IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1523 OF 2008 Sajid Ali Barkat Ali Pathan .. Petitioner Vs. State of Maharashtra & Ors. .. Respondents Mr.C.K.Pendse for the petitioner. Mrs.P.P.Shinde, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 11th August 2008. JUDGMENT: . Heard the learned counsel appearing for the parties. By this petition under Article 227 of the Constitution of India, the petitioner has taken an exception to an order of externment passed against the petitioner on 13th May 2008 by the learned Executive Magistrate, Miraj in purported exercise of power under section 56(1)(a) of the Bombay Police Act, 1951. The challenge is also to the order of Appellate Authority by which the order of externment has been confirmed with a modification. 2. On 23rd November 2007, a show cause notice was issued by the Sub Divisional Officer, Miraj to the petitioner. In the show cause notice it was stated that : 2 : there were five first information reports registered against the petitioner with Miraj City Police Station alleging commission of cognizable offences. It was alleged that one case alleging commission of non cognizable offence has been registered against the petitioner at Miraj police station. It was alleged that from time to time preventive action has been taken against the petitioner. It was alleged that due to the conduct of the petitioner, a fear is created in the minds of the public at large and there is a danger to the life and property of the public at large. A reply was filed by the petitioner to the said notice. The reply was filed on 13th December 2007. After notice under section 59(1)(a) of the said Act of 1951 was served to the petitioner, a further reply was filed on 29th January 2008. The order of externment was passed on 13th May 2008 by which the petitioner was ordered to be externed from the districts of Sangli and Kolhapur for a period of one year. In the appeal the said order has been modified by the State Government by confining the order of externment only to the district Sangli and by reducing the period to 6 months from one year. 3. The submission of the learned counsel appearing for the petitioner is that though a show cause notice : 3 : was issued on 23rd November 2007, the order of externment was belatedly made in malafide manner on 13th May 2008 just to ensure that the petitioner does not participate in the election of the Municipal Corporation. He submitted that extraneous material was considered while passing order of externment and therefore, the petitioner was denied an opportunity to deal with the said material. He submitted that during the pendency of the show cause notice, the police department called upon the petitioner to join as a member of peace committee for celebration of festival of bakri id. His submission is that the order is not only based on extraneous material but is vitiated by malafides. The learned A.P.P supported the impugned orders by pointing out material against the petitioner. 4. Perusal of the order dated 13th May 2008 shows that authority has relied upon an offence allegedly registered against the petitioner of commission of robbery. Moreover, the authority has relied upon the report submitted by the Sub Divisional Officer as regards the conduct of the petitioner. I find from the show cause notice that there is no allegation made therein that an offence of commission of robbery has been registered against the petitioner. : 4 : 5. The offence allegedly registered against the petitioner of commission of robbery has been considered by the authority which has passed the order of externment. Thus the authority has considered extraneous material while passing order of externment. Only on this ground the order of externment deserves to be quashed and set aside as the petitioner had no opportunity to deal with the aforesaid aspect while filing a reply to the show cause notice. Apart from this fact it must be noted here that the Appellate Authority found the order of externment to be excessive. The law on the point is very clear. Once an order of externment is found to be an excessive the same becomes illegal and therefore the same is required to be quashed. The said order cannot be modified. 6. Therefore, the petition must succeed and rule is made absolute in terms of prayer clause (a). No orders as to costs. (A.S.Oka, J)