wp233.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 233 OF 2011 Nitesh @ Babu Dhondiba Dambale, Age 25 years, Occ. Agriculture, R/o. Gagali Dhamangaon, Tq. Sailu District Parbhani ...Petitioner Versus 1 The State of Maharashtra Through its Principal Secretary, Home Department, Mantralaya, Mumbai 32 2 The Sub Divisional Magistrate Sailu, District Parbhani 3 The Sub Divisional Police Officer, Sailu, Tq. Sailu, Dist. Parbhani 4 The Police Inspector, Police Station, Manwat, Tq. Manwat, district Parbhani ...Respondents ..... Mr. Manish P. Tripathi, advocate for the petitioner Mr. S.G. Nandedkar, A.P.P. for the respondents ..... CORAM: A.V. POTDAR, J. DATED: 7TH SEPTEMBER, 2011 JUDGMENT :- 1 Rule. Rule made returnable forthwith. By consent of the parties, wp233.11 -2- heard finally at the stage of admission. 2 This petition under Article 226 and 227 of the Constitution of India is directed against the order of externment passed by the Sub Divisional Magistrate Sailu, District Parbhani dated 23.9.2010 in file No. 2007/BPA/Ext-5 and confirmed by the Principal Secretary, Home Department, Mantralaya, Mumbai in appeal No. Ext.-2010/199 dated 16.12.2010 externing the petitioner from Parbhani district for a period of one year from the date of externment order 3 I have heard learned counsel for the petitioner followed by the submissions of learned APP for respondents. I have also perused the record which is placed before me. 4 From the submissions across the bar so also from the record which is made available, it discloses that the petitioner was served with a notice under Section 59 of the Bombay Police Act on 1.4.2008, in which five offences were disclosed and it is alleged that due to unlawful activities of the petitioner nobody is coming forward to give evidence against him. This notice appears to be replied by the petitioner on 28.4.2008. In the said reply, it is contended that the petitioner has not created any law and order problem. It is also contended that the petitioner is acquitted from the offence at Sr. Nos. 2 and 3 by the competent criminal courts. The petitioner had also produced copies of the judgments delivered by the competent criminal courts. It further appears that again a final show cause notice wp233.11 -3- under Section 59 of the Bombay Police Act was served on the petitioner on 26.8.2008, which is nothing but photo copy of the earlier notice dated 1.4.2008 served on the petitioner. This notice was also replied by the petitioner, as till that time he was acquitted from the offence shown at Sr. No.1 and also produced copy of the judgment rendered by the competent criminal court. It appears that after necessary proposal was forwarded by the concerned police official for externment of the present petitioner, it appears that the learned S.D.M. by his order dated 23.9.2010 passed externment order externing the petitioner for a period of one from Parbhani district. It further appears that this order is challenged by the petitioner by statutory appeal under Section 60 of the Bombay Police Act before the Principal Secretary, Home Department, Government of Maharashtra, which appeal came to be dismissed on 16.12.2010. Hence, the petitioner is before this Court. 5 The learned counsel for the petitioner would urge that the order suffers from non application of mind as at the time of giving replies to the show cause notices, the petitioner has produced certified copy of the judgments of acquittal rendered by the competent criminal courts in C.R. No. 189 of 2004, 34 of 2005 and in C.R. No. 102 of 2004. However, these judgments produced by the petitioner were not considered by the competent authority so also by the appellate authority. Learned counsel further urged that perusal of the notices dated 1.4.2008 and 26.8.2008, it seems that there is no reference that wp233.11 -4- the statements of witnesses were recorded in camera. Inspite of that the order impugned discloses that it is considered by the competent authority so also by the appellate authority. Perusal of in camera statements of the witnesses recorded during the course of enquiry, disclose that due to threat and terror of the petitioner, the witnesses are not coming forth to give evidence against the petitioner. Learned counsel would urge that this is an extraneous material used against the petitioner, which was not put forth to him by way of show cause notice. It is further urged that in the order, there is reference of one crime took place in the year 2009, which was not referred to the petitioner, while serving first show cause notice as well as final notice and the act of using such material against petitioner is patently illegal. According to learned counsel, the notice is vague and there is delay in passing the externment order and on that ground the petition be allowed. As usual, it is also urged that even though all activities of the petitioner restrict to Sailu police station, however, he is externed from entire Parbhani district, which is in exercise of excessive jurisdiction. 6 The learned APP appearing for the respondents supported the externment order confirmed by the Principal Secretary, Home Department, State of Maharashtra passed by the Sub Divisional Magistrate, Sailu, District Parbhani. wp233.11 -5- 7 Perusal of first notice dated 1.4.2008 and final notice dated 26.8.2008, even though on find that the Reference of these offences registered with Sailu police station. At the same time, I also find reference that the petitioner was acquitted from offence at Sr. No.2 i.e. crime No. 189 of 2004 and crime at Sr. No.3 registered at Sailu police station vide C.R. No. 34 of 2005. The copies of the judgments of acquittal were produced in the reply to the first notice dated 1.4.2008. A copy of judgment of acquittal from the offence at Sr. No.1 produced alongwith the reply to the final notice. However, the same appears to be not considered by the competent authority while passing externment order. Further it is to be seen that perusal of the notices under Section 59 dated 1.4.20087 and dated 26.8.2008 do not find any reference that the statements of any witnesses were recorded in camera. At the same time, in the order, I find reference that perusal of in camera statements of the statements recorded during the course of enquiry disclose that there were terrors and threats at the hands of the petitioner itself goes to show that the orders were passed without application of mind. 8 At this juncture, it is useful to give reference of the observations of this Court in the case of Abdul Kadir Razzaque Beg Vs. Sub Divisional Magistrate, Nasik and others, reported in (1991 Cr.L.J. 1725 = [1991 (1) Mh.L.J. 474]), wherein it is observed thus;- wp233.11 -6- “ Bombay Police Act, Section 59- Externment order passed mechanically without setting out circumstances which weighed with authority-Order cannot be sustained.” Further, it is useful to give reference of the observations of the Division Bench of this Court in the case of Yashwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police & Anr, reported in 1989 (3) Bom.C.R. 240, wherein it is observed thus:- “ Bombay Police Act, 1951, Section 59 – Externment- Notice to proposed externee alleging that proposed externee had engaged or is likely to be engaged in offences under Chapter XII, XVI or XVIII of I.P.C. must also indicate in notice that witnesses are unwilling to depose- Failure to state so would vitiate order of externment.” Further, it is useful to give reference of the observations of the Division Bench of the Gujarat High court in the matter of Madan Magan Patel Vs. H.R. Ghelat and Anr. reported in 1988 Cri.L.J. 1347, wherein it is observed thus:- “ Where the Externing Authority stated in his order that all the 9 prohibition cases mentioned in the show wp233.11 -7- cause notice are pending trial in spite of the fact that, 5 of such cases ended in an acquittal much earlier to the passing of the externment order, the order of externment would be vitiated since the Authority has taken into consideration the irrelevant and extraneous facts in forming its subjective satisfaction and mechanically applied its mind without properly forming its subjective satisfaction. When especially liberty of a person is involved, a strict scrutiny of such externment order is necessary and the order, which has been passed in a cavalier manner without proper application of mind cannot be the basis of passing the order of externment. Case law discussed.” 9 Considering the observations of the Division Bench of this court, as quoted in the above paragraph (supra) and in the light of the notices served on the petitioner dated 1.4.2008 and 26.8.2008, which, according to me, are vague in nature and silent on the point that in camera statements of the witnesses were recorded, appear to be used while passing the externment order, as notices are not complied requisite guidelines to pass the externment order under Section 56(A) and (B) of the Bombay Police Act. The notices are thus bad in law. If the basic foundation i.e. the notices themselves are bad in law, the externment order based on the said notices are patently illegal and is passed without application of mind and if it is so the order impugned is bad in law and required to be quashed and set aside. wp233.11 -8- 10 Accordingly, criminal writ petition is allowed in terms of prayer clause “B”. The judgment and order dated 16.12.2010 passed by Principal Secretary, Home Department, Mantralaya Mumbai in Appeal No. Ext-2010/199, thereby confirming the externment order dated 23.9.2010, passed by the Sub Divisional Magistrate, Sailu in file No. 2007/BPA/Ext-5 is quashed and set aside. The petition succeeds accordingly. Rule is thus made absolute. *****