vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.918 OF 2008 WRIT PETITION NO.918 OF 2008 WRIT PETITION NO.918 OF 2008 Ajju @ Asgar Mohd. Akhtar Khan ... Petitioner V/s. State of Maharashtra & Ors. ... Respondents Mr.Ganesh Gole for Petitioner Mr.D.P. Adsule, APP, for Respondent-State CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: JUNE 30, 2008 JUNE 30, 2008 JUNE 30, 2008 P.C.: P.C.: P.C.: . The petitioner has challenged the order of externment passed against him on 13.7.2007. He has also challenged the order passed by the Secretary, Home Department, Mantralaya on 15.3.2008 partially confirming the order dated 13.7.2007. The period of externment has been reduced to one year by the appellate authority. 2. The facts giving rise to the present petition are as follows: On 23.5.2006, C.R. No.I-71/2006 was registered u/s 379 r/w 34 of the Indian Penal Code wherein the complainant alleged that two unknown persons riding a motor cycle, had snatched her chain and Mangalsutra worth Rs.24,500/- and sped away. The petitioner and his alleged accomplices were arrested. C.R. No.I-78 of 2006 was : 2 : registered at the instance of another lady claiming that two persons riding a motor cycle had snatched her Mangalsutra worth Rs.15,000/-. Again the petitioner and his accomplices were arrested in that case. C.R. No.74 of 2007 was registered against the petitioner with the Bhiwandi police station for offences under section 324 and 34 of the Indian Penal Code. On 19.5.2007. In-camera statements were recorded by the police of two persons. The allegation of both these witnesses against the petitioner was substantially the same, that the petitioner had extorted different sums of money from them. 3. A show-cause notice was issued by the Assistant Commissioner of Police of Western Division, Bhiwandi, District Thane to the petitioner on 24.5.2005 under section 56(1)(a)(b) of the Bombay Police Act, 1951. The petitioner was given a personal hearing and thereafter on 13.7.2007, an order of externment was passed by the Deputy Commissioner of Police, Zone II, Bhiwandi externing the petitioner for two years from the districts of Thane, Mumbai City, Mumbai Suburbs and Navi Mumbai. The petitioner being aggrieved by the externment order, preferred an appeal under section 60 of the Bombay Police Act on 15.3.2008. The appellate authority confirmed the order of externment and modified the period of externment to one year which will end on : 3 : 12.7.2008. 4. The contentions raised by Mr.Gole, learned advocate for the petitioner are (i) that the order of externment is excessive inasmuch as though the offences allegedly committed by the petitioner have occurred in Bhiwandi city, he has been externed from four districts, namely, Mumbai city, Mumbai suburbs, Thane and Navi Mumbai; (ii) that the externing authority has taken into consideration extraneous material which is not germane to the circumstances in the case; (iii) the appellate authority has been influenced by the statement made on behalf of the police that the petitioner had already been externed in 2004 when in fact the order of externment was set aside; (iv) the statement of the complainant in C.R. No.I-71/2006 does not reveal the name of the petitioner and in fact she has been unable to identify the persons who snatched her ornaments while riding a motor cycle; (v) that the respondents have acted vindictively and malafide against the petitioner because he filed a complaint against certain police officers which is registered as C.R. No.90o f 2005. It appears that a chargesheet has already been filed in that case against the police officers. 5. The learned advocate then relies on the judgments in Umar Mohamed Malbari v/s. K.P. Gaikwad, : 4 : Dy. Commissioner of Police & Anr., 1988 Mh.L.J. 1034 1988 Mh.L.J. 1034 1988 Mh.L.J. 1034; Kishor Rajaram Durge v/s. The Deputy Commissioner of Police & Ors., 2003 ALL MR (Cri.) 2023 2003 ALL MR (Cri.) 2023 2003 ALL MR (Cri.) 2023; Silva @ Gora Silva Ayanar Arjun v/s. Nawal Bajaj, Deputy Commissioner of Police & Anr., 2007 ALL MR (Cri.) 84 2007 ALL MR (Cri.) 84 2007 ALL MR (Cri.) 84 and Bharat s/o. Dhondba Tarare v/s. The Sub-Divisional Officer & Ors., 2007 ALL MR (cri.) 3036 2007 ALL MR (cri.) 3036 2007 ALL MR (cri.) 3036 in support of his submission that the area of externment cannot be so wide as to have no bearing on the place in which the offences were allegedly committed. He also relies on the judgment in the case of Sanjay Pandurang Nagpure v/s. State of Maharashtra & Anr., 2007 ALL MR (Cri.) 2007 ALL MR (Cri.) 2007 ALL MR (Cri.) 3147 3147 3147 in support of is contention that the order of the appellate authority must be set aside when it refers to material which was not available to the externing authority nor was mentioned in the show-cause notice. 6. The learned APP submits that the petitioner has been arrested in several cases of chain snatching because of which there is an apprehension and fear in the mind of the local residents about his activities. The police therefore found it necessary to take action against the petitioner u/s 56 of the Bombay Police Act according to the learned APP. He submits further that the petitioner was given ample opportunity to show cause why he should not be externed from the aforesaid four districts. The petitioner has availed of that : 5 : opportunity and it was only after hearing him that the order of externment has been passed. The learned APP submits that besides the FIR registered in respect of chain snatching, two statements of witnesses were recorded in-camera as these witnesses were reluctant to reveal their identity, fearing the wrath of the petitioner. He submits further that the police have after considering that the districts of Mumbai City, Mumbai Suburbs, Navi Mumbai are adjacent to the District Thane in which Bhiwandi is situated have externed the petitioner from all the four districts. He urges that this cannot be termed as excessive as the decision has been taken after considering all the facts and circumstances of the case. In support of his submission that the externment order is not excessive with respect to the area of externment, he relies on the judgment of the learned Single Judge of this Court in the case of Gafoor Dastagir Shiekh v/s. State of Maharashtra & Anr., 2006(1) Bom.C.R. (Cri.) 514. 2006(1) Bom.C.R. (Cri.) 514. 2006(1) Bom.C.R. (Cri.) 514. He further submits that the earlier order of externment passed in 2004 was set aside by the appellate authority only because the order had been passed without affording the petitioner an opportunity to lead evidence and in breach of the provisions of the natural justice. According to the learned APP, after the order of the appellate authority was passed, the police have now thought it fit to extern the Petitioner after giving adequate opportunity to him : 6 : to defend himself. As regards the allegation of victimisation and malafides on the part of the police, the learned APP submits that the petitioner had filed a complaint with the Naupada police station, Thane whereas the externment order has been issued from Bhiwandi and, therefore, there could be no question of Bhiwandi police being influenced by the fact that a chargesheet had been filed against the Naupada police. 7. The petitioner has been externed from four districts, namely, Mumbai city, Mumbai suburbs, Navi Mumbai and Thane for offences which he has allegedly committed in Bhiwandi. There are no reasons in the externment order as to why it was necessary for the petitioner to be externed from all the four districts when the area in which he allegedly committed the offences was Bhiwandi city i.e. in Thane district. The object of externing a person from a particular area is to ensure that peace is maintained and the citizens in the area are not harassed and terrorised by him. In the present case, there is no indication either in the show-cause notice or in the externment order or the order of the appellate authority as to why it was necessary for the petitioner to be externed from all the four districts. 8. The Division Bench of this Court in the case of : 7 : Umar Mohamed Malbari (supra) has held that where the activities indulged in by the person to be externed were restricted within the Taluka of Bhiwandi within the Thane Commissionerate, the order externing him out of Raigad and Nasik districts was an excessive order which had necessarily to be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case. These observations of the Division Bench have been made after it considered the judgments of this Court in Balu v/s. The Divisional Magistrate, Pandharpur, 1969 Mh 1969 Mh 1969 Mh.L.J. 387 387 387, which was approved by the Supreme Court in the case of Pandharinath Shridhar Rangnekar vs. Dy.Commissioner of Police, State of Maharashtra, AIR 1973 SC 630. AIR 1973 SC 630. AIR 1973 SC 630. The Division Bench then considered whether the High Court can correct the order of externment and modify the same if the externment order bars the entry of the person in areas other than the ones where the alleged offences have taken place. The Division Bench held as follows: 8. Shri Kothari, the learned Public Prosecutor, however, contended that the entire order of externment was not liable to be struck down merely because it covered areas which were excessive than what was justified. This would be a case where appropriate areas of externment can be substituted with the areas contemplated in the impugned order of externment. In our judgment, there is no merit in the aforesaid contention of Shri Kothari. The High Court, when it issues the high prerogative writ of certiorari, it directs the judicial tribunal : 8 : against which is acting to transmit its record to the Court and if necessary to quash the order which the Tribunal has passed. It must not be forgotten that in issuing the writ this Court is not acting as a Court of appeal. It is exercising supervisory powers conferred upon it, and those powers are exercised by means of issuing high prerogative writs. But the power and jurisdiction of the Court is limited and the same cannot extend to the powers of an appellate Court. This Court is only concerned with the question as to whether the Tribunal exercising judicial or quasi-judicial function has or has not acted without jurisdiction or whether in the jurisdiction, it has acted in excess of jurisdiction. If it has acted in excess of jurisdiction, then the jurisdiction of this Court is to quash the order passed in excess of jurisdiction. There the power of the High Court stops. It has no power to go further and to correct an excessive order passed by the Authority cocerned. Mohomed Usman vs.Labour Appellate Tribunal, LIV BLR page 513. 9. In the case of Kishan Rajaram Durge (supra), a learned Single Judge of this Court observed that though the activities of the petitioner in that case were restricted to a small region in Ulhasnagar town, he was externed from the districts of Thane, Greater Mumbai, Mumbai Suburban and Raigad. This Court held that since no reasons were assigned as to why it was necessary for him to be externed from all the areas, the externment order suffered from excessive externment. 10. In Silva @ Gora Silva Ayanar Arjun (supra), a learned Single Judge of this Court, relying on the judgment of the Supreme Court in Pandharinath’s case (supra) and after referring to the judgments in the : 9 : cases of Balu Dombe and Umar Mohamed (supra) has held that the externing authority cannot extend the area of externment without reference to the purpose of externment. 11. A learned Single Judge of Nagpur bench of this Court has similarly, while relying on the judgment in the case of Umar Mohamed Malbari’s case (supra), held that an order suffers from illegality if the person is externed from areas other than those where the person has indulged in activities which caused an apprehension of threat or fear in the minds of the public. 12. However, another learned Single Judge of this Court in the case of Gafoor D. Sheikh (supra) was considering a case where the activities of the externee were localised in the Bandra-Kurla complex. In the facts and circumstances of that case, the learned Judge has held that since Bandra-Kurla complex fell within Mumbai and Thane and Raigad districts are neighbouring districts, the externment from both these districts being neighbouring districts could not be said to be improper. 13. In the present case, all the activities of the petitioner are localised in Bhiwandi city. There is no allegation at all that he has created terror or had : 10 : indulged in activities calculated to cause alarm, danger or harm to persons or property in places other than Bhiwandi city which is in Thane district. The case of theft in respect of which an FIR has been registered has allegedly occurred in Bhiwandi. The two statements of witnesses which have been recorded in camera are in respect of alleged activities of the petitioner in Bhiwandi city itself. Thus in my view, the order externing the petitioner from Mumbai city, Mumbai suburbs and Navi Mumbai besides Thane is excessive and requires to be quashed. There is no nexus at all with the movements of the Petitioner which have allegedly terrorised people and areas beyond Bhiwandi city. A person’s liberty cannot be curtailed unreasonably by the order of externment. Although the districts of Mumbai, Mumbai Suburbs and Navi Mumbai may be adjacent to Thane District in which Bhiwandi is situated, there must be some reason disclosed in the order of externment indicating the compelling necessity to extern the Petitioner from these regions. In the absence of such reasons, in my opinion the order of externment cannot be sustained. 14. The next submission of the learned counsel for the petitioner was that the appellate authority has taken into consideration the earlier externment order dated 18.12.2002 while rejecting the appeal of the : 11 : petitioner. The order produced on behalf of the petitioner indicates that by the order of June 2004, the appellate authority had set aside the order dated 5.10.2002 externing the petitioner, on the ground that it was passed without following the principles of natural justice. While allowing the appeal filed by the petitioner, the police were given an opportunity to take action against the petitioner in accordance with law if it was found necessary to extern him. There is no dispute that no such action was taken against the petitioner from 2004 till the show-cause notice was served on him on 24.5.2007. The activities which are mentioned in the present showcause notice cannot be related to the earlier show-cause notice served on the petitioner as sought to be made out by the learned APP. If indeed the activities he had indulged in were such that caused him to be externed in 2002, the police would have certainly taken action immediately after the order of appellate authority was passed in June 2004. The appellate authority in the present case has no doubt been influenced by the fact that the police had relied on the externment order passed on 18.12.2002 without disclosing to the appellate authority that that order had been set aside. Besides this, it was contended before the appellate authority that the cases had been registered against the petitioner in respect of theft of motor cycles. However, this was not one of the reasons : 12 : for externing the petitioner and this ground is not mentioned in either the showcause notice or in the order of externment. Thus, the appellate authority has considered facts which are extraneous to the show-cause notice and the order of externment. In my opinion, the appellate authority has erred in taking into consideration these facts when the Petitioner had no chance to show cause against these grounds. 15. The FIR which is registered for theft does not name the petitioner. The complainant has merely stated that her gold ornaments were snatched by two persons riding on a motor cycle. Despite this, the police have chosen to rely on this FIR as one of the grounds for externment. 16. In these circumstances, therefore, the petition is allowed. The order of externment dated 13.7.2007 issued by the Deputy Commissioner of Police, Zone II, Bhiwandi, District Thane is quashed and set aside. The order of the Appellate Authority dated 15.3.2008 is also quashed. 17. Petition allowed. No order as to costs.