1 WP 815.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION WRIT PETITION NO. 815 OF 2O11 Sadique Sayyadsab Qureshi. ... Petitioner. V/s. The Dy. Commissioner of Police Solapur & Anr. ... Respondents. Mr. U.N. Tripathi for the Petitioner. Mr. J.P. Kharge, APP for the Respondents. CORAM : A.R. JOSHI, J. RESERVED ON : 18th APRIL 2011. PRONOUNCED ON : 28th APRIL 2011. P.C. :- Rule. Rule made returnable forthwith. By consent of parties, Writ Petition is heard finally. 2. Rival arguments were heard. Perused the accompanying documents to the present Writ Petition. By the present Writ Petition, the Petitioner has challenged the externment order dated 23rd November 2010 passed by the Deputy Commissioner of Police, Solapur Division. By the said externment order, the Petitioner was externed for the period 2 WP 815.11.sxw of two years from the area of Solapur, Osmanabad and Pune Districts. 3. Initially, show cause notice was issued against the Petitioner under Section 56(1)(a) and (b) of Bombay Police Act, 1951. Said notice dated 7th September 2010 was issued by the Asstt. Commissioner of Police, Second Division, Solapur. It was served on the Petitioner on 12th September 2010. The Petitioner appeared before the A.C.P. and submitted his reply. After scrutiny of the material available against the Petitioner and knowing contents of the reply, proposal was forwarded to the externing authority for necessary action. Externment order was passed on 23rd November 2010 as mentioned above. It was challenged by the Petitioner by preferring an Appeal under Section 60 of Bombay Police Act, 1951 before the State Government. Said Appellate Authority decided the Appeal on 24th February 2011 and rejected the same. As such, being aggrieved by the externment order and the order of the Appellate Court and feeling that the said orders violated the fundamental rights of the Petitioner, he preferred the present Writ Petition, which is under consideration. 3 WP 815.11.sxw 4. During the arguments, learned Counsel for the Petitioner pressed only one argument as to the externment order suffering from the vice of excessive jurisdiction inasmuch as unreasonable restrictions are imposed on the personal liberty of the Petitioner by externing him from three Districts i.e. Solapur, Osmanabad and Pune, whereas activities alleged against the Petitioner are restricted to the area of Sadar Bazar within the jurisdiction of Solapur. 5. On carefully going through the contents of the show cause notice dated 7th September 2010, there is specific mention of 4 pending cases. Out of them, one is still under investigation. It is also mentioned in the show cause notice that preventive action under Section 110 of Cr.P.C. has already been initiated and interim bond is obtained from the Petitioner in the matter of chapter proceeding bearing No.28 of 2009 and such orders were passed on 16th September 2009. Details as to the pending cases against the Petitioner are listed hereunder for ready reference :- 4 WP 815.11.sxw Sr.No Police Station Cr.No. U/Sec. Present Position 01 Sadar Bazar 104/09 143, 147 to 149, 323 of I.P.C. and 135 of Bombay Police Act. Pending 02 Sadar Bazar 106/09 324, 323, 504 r/w. 34 of I.P.C. and 135 of Bombay Police Act. Pending 03 Sadar Bazar 155/09 143,147,148, 149,452, 323 of I.P.C. and 135 of Bombay Police Act. Pending 04 Sadar Bazar 179/10 452, 506, 323 r/w. 34 of I.P.C. Under investigation 6. Apart from above mentioned pending cases, reference is also made in the show cause notice regarding in-camera statements of two witnesses giving relevant details as to dates, timings and actual incidents. Considering the said material available against the Petitioner, externing authority was satisfied regarding passing of the exterment order against the Petitioner. 7. In the Writ Petition as mentioned above, only one ground is pressed as to excessive jurisdiction and in support of this 5 WP 815.11.sxw contention, ratios of the following authorities were taken shelter :- 1. 1969 Mah. Law Journal (Balu V/s. Divisional Magistrate, Pandharpur). 2. 1988 Mah. Law Journal 1034 (Umar Mohamed Malbari V/s. K.P. Gaikwad, Dy. Commissioner of Police & Anr.). 3. 2005 All M.R.(Cri.) 2717 (Ganpat @ Ganesh Tanaji Katare V/s. Assistant Commissioner of Police & Ors.). 8. The relevant observations contained in paragraph 9 of the authority Balu V/s. The Divisional Magistrate, Pandharpur (Supra) can be reproduced with advantage as it is relevant so far as present matter is concerned :- “............ Section 56 authorises the externment of a person outside the area within the local limits of the jurisdiction of the authority making the order as well as “such area and any district or districts, or any part thereof, contiguous thereto.” These words, however, cannot be so interpreted as to enable the authority to extend the area of externment without reference to the purpose of the 6 WP 815.11.sxw externment. In a sense, the whole State of Maharashtra is contiguous to any area within that State. If the authority concerned is not to have an arbitrary and unguided discretion in deciding the area of externment, it must follow that the area must be so chosen as to meet the situation created by the movements or acts of the person to be externed. Such an interpretation is also necessary in order that Section 56 may be in conformity with Article 19(5) of the Constitution referred to above. The restriction placed by Section 56 on the fundamental rights guaranteed by Article 19(1)(d) and (e) of the Constitution cannot be held to be a reasonable restriction, unless the area of externment is restricted to the requirement created by the movements or acts of the person to be externed. The allegation contained in the notice in the present case was that the illegal acts of the Petitioner had led to an atmosphere of danger and alarm “in Pandharpur city and the surrounding area.” The two illegal acts on which the Sub- Divisional Magistrate relied were confined to Pandharpur city. No reasons have been given or suggested by the Sub-Divisional Magistrate for extending the area not only outside the Pandharpur taluka, but to the district of Solapur, and the districts of Poona and Satara as well.” 7 WP 815.11.sxw In view of the above observations of the Division Bench of this Court, it must be said that the present extenment order is also suffering from the voice of excessive jurisdiction inasmuch as the illegal activities alleged against the Petitioner are mostly confined to Solapur City and mainly Sadar Bazar Police Station and as such, there is no data available regarding his activities within the areas of Pune and Osmanabad Districts. 9. Similar ratios were propounded in other two authorities. It is observed that mere geographical proximity is not ground to extend the order of externment to another districts in which there are no objectionable activities by the externee. 10. In view of the above factual position and considering the material available before the externing authority, the arguments advanced on behalf of the Petitioner are required to be accepted. In the result, the present Writ Petition is disposed of with following order :- (i) Writ Petition is allowed. Impugned order of externment dated 23rd November 2010 and the order of 8 WP 815.11.sxw the Appellate Authority dated 24th February 2011 are quashed and set aside. (ii) Rule made absolute accordingly. (A.R.JOSHI, J.)