1 Cri.Writ Petition No.187 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.187 OF 2011 Bharat S/o.Asaram More, Age-35 years, Occu-Nil, R/o.At Present-Patil Galli, Gosdegaon Naka, Nandhgaon, Dist. Nashik PETITIONER VERSUS 1. Government of Maharashtra, Home Department, Mantralaya, Mumbai-34, 2. The Sub-Divisional Magistrate, Sangamner Division, Sangamner, 3. Sub-Divisional Police Officer, Kopargaon Division, Camp Shirdi, Dist. Ahmednagar RESPONDENTS Mr.S.S.Chapalgaonkar, learned counsel for the petitioner. Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : A.V.POTDAR, J.) DATE : 05/05/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 2. By the present writ petition, the petitioner has questioned the 2 Cri.Writ Petition No.187 of 2011 correctness and legality of the order passed by the Principal Secretary, State of Maharashtra (Appeals and Hearing) in Appeal No.EXT-2010/222/Special Branch-3(A) dated 24/02/2011, by which order passed by S.D.M. Sangamner Division, in externment proceeding no.12/2009, dated 20/10/2010 was confirmed. 3. Heard learned counsel for petitioner followed by the submissions of learned A.P.P. for respondent/State. It is stated across the bar that the petitioner is R/o.Bullock bazar, Kopargaon, Tal.Kopargaon, Dist. Ahmednagar. Petitioner is served with show cause notice u/s. 56(1)(a)(b) of The Bombay Police Act dated 16/12/2009, by which he was called upon to show cause why he should not be externed from Ahmednagar, Aurangabad, Nasik, Beed and Dhule Districts, as the process of ensuing Assembly Elections of the year 2009 has commenced and 5 crimes are to his credit. It appears that the petitioner has replied to this notice, wherein it is stated that he was acquitted in CR No.144/2006 and remaining criminal cases are still pending against him. It further appears that after receipt of reply of the petitioner, the learned S.D.M., by his order dated 20/10/2010, externed the petitioner from Tal.Kopargaon, Sangamner, Shrirampur, Rahata of Dist.Ahmednagar, from Tal.Vaijapur of Dist.Aurangabad, from Tal Yeola, Niphad, Sinner of Dist.Nashik. It further appears that the order of externment passed by S.D.M., Sangamner Division Sangamner was challenged before the Principal Secretary, State of Maharashtra (Appeals and Hearing). It further appears that the appeal was dismissed by judgment and 3 Cri.Writ Petition No.187 of 2011 order dated 24/02/2011, which is impugned in this writ petition. 4. Legality and correctness of the impugned judgment and order passed by the Principal Secretary is questioned in this criminal writ petition, mainly on 2 grounds, i.e. total non application of mind by the externing authority, so also by the Appellate Authority, who has confirmed the order and secondly the order of externment is excessive. 5. It is brought to my notice that no doubt there is reference of 4 offences registered against the petitioner, as disclosed in the show cause notice, but all these offences were registered in Kopargaon Police Station, Tal. Kopargaon. Even though in the reply given to the show cause notice it is mentioned that the petitioner was acquitted by the competent criminal court in CR No.144/2006, which find reference in the order passed by the learned S.D.M., but that fact is not considered either by S.D.M., Sangamner or by the Principal Secretary, State of Maharashtra. When specific query is put to the learned counsel for petitioner that whether certified copy of the judgment and order passed by the competent criminal court was placed before the learned S.D.M. or before the Public Secretary, learned counsel for petitioner is fair enough to state that no such copy of judgment and order was placed on record, but it is urged that when the cause was shown by the petitioner, he has stated that he is acquitted by the judgment and order of the Criminal Court, even though the petitioner has not placed on record the copy of the 4 Cri.Writ Petition No.187 of 2011 judgment and order. It is the duty of the competent authorities to verify the statement made by the petitioner that, whether in reality, the petitioner was acquitted from CR No.144/2006 or it is an incorrect statement. Thus according to him, it is clear that there is non application of mind about the cause to extern the petitioner under the impugned order. It is also urged across the bar that even though the petitioner is externed from certain talukas of 4 districts, the entire record produced by the respondent is silent that the petitioner has extended his criminal activities in those area, from which he was externed vide the impugned judgment and order, by the S.D.M., so also by the Principal Secretary (State of Maharashtra). 6. While making submissions across the bar, learned counsel for petitioner placed his reliance on various authorities. Learned A.P.P. supports the judgment and order impugned, by which the petitioner was externed. 7. At this juncture, first it is useful to give reference of the observations in the matter of Kishor Rajaram versus Deputy Commission of Police and others, 2003 All.M.R.(Cri.) 2023 = 2004 (Supp.) Bom.C.R. 481, that,”in absence of any specific reason having mentioned in impugned order as to need to extern petitioner From Thane and Raigad District and Greater Mumbai and Mumbai Suburban order suffers from excessive externment.” My attention is further drawn about the observations in the judgment wherein it is categorically that, “ a perusal of the impugned order would indicate 5 Cri.Writ Petition No.187 of 2011 that no reasons are assigned as to why it was necessary for the said authority to extern the petitioner from Thane District, Greater Mumbai, Mumbai Suburban and Raigad District, when as per the details given in the show cause notice itself and in the impugned order that the activities were restricted to the area of Madrasipada and Dhobighat and the adjoining areas of Ulhasnagar town only. In absence of any specific reason having mentioned in the impugned order as to the need to extern the petitioner from the District5 of Thane, Greater Mumbai, Mumbai Suburban and Raigad District, the order suffers from the excessive externment, and for this purpose, reference is given of the observations in the matter of Iqbal Hussain Abid Hussain Qureshi, 1999(1) of Bombay Law Reporter 631.” 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) 6 Cri.Writ Petition No.187 of 2011 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. (Cr.) 44, wherein similar view is taken. 9. Considering the observations of the various benches, as stated in the paragraph supra, it is necessary to advert to the impugned order, passed on the basis of material placed in hand. Disclosure of the offence registered against the petitioner were registered in Kopargaon Police Station only. Perusal of the show cause notice, so also the order passed by the learned S.D.M., which is upheld and confirmed in appeal by the Principal Secretary, State of Maharashtra, nowhere discloses about the extension of criminal activities of petitioner in the area other than the area of Kopargaon and no reasons are found in the order passed by S.D.M., so also by the Principal Secretary, State of Maharashtra, disclosing the fact about the law and order problem created by the petitioner in the area, from which he required to be externed. As the order passed by the S.D.M., so also by the Principal Secretary is silent about the reasons for externment of the petitioner from certain other talukas of Dist.Ahmednagar, certain talukas of Aurangabad and certain talukas of Nashik, it can be held that the order impugned is excessive order. Hence as the consistent view is taken in its writ jurisdiction, the High Court has no powers to correct the excessive order, the only remedy remains with the High Court to quash and set aside the impugned order. Accordingly, the impugned judgment and order is 7 Cri.Writ Petition No.187 of 2011 hereby quashed and set aside. Writ petition succeeds. 10. In the substance, Rule made absolute as indicated above. Petition is allowed in terms of prayer clause B and stands disposed of. No order as to costs. (A.V.POTDAR, J.) khs/MAY 2011/cri.w.p.187-11