Bombay High Court
Shaikh Faizan Shaikh Hamid vs State Of Maharashtra Thr Divisional … on 9 July, 2025
2025:BHC-NAG:6490
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.476 OF 2025
Shaikh Faizan Shaikh Hamid,
age: 22 years, occupation - service,
r/o Mominpura, Dewalghat, taluka
Dewalghat, district Buldhana. ..... Petitioner.
:: V E R S U S ::
1. State of Maharashtra,
through Divisional Commissioner
Amravati, tahsil and district Amravati.
2. Sub-Divisional Magistrate Buldhana,
taluka and district Buldhana.
3. Police Station Officer, Police
Station Buldhana (Rural), taluka and
district Buldhana. ..... Respondents.
Shri R.P.Joshi, Counsel for the Petitioner.
Shri N.B.Jawade, Additional Public Prosecutor for
Respondents/State.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 03/07/2025
PRONOUNCED ON : 09/07/2025
JUDGMENT
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1. Heard learned counsel Shri R.P.Joshi for the
petitioner and learned Additional Public Prosecutor Shri
N.B.Jawade for the State. Rule. Heard finally by consent
of learned counsel appearing for parties.
2. By this petition, the petitioner has challenged order
of externment dated 4.2.2025 passed by learned Sub
Divisional Magistrate, Buldhana in Criminal Case
No.40/2024 upheld by order dated 29.4.2025 passed by
the Divisional Commissioner, Amravati in Externment
Appeal No.5/2025.
3. The crime was registered against the petitioner vide
Crime No.353/2024 under Sections 115(2); 125; 132;
189(2); 190; 191(2); 191(3), and 351(2) of the BNS
2023 and under Section 3 of the Maharashtra Prevention
of Defacement of Property Act, 1995 and under Section 7
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of Criminal Law Amendment Act, 1932 and under Section
135 of the Maharashtra Police Act, 1951.
Another crime was also registered against the
petitioner vide Crime No.355/2024 under Sections
115(2); 189(2); 190; 191(2); and 351(2) of the BNS 2023
and under Section 135 of the Maharashtra Police Act,
1951.
4. The Sub Divisional Magistrate, Buldhana, on
relying upon above offences, issued Show Cause Notice to
the petitioner on 8.1.2025. The Show Cause Notice was
replied by the petitioner by denying allegations. On the
basis of statement of a police officers, the Sub Divisional
Magistrate passed order of externment on 4.2.2025 in
proceeding in Criminal Case No.40/2024. Being
aggrieved with the same, the petitioner filed an appeal
bearing Criminal Appeal No.5/2025 before the Divisional
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Commissioner, Amravati which came to be dismissed on
29.4.2025 and the order of externment passed under
Section 56 of the Maharashtra Police Act, 1951 by the Sub
Divisional Magistrate was upheld.
5. Being aggrieved with the same, the present petition
is preferred by the petitioner.
6. It is submitted by learned counsel for the petitioner
that proposal for the externment was forwarded only on
the basis of statements of police officers. Statements of
independent officers are not recorded. It is submitted
that only on the basis of two offences, externment
proceedings were initiated. The petitioner is not named
in the two First Information Reports and no specific role is
assigned to him.
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He submitted that it is settled position of law that
offences under investigation cannot be taken into
consideration for externment.
He submitted that no satisfaction is recorded
before passing the externment order. The Divisional
Magistrate had not considered that there is no sufficient
material to show that the petitioner was involved in
illegal activities which would create fear in the minds of
public and there is a threat to the public in vicinity. Thus,
without satisfaction, the externment order is passed.
7. Learned Additional Public Prosecutor for the State
strongly opposed the petition and submitted that
considering involvement of the petitioner in two offences,
proposal for externment was submitted which was
allowed after giving an opportunity to the petitioner and,
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therefore, the petition is devoid of merits and liable to be
dismissed.
8. After hearing both sides and perusing offences,
proposal was sent to extern the petitioner from Buldhana
district. He was proposed to be externed from Buldhana
district for two years. Accordingly, notice was issued
under Section 56(1)(a)(b) of the Maharashtra Police Act,
1951 to the petitioner which was replied by the petitioner.
The order passed by the authority shows that two
offences are considered by the Authority to pass the
externment order.
Crime bearing Crime No.355/2024 is registered
under Sections 115(2); 189(2); 190; 191(2); and 351(2)
of the BNS 2023 wherein statements of two witnesses are
considered.
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In another crime bearing Crime No.353/2024 is
registered under Sections 115(2); 125; 132; 189(2); 190;
191(2); 191(3), and 351(2) of the BNS 2023 and under
Section 3 of the Maharashtra Prevention of Defacement of
Property Act, 1995 and under Section 7 of Criminal Law
Amendment Act, 1932 and under Section 135 of the
Maharashtra Police Act, 1951.
9. Perusal of the order of the authority shows that the
petitioner was involved in forming “unlawful assembly”
and creating “hurdles” when officers were discharging
their official duties.
10. In another crime, allegation against the petitioner
is that he and other co-accused prepared picture of
“Goddess Durga” and one picture of a lady covering her
face and written as “rq dkyh cu rq nqxkZ cu ijarq yOg ftgkn dk
f’kdkj u cu” and thereby committed the offence.
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11. During investigation, the investigating officer has
only recorded statements of police officers. There are no
statements of independent witnesses recorded. As far as
observations are concerned, names of witnesses are not
mentioned and general allegations appeared to be
levelled that such type of complaint is received against
the petitioner. There is no reference regarding how many
complaints are received from the public as to the conduct
of the petitioner.
12. Under the Maharashtra Police Act, 1951,
externment orders are a mechanism used to remove
individual from a specific area to prevent them from
engaging in activities that could disrupt public order or
peace. These orders are issued when authorities are
satisfied based on reasonable ground that an individual
posses a threat to public safety or tranquility. However,
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such orders must be based on objective material and
adhere to statutory requirements, including providing
individual with a reasonable opportunity to respond to
allegations.
13. Thus, order of externment by its very nature is
extra-ordinary. It has the effect of forced displacement
from the home and surroundings. Often, it affects
livelihood of person ordered to be externed. Thus, there
must exist justifiable grounds to sustain an order of
externment. The Order of externment, therefore, must be
strictly within the bounds of the statutory provisions.
Under clause (a) of sub section (1) of Section 56 of the
Maharashtra Police Act, the externing authority must be
satisfied on the basis of the objective material that the
movements or acts of the person to be externed are
causing or calculated to cause alarm, danger or harm to
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person or property. Under clause (b), there must be an
objective material on the strength of which the externing
authority must record subjective satisfaction that there
are reasonable grounds for believing that the externee is
engaged or about to be engaged in the commission of
offences involving force or violence. Mere registration of
number of offences by itself does not sustain an
externment under Section 56(1)(b) of the Act.
14. The externing authority must record satisfaction
that witnesses are not willing to come forward to give
evidence in public against externee by reason of
apprehension on their part as regards the safety of their
person or property.
15. To sustain an action under a specific clause, the
alleged offense must fall under one of the enumerated
chapters or sections of the relevant law. Additionally, the
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actions or conduct of the accused must be such that they
cause witnesses to be intimidated or dissuaded from
providing testimony in a public hearing due to fear for
their safety or property.
16. In the light of the above mentioned requirements
of Section 56(1)(a) and (b), aforementioned challenges
deserve to be appreciated.
17. In the case of Deepak Laxman Dongre vs. The State
of Maharashtra, reported in 2022 SCC OnLine 99, the
Hon’ble Supreme Court was considering the provisions of
Section 56 of the Maharashtra Police Act, 1951 and
whether an unexplained inordinate delay in filing a
proposal for externment of the petitioners under those
provisions, from the date of last offence alleged, would
amount to denial of the offenders’ fundamental rights
under Article 19(1)(d) of the Constitution of India. In
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that case, the last offence alleged against the petitioner
was on 02/06/2020 while the impugned order was
passed on 15/12/2020 more than six months from the
last alleged offence.
In that case also, the first offence relied upon was
from 2013 and 2018 which was a stale offence in the
sense that there was no live link between the offence and
necessity to pass orders for externment. In that set of
facts, the Hon’ble Supreme Court has held as under :
“4. We have given careful consideration to the
submissions. Under clause (d) of Article 19(1) of
the Constitution of India, there is a fundamental
right conferred on the citizens to move freely
throughout the territory of India. In view of
clause (5) of Article 19, State is empowered to
make a law enabling the imposition of reasonable
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restrictions on the exercise of the right conferred
by clause (d). An order of externment passed
under provisions of Section 56 of the 1951 Act
imposes a restraint on the person against whom
the order is made from entering a particular area.
Thus, such orders infringe the fundamental right
guaranteed under Article 19(1)(d). Hence, the
restriction imposed by passing an order of
externment must stand the test of
reasonableness.”
18. There cannot be any manner of doubt that an order
of externment is an extraordinary measure. The effect of
the order of externment is of depriving a citizen of his
fundamental right of free movement throughout the
territory of India. In practical terms, such an order
prevents the person even from staying in his own house
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along with his family members during the period for
which this order is in subsistence and, therefore, recourse
should be taken to Section 56 very sparingly keeping in
mind that it is an extraordinary measure. For invoking
clause (a) of sub-section (1) of Section 56, there must be
objective material on record on the basis of which the
competent authority must record its subjective satisfaction
that the movements or acts of any person are causing or
calculated to cause alarm, danger or harm to persons or
property. For passing an order under clause (b), there
must be objective material on the basis of which the
competent authority must record subjective satisfaction
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
offences punishable under Chapter XII, XVI or XVII of the
IPC. The Offences under Chapter XVI are offences
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affecting the human body and offences under Chapter
XVII are offences relating to the property.
19. In the present case, only 2 offences have been
registered and on that basis the order was passed. When
clause (b) of sub-section (1) of Section 56 is sought to be
invoked, the competent authority must be satisfied that
witnesses are not willing to come forward to give
evidence against the person proposed to be externed by
reason of apprehension on their part as regards their
safety or their property. The recording of such subjective
satisfaction by the competent authority is sine qua non for
passing a valid order of externment under clause (b).
20. To sustain an action, the externing authority as
well as the appellate authority has to record subjective
satisfaction which is absent in the present case. Moreover,
the considerable period is already elapsed from the
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registration of the aforesaid crime, still the initiation of
the action for externment. The purpose of externment is
not punitive. Externment is with a view to disable a
person by moving him away from surroundings which
prove favourable for the commission of the offences and
thereby disarm the influence in the said area. Thus, there
ought to be a lively the acts of the externee and the action
of the externment. Stale cases cannot be used to support
the externment order.
21. In view of above facts and circumstances, the
petitioner has made out a case in his favour and,
therefore, I proceed to pass following order:
ORDER
(1) The Criminal Writ Petition is allowed.
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(2) The order of externment dated 4.2.2025 passed by
learned Sub Divisional Magistrate, Buldhana in Criminal
Case No.40/2024 upheld by order dated 29.4.2025 passed
by the Divisional Commissioner, Amravati in Externment
Appeal No.5/2025 is hereby quashed and set aside.
Rule is made absolute in the above terms. No
costs.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 10/07/2025 11:01:40