( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1112 OF 2009 Ganesh s/o. Babarao Kachave .. Petitioner Versus The State of Maharashtra and ors. .. Respondents Shri M.P. Tripathi, Advocate for the petitioner. Shri B.V. Wagh, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 17.02.2010 P.C. :- 1. Heard Adv. Shri M.P. Tripathi for the petitioner and A.P.P. Shri B.V. Wagh for the respondents. 2. Rule. Rule made returnable forthwith. With consent of learned advocates appearing for the parties, the petition is heard finally at the stage of admission. 3. By this writ petition the orders of externment passed by the Sub-Divisional Magistrate, Selu in File No. ( 2 ) 2007/BPA/Extn/9 passed on 21.02.2009, as confirmed in Appeal No. Ext/2009/166/VISHA-5, by the Principal Secretary, Home Department, Mantralaya, Mumbai, by his order dated 31.07.2009, are challenged. By above said orders the petitioner is externed from Parbhani district for a period of one year, from the date of order, which is 21.02.2009. The order passed by the Sub-Divisional Magistrate is at Exh. “C” with the petition and it shows that there were in all four offences registered, which were taken into consideration while passing the orders. They are as follows:- (i) C.R. No. 23/05 under sections 324, 504, 506, 34 of I.P.C. The case is pending in the Court. (ii) C.R. No. 4/07 under section 395, 307, 147, 148, 149 of I.P.C. and section 135 of Bombay Police Act. The case is pending in the Court. (iii) C.R. No. 3018/07 under section 188 of I.P.C. and under sections 36/134, 37 (1), 135, 68/140 of the Bombay Police Act. The case is pending in the Court. (iv) N.C. Case No. 126/07 & 188/07 under sections 323, 504, 506 of I.P.C. The case is pending in the Court. 4. It is alleged that the petitioner has not changed ( 3 ) his behaviour inspite of above-said registration of crime and his behaviour is dangerous to the citizens in general. He has created law and order problem. It is also stated that due to fear of physical violence and danger to property, nobody is coming forward to depose against the petitioner and in the circumstances the order of externment for one year was passed. 5. The learned advocate for the petitioner Shri Tripathi stated that out of four offences registered against the petitioner, third offence does not fall within ambit of Section 56 (a), though remaining could be considered. He also argued that there was no evidence whatsoever recorded and there was no material to pass the order. He also produced copy of judgment in R.C.C. No. 122 of 2008 decided by the Judicial Magistrate, First Class, Manvat on 11.01.2010, whereby the present petitioner is acquitted of crime at Sr. No.1 bearing C.R. No. 23 of 2005. He further argued that the dispute was between the petitioner and his land-lord. The petitioner was running a Pan stall which he has taken on rent. The case ended in acquittal. ( 4 ) 6. Adv. Shri Tripathi for the petitioner also pointed out F.I.R. produced at Exh. “A” with the petition, which shows that so far as Crime at Sr. No. 2 is concerned, it was a complaint lodged by P.S.I. Susar against 73 named accused persons and other 100 – 150 persons. Name of the present petitioner appears at Exh.71. It was case of communal riot between Hindu and Muslim communities. There was free fight, arson and looting. It is argued that no specific allegations are made against the petitioner. It is argued that merely filing of such complaint would not be sufficient. 7. Adv. Shri Tripathi cited two cases. First case he cited is Iqbal Hussain Abid Hussain Qureshi V/s. State of Maharashtra and Ors., (1999) Vol. 101 (1) Bom.L.R. 631. In that case it is laid down in para 7 that when the order of externment is based on several grounds and one of the grounds cannot be sustained, the Court cannot decide which ground weighs with the Externing Authority and it cannot substitute the decision over that of the Externing Authority. In this case such situation does not arise. Moreover, the Court after going through papers can very well consider which are main grounds. It is not that the Court has no discretion to ( 5 ) form its own opinion on the material placed before it. The observations are in the peculiar facts of that case. 8. Second case cited is Sanjay Pandurang Nagpure V/s. State of Maharashtra and Anr., 2007(5) Mh.L.J.436. In that case in para 4 it is observed that when it is alleged that the people do not come forward it should be shown that the witnesses though duly served with summonses are not inclined to appear before the Court or if appear frequently turn hostile due to threats given by the petitioner. In my opinion, there must be some evidence or material to show that due to fear, witnesses are not coming forward to depose against the petitioner or are reluctant to lodge complaint against the petitioner. 9. In para 4 of State of Maharashtra and anr V/s. Salem Hasan Khan, AIR 1989 S.C. 1304, the following observations are made by the Supreme Court :- “4. On behalf of the appellant reliance has been placed on the decision of this Court in Pandarinath Sridhar Rangne- kar v. Deputy Commissioner of Police, [1973] 3 SCR 63 where- in a similar plea was taken by the appellant before this ( 6 ) Court. It was contended that the failure on the part of the State Government indicated non- application of mind. The appellant had also urged that the allegations contained in the show cause notice were too vague in absence of details to afford him reasonable opportunity to defend himself. Rejecting the argument, this Court held that a full and complete disclosure of particulars, as is requisite in an open prosecution, will frustrate the very purpose of an externment proceeding. There is a brand of lawless elements in society which it is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence. And legal evidence is impossible to obtain, because out of fear of reprisal witnesses are unwilling to depose in public. While dealing with the contention that the State Government was under a duty to give reasons in support of its order dis- missing the appeal, the point was rejected in the following terms:-- "Precisely for the reason for which the pro- posed externee is only entitled to be informed of the general nature of the material allegations, neither the externing authority nor the State Government in appeal can be asked to write a reasoned order in the nature of a judgment." As observed, if the authorities were to discuss the evidence in the case, it would be easy to fix the identity of the witnesses who were unwilling to depose in public against the proposed externee. A reasoned order containing a discussion would probably spark off another round of harassment. We are, therefore, of the view that the High Court was in error in quashing the order as confirmed by the state Government in appeal.” 10. It is possible some time that no person or witness ( 7 ) would come forward or approach police either to lodge complaint or to give statement because of the fear and threat of the person sought to be externed, but in such case, some material should be before the Court, may be by way of statement of Police Officer or otherwise. In absence of any material, it cannot be said that there was sufficient ground for holding that as against the petitioner the witnesses are not ready to come forward to depose due to fear of the petitioner. In my opinion, there is no basis or material to raise such presumption in the present case. 11. Considering that in one crime the Court has acquitted the petitioner and in other case he is one of the several accused persons in riot case, without there being any specific allegation in the F.I.R. which is made basis for passing the order, in my opinion, the material for consideration is insufficient. At least the order of the Sub-Divisional Magistrate does not show that sufficient material was placed before him and on the basis of same, he has come to the conclusion. In the facts and circumstances of the case, such order cannot be sustained in law. Otherwise, it will give rise to arbitrariness. ( 8 ) 12. In the circumstances, this petition deserves to be allowed. Hence, the writ petition is allowed. The impugned orders of externment passed by the Sub-Divisional Magistrate, Selu in File No. 2007/BPA/Extn/9 passed on 21.02.2009, as confirmed in Appeal No. Ext/2009/166/VISHA-5, by the Principal Secretary, Home Department, Mantralaya, Mumbai, by his order dated 31.07.2009, are hereby quashed and set aside. 13. Rule made absolute accordingly. [P.R. BORKAR,J.] snk/2010/FEB10/crwp1112.09