wp644.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 644 OF 2011 Santosh s/o Ramchandra Hone, Age 34 years, Occ. Social Work, R/o. Madhav Nagar, Opp. Nagarkar Mestri, Gandhi Nagar, Kopargaon Tq, Kopargaon, District Ahmednagar ...Petitioner Versus 1 The State of Maharashtra Through its Principal Secretary, Home department, Mantralaya, Mumbai 32 2 The Principal Secretary, Home Department, Maharashtra State, Mantralaya, Mumbai 32 3 The Sub Divisional Magistrate Sangamner Division, Sangamner District Ahmednagar 4 The Sub Divisional Police Officer, Kopargaon Division, Kopargaon Camp at Shirdi, Dist. Ahmednagar ...Respondents ..... Mr. Nitin R. Bhavar, advocate for the petitioner Mr. S.G. Nandedkar, A.P.P. for respondents ..... CORAM: A.V. POTDAR, J. DATED: 7TH SEPTEMBER, 2011 JUDGMENT:- 1 Rule. Rule made returnable forthwith. By consent of the parties, wp644.11 -2- heard finally at the stage of admission. 2 The present writ petition under Article 226, 227 of the Constitution of India r.w. Section 482 of Cr.P.C. is directed against the externment order passed in appeal No. EXT.2010/227/Visha-3(A) vide order dated 23.2.2011 by the Principal Secretary, Home Department, Mantralaya, Mumbai confirming the externment order dated 22.10.2010 passed by the Sub Divisional Magistrate, Sangamner, externing the petitioner from Kopargaon, Sangamner, Shrirampur, Rahata Talukas of Ahmednagar District, Vaijapur Taluka of Aurangabad District, Yeola, Niphad and Sinnar of Nashik District, for a period of one year from the date of externment order. 3 I have heard learned counsel for the petitioner followed by the submissions of learned APP for respondents. I have also perused the record placed in my hands. 4 It appears that the petitioner who claims to be a social worker and active member of political party, resident of Madhav Nagar area, Opp. Nagarkar Mestri, Gandhi Nagar, Kopargaon, Tq. Kopargaon, District Ahmednagar served with a show cause notice under Section 59 of the Bombay Police Act dated 16.12.2009 on 21.12.2009 thereby asking him to show cause as to why he should not be externed from Ahmednagar, Nashik, Aurangabad, Dhule and Beed districts for the cause shown that he wp644.11 -3- and his associates are creating law and order problems in Kopargaon city and the surrounding areas. The witnesses are not coming forth to give evidence against him. Five offences are registered against him in Kopargaon police station. Out of these five offences, three offences were registered in the year 2007. These offences were during the time of Ganesh festival in the month of September, 2007 and more particularly on 26.9.2007 and 30.9.2007. One offence pertains to year 2008 and one offence under the Bombay Police Act about the slogans given in the morcha in front of the Collector office. It appears that the petitioner appeared before the Sub Divisional Magistrate, Sangamner alongwith his counsel and shown cause. It further appears that after hearing was given by order dated 20.10.2010, the Sub Divisional Magistrate, Sangamner passed an externment order externing the petitioner, as stated above. This externment order came to be challenged in statutory appeal under Section 60 of the Act before the Principal Secretary, Home Department, State of Maharashtra, who confirmed the externment order by his order dated 23.2.2011, which is impugned in this petition. 5 The learned counsel for the petitioner would urge that the externment order is bad in law on the count that the offence shown at Sr. No.4 in the impugned order passed by the S.D.M. was not forming part of the show cause notice served on him on 21.12.2009. Learned counsel for the petitioner would further urge that the petitioner was acquitted from the offence at Sr. No.5 and it was informed accordingly wp644.11 -4- to the externing authority who has conducted inquiry while passing the externment order. However, the said aspect was not considered by the externing authority. Learned counsel would further urge that so far as the offence at Sr. Nos. 1, 2 and 3 are concerned, from the dates mentioned in the show cause notice would indicate that these offences are offshoot of Ganesh festival and arose out of political rivalry. This fact can be considered from the relevant dates of registration of these offences in the year 2007. However, it appears that they were not considered in the manner, in which it ought to have been considered. Learned counsel would further urge that so far as all these offences are concerned, they were registered in the area of Kopargaon police station only. From the in camera statements recorded it also clearly indicate that other than these offences, no offence is registered in other part of the areas against the petitioner. Inspite of this, the order externing the petitioner from some parts of Ahmednagar District, some part of Aurangabad District and some part of Nashik district are excessive in jurisdiction vested in the competent authority who passed the externment order. 6 The learned APP appearing for the respondents supported the externment order confirmed by the Principal Secretary, Home Department, State of Maharashtra passed by the Sub Divisional Magistrate, Sangamner. wp644.11 -5- 7 Perusal of the record clearly indicate that the offence is of the year 2007, took place during the period of Ganesh festival it can be very well inferred and presumed that in remaining offences the petitioner was acquitted even before passing the externment order. The said fact was not considered by the competent authority while passing the externment order, so also by the Principal Secretary, Home Department while deciding the appeal preferred by the petitioner against the externment order. It is an admitted fact that the offence at Sr. No.4 was not shown in the show cause notice, however, be that as it may it is used as a ground to pass the externment order against the petitioner. Considering this aspect, the material for which no opportunity was given to the petitioner to show cause if used against the petitioner then, it is bad in law. Apart from this, perusal of the record clearly indicate that there was no material before externing authority to extern the petitioner from other areas, except from the area of Kopargaon Taluka, as nothing is on record to show that the activities of the petitioner are creating law and order problems in the areas other parts of Ahmednagar District, Aurangabad and Nashik District also . 8 In the light of these observations, at this juncture it is useful to give reference to para 8 of the judgment in the case of Bharat s/o wp644.11 -6- Asaram More Vs. Government of Maharashtra and Ors. (Criminal Writ Petition No. 187 of 2011, decided on 5.5.2011), which is reproduced herein below:- “8. It is further useful to give reference of the observations in the matter of Silva @ Gora Silva Ananar Arjun versus Nawal Bajaj and another, 2007(1) Bom.C.R. (Cri.) 331 that, “the externment order for two years, from Greater Bombay, New Bombay, Thane and Raigad Districts, activities complained are related to Cuffe Parade and Colaba area of Mumbai. In view of this, the activities complained of cannot be said to have caused terror in minds of people of such vast area. Order can aptly be called as excessive. High Court having no power to restrict order to any smaller areas only order it can pass is to quash order. Hence order is quashed as excessive.” These observations are based on the observations in the matter of AIR 1969 Bombay 351, so also AIR 1973 SC 630 and 1988(2) Bom. C.R. 724. It is further useful to give reference in the matter of Ganpat @ Ganesh Tanaji Katakre Vs. Assistant Commissioner of Police and others, 2006(1) Bom.C.R. (Cri.) 44, wherein similar view is taken.” 9 Considering the factual aspects, as discussed above, coupled wp644.11 -7- with the legal position, as discussed in para (supra), the fact is clear that the order of externment is passed in excessive jurisdiction by the competent authority and confirmed by the Principal Secretary in the appeal preferred by the petitioner and if it is so the order impugned is bad in law and required to be quashed and set aside. 10 Accordingly, criminal writ petition is allowed in terms of prayer clause “B”. The judgment and order dated 23.2.2011 passed by Principal Secretary, Home Department, Mantralaya Mumbai in Appeal No. EXT-2010/227/Visha-3(A), thereby confirming the order dated 20.10.2010, passed by the respondent No.3 externing the petitioner from Kopargoan, Sangamner, Srirampur, Rahata Talukas of Ahmednagar District, Vaijapur Taluka of Aurangabad district and Yeola, Niphad and Sinnar Talukas of Nashik District for a period of one year, are quashed and set aside. The petition succeeds accordingly. Rule is thus made absolute. *****