1 Cri.Writ Petition No.1023 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1023 OF 2010 Pintu @ Bajirao Buwaji Pagare, Age-26 years, Occu-Shepherd, R/o.Dhangarwada, Jaitane, Tq.Sakri, Dist. Dhule PETITIONER VERSUS 1. The State of Maharashtra, 2. The Sub-Divisional Police Officer, Dhule RESPONDENTS Mr.Joydeep Chatterji, learned counsel for the petitioner. Mr.N.R.Shaikh, learned A.P.P. for respondents. (CORAM : A.V.POTDAR, J.) DATE : 19/04/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 2. By the present writ petition under Article 227 of The Constitution of India, the petitioner has approached this Court to quash and set aside the order passed by the Principal Secretary 2 Cri.Writ Petition No.1023 of 2010 (Appeal and Hearing) in appeal no.EXT-2010/161/Special Branch-3(A), by which the order passed by the Sud Divisional Police Officer, Dhule in externment proposal no.1/2009, on 23/07/2010 was confirmed. 3. It is urged across the bar that the petitioner herein was served with the show cause notice u/s. 59 of The Bombay Police Act by the S.D.P.O. Dhule (Gramin) Sakri, dated 10/02/2009. In the said show cause notice, reference is give about the offences registered against the petitioner in Nizampur Police Station, which are as follows : Sr.No. Crime No. Offences Court case no. and status 1. 5/2005 u/s. 447, 427, 323, 504, 506, 34 of The IPC RCC No.807/2005, pending 2. 49/2005 u/s. 307, 143, 147, 148, 149, 332, 333, 435, 225, 427, 436 of The IPC, u/s. 3 and 7 of The and u/s. 135 of The B.P. Act RCC No.94/2006, pending 3. 13/2006 u/s. 307, 447, 34 of The IPC RCC No.418/2006, pending 4. 32/2007 u/s. 382, 380, 461 of The IPC RCC No.317/2007, pending 5. 43/2007 u/s. 395 of The IPC RCC No.239/2007, pending 6. 20/2005 u/s. 110 of The Cr.P.C. -- 7. 21/2005 u/s. 110 of The Cr.P.C. -- 8. 95/2006 u/s. 110 of The Cr.P.C. -- 9. NC No. 105/2008 u/s. 112, 117 of The Bombay Police Act. Warning was given. The petitioner was called upon to show cause as to why he should 3 Cri.Writ Petition No.1023 of 2010 not be externed. Reply was given to the said shown cause. Thereafter, proposal of externment was forwarded by the S.D.P.O. and accordingly order of externment was passed and the petitioner was externed from Dhule and Nandurbar district for one year. This order of Sub Divisional Police Officer was challenged by way of Criminal Appeal No. 161/2010 before the State Government. The said appeal was also dismissed by the Principal Secretary (Appeal and Hearings) vide its order dated 14/10/2010 and the order of S.D.P.O. was confirmed, which is impugned in this writ petition. 4. In response to the notice issued to the State, affidavit in reply was filed, supporting the order impugned in the present writ petition. It is averred in the said affidavit that the orders are rightly passed by the competent authorities. It is also urged that some of the witnesses have given confidential details about the illegal activities of the petitioner and shown their inability to give evidence because of the fear of the petitioner. 5. Heard respective counsels for the parties. It is urged on behalf of the petitioner that the order impugned in this writ petition is excessive as the alleged offences registered against the petitioner are registered only in the jurisdiction of Nizampur Police Station and no any offence was registered against the petitioner in any other police station under the jurisdiction of Dhule and Nandurbar District. Reliance is placed by the learned counsel for petitioner about the observations of Division Bench of this Court in the matter of Umar 4 Cri.Writ Petition No.1023 of 2010 Mohammed Malbari versus K.P.Gaikwad and another, 1988(2) Bom. C.R. 724, wherein it is observed that order of externment by which externee was externed out of limits of the place and other places which are at far distance, then the order of externment was excessive and such excessive order would be liable to be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case. These observations are based on the earlier observations of this Court in the matter of Balu Shivling Dombe versus Divisional Magistrate, 71 Bom.L.R. 79, so also observations in the matter of Pandharinath Shridhar Rangnekar versus Dy.Commissioner of Police, A.I.R. 1973 S.C. 630, wherein it is observed that on the facts of that case the externment order was set aside on the ground that it was far wider than was justified by the exigencies of the case. Attention of this Court is further drawn to the observations of this Court in the matter of Punjaji Dagadu versus State, 2001(3), Mh.L.J. 926, wherein the same observations were followed as observed in the matter of Umar Mohammad (cited supra) were relied upon. My attention is further drawn towards the fact that the consistent view is taken by the bench of this Court in the matter of Sandip Devidas Thorat versus The Principal Secretary (Appeals and Hearing), Home Department, State of Maharashtra and another, 2010 All MR (Cri.) 3046, so also in the matter of Vijay Aabarao Raje versus State of Maharashtra and another, 2010 All MR (Cri.) 2772. Relying on these observations, it is urged on behalf of petitioner 5 Cri.Writ Petition No.1023 of 2010 across the bar that the show cause notice served upon the petitioner indicates that the alleged activities of the petitioner are constrained to the jurisdiction of Nizampur Police Station only, then his externment from the entire Dhule and Nandurbar District is excessive. 6. During the course of submissions on behalf of State, reliance is placed by the learned A.P.P. on the observations of this Court in the matter of Gafoor Dastagir Shaikh versus State of Maharashtra and another, 2006(1) Bom.C.R. (Cri.) 514, particularly about the observations in para no.6 of the said rulling. 7. Considering these submissions and observations of the Division Bench of this Court, so also the consistent view taken by the Single Judges of this Court at various benches, wherein it is observed that if the activities indulged by the applicant are restricted to a particular area, then the order of externment, externing the petitioner out of other areas, without subjective satisfaction of the authorities, is un-reasonable and required to be struck down. In view of these observations, if the competent authority has acted in excess of jurisdiction, then the jurisdiction of the High Court is to quash the order passed in excess of jurisdiction. High Court has no power to go further and to correct an excessive order passed by the authority concerned, but the only order to be passed is to quash and set aside the impugned order. 6 Cri.Writ Petition No.1023 of 2010 8. In view of this, petition succeeds. Order impugned is hereby quashed and set aside. 9. Rule thus made absolute in terms of prayer clause B. Writ petition stands disposed of accordingly with no order as to costs. (A.V.POTDAR, J.) khs/APRIL 2011/cri.w.p.1023-10