drp {1} CWP No.275/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.275 OF 2011 Dhammanand s/o Ramesh Ghobale PETITIONER Age-29 years, Occ-Agriculture/Business R/o Mahatma Phule Nagar, Gangakhed, Tq-Gangakhed Dist-Parbhani VERSUS 1. The State of Maharashtra RESPONDENTS 2. The Chief Secretary, State of Maharashtra, Mantralaya, Mumbai ....... Mrs. S.S.Jadhav, Advocate for the petitioner Mr. N.R.Shaikh, APP for respondents State ....... [CORAM : A.V.POTDAR, J.] DATE: 29 th April 2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties, this petition is heard finally at the stage of admission. 2. By this petition, under Article 227 of the Constitution drp {2} CWP No.275/2011 of India, the petitioner has prayed to quash and set aside the order passed by respondent No.2 upholding the order dated 06.01.2011 passed by Sub Divisional Magistrate Parbhani, externing the petitioner from Parbhani and Beed districts for a period of one year. 3. Heard learned counsel for the petitioner followed by the submissions of learned APP. Learned APP has filed affidavit in reply supporting the impugned orders. 4. Such of the facts, as are necessary for the decision of this petition, may briefly be stated thus- The petitioner is resident of Gangakhed, Dist-Parbhani. He was served with show cause notice u/s 57 of the Bombay Police Act dated 08.09.2010 by SDPO Gangakhed, calling upon him to show cause as to why externment proceedings be not initiated against him. Reference of 10 offences, which were registered against the petitioner in Gangakhed police station, was given in the said show cause notice. It further appears that thereafter another show cause notice came to be served on the petitioner on 29.09.2010. The petitioner submitted his reply denying all the allegations. It also appears that subsequently a proposal was forwarded by the Sub Divisional Police Officer, for initiating externment proceedings to Sub Divisional Magistrate, Parbhani. After hearing the parties, it appears that, the Sub Divisional drp {3} CWP No.275/2011 Magistrate, Parbhani vide order dated 06.01.2011, externed the petitioner from Parbhani and Beed districts for a period of one year. The petitioner, being aggrieved by the said order, had preferred statutory appeal u/s 60 of the Bombay Police Act, before the State Government. However, respondent No.2, turned down the appeal preferred by the petitioner and confirmed the order passed by Sub Divisional Magistrate, which is impugned in the present petition. 5. Learned counsel for the petitioner challenged the impugned orders, mainly on three grounds. Viz. Firstly, it is submitted that though the show cause notice refers 10 offences registered against the petitioner, yet out of the same 3 offences are chapter cases i.e. Proceedings u/s 107 of the Criminal Procedure Code, while the remaining 7 offence are under the Indian Penal Code and out of them only two are pertaining to the year 2010 and rest of the offence are of the year 2006. It is further submitted that the show cause notices so also the impugned orders refer that witnesses are not coming forth to give evidence against the petitioner due to fear. The show cause notice does not state that statements of certain witnesses were recorded in camera and it transpired that due to fear the witnesses are not coming forward. According to learned counsel for the petitioner, if statements of the witnesses are not recorded, even in camera, it cannot be inferred that the witnesses are not coming forward to state against the petitioner. drp {4} CWP No.275/2011 6. Secondly it is urged that perusal of the show cause notice so also the proposal forwarded by the SDPO to the SDM and details and particulars of the offences mentioned therein, it is clear that all the offences against the petitioner are registered only in Gangakhed police station. It is informed that there are 8 talukas in Parbhani district and the Beed is an adjoining district. Admittedly, there are no reported criminal activities of the applicant in other area than Gangakhed Taluka. In the premise, according to learned counsel for the petitioner, the order of externment is excessive. 7. Ultimately, it is submitted that though in the offence at Crime No.75/2008 the appellant was convicted by the trial court, yet this Court, in Revision No.38/2009, has released him on bond. Therefore, according to learned counsel for the petitioner, the writ petition be allowed and the orders, impugned in the present petition, be quashed and set aside. 8. Per contra, learned APP, relying on the observations of this Court in the matter of “Gafoor Dastagir Shiekh V/s State of Maharashtra” 2006 (1) Bom.C.R. (cri) 514, has urged that acquittal of the petitioner from criminal case, after issuance of show cause notice, cannot be considered as a ground to set aside the impugned order of externment. In respect of other grounds, it is submitted to pass appropriate order. drp {5} CWP No.275/2011 9. Considering the rival submissions, it is clear that release of the petitioner by this Court, on execution of bond of good behaviour, cannot be considered as a ground to quash the impugned externment order. Now, remain only two grounds that if the contents of the show cause notice as well as the record produced, nowhere disclose that the statements of the witnesses are recorded, even in camera, then whether is it permissible for the competent authority to pass externment order on the said ground and answer to this question has to be in negative. Whenever, externment order is passed on the basis of apprehension then that apprehension has to be based on one of the grounds that witnesses are not coming forward to give evidence against the petitioner due to his fear. Admittedly, in the present case the record is conspicuously silent as to whether any statement of the witnesses is recorded, even in camera. On this ground the externment order is bad in law. 10. Relying on the observations of the Division Bench of this Court, in the matter of “Umar Mohammed Malbari V/s K.P.Gaikwad” 1988 (2) Bom.C.R. 724 consistent view is taken by this Court, that if the record indicates that criminal activities, which are creating law and order problem, are restricting to certain police station, then the externment order relating to the other area, is excessive. Admittedly, the criminal activities of the petitioner are restricted to Gangakhed police station only. It is observed in the said judgment that if an excessive order is passed by the drp {6} CWP No.275/2011 competent authority, then it is not open for this Court, either to correct the excessive externment order or to curtail the area of externment. The only option open for this Court is to quash and set aside the excessive order. Bearing in mind this consistent view taken by this Court, the impugned order of externment, externing the petitioner from Beed and Parbhani districts for one year, is liable to be quashed and set aside. 11. Consequently, the petition succeeds. The impugned order dated 06.01.2011 passed by Sub Divisional Magistrate Parbhani, externing the petitioner from Parbhani and Beed districts for a period of one year, so also the order passed by respondent No.2 upholding the order dated 06.01.2011, are hereby quashed and set aside. Rule is thus made absolute on the terms indicated above. [A.V.POTDAR, J.] drp/A11/cwp275-11