1 Criminal Writ Petition No.315 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.315 OF 2011 Chintu @ Satish S/o.Uttam Aalhat, Age-30 years, Occu-Business, Ro.Prabuddhanagar, Aalamgir, Bhingar, Tq. Nagar, Dist. Ahmednagar PETITIONER VERSUS 1. State of Maharashtra, Through Principal Secretary, Home Department, Mantralaya, Mumbai-32 2. The Sub-Divisional Magistrate, Nagar Division, Ahmednagar, Dist. Ahmednagar RESPONDENTS Mr.N.V.Gaware, learned counsel for the petitioner. Mr.S.G.Nandedkar, learned A.P.P. for respondent State (CORAM : A.V.POTDAR, J.) DATE : 25/08/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. By consent of both the parties, heard finally at the stage of admission. 2. By the present writ petition under Article 226 and 227 of the 2 Criminal Writ Petition No.315 of 2011 Constitution of India, the petitioner has assailed the legality and correctness of the order dated 05/03/2011 passed by the Principal Secretary (Appeal) (M.S.) in externment Appeal No.Ext-2010/238/VISHA-3(A), externing the petitioner from Ahmednagar district for the period of 2 years, thereby confirming the order dated 30/11/2010 passed by the S.D.O. Ahmednagar Division Ahmednagar in externment proceeding no.6/2010. 3. On 17/08/2010, the petitioner was served with the show cause notice by the S.D.O. Ahmednagar Division Ahmednagar u/s. 59 of the Bombay Police Act. Externment proposal was submitted u/s. 56(1)(a)(b) of the Bombay Police Act. Report of preliminary inquiry was also submitted by the concerned authority before the S.D.O. Ahmednagar Division and the petitioner was called upon to show cause. This notice was replied by the petitioner on 03/09/2010 in which he denied the contents of the show cause notice and contended that he was acquitted from the criminal case mentioned at Sr.No.1 of the schedule and had annexed certified copy of the judgment of the Trial Court alongwith the reply. Petitioner has also contended that he had filed statements of 2 witnesses, but those statements were not considered during the preliminary inquiry. In the substance, show cause notice is bad in law and prayed not to act upon the same. It appears that thereafter, S.D.O. Ahmednagar Division of Ahmednagar Division has passed an externment order dated 30/11/2010, externing the petitioner from Dist. Ahmednagar 3 Criminal Writ Petition No.315 of 2011 for the period of 2 years. This order was challenged before the Home Secretary of the State (Appeal) in externment Appeal No. 2010/238 which came to be dismissed on 05/03/2011, which order is impugned in this writ petition. It is submitted by learned counsel for the petitioner that the show cause notice served on the petitioner was vague and does not disclose any reason for which the petitioner have to show cause. Thus, opportunity was denied to the petitioner to show sufficient cause. Learned counsel for petitioner has submitted that the S.D.O. Ahmednagar Division has observed in his orde that before passing the externment order, it is necessary to prima facie establish that the activities of the externee are dangerous to the personal liberty/to the property of the persons residing in a particular area. The externee is indulged in the offences punishable under chapter XII, XIV and XVI of the IPC. The witnesses in the said offences are not coming before the authority to give evidence due to fear of externee. It is further submitted that the grounds on which the S.D.O. has passed the order, does not reflect that the show cause notice was served on the petitioner and lastly as usual, it is urged that the impugned order is excessive in jurisdiction. 4 crimes were shown to be registered in the show cause notice. Petitioner is already acquitted in the crime listed at Sr.No.1 even prior to the issuance of the show cause notice and the crime shown at Sr.No.4 is in the nature of chapter case. Remaining matters are subjudiced before the Criminal Court. It is urged that the petitioner has not created any Law and order problem, hence the petition be allowed. Per 4 Criminal Writ Petition No.315 of 2011 contra, learned A.P.P. for respondent/State supports the impugned order. 4. At this stage, it is useful to give the reference of the observations of this Court in the matter of Gulshan Arif Tase versus Sub Divisional Magistrate, Thane Division, 2010(2) Bom.C.R. (Cri.) 778, which reads as : “In show cause notice, no reference made about prejudicial activities committed by him in other four districts. Further submits no opportunity given to explain in respect of in-camera statements. Held, show cause notice not refer to any such activity by petitioner in other districts except village Kashimira and District Thane. Order is clearly excessive. No reference made about said in-camera statements. Externing authority relied on certain material which is not referred to in show cause notice. Order of externment is quashed.” 5. In the matter of Namdeo Laxman Charde versus Sub Divisional Magistrate, Katol and another , 1997(Supp.) Bom.C.R. 788 : 1996(1) Mh.L.J. 483, it is observed that, “Contention that Annexure A notice issued under section 59 is defective and consequently proceedings taken on basis of said notice as well as orders are vitiated. Held, there is no mention at all as to in which Court the said cases are pending or as to within jurisdiction of which Police Station, respective offences took place. Notice even does not give date, which would suggest that on account of his behaviour, 5 Criminal Writ Petition No.315 of 2011 the witnesses are reluctant to appear and give evidence against him in open. Hence Annexure A notice is vitiated.” “The notice does not mention that on account of the aforesaid behaviour of the petitioner, witnesses are not willing and ready to depose openly against the petitioner. According to the learned counsel, failure to make an allegation to that effect affects the validity of the notice. Reliance was placed by the learned counsel in support of his argument in the case of (Ayub Yusuf versus S.D.M.) 4, 1986(1) Bom.C.R. 144 : 1986 Mah.L.R. 254, wherein after quoting sections 56(1)(b) and 59, the Division Bench of this Court proceeded to hold that not only there should be mention of the prosecutions for the offences punishable under Chapters XII, XVI or XVII of Indian Penal Code but in addition the officer concerned should be of the opinion that the witnesses are not willing to come forward to give evidence in public against the person against whom the externment proceedings have been started by reason of apprehension on their part as regards the safety of their person or property.” 6. Further, it is useful to give the reference of the observations of this Court in the matter of Ayub Yusuf Mansuri versus Sub- Divisional Magistrate, Nandurbar and others, 1986(1) Bom.C.R. 144, wherein it is observed that, “Notice under section 59, Notice not satisfying requirements of section 56(1)(b), order passed pursuant to said notice would be bad. Where the notice issued under section 56(1)(b) did not mention that in the opinion of the Sub-Divisional Police 6 Criminal Writ Petition No.315 of 2011 Officer who issued the notice, the witnesses were not willing to come forward to give evidence in public against the person against whom the externment proceedings had been stated by reason of apprehension on their part as regards the safety of their person on property, the order of externment passed in absence of such averments in the notice would be bad and liable to be set aside.” Considering the parameters and guidelines as discussed by this Court in the rullings referred in above paragraph, it is clear that the contents of the notice to satisfy the requirements of Section 56(1)(b) to pass the externment order and in absence of the requisite contents in the show cause notice, the notice is bad in law and the externment order passed on suchy notice, required to be quashed and set aside. Perusal of the show cause notice dated 17/08/2010 which is basis of the externment order and the order passed in appeal by the State, on the face of it, these requisite requirements are silent in the said notice. In view of this, show cause notice, basis of the externment order, itself is bad in law.” 5. It is submitted by learned counsel for petitioner that the impugned order suffers from exercising excessive jurisdiction in externing the externee from District Ahmednagar for the period of 2 years, as according to him, the entire record is silent about the alleged activities of the present petitioner in the area from which he was externed. At this juncture, it is useful to give reference of the judgment of the Division Bench in the matter of Umar Mohammed Malbari versus K.P.Gaikwad, 1988 (2) Bombay C.R. 724, which 7 Criminal Writ Petition No.315 of 2011 reads as follows : “if the record indicates that criminal activities, which are creating law and order problem, are restricting to certain police station, then the externment order relating to the other area, is excessive. Admittedly, the criminal activities of the petitioner are restricted to Gangakhed Police Station Only. It is observed in the said judgment that if an excessive order is passed by the competent authority, then it is not open for this Court, either to correct the excessive externment order or to curtail the area of externment. The only option open for this Court is to quash and set aside the excessive order. Bearing in mind this consistent view taken by this Court, the impugned order of externment, externing the petitioner from Beed and Parbhani districts for one year, is liable to be quashed and set aside.” 6. As the show cause notice is bad in law, so also the externment order is also excessive as the notice is also silent about the activities of the externee in the entire Ahmednagar District. In view of this, the order impugned is liable to be quashed and set aside. Accordingly, writ petition is allowed in terms of prayer clause ‘B’ and stands disposed of. 7. Rule is thus made absolute in the above terms. (A.V.POTDAR, J.) khs/AUG.2011/cri.w.p.315-11