1 Cri. W.P.No. 731 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Writ Petition No.731 Of 2010 * Sangram s/o Janardhan Tupe, Age 42 years, Occupation : Legal Practitioner, R/o Sant Namdeonagar, Beed, Taluka and District Beed. .. Petitioner. Versus 1) The State of Maharashtra Through the Secretary Home Department, Maharashtra State, Mantralaya, Mumbai.32. 2) The Sub Divisional Police Officer, Beed, Taluka and District Beed. 3) The Sub Divisional Magistrate, Beed, Taluka and District Beed. 4) Mahendra s/o Uttamrao Harpalkar, Age 39 years, Occupation : Service, working as Deputy Collector, Employment Guarantee Scheme, and R.D.C. Beed, .. Respondents. -------- Shri. V.D. Salunke, Advocate for petitioner. Shri. K.G. Patil, Additional Public Prosecutor, for respondent Nos.1 to 3. -------- 2 Cri. W.P.No. 731 of 2010 CORAM: NARESH H PATIL & A.V. POTDAR, JJ. Judgment reserved on : 17th March 2011 Judgment pronounced on : 24th March 2011. JUDGMENT : (Per Naresh H Patil, J.): 1) The petitioner challenges notice dated 26-7-2010 issued by the Sub Divisional Magistrate, Beed, under sedition 56(b) of the Bombay Police Act, 1951 (for short, "the Act of 1951'). The notice was issued asking him as to why he should not be externed from Districts of Beed, Osmanabad, Jalna, Ahmednagar and Aurangabad for a period of two years. 2) The petitioner contends that he is residing in Beed town since last 25 years. He is a reputed Advocate practicing in District Court Beed since last 9 years. The petitioner submits that, his father was elected as a Member of the State Legislative Assembly and is a social worker. The petitioner is Chairman of Vividh Karyakari Seva Sahakari Society, Pimpalwadi and is working as 3 Cri. W.P.No. 731 of 2010 Secretary of Beed Zilla Rashtrawadi Congress Party. The petitioner further contends that, respondent No.4 - Deputy Collector (Employment Guarantee Scheme) and Resident Deputy Collector Beed lodged a complaint against the petitioner and pressurized police to register an offence under sections 354, 323 of the Indian Penal Code. The respondent No.4 is a relative of the Superintendent of Police Beed and with the help of close relative the respondent No.4 started pressuring respondent Nos.2 and 3 to harass the petitioner by initiating externment proceedings. It is the petitioner's contention that, due to pressure of respondent No.4, without any reason, respondent No.3 misused powers conferred under the Act of 1951 and initiated action against the petitioner by issuance of a show cause notice. 3) The complaint filed by the Resident Deputy Collector reads that on 29-4-2010 at 14.30 hours petitioner abused him and called him a thief and asked as to why he was distributing amount in night time. It is alleged that the petitioner had threatened him to kill 4 Cri. W.P.No. 731 of 2010 through naxalites. The petitioner submits that the allegations made in the complaint are totally false. No such incident took place. The petitioner tried to settle the issue but respondent No.4 was bent upon to harass the petitioner. The police registered crime No.91/10 on 12-5-2010. The Summary Criminal Case Number is 1332 of 2010. 4) The petitioner's objection is that, a show cause notice was issued by the Sub Divisional Magistrate, Beed, respondent No.3 herein, on 26-7-2010 under the provisions of Section 56(b) of the Act, 1951. The petitioner filed reply to the said show cause notice on 4-8-2010. 5) Consequent to the notice issued, respondent No. 3 filed affidavit-in-reply on 13-10-2010. Respondent No.2 filed his affidavit-in-rely on 14th October 2010. The respondents - State authorities had alleged against the petitioner in respect of his conduct and had referred to criminal case registered by police. 5 Cri. W.P.No. 731 of 2010 6) Learned counsel Shri. V.D. Salunke, appearing for the petitioner, submitted that, respondent No.3 was not entitled to issue show cause notice under section 56(b) of the Act, 1951 merely on the ground of registration of one criminal case against the petitioner. The respondents have misused their powers in issuing the notice. The notice was issued under pressure from respondent No.4. The notice is not tenable and, therefore, it deserves to be quashed and set aside. 7) The counsel further submitted that, the notice to extern the petitioner from five districts also suffers from non application of mind. There is no power with the authority to issue such notice. 8) The learned Additional Public Prosecutor, Shri. K.G. Patil, submitted that the petition is premature. It is filed against a show cause notice to which the petitioner had already filed reply. In case the petitioner suffers adverse order then under the provisions of the Act of 1951 right of appeal is provided to the petitioner. The petitioner has failed to point out that the respondent No.3 has no 6 Cri. W.P.No. 731 of 2010 jurisdiction to issue such notice. The petitioner's conduct was objectionable, and therefore, the authorities had issued notice. 9) The learned counsel Shri. V.D. Salunke, for the petitioner, in support of his contentions, has placed reliance on the following reported judgments. (1) Gunwanta Gajanan Khandekar v. Sub- Divisional Magistrate, 2008 (1) Bom.C.R. (Cri.) 329. (2) Vilas Siddharth Sirsat v. State of Maharashtra, 2010(1) Bom.C.R.(Cri.37. (3) Chandar Dayaldas Sindhi v. M.W. Chitale, Deputy Commissioner of Police Zone II, Kalyan, 1984(2) Bom.C.r. 682. (4) Chhotu Siddinath Kunwar v. State of Maharashtra, 1989 Mh.L.J. 1021. (5) Arun Narayanrao Mande v. State of Maharashtra, 2003 Bom.C.r. (Cri.) 24. (6) Balu Shivling Dombe v. The Divisional Magistrate, 1969 Cri.L.J. 1341. 10) We have perused the judgments cited supra and the relevant provisions of the Act of 1951. We find that the petitioner has already filed reply on 12-7-2010 to the notice dated 1-7-2010 issued by the Sub Divisional Police Officer to the petitioner under section 56(b) of the Act of 7 Cri. W.P.No. 731 of 2010 1951. This petition was filed on 4-8-2010. Under the provisions of Section 60 of the Act of 1951 the petitioner is entitled to file appeal to the State Government in case adverse order is passed against the petitioner. At this stage, in the facts of the case, it would not be proper to discuss the merits of the allegations made against each other by the respective parties and to decide maintainability of the show cause notice. 11) The law in respect of entertaining a writ petition in the light of existence of alternate remedy is well settled. The petitioner is not coming with a case that respondent No.3, Sub Divisional Magistrate, who issued the show cause notice, had no jurisdiction to issue said notice. No doubt, alternate remedy is not an absolute bar, but ordinarily writ petition should not be entertained when there is alternate remedy. 12) In the light of the fact that there is efficacious statutory alternate remedy available to the petitioner, we are not inclined to entertain this writ petition. All the issues raised by the contesting parties are kept open. We 8 Cri. W.P.No. 731 of 2010 expect the respondents - authorities to deal with the issue strictly in accordance with law. 13) The writ petition is dismissed. Rule is discharged. Interim relief stands vacated. Sd/- Sd/- (A.V. POTDAR, J.) (NARESH H PATIL, J.) rsl