1 Cri.Writ Petition No.1009 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1009 OF 2010 Firoz Ahmed Eqbal Khan, Age-28 years, Occu-Education and Service, R/o.Space Plaza, Old Bazar Road, Aurangabad PETITIONER VERSUS 1. The State of Maharashtra, 2. The Deputy Commissioner of Police, Parimandal, Aurangabad RESPONDENTS Mr.Joydeep Chatterji, learned counsel for the petitioner. Mr.V.D.Rakh, 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 (Appeal and Hearing) in appeal no.EXT-2010/159/Special 2 Cri.Writ Petition No.1009 of 2010 Branch-3(A) (Exh.E), by which the order dated 25/06/2010, passed by the Deputy Commissioner of Police, Zone Aurangabad in Police Deputy Commissioner/EXternment/09/6254/2010 (Exh.C) was confirmed. 3. Learned counsel for petitioner urged that on 26/04/2010, A.P.I. Aurangabad, issued notice u/s.59 of The Bombay Police Act to the petitioner, calling upon to show cause why he should not be externed for 2 years from Aurangabad and Jalna district, an action u/s. 56(1) (b) of The Bombay Police Act should not be taken against him. In the said show cause notice, reference is given of the offences registered against the petitioner in City Police Station, Aurangabad, which are still pending in the Court and can be described as follows : Sr.No. Crime No. and Offences Charge sheet no. Court case no. 1. CR No.86/2007, u/s. 324, 323, 504, 34 of The IPC 118/2007, dated 22/09/2007 Court Case No. 1814/2007, dated 10/10/2007, pending 2. CR No.188/2007, u/s. 452, 323, 504 of The IPC 174/2007, dated 27/12/2007 RCC No.2264/2007, dated 28/12/2007, pending 3. CR No.215/2007, u/s. 451, 323, 504 of The IPC 9/2008, dated 27/01/2008 SCC No.764/2008, dated 28/01/2008, pending 4. CR No.16/2008, u/s. 324, 323, 504, 34 of The IPC 65/2008, dated 31/05/2008 Case No.1243/2008, dated 06/08/2008, pending 5. CR No.187/2009, u/s. 498-A, 323, 504, 504, 34 of The IPC 166/2009, dated 03/12/2009 Case No.2108/2009, dated 08/12/2009, pending 6. CR No.19/2010, u/s. 379, 34 of The IPC 30/2010, dated 03/01/2010 Pending 7. NC No.46/2008, u/s. 323, 504 of The IPC -- -- 3 Cri.Writ Petition No.1009 of 2010 The petitioner has replied the said show cause notice on 18/05/2010 and denied all the allegations made against him and prayed to withdraw the said show cause notice. After receipt of show cause notice, the petitioner was directed to remain present before the Deputy Commissioner of Police, Zone Aurangabad for hearing. After hearing, an externment order was passed, externing the petitioner from Aurangabad City and Aurangabad District for the period of 2 years. Learned counsel for petitioner further states that the said order passed by the Deputy Commissioner of Police was challenged by way of appeal no. EXT-2010/159/Special Branch-3(A) u/s. 60 of The Bombay Police Act before the Principal Secretary (Appeal and Hearings). The said appeal was dismissed vide order dated 21/10/2010, which is impugned in this writ petition. In the said order, it is observed that, even though so many crimes are registered against the petitioner, there is no improvement in the attitude of the petitioner. It is further observed that the offences registered against the petitioner are punishable under Chapter XVI and XVII of The Indian Penal Code. Considering the criminal background of the petitioner, it is inferred that the petitioner has no regards about the law and order and because of his terror, witnesses are not coming forth to give evidence against him. On these observations, the Principal Secretary (Appeal and Hearings) confirmed the order passed by the Deputy Commissioner of Police, Zone Aurangabad dated 25/06/2010. 4. In response to the notice issued to the State, affidavit in reply 4 Cri.Writ Petition No.1009 of 2010 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 City Chowk Police Station, Aurangabad and no any offence was registered against the petitioner in any other police station under the jurisdiction of Aurangabad District. Reliance is placed by the learned counsel for petitioner about the observations of Division Bench of this Court in the matter of Umar 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 5 Cri.Writ Petition No.1009 of 2010 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 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 City Police Station only, then his externment from the entire Aurangabad 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. 6 Cri.Writ Petition No.1009 of 2010 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. 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.1009-10