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