T.V. NALAWADE, J.

1) Rule. Rule made returnable forthwith. By consent, heard both the sides for fnal disposal.

2) The frst proceeding is fled to challenge the order of externment made by District Superintendent of Police (D.S.P.), Parbhani, acting as Sub Divisional Magistrate (S.D.M.) in case No.1009/DCRB/Externment-2/19 and also against the order made by Divisional Commissioner, Aurangabad in Appeal fled by petitioner bearing No.2019/Sapra/Desk-1/Police-1/Externment/Cr-45. Against the petitioner of the frst proceeding, the order is made for the period of 18 months and it is in respect of four Tahsils of District Parbhani, one Tahsil of Beed District, one Tahsil of Latur District. The second proceeding is fled against the order of D.S.P. Parbhani in case No.1236/DCRB/ Externment-3/19 and also against the order made by Divisional Commissioner, Aurangabad in Appeal fled by petitioner bearing No. 2019/Sapra/Desk-1/Police-1/Externment/Cr-51. Against the petitioner of the second proceeding the order of externment of two years is made and it is in respect of four Tahsils of Parbhani District, one Tahsil of Beed District and one Tahsil of Latur District. The appellate authority has confrmed the order of externment made by S.D.M. Both the orders are made under section 55 of the Maharashtra Police Act (hereinafter referred to as ‘ the’ for short).

3) In the frst proceeding, in show cause notice issued under section 59 of theagainst Limbaji Ghobale, it was informed to him that action was proposed against him as he was a gang leader and similar action was proposed against two members of his gang. This action was proposed by Gangakhed Police Station. The Police Station had proposed to pass the order of externment in respect of four Districts like Parbhani, Hingoli, Nanded and Latur (not Beed). It was informed in show cause notice to Limbaji that against his gang as many as 10 crimes were registered in Gangakhed Police Station and out of them, seven crimes were registered against Limbaji, gang leader. The information about the ofences registered as against Limbaji is given in show cause notice and it was as under :-

TABLE

The aforesaid chart shows that only two cases fled in C.R. Nos. 67/13 and 243/18 were pending against Limbaji on the date of show cause notice i.e. on 17.1.2019. The contents of the present petition of Limbaji and the record show that in C.R. No. 243/18, R.C.C. No. 167/18 was fled by police and in that case, all the three accused came to be acquitted by the Trial Court on 4.5.2019. Similarly, in C.R. No. 67/13, Sessions Case No. 44/13 was fled by police and in that case also, all the three accused came to be acquitted on 7.5.2019. The S.D.M. had passed order on 25.3.2019 and the appeal came to be decided on 11.6.2019. On the date of decision of the appeal, no case was pending against Limbaji for any ofence.

4) In show cause notice, it was informed to Limbaji that there were allegations against him that he had formed a gang of persons of Gunda nature and this gang was involved in commission of ofences like extortion, attempt of murder, theft, robbery, assault by using dangerous weapons, gambling etc. It was informed that due to activities of this gang terror was created by the gang in the people of that locality, Gangakhed and the gang had created danger to the life and properties of the persons of that locality. It was also informed that due to fear of gang, nobody was ready to come forward as witness against them. It was informed that even after taking preventive action against them in the past, the petitioner had not improved his conduct and his gang was committing the ofences and due to the activities of gang, there was possibility of creating problem of law and order.

5) Against the petitioner from the second proceeding viz. Hari Ghobale, show cause notice was issued on the same day i.e. on 17.1.2019. Both Hari and Limbaji, the petitioners of the two proceedings, are residents of the same locality viz. Mahatma Phule Nagar, Gangakhed.

6) To Hari, the petitioner from second proceeding, it was informed in show cause notice that against the members of his gang as many as 31 crimes were registered and Hari was involved in 22 crimes out of 31 crimes. The particulars of 22 crimes registered against Hari were given in show cause notice and they are as under :-

TABLE

7) Against Hari and fve other persons, externment proceeding was started and the S.D.M. made diferent orders in respect of diferent persons which is being mentioned at proper place. Out of them, fve persons had fled writ petitions in this Court like Criminal Writ Petition Nos. 1356/2019 to 1360/2019. These petitions are allowed by this Court and externment order made against them is quashed and set aside by this Court. This circumstance needs to be kept in mind while appreciating the material shown as available as against Hari.

8) In the show cause notice dated 17.1.2019, in addition to mentioning of material as above, it was informed to Hari that his gang was creating problem for people of that locality. The general allegations made against Limbaji of the nature already mentioned were also made against Hari in the show cause notice and in addition to that, it was mentioned that gang of Hari was involved in commission of ofences like molestation and treating wife with cruelty.

9) The petitioners of both the proceedings fled say to the aforesaid show cause notices. They contended in the say that they had not formed any such gang and such ofences were not committed. They contended that show cause notice was issued out of political motive, it was malafde action.

10) Limbaji contended that the frst six crimes which were registered against him were very old and they were registered from the year 2005 to 2015 and on the basis of those crimes, externment order was made against him in the past on 22.4.2015. He contended that after 2015 only one crime like C.R. No. 243/18 was registered against him, but in that crime, the informant had given in writing in the Court that out of some misunderstanding he had made report against Limbaji. Limbaji contended that Vishal Salve and Kiran Bhumre were shown as co-accused only in two cases and on the basis of such record, it was not possible to draw inference that Limbaji had formed gang within the meaning of provision of section 55 of the.

11) The externment order made against Limbaji shows that two other persons like Kiran Ghumre and Vishal Salve were shown as members of gang of Limbaji. As against these three persons only one crime viz. C.R. No. 243/18 was registered and it was for the ofences punishable under sections 325, 324, 504, 506 and 34 of I.P.C. Copy of F.I.R. of C.R. No. 243/18 is on the record and it shows that frst informant and Limbaji knew each other. Limbaji was inviting informant to come with him for programm, to see a dance in club and as the informant refused, quarrel took place. Allegations are made that Limbaji and his two friends, Ghumre and Vishal Salve assaulted informant. The friends of Limbaji were not known to informant on the day of incident and their names were not taken in F.I.R. The record shows that injury was sustained by informant to left hand which was fracture injury.

12) Copy of externment order, which was made against Limbaji on 22.4.2015 shows that it was made under section 56 of theand not under section 55 of the. On that occasion, the period of externment was six months and it was in respect of entire district of Parbhani. In that order, crimes registered in Gangakhed Police Station like C.R. Nos. 87/05, 185/12 and 67/13 were considered. These crimes are again considered now for passing order under section 55 of the. In two of the three cases, Limbaji was acquitted. In C.R. No. 67/13 Sayyad Jahir and Ram Mundhe were shown as co-accused, but against them proceeding under section 55 of the Act, which is under challenge was not started by police. These circumstances are important as there is allegation that Limbaji has formed gang.

13) The S.D.M. and appellate authority have observed that the previous six ofences were committed with the help of 12 new members of the gang and one old member of the gang. It is observed that every time Limbaji was forming gang by using new members and he was committing the ofences. It is observed that he was creating hold of his gang over the locality. Here only it needs to be mentioned that in the same area, it is contended that gang of Hari was operating. There was no case fled in respect of any quarrel between the gangs of Hari and gang of Limbaji. Apparently, there is no material for making observations of aforesaid nature. In the present matter, it needs to be kept in mind that the externment order is made under section 55 of theand not under section 56 of theand so, as per the requirement of section 55 of the Act, existence of the ‘gang’ need to be established frst. If there is no material to make out case of existence of gang, there is no question of considering the material or the satisfaction of the ofcer like S.D.M. for passing the order of externment and further exercise becomes futile.

14) In the second proceeding, Hari is shown as gang leader and according to police station, against his gang 34 crimes were registered. The proceeding of externment was started against Hari, Satish (brother of Hari), Shubham, Dayanand, Govind, Rupesh, Sandeep, Avinash, Raosaheb, Vaibhav, Anil, Rahul, Shivaji and Shailesh, as against 14 persons. The order of externment for diferent periods is made against seven persons and as against remaining six persons, order is made to direct them to execute the bond of Rs.25,000/-, purportedly of good behaviour. The externment order made against seven persons including Hari is in respect of the same area which is already mentioned. Against Hari the period of externment is mentioned as two years, against Dayanand, Raosaheb and Vaibhav the period of externment is mentioned as one year and against Shubhum, Govinda and Satish the period of externment is mentioned as six months.

15) It is already mentioned that externment order was challenged by Satish, brother of Hari, Shubhum, Govinda, Raosaheb and Dayanand by fling Criminal Writ Petition Nos. 1356/2019 to 1360/2019 and by common decision dated 4.10.2019 the externment order made against them came to be set aside. This circumstance needs to be kept in mind as the respondents, police station needs to show that gang was in existence.

16) As per the record and submissions made, Satish and Govinda were co-accused in C.R. No. 268/14 along with Hari. In the said case, all the accused came to be acquitted. In Cr.No. 63/18, case is fled and it is still pending and it is for the ofences punishable under sections 307, 324, 323, 504, 506 and 149 etc. of IPC and some provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The written say fled by Hari, submissions of D.S.P. Shri. K.K. Upadhyai dated 6.10.2019 (addressed to APP) produced on record show that the sum and substances of the allegations are mentioned and the say is given in respect of those allegations. In C.R. No. 63/2018 it is mentioned that on the day of incident, the members of other gang formed by Suraj Hattiambire and Anis Hattiambire against whom externment order was already made, attacked the gang of Hari. It is the case of police that Hari and his persons knew that aforesaid gang was to come to their place to attack them and so, they were ready to retaliate the attack of other gang. It is contended that by attacking the persons of the gang of aforesaid two persons Hari and co-accused from C.R. No. 63/18 committed the ofence.

17) This Court had occasion to see the F.I.R. given in C.R. No. 63/18 while deciding Criminal Writ Petition Nos. 1356/19 to 1360/19 cited supra. The relevant portion of the order is being quoted at proper place. In the F.I.R. of C.R. No. 63/18 allegations are made against Hari and his persons that the relations between the two sides were strained due to the dispute which had started over elections to Gangakhed Municipality. Thus, the incident shown in C.R. No. 63/18 had taken place due to political rivalry. The question arises as to whether such incidents are covered under section 55 of theand particularly when the attack was made on Hari and his persons by persons who were facing the externment order. It also needs to be kept in mind that in not a single case Hari was convicted on the date of externment order.

18) In C.R. No. 105/16 case was fled by police for ofence punishable under section 12(A) of Maharashtra Gambling Act. In that case, one Jalindar Sable was accused No. 1 and he had pleaded guilty and he is sentenced to pay fne of Rs.1,000/-. Hari was accused No. 2, but he did not plead guilty and he is not convicted in C.R. No. 105/16. On the date of externment order, as against Hari some cases fled for ofence of gambling were pending and they were all of the year 2016 and 2017. They are as under :-

(a) C.R. No. 118/16 – One Baburao Shinde is accused No. 1 and Hari is accused No. 2.

(b) C.R. No. 337/17 – Anil Salve is accused No. 1 and Hari is accused No. 2.

(c) C.R. No. 366/17 – Shaikh Razzak is accused No. 1 and Hari is accused No. 2.

(d) C.R. No. 376/17 – Raju Chavan is accused No. 1 and Hari is accused No. 2.

(e) C.R. No. 383/17 – Yarankhan Mustafakhan Pathan is accused No. 1 and Hari is accused No. 2.

No proceedings for externment were fled against accused No. 1 of aforesaid cases. It needs to be kept in mind that not in a single case of gambling, Hari is convicted and the externment proceeding was started under section 55 of theand not under section 57 of the.

19) In externment proceeding, which was started against 13 others, the cases fled under section 12(A) of Maharashtra Gambling Act are not shown against remaining 13 persons. Thus, for the business of gambling, it is not the case of police station that Hari had formed gang.

20) Statement of Hari is shown to be recorded by D.S.P. in respect of material which was to be used against him. That statement is very interesting and for instance, this Court is quoting question Nos. 10 and 11 of the statement along with the answers given to those questions. They are as follows :-

Q.10 – Whether it will be correct to say that in seven cases fled for ofence of gambling, you came to be acquitted as you did not remain present in the Court to face the trial

Ans. - It is true to say that as I remained absent in the Court I came to be acquitted.

Q.11 – It is your say that from 2015 you have not indulged in gambling activity and then how is that you are shown as accused in 6-7 cases of gambling fled after 2015

Ans. - The persons who were used by me prior to 2015 for gambling business continued to do that business, but behind my back after 2015 and as prior to 2015 they were my associates my name is shown as accused.

21) The allegations in respect of the gambling activity shows that only accused No. 1 from each case was caught red handed and the police station came with the case that accused No. 1 was working for accused No. 2 Hari. Gambling, Matka is such activity that only bookies are caught red handed and it is always difcult for prosecution to prove that bookies were working for some other person.

22) The question put to Hari could not have been asked to him. The cases came to be closed under section 258 of Cri.P.C. and that provision is as under :-

"258. Power to stop proceedings in certain cases.- In any summons-case instituted otherwise than upon complaint, a Magistrate of the frst class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the efect of discharge."

The provision of section 258 of Cr.P.C. shows that only when the case is not making progress, such order is required to be made. If the accused is not turning up to face the trial, in ordinary course, warrant is issued and his presence is secured for trial purpose. So, it cannot be said that the cases were disposed of by the J.M.F.C. by using the provision of section 258 of Cr.P.C. due to fault of accused.

23) The submissions made and the record show that from the year 2011 fve chapter cases were fled against Hari under section 107 and 110 of Cr.P.C. The record and submissions show that in no case, order of taking bond of good behaviour is passed against Hari. In the year 2012 order of externment was made against Hari, but it was under the provision of section 56(b) of theand not under section 55 of the. Till the year 2012 the cases only under Gambling Act were fled against Hari and in those cases he came to be acquitted.

24) In show cause notice, C.R. No. 417/18 registered for gambling was not mentioned, but that crime is used by S.D.M. while passing the externment order. There is a mention about the record of statements of two confdential witnesses like ‘A’ and ‘B’, but the portions of the statements quoted show that they are very vague and it is not possible to believe that the ofcer had any opportunity to verify the truth of the allegations.

25) The question arises as to whether the order under section 55 of thecould have been made when there were aforesaid circumstances. The provision of section 55 of theis as under :-

"55. Dispersal of gangs and bodies 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 ofcer may, by notifcation addressed to the persons appearing to be the leaders or chief men of such gang or body and published by beat of drum or otherwise as such ofcer thinks ft, direct the members of such gang or body so to conduct themselves as shall seem necessary in order to prevent violence and alarm or disperse and each of them to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts, or any part thereof, contiguous thereto within such time as such ofcer shall prescribe, and not to enter to 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."

26) The title of section 55 of theis “Dispersal of gangs and bodies of persons”. The important terms and expressions used in this provision are ‘movement’ or ‘encampment of any gang’ or ‘body of persons’. The essential condition for use of this section is that the movement or encampment is causing or is calculated to cause danger or alarm. The provision, however, shows that if the movement etc. of the gang has created reasonable suspicion that unlawful designs are entertained by such gang or persons or members of the gang, that suspicion is sufcient to take action under this section. There is no need of entering into further interpretation to ascertain as to whether the unlawful design needs to be only in respect of danger or alarm mentioned in the provision as that is not necessary in the present matter. Section 57 of thecan be used when there is conviction for the ofences mentioned in section 57 and that provision contains ofence of gambling also. In the present matter, there is no such conviction and that point needs to be kept in mind. In any case, the frst thing that needs to be established for use of section 55 of theis the existence of a gang or body of persons and the activity of such gang or body of persons needs to be aimed at the things like danger or alarm.

27) While deciding Criminal Writ Petition Nos. 1356/19 and others cited supra, this Court has made observations at para Nos. 15 to 17 and they are as under :-

“15) In the present matter, the police station wanted to show that the gang was formed of which Hari was the leader and present petitioners and others were its members. From the record, it can be said that the ofcer and the police station wanted to use only the provision of section 55 of the. The provision runs as under :-

"55. Dispersal of gangs and bodies 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 Sub-Divisional 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 ofcer may, by notifcation addressed to the persons appearing to be the leaders or chief men of such gang or body and published by beat of drum or otherwise as such ofcer thinks ft, direct the members of such gang or body so to conduct themselves as shall seem necessary in order to prevent violence and alarm or disperse and each of them to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts, or any part thereof, contiguous thereto within such time as such ofcer shall prescribe, and not to enter to 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."

If we read the provision of section 55 of the Act, one can say that the provision is not that compact and on many aspects, there are vague terms. Only after going through the scheme prepared in the for externment and after considering the provisions of sections 56 and 57 of the Act, one can understand the meaning of some relevant terms, expressions used in section 55 of the. The objectionable activities are described as unlawful designs which are entertained by such gang and the purpose is mentioned that to prevent violence and alarm. The aforesaid terms, expressions can be found only in clauses (a) (b) and (bb) of section 56 of the. They are as under :-

"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 notifcation in the Ofcial Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf -

(a) that the movements or acts of any person are causing or 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 ofence involving force or violence or an ofence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such ofence and when in the opinion of such ofcer 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 defned in the Maharashtra Prevention of Communal, Antisocial and other Dangerous Activities Act, 1980, or (2) in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defned in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, or."

16) This Court holds that the provision of section 55 needs to be considered with the aforesaid portion of provision of section 56 of theand so, the case against the persons like present petitioners need to be brought within the scope of these provisions. If that is not done, due to the vagueness of the provision of section 55 of the Act, there will be opportunity to the ofcer to pass order in other circumstances which are not described under the scheme of externment.

17) The aforesaid provisions and discussion show that in such a case it frst needs to be established that gang as mentioned in section 55 exists. In the present matter, only one crime of the year 2018 is mentioned in which the petitioners are shown as accused along with so called leader Hari. There is clear possibility that the said incident took place out of some political dispute in view of the description of the incident given in order and the show cause notice. The other ofences mentioned along with the description show that those crimes were registered due to individual disputes of the petitioners and not due to the activity of the gang. The incidents for which the crimes are registered due to individual disputes cannot be considered under section 55 of the. Thus, in the present matter, the basic ingredients of section 55 are lacking. This Court holds that there is clear possibility of malice and it is an attempt to suppress the political opponents of ruling group. It is unfortunate that ofcers are not acting fairly and such orders are being passed against the political opponents. This Court holds that in view of the facts of the present matter, intervention is necessary to protect the fundamental rights. In the result, following order :-

ORDER

All the petitions are allowed. The order of externment made by the Sub Divisional Magistrate (Superintendent of Police) and the order made by the appellate authority are hereby set aside.

Rule is made absolute in those terms.”

28) In the decision of Criminal Writ Petition No. 1356/19 cited supra, the observations are made on merits of the matter at para nos. 10 to 14 and they are as under :-

“10) All the petitioners replied the aforesaid show cause notice. They contended that the externment proceedings were started against them out of political issue, dispute. They contended that they were ordinary labours and they were earning their livelihood only by doing the labour work. They contended that no gang as alleged in the show cause notice was in existence. They contended that as they are from Bhavki of Hari, their names were taken in the last crime and there was no gang as such.

11) The submissions made and the record show that all the crimes against the petitioners were registered only in Gangakhed Police Station. In show cause notice and even in the order no activity of petitioners is shown in other Tahsils which are covered by the externment order. The order of externment shows that as against petitioner Dayanand Crime No. 67/2019 under Prohibition Act is also mentioned in externment order when this crime was not mentioned in show cause notice. Thus, the principle of natural justice were not followed in the case of Dayanand. The externment order shows that the movement of the gang was found in the area of Gangakhed Police Station and area of Sambhaji Nagar Police Station, Parli, District Beed. There is no real justifcation in the externment order as to why it is necessary to make externment order in respect of remaining areas. Only mention that the other areas, other Tahsils are adjacent to Gangakhed Police Station area and due to conveyance available, the petitioners can operate from those areas is not sufcient. If that proposition is accepted, in view of the modes of communication available at present, no area can be excluded. Thus, the reasoning given in respect of the order of externment which is applicable to Tahsils other than Gangakhed is not that convincing. There is no specifc mention about any incident during which the movements were noticed in adjacent areas and there is nothing to show that they have the capacity to operate from those places. Thus, the order made against the petitioners is excessive. The other circumstances show that there is clear possibility of malice behind the order. It was submitted by the learned counsel for petitioners that the petitioners were working for one political organisation and to prevent them for working for the said organisation, the externment order is issued. When the externment order was made, the election to Parliament were already declared and as per the tenure of the State Legislative Assembly, the externment order covers the period of election process of State Legislative Assembly also. As already observed, petitioners have dispute with rival political group.

12) Due to the provisions of sections 55 and 56 of the Act, in such cases the order needs to mention as to what is the nature of such dispute, as to what was action taken against rival political group and if that was not taken, why such action was not taken against rival political group and why the action needs to be taken against only one political group. Further, there are no convincing reasons as to why the period of externment is of only six months in respect of petitioners of frst three petitions and it is of one year in respect of the petitioners from the remaining two petitions. These circumstances also show that there was no subjective satisfaction and the ofcer was not fully satisfed due to the nature of aforesaid material produced against the petitioners. For the same grounds, there cannot be diferent approach in respect of diferent persons.

13) The externment order is a serious thing and it afects fundamental rights. The provision of Article 19 and 21 of Constitution of India show that the fundamental right of freedom of movement guaranteed by clause (d) of Article 19 is in addition to the fundamental right of personal liberty guaranteed under Article 21 of the Constitution of India. One has to go with the presumption that externment order has violated these rights unless the law and the procedure given for permissible restrictions is followed. To ascertain as to whether the order of externment is as per law prescribing restrictions, the Court has power to scrutinise the material on the basis of which the order is made. Though it is a matter of subjective satisfaction, it is the duty of the Court to ascertain as to whether there were malafdes behind the order and whether the order can sustain in law, whether it is as per the provisions of law, creating restrictions on fundamental rights.

14) The provision of Article 19 of Constitution of India shows that there must be law in existence for putting restriction. The restriction needs to be reasonable and the term reasonable restriction applies to substantive reasonableness and also procedural reasonableness. From that angle also while ascertaining the aforesaid things, the Court needs to consider various aspects like object behind the order and that needs to be considered in relation to the conditions which were prevalent at the time when the order was made. Such order can be made only when evil exists and for that there needs to be material. Then it needs to be ascertained as to whether the restriction is proportionate to the evil. The Court is also expected to ascertain the extent and urgency in respect of evil. At the time of consideration of challenge to the externment order, the Court is expected to keep all these things in mind, otherwise there will be no protection to the fundamental rights.”

29) The learned counsel for petitioners placed reliance on some observations made by this Court at Principal Seat while deciding Criminal Writ Petition No. 2454/2018 decided with other matters [Shri Altaf Rajekhan Pathan and Ors. Vs. The Divisional Commission, Pune, Division Pune]. In that matter decided on 12/07/2018, some observations are made with relation to the interpretation of term ‘gang’ etc. and those observations are at para Nos. 23 and 24 and they are as under :-

“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 diferentiated 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 Jadhavs case (supra) is misplaced, as the said judgment is turning on the facts of the said case where ofences 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 fve 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 fulflled. 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 Shaikhs case (supra). In the said case the facts were that the ofences were registered against the gang leader and one member of the gang and no ofences 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 feld since the year 2013. A similar note was sounded by the Division Bench in Vijay Lalso Jadhavs 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 ofences under the gambling act have been individually registered against the gang leader and one member as can be seen from the show cause notices which are issued to the Petitioners in all the above Writ Petitions. There is no ofence 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.”

30) In Criminal Writ Petition No. 2454/18 cited supra, this Court at Principal Seat has observed that the provisions of ofences under Maharashtra Gambling Act mentioned in section 57 of theare covered by section 55 of the. It is already observed that this Court does not want to enter into possible dispute over that interpretation as that is not necessary for the present purpose.

31) The learned APP placed reliance on observations made by the Apex Court in the case reported as 1956 CRI.L.J. 1104 [Hari Khemu Gawali Vs. Deputy Commissioner of Police Bombay and Anr.] and submitted that when the decision of the authority, ofcer is based on subjective satisfaction, the Court in exercise of jurisdiction under Article 226 of Constitution of India cannot examine the material in objective way. The facts of this reported case show that the material in respect of the previous order of discharge and acquittal was produced before the ofcer and that was considered for passing the order of externment. However, there was one conviction and the conviction was admitted by the opponent, the person against whom the proceeding was started and externment order was made under section 57 of the. It was held that for prevention of repetition of the crime, the previous, other record also can be considered. There cannot be dispute over this proposition. In other case reported as AIR 2005 SUPREME COURT 2080 [State of N.C.T. of Delhi and Anr. Vs. Sanjeev alias Bittoo], the Apex Court has laid down that judicial review of administrative action can be on the ground of illegality, irrationality and procedural impropriety. There cannot be dispute over this proposition also. When there is no material to fulfll the conditions as laid down in section 55 of the Act, the order itself becomes illegal, without jurisdiction.

32) The learned APP placed reliance on observations made in other cases and they are as under :-

(i) AIR 1973 (SC) 630 [LQ/SC/1972/586] [Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, The State of Maharashtra],

(ii) Judgment delivered by Delhi High Court in CRL.Rev.P.No.42/12 and Anr. [State of NCT of Delhi Vs. Khalil Ahmed] on 23/4/2012,

(iii) 2000 ALL MR (Cri) 1648 [Janardan Ramchandra Kuthe Vs. Sub-Divisional Magistrate, Alibag & Anr.],

(iv) 2017 ALL M.R. (Cri) 3969 [Balu @ Balasaheb Jagannath Jadhav Vs. Divisional Commissioner and Ors.] and

(v) AIR 2003 (SC) 3116 [LQ/SC/2003/822] [Gazi Saduddin Vs. State of Maharashtra].

In all the aforesaid fve cases, the facts were diferent from the facts of the present matter. There is no need to discuss the observations made as those matters were totally diferent.

33) In view of the discussion made above, both in respect of relevant facts and position of law, this Court holds that there is no material to hold that ‘gang’ or body of persons’ was in existence in both the cases when the order of externment came to be made. This Court holds that the provision of section 55 of thecould not have been used against both Limbaji and Hari and so, the orders of externment made against them need to be set aside. In the result, the following order :-

ORDER

34) Both the petitions are allowed. The orders of externment made against the petitioners of both the proceedings by S.D.M. Parbhani and orders in appeal made by Divisional Commissioner, Aurangabad are hereby quashed and set aside.

35) Rule is made absolute.