AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.516 OF 2010 Smt. Gulshan Arif Tase ... Petitioner Vs. Sub-Divisional Magistrate, Thane Division, Thane & Anr. ... Respondents Mr. S.V. Kotwal with Ms. V.R. Raje i/b. Mr. A.S. Sawant for the petitioner. Ms. S.D. Shinde, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. MRIDULA BHATKAR, JJ. DATED : 11TH FEBRUARY, 2010. P.C.:- 1. Rule. Learned A.P.P. waives service for the respondents. By consent of the parties, taken up for hearing and final disposal forthwith. 2. The petitioner has challenged in this petition, Externment Order bearing No.TD/2/MAG/EXT/SR-7/2009 AJN 2 dated 27/1/2010 passed by the Sub-Divisional Magistrate, Thane Division, Thane. By the impugned order, the petitioner has been externed from five districts. The petitioner has preferred an appeal to the State Government, which is pending. The appeal is filed on 5/2/2010. The petitioner had prayed for stay of the impugned order. However, the stay application has been rejected. 3. We have heard learned counsel for the petitioner. He has drawn our attention to the judgment of this court in Shamkumar Arjun Dalvi v. The State of Maharashtra & Anr., 1988(1) Bom.C.R. 131, where the Division Bench of this court has observed that when an appeal is provided by the statute and the same is filed, it is then, in a matter of externment, but just and fair that pending the appeal, the externment is stayed. It is observed that refusal in that behalf may, in a given case, as well render the appeal itself infructuous. We may quote the relevant paragraph. “3. Now, when an appeal is provided by the statute and the same is fild, it is then, AJN 3 in a matter of externment, but just and fair that pending the appeal, the externment is stayed. Refusal in that behalf may, in a given case, as well render the appeal itself infructuous. We are informed that stay is not granted as a matter of policy. If that is so, it is rather unfortunate. It tends to defeat justice. The need for externment should be balanced with the requirement to be just, fair and reasonable to the externee. If a life convict can be released on bail or a preventive detenue on parole or one accused of serious economic offence granted even anticipatory bail, what is so extraordinary qua an externee that in no case he should be given stay ? Besides, discretion vested in an appellate authority must be exercised not blindly as a matter of policy but rationally depending upon the facts and facts of each case. In all the circumstances, we are inclined to grant stay pending the appeal with direction to decide the same expeditiously.” After so observing, the Division Bench stayed the order of externment pending appeal and gave a direction for expeditious disposal of the appeal. 4. This judgment has been followed by the Division Bench AJN 4 of this court, to which one of us (Smt. Ranjana Desai, J.) is a party in Writ Petition No.972 of 2009 in Manish Suresh Patil v. The Asstt. Commissioner of Police & Ors. decided on 21/4/2009. In view of the above, in our opinion, the impugned order of externment needs to be stayed pending the appeal preferred to the State Government. However, the State Government needs to be given a direction to dispose of the said appeal within a time- frame. Hence, the following order : 5. Learned A.P.P. states that the State Government will dispose of the pending appeal within a period of two months from the date of receipt of this order by it. In view of this, we direct that the pending appeal be disposed of within two months from the date of receipt of this order. The externment order shall remain stayed without prejudice to the contentions of the respondents till such time as the appeal preferred by the petitioner is heard and finally disposed of by the State Government and for a period of two weeks thereafter, if the order AJN 5 passed by the State Government is against the petitioner. 6. We make it clear that we have not expressed any opinion on the merits of the case. 7. The petition is disposed of. [MRS. RANJANA DESAI, J.] [MRS. MRIDULA BHATKAR, J.]