri Rahul Kadam who submitted that though there are
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offences registered against the person who is alleged to be the gang leader and
a member there is not a single offence registered against all the gang members
collectively, and therefore, the basic requirement of there being a gang or body
of persons was not fulfilled.
The learned counsel Shri V. N. Tripathi for the Petitioners in Writ
Petition No.1025 of 2018 would also contend that there has to be a collective
participation for the activities to come within the sweep of Section 55. Reliance
was placed by him on the judgment of a Division Bench of this Court reported
in 2014 ALL MR (Cri) 1277 in the matter of Vijay Lalso Jadhav v/s. State of
Maharashtra and ors .
20 Per contra it was the submission of the learned Additional Public
Prosecutor Mrs. A S Pai for the Respondent/State that since the offences have
been registered against the gang leader and a member, the gang leader and the
members qualify to be a gang, though there is no offence registered collectively
against the gang leader and the other members.
The learned Additional Public Prosecutor sought to place reliance
on the dictionary meaning of the word “gang” as appearing in Law Lexicon
which reads thus :
“A number of people closely associated; a set of
persons working together in a squad or shift; a
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company of persons working together for anti
social purposes”
Relying on the said meaning the learned Additional Public
Prosecutor would contend that a number of people closely associated would be
covered so as to constitute a gang.
The learned Additional Public Prosecutor would seek to place
reliance on the judgment of a Division Bench of this Court sitting at
Aurangabad reported in 2017(2) Bom.C.R. (Cri) 653 in the matter of Balu @
Balasaheb Jagannath Jadhav v/s. Divisional Commissioner, Aurangabad &
ors. in support of her said contention.
21 In the context of the aforesaid issue, Section 55 would have to be
revisited, the said provision has already been reproduced in the earlier part of
this Judgment. 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 SubDivisional Magistrate or the Superintendent empowered by
the State Government in that behalf. Therefore the sinequanon 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
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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 defined 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
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
offence 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.
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It is required to be noted that in all the above Petitions, the
offence under the gambling act is registered against the gang leader “A” with
the alleged member of the gang being “B”, against “A” with “C”, “A” with “D”,
“A” with “E”, but not against A, B, C, D, or E collectively or even against a
substantial number of gang members collectively. It is also required to be
noted that in some cases the offence registered against “A” and “B” is much
anterior in point of time to the offences registered against “A” and “E” and
therefore there is no proximity between the offences and therefore the test of
there being a collective participation is not satisfied as they are all
individualistic cases registered against the alleged gang leader and a member.
22 The learned Additional Public Prosecutor Mrs. A S Pai on the basis
of the facts which are involved in each of the above Writ Petitions sought to
distinguish the facts in Writ Petition No.1546 of 2018 and Writ Petition
No.5113 of 2017. It was the submission of the learned Additional Public
Prosecutor that in so far as the said two Writ Petitions are concerned, the cases
registered against the gang leader and the gang members which are adverted
to in the show cause notices disclose that more than one offence is registered
under the gambling act against the alleged gang leader Altaf Rajekhan Pathan
and the gang member Shahid Aslam Pathan and, the gang leader Altaf
Rajekhan Pathan and the gang member Ramdas Rajaram Keware in Writ
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Petition No.1546 of 2018. In so far as Writ Petition No.5113 of 2017 is
concerned, more than one offence is registered against the alleged gang leader
Ajij Mehbub Shaikh and the gang member Taimur Liyakat Shaikh, gang leader
Ajij Mehbub Shaikh and the gang member Tejas Dattatray Ghalage and the
gang leader Ajij Mehbub Shaikh and the gang member Dattatray Gunda Pawar.
Reliance is sought to be placed on the Division Bench judgment of this Court in
Balu alias Balasaheb Jagannath Jadhav's case (supra).
23 We have gone through the FIRs which have been registered in the
said two Writ Petitions. No doubt there are one or more cases registered
against the gang leaders and the gang members in the said two Writ Petitions,
however, there is no case registered collectively against all the members who
allegedly constitute the gang or even a substantial number of them. In our
view, therefore, the said cases also fall short of the requirements of there being
a collective participation by all the gang members in the unlawful activity.
Hence in our view, the said cases cannot be differentiated from the other cases
which as indicated above are involving the singular cases only against the
alleged gang leader and a member and not collectively against all the members
who constitute a gang or at least a substantial number of them.
The reliance placed on the judgment of the Division Bench in Balu
alias Balasaheb Jagannath Jadhav's case (supra) is misplaced, as the said
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judgment is turning on the facts of the said case where offences were
registered not only under the gambling act but also under the Indian Penal
Code against the Petitioner who was the gang leader and the other five
members of the case. In the facts and circumstances of the case, the Division
Bench held that the requirements of Section 55 of the police act were fulfilled.
Pertinently the issue as to what would constitute a “gang” was not required to
be addressed by the Division Bench.
24 Now coming to the judgment of the Division Bench of this Court
Ahammad Mainuddin Shaikh's case (supra). In the said case the facts were
that the offences were registered against the gang leader and one member of
the gang and no offences were registered collectively against all the gang
members. It is in the said context that the Division Bench held that the
Petitioner in the said Petition and the other members did not constitute a gang
as there is no collective participation by the gang leader and the alleged
members. The said judgment is holding the field since the year 2013. A similar
note was sounded by the Division Bench in Vijay Lalso Jadhav's case (supra).
The facts in the case of Ahammad Mainuddin Shaikh (supra) can
be said to be identical to the facts in the instant cases, as in the instant cases
also the offences under the gambling act have been individually registered
against the gang leader and one member as can be seen from the show cause
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notices which are issued to the Petitioners in all the above Writ Petitions.
There is no offence registered against all the gang members collectively or even
against a substantial number of the members collectively so as to constitute a
gang. In our view, therefore the Petitioners in all the above Writ Petitions can
hardly be said to constitute a gang so as to entitle the authorities to invoke the
provisions of Section 55 of the police act. Hence it would have to be held that
there is an absence of the essential jurisdictional fact of there being a gang, so
as to entitle the authorities to exercise powers under Section 55 of the police
act. In our view, since the externment order impinges upon the personal liberty
of an individual, the provisions have to be strictly construed and by a
convoluted process the provisions cannot be made applicable.
25 In so far as Writ Petition No.4953 of 2017 is concerned, a
submission was also made that the incamera statements which have been
referred to in the show cause do not contain the particulars for the Petitioner
to make an effective representation against the show cause notice and
therefore the order of externment is vitiated on the said ground. In support of
the said contention reliance is placed on the judgment of the Division Bench of
this Court (Coram A.S.Oka & S.C.Gupte, JJ) in Criminal Writ Petition
No.3544 of 2013 in the matter of Imtiyaz Afzal Hussain Shaikh v/s. The
Asst. Commissioner of Police, Wanavadi Division, Pune and ors dated
04/12/2013. A contention was also raised that extraneous material has been
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taken into consideration whilst passing the order of externment. In support of
which contention reliance was placed on the judgment of the Division Bench of
this Court reported in 1980 Cri.LJ 1547 in the matter of Ganu v/s. M. V.
Chitale and another . As also the contention that the incamera statements
have been referred to in the externment order though they are not part of the
show cause notice for which reliance is placed on the judgment of a Division
Bench of this Court in 2015 ALL MR (Cri.) 2936 in the matter of Rajwardhan
Babaso Patil & ors. V/s. Vijaysinha Jadhav & ors. Though such contentions
have also been raised in some of the other Writ Petitions, it is not necessary for
us to dvelve into the said contentions as we are of the view that the basic
requirement of there being a gang or a body of persons is not satisfied in the
instant cases, the Petitioners would therefore have to succeed on the said
ground.
26 For the reasons aforestated the above Writ Petitions are required
to be allowed and are accordingly allowed. The orders passed by the Externing
Authority as well as the Appellate Authority i.e. the Divisional Commissioners
are quashed and set aside. Resultantly Rule is made absolute in the above Writ
Petitions as follows :
[1] Writ Petition No.2454 of 2018 in terms of prayer clause (a).
[2] Writ Petition No.275 of 2018 in terms of prayer clause (a).
[3] Writ Petition No.305 of 2018 in terms of prayer clause (a).
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[4] Writ Petition No.1359 of 2018 in terms of prayer clause (a).
[5] Writ Petition No.1546 of 2018 in terms of prayer clause (a).
[6] Writ Petition No.4849 of 2017 in terms of prayer clause (a).
[7] Writ Petition No.4850 of 2017 in terms of prayer clause (a).
[8] Writ Petition No.5113 of 2017 in terms of prayer clause (a).
[9] Writ Petition No.5339 of 2017 in terms of prayer clause (a).
[10] Writ Petition No.4953 of 2017 in terms of prayer clauses (a) & (b).
[11] Writ Petition No.4820 of 2017 in terms of prayer clause (b).
[12] Writ Petition No.5455 of 2017 in terms of prayer clause (b).
[13] Writ Petition No.5116 of 2017 in terms of prayer clause (b).
[14] Writ Petition No.5040 of 2017 in terms of prayer clauses (a) & (b).
[15] Writ Petition No.1025 of 2018 in terms of prayer clauses (b) & (c).
[16] Writ Petition No.2164 of 2018 in terms of prayer clause (A).
[17] Writ Petition No.1625 of 2018 in terms of prayer clause (a).
[18] Writ Petition No.4934 of 2017 in terms of prayer clause (a).
[19] Writ Petition No.4945 of 2017 in terms of prayer clause (a).
[20] Writ Petition No.5055 of 2017 in terms of prayer clause (a).
[21] Writ Petition No.61 of 2018 in terms of prayer clause (a).
The parties are left to bear their respective costs.
[REVATI MOHITE DERE, J] [R.M.SAVANT, J]
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