{1} CWP No.491/2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.491 OF 2011 Suhas Prabhakar Sathe PETITIONER Age-35 years, Occ-Agril R/o Brahmni, Tq-Rahuri Dist-Ahmednagar VERSUS 1. The State of Maharashtra RESPONDENTS Through Secretary, Home Department, Mantralaya, Mumbai 2. The Deputy Commissioner, Ahmednagar, Dist-Ahmednagar 3. Sub-Divisional Police Officer, Shrirampur, Tq-Shrirampur Dist-Ahmednagar 4. Sub-Divisional Magistrate, Shrirampur, Tq-Shrirampur Dist-Ahmednagar ....... Mr.A.B.Kale, Advocate for the petitioner Mrs.Yogita M.Kshirsagar, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 13 th September 2011 {2} CWP No.491/2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties heard finally at the stage of admission. 2. This petition is directed against the order dated 01.04.2011 passed by respondent No.1 confirming the externment order passed by respondent No.4 by which the petitioner is externed from Ahmednagar district for a period of two years. 3. Heard learned counsel for the petitioner followed by learned APP. Perused the record. 4. The petitioner, who is resident of village Brahmni, was served with a show cause notice u/s 59 of the Bombay Police Act by respondent No.3 alleging that certain offences are pending against the petitioner in Rahuri police station and the cases are sub judiced. It is further alleged that due to the activities of the petitioner, law and order problem has been created in Rahuri {3} CWP No.491/2011 Taluka and hence why he should not be externed from Ahmednagar, Pune, Nashik and Aurangabad districts for a period of two years. The said notice was replied by the petitioner vide his reply dated 26.08.2010 thereby denying all the allegations. It further appears that on 11.10.2010 a final show cause notice came to be served on the petitioner prior to the passing of impugned externment order. The said final show cause notice dated 11.10.2010 indicates that due to the activities of the petitioner, a law and order problem has been arisen in Sonai village. Subsequent to the issuance of the final show cause notice, the impugned externment order dated 30.11.2010 came to be passed thereby externing the petitioner from entire Ahmednagar district for a period of two years. This order of externment came to be challenged by the petitioner by preferring a statutory appeal u/s 60 of the Bombay Police Act before respondent No.1. The said appeal also came to be dismissed vide judgment and order dated 01.04.2011 came to be confirmed. 5. Learned counsel for the petitioner urged that the show cause notice served on the petitioner u/s 59 of the Bombay Police {4} CWP No.491/2011 Act suffers from non compliance of the requisite requirements. It is further urged that in the notice dated 09.08.2010 there was no reference about in camera statements which reflect that due to the terror of the petitioner the witnesses are not coming forward to give evidence against the petitioner. It is also urged that in the final show cause notice there is reference about the activities of the petitioner which have created law and order problem in village Sonai, which village is situated at the distance of about 45 km from Rahuri and village Sonai falls under the jurisdiction of Nevasa police station. In the said notice there is reference about some in camera statements, however according to learned counsel for the petitioner the said show cause notice is vague and does not comply the requisite requirements to extern the petitioner and hence prayed to quash the impugned order. It is also urged that the externment order does not find reference that the authorities have taken into consideration the statements of the witnesses recorded in camera. Thus, it is also urged that the impugned externment order is bad in law. It is further urged that the offences mentioned at serial No.1 and 3 in the show cause notice dated 09.08.2010 were registered u/s 398 r/w 120 B of the Indian Penal Code, {5} CWP No.491/2011 however, in the final notice it is shown that the same are registered u/s 395 r/w 120 B of the Indian Penal Code. The same sections appear to have been referred in the impugned externment order. It is also urged that in the first show cause notice as well as in the final show cause notice it is mentioned that the offence at serial No.2 is registered u/s 379 r/w 34 of the Indian Penal Code however in the impugned externment order it is mentioned that offence punishable u/s 239 r/w 34 of the Indian Penal Code is pending against the petitioner. Thus, it is urged that both the show cause notices as well as the impugned externment order are passed by the authorities without application of mind. Therefore, it is requested to quash and set aside the impugned externment order. Lastly it is urged that both the show cause notices indicate that the offence registered against the applicant are from Rahuri police station, whereas by the impugned externment order the petitioner has been externed from the entire Ahmednagar district, which is excessive in nature. According to learned counsel for the petitioner both the show cause notices as well as the impugned externment order are bad in law and therefore liable to be quashed and set aside. {6} CWP No.491/2011 6. Per contra, learned APP supported both the show cause notices as well as the impugned externment order. 7. At this stage, it may be useful to give the reference of the observations of this Court in the matter of “Gulshan Arif Tase versus Sub Divisional Magistrate, Thane Division”, 2010(2) Bom.C.R. (Cri.) 778, which reads as : “In show cause notice, no reference made about prejudicial activities committed by him in other four districts. Further submits no opportunity given to explain in respect of in-camera statements. Held, show cause notice not refer to any such activity by petitioner in other districts except village Kashimira and District Thane. Order is clearly excessive. No reference made about said in-camera statements. Externing authority relied on certain material which is not referred to in show cause notice. Order of externment is quashed.” 8. In the matter of “Namdeo Laxman Charde versus Sub Divisional Magistrate, Katol and another” 1997(Supp.) Bom.C.R. 788 : 1996(1) Mh.L.J. 483, this Court has observed thus- “Contention that Annexure A notice issued under section 59 is defective and consequently proceedings taken on basis of said notice as well as orders are {7} CWP No.491/2011 vitiated. Held, there is no mention at all as to in which Court the said cases are pending or as to within jurisdiction of which Police Station, respective offences took place. Notice even does not give date, which would suggest that on account of his behaviour, the witnesses are reluctant to appear and give evidence against him in open. Hence Annexure A notice is vitiated.” “The notice does not mention that on account of the aforesaid behaviour of the petitioner, witnesses are not willing and ready to depose openly against the petitioner. According to the learned counsel, failure to make an allegation to that effect affects the validity of the notice. Reliance was placed by the learned counsel in support of his argument in the case of (Ayub Yusuf versus S.D.M.) 4, 1986(1) Bom.C.R. 144 : 1986 Mah.L.R. 254, wherein after quoting sections 56(1)(b) and 59, the Division Bench of this Court proceeded to hold that not only there should be mention of the prosecutions for the offences punishable under Chapters XII, XVI or XVII of Indian Penal Code but in addition the officer concerned should be of the opinion that the witnesses are not willing to come forward to give evidence in public against the person against whom the externment proceedings have been started by reason of apprehension on their part as regards the safety of their person or property.” 9. Further, it may be useful to give the reference of the observations of this Court in the matter of “Ayub Yusuf Mansuri versus Sub-Divisional Magistrate, Nandurbar and others”, 1986(1) Bom.C.R. 144, wherein it is observed thus- “Notice under section 59, Notice not satisfying requirements of section 56(1)(b), order passed pursuant to said notice would be bad. Where the notice issued {8} CWP No.491/2011 under section 56(1)(b) did not mention that in the opinion of the Sub-Divisional Police Officer who issued the notice, the witnesses were not willing to come forward to give evidence in public against the person against whom the externment proceedings had been stated by reason of apprehension on their part as regards the safety of their person on property, the order of externment passed in absence of such averments in the notice would be bad and liable to be set aside.” Considering the parameters and guidelines as discussed by this Court in the rullings referred in above paragraph, it is clear that the contents of the notice to satisfy the requirements of Section 56(1)(b) to pass the externment order and in absence of the requisite contents in the show cause notice, the notice is bad in law and the externment order passed on suchy notice, required to be quashed and set aside. Perusal of the show cause notice dated 17/08/2010 which is basis of the externment order and the order passed in appeal by the State, on the face of it, these requisite requirements are silent in the said notice. In view of this, show cause notice, basis of the externment order, itself is bad in law.” 10. It is submitted by learned counsel for petitioner that the impugned order suffers from exercising excessive jurisdiction in externing the externee from District Ahmednagar for the period of 2 years, as according to him, the entire record is silent about the alleged activities of the present petitioner in the area from which he was externed. In this respect, it may be useful to give reference of the judgment of the Division Bench in the matter of “Umar Mohammed Malbari versus K.P.Gaikwad”, 1988 (2) Bombay C.R. 724, which reads as follows : {9} CWP No.491/2011 “if the record indicates that criminal activities, which are creating law and order problem, are restricting to certain police station, then the externment order relating to the other area, is excessive. Admittedly, the criminal activities of the petitioner are restricted to Gangakhed Police Station Only. It is observed in the said judgment that if an excessive order is passed by the competent authority, then it is not open for this Court, either to correct the excessive externment order or to curtail the area of externment. The only option open for this Court is to quash and set aside the excessive order. Bearing in mind this consistent view taken by this Court, the impugned order of externment, externing the petitioner from Beed and Parbhani districts for one year, is liable to be quashed and set aside.” 11. From the settled legal position it is clear that the show cause notice must indicate that due to the terror and fear of the petitioner the witnesses are not coming forward to depose against him. In the instant case the first notice is conspicuously silent on this aspect albeit there is passing reference of some in camera statements in the second and final show cause notice, however, the same are not referred in the impugned externment order. Though there is reference in the first show cause notice that the activities of the petitioner are creating law and order problem in Rahuri taluka yet the final show cause notice is silent about any activity of {10} CWP No.491/2011 the petitioner in Rahuri Taluka is creating law and order problem, albeit it mentions that the activities of the petitioner are creating law and order problems in Sonai village, which has nothing to do with Rahuri taluka. As pointed out above, there is distance of 45 km between these two places and secondly village Sonai falls within the jurisdiction of Nevasa police station and not a single offence has been registered in Nevasa police station against the petitioner, at least no record has been produced to that effect. Thus, there is inconsistency in both the show cause notices as well as in the impugned externment order and on this ground the same are bad in law. 12. Considering the overall effect of these two show causes notices and as there is no reference of in camera statements in the first show cause notice and though there is reference of in camera statements in the second show cause notice, yet it is not clear as to from where the statements of the witnesses are recorded, viz from Rahuri or from Sonai and hence there is total in consistency in the two show causes notices. Bare perusal of the impugned externment order indicates that there is no reference about the in {11} CWP No.491/2011 camera statements allegedly recorded before issuance of the final show cause notice. In this light of the matter, the impugned externment order requires to be scanned as it is not clear that which area, whether Sonai or Rahuri is suffering from the unlawful activities of the petitioner. Under such circumstances and considering the fact that the impugned externment order is excess which externs the petitioner from entire Ahmednagar district and hence the same is liable to be quashed and set aside. 13. Consequently, the petition is allowed. The impugned externment order is quashed and set aside. Rule is made absolute as indicated above. [A.V.POTDAR, J.] drp/B11/cwp491-11