1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.567 OF 2010 Sukhdev Dada Wagh Age : 63 years, Occ : Agril., R/o Kokamthan, Tq.Kopargaon, Dist.Ahmednagar. ..Petitioner -VERSUS- 1. The Principal Secretary (Appeals & Hearing), Home Department, State of Maharashtra, Mantralaya, Mumbai. 2. The Sub-Divisional Officer, Sangamner, Tq.Sangamner, Dist.Ahmednagar (Copies to be served on A.P.P. High Court of Bombay, Bench at Aurangabad). ..Respondents ..... Mr.P.B. Shirsath, Advocate for petitioner. Mr.S.D. Kaldate, A.P.P. for respondent nos.1 and 2. ..... (CORAM : SHRIHARI P. DAVARE,J.) DATED : 12th July, 2010. ORAL JUDGMENT : 1. Heard learned counsel for the parties. 2. Rule. Rule made returnable forthwith. By consent of learned counsel for respective parties, the matter is taken up for final hearing, at the stage of admission. 3. By the present Petition filed under Article 227 of the 2 Constitution of India the petitioner prayed that the impugned order dated 20th April, 2010 passed by the Principal Secretary (Appeals & Hearing), Home Department, State of Maharashtra, Mantralaya, Mumbai in Appeal No.EXT-2010/15/VS-5, thereby confirming the order dated 24th December, 2009 passed by the Sub-Divisional Magistrate, Sangamner Division, Sangamner, Dist.Ahmednagar vide externment order No.EX/SR/4/2009 be quashed and set aside. FACTUAL MATRIX :- 4. It is the contention of petitioner that he is resident of Kokamthan, Tq.Kopargaon, Dist.Ahmednagar and was issued notice dated 15th April, 2009 by the Sub-Divisional Police Officer, Kopargaon, Camp Shirdi, to remove himself from the boudnaries of Aurangabad, Nashik and Ahmednagar and directed him to show cause in that respect. It appears that the petitioner herein filed reply to the said notice and after hearing the petitioner herein, respondent no.2 passed order on 24.12.2009 under Section 56(1) (a)(b) of Bombay Police Act, 1951 (hereinafter referred to as "the said Act") and directed the petitioner not to enter in the boundaries of Ahmednagar, Nashik and Aurangabad districts for one year and copy of the said order is annexed herewith at Exh.A (page 8). 3 5. Being aggrieved and dissatisfied with the said order dated 24.12.2009, petitioner herein preferred Appeal No.EXT-2010/15/VS-5 under Section 60 of the said Act before the respondent no.1. However, the said appeal was heard and decided by respondent no.1 by passing order on 20th April, 2010 and thereby dismissed the petitioner's appeal and confirmed the order passed by respondent no.2 on 24.12.2009, copy of the said order passed by the Appellate Authority is produced at Exh.B (page 13). It is the contention of petitioner that he received copy of the said order dated 20.04.2010 on or about 20.05.2010, and being aggrieved and dissatisfied by both orders dated 24.12.2009 passed by respondent no.2 and 20th April, 2010 passed by respondent no.1 Appellate Authority, the petitioner has preferred present Petition for quashment thereof. SUBMISSIONS :- 6. Learned counsel for petitioner canvassed that the order dated 24.12.2009 passed by respondent no.2 discloses that four offences were registered against petitioner, but out of those offences, one of the offence i.e. under C.R. No.T 262/2007 under Section 379 of the Indian Penal Code and Sections 3 and 15 of the 4 Environment (Protection) Act, 1986, he was already acquitted on 25.02.2009. Learned counsel for petitioner also pointed out that another offence under C.R. No.92/2009 was registered on the basis of F.I.R. Exh.C (page 18) and it is clear that the name of petitioner has not been reflected in the column of accused thereof, and therefore, learned counsel for petitioner contends that offence under C.R. No.92/2009, which is shown in the said impugned order dated 24.12.2009 has not been registered against him at all and it is further canvassed that the said aspect has not been considered by respondent no.2 as well as respondent no.1 while passing the impugned orders. It has been further submitted that therefore, both orders have been passed arbitrarily and without application of mind. 7. Learned counsel for petitioner also urged that no offences have been registered against petitioner in respect of bodily injuries and danger to the society and there is nothing on record to show that the behaviour of petitioner is dangerous to the society. It is also canvassed that although it is observed in impugned order dated 20th April, 2010 passed by the Appellate Authority that behaviour and conduct of petitioner is criminal in nature, which comes under Chapter 16 and 17 of Indian Penal Code, no offence has been registered against the petitioner under 5 Chapter 16 of the Indian Penal Code. Therefore, it is canvassed that there is no substance in the allegations made in that respect. 8. Learned counsel for petitioner also invited my attention to the fact that alleged other two remaining offences under C.R. No.T 245/2006 and T 213/2007 which are stated in the impugned order have been registered with Kopargaon Police Station, Dist.Ahmednagar, but still he has been externed from three Districts i.e. Ahmednagar, Nashik and Aurangabad without any reason therefor. Therefore, it is submitted that the said order has been passed excessively without any jurisdiction and hence, the said order itself deserves to be quashed and set aside in toto. To substantiate the said contention, learned counsel for petitioner relied upon the observations made by the Division Bench of this Court in the case of "Umar Mohamed Malbari V/s K.P. Gaikwad Dy. Commissioner of Police and another (1988 Mh.L.J. 1034)", which are as follows :- "Where the activities indulged in by the petitioner were restricted within the Taluka of Bhiwandi within the Thane Commissionerate, the order externing the petitioner out of the Raigad and Nasik Districts which has within them Taluka places at a distance of more than 100 miles is an excessive order and the excessive order had necessarily to be struck down because no greater restraint on 6 personal liberty can be permitted than is reasonable in the circumstances of the case. It cannot be said 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 and appropriate areas of externment can be substituted with the areas contemplated in the impugned order of externment. The High Court, when it issues the high prerogative writ of certiorari, it directs the judicial tribunal against which is acting to transmit its record to the Court and if necessary to quash the order which the Tribunal has passed. In issuing the writ the High Court is not to act as a Court of appeal. It 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 exercise of jurisdiction it has acted in excess of jurisdiction. If it has acted in excess of jurisdiction, then the jurisdiction of the High 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 concerned." 9. Learned counsel for petitioner also relied upon the observations made by this Court in the case of "Punjaji Dagdu Gaikwad V/s State of Maharashtra and others" {2001(3) Mh.L.J. 926}, wherein it is observed that an excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the 7 circumstances of the case. Nevertheless, it was pointed out that the larger area may conceivably have to be comprised within the externment order so as to isolate the externee from his moorings. However, for that purpose data is required. In the case under consideration, there does not appear to be any such data with relation to the five districts from where also the petitioner has been externed along with the area of the activities i.e. district Buldana. Therefore, the impugned order suffers from the vice of excessive externment from the five districts in respect of which no data was placed and the entire externment order is liable to be quashed. Accordingly, learned counsel for petitioner submits that the impugned orders dated 24.12.2009 and 20.04.2010 are bad in law and not tenable in law, as well as have been passed excessively, without application of mind and therefore, same deserve to be quashed and set aside. 10. Learned A.P.P. for respondent nos.1 and 2 opposed present petition vehemently and filed affidavit in reply which is sworn in by Mr.Jagdish Purushottam Patil, presently working as Police Inspector, Kopargaon Police Station, Kopargaon, Tq.Kopargaon, Dist.Ahmedangar and thereby denied the avernments and contentions made by petitioner in present Writ Petition unless admitted specifically. It is the contention of 8 respondents that after following due procedure prescribed under the Police Act, the Sub-Divisional Magistrate has passed the order on 24.12.2009 and it is well reasoned and proper order. However, petitioner challenged said order by filing appeal before the State Government and the State Government has also confirmed the said order passed by the Sub-Divisional Magistrate, Samgamner. 11. The respondents also contended that there are three crimes, which were registered against the petitioner and C.R. No. 245/2006 was registered against him for the offence punishable under Section 379 of the Indian Penal Code and Sections 3 and 15 of the Environment (Protection) Act, which was registered at Kopargaon Police Station. Moreover, similar types of offences were registered against the petitioner bearing C.R. No.213/2007 and 262/2007, but the petitioner has been acquitted under C.R. No.262/2007 and same can not be a ground to quash and set aside the order passed by the Sub-Divisional Magistrate, Sagamner. 12. The respondents further contended that three cognizable offences were registered against petitioner of similar nature i.e. theft of sand which affects the environment of the area and the sand which is lifted and theft by the petitioner from 9 Godavari river bed and the said river, flows from three districts i.e. Ahmednagar, Nashik and Aurangabad. Godavari river is border of the said three districts and therefore, it is submitted that the externment order passed by the Sub-Divisional Magistrate, Sangamner to extern petitioner from these three districts is just, legal and proper. 13. It is further submitted by respondents that petitioner is engaged in commission of offences involving force and violence under Chapter 16 and 17 of the Indian Penal Code and petitioner's behaviour is dangerous and causing harm to the persons and property of State, and therefore, nobody will come forward to give complaint against petitioner. Hence, considering all these aspects, it is submitted that the Sub-Divisional Magistrate has rightly passed externment order which is legal, proper and reasoned one and same was rightly confirmed by the State Government in appeal and no interference therein is warranted, and therefore, it is submitted that present Petition be dismissed. 14. Mr.Kaldate, learned A.P.P. submitted that both the impugned orders dated 24th December, 2009 and 20th April, 2010 have been passed after due application of mind and both said orders are reasoned orders, which were passed after having 10 comprehensive view of the matter, and therefore, no interference therein is warranted. Accordingly, learned A.P.P. submitted that present Petition bears no substance and is devoid of any merits, hence same is liable to be dismissed. CONSIDERATION :- 15. I have perused impugned order dated 24th December, 2009 passed by respondent no.2 (Exh.A) as well as order dated 20th April, 2010 passed by respondent no.1 (Exh.B) and copy of F.I.R. under C.R. No.I-92/2009 (Exh.C) and affidavit in reply filed by respondents and heard learned counsel for the respective parties, as well as gave thoughtful consideration to the observations made in the Ruling cited by learned counsel for parties. At the outset, there is no dispute that petitioner was acquitted from C.R. No.I-262/2007 for the offence punishable under Section 379 of the Indian Penal Code and Sections 3 and 15 of the Environment (Protection) Act. On the said background, the impugned order dated 24th December, 2009 discloses that C.R. No.92/2009 was registered against petitioner under Sections 143, 147, 148, 324, 323, 504, 506 of Indian Penal Code and Section 37(1)(3)/135 of Bombay Police Act, but on perusal of the F.I.R. (Exh.C) of the said offence, it appears that the name of petitioner 11 has not been reflected therein as accused, and therefore, it is apparently clear that C.R. No.92/2009 was not registered against petitioner herein at Kopargaon Police Station, but still said C.R. No.92/2009 was taken into consideration by respondent no.2 while passing impugned order on 24.12.2009. Hence, in the light of said facts, there is substance in the contentions raised by learned counsel for petitioner in that respect, and hence, impugned order dated 24.12.2009 appears to be erroneous and needs to be quashed on the said count itself, as well as consequently, impugned order dated 20th April, 2010 passed by respondent no.1 confirming the impugned order dated 24.12.2009 also deserves to be quashed and set aside on the said count itself. 16. Moreover, impugned order dated 24.12.2009 discloses that C.R. No.I-245/2006 and I-213/2007 were registered against petitioner under Section 379 of the Indian Penal Code and under Sections 3/15 of the Environment (Protection) Act and it is reported that both the said offences were registered with Kopargaon Police Station, Dist.Ahmednagar. However, by impugned order dated 24.12.2009, petitioner herein was externed from three districts i.e. Ahmednagar, Nashik and Aurangabad and there is no justification for externing petitioner from Nashik and Aurangabad District. In the said context, it is stated in the affidavit 12 in reply and learned A.P.P. canvassed that the allegations made against petitioner therein are in respect of theft of sand which is being lifted by him from Godavari river bed and Godavari river flows from three districts, and therefore, petitioner was externed from the said three districts i.e. Ahmednagar, Nashik and Aurangabad and it is submitted that, the said order is just, legal and proper. However, no data has been given by respondents in respect of alleged activities of petitioner of theft of sand from bed of Godavari river in other two districts i.e. Nashik and Aurangabad, and therefore, externment order passed by respondent no.2 externing petitioner beyond Ahmednagar district and from District of Nashik and Aurangabad is excessive in jurisdiction, and therefore, in the circumstances, the entire externment order itself passed by respondent no.2 on 24.12.2009 and confirmation thereof by Appellate Authority i.e. respondent no.1 by order dated 20th April, 2010 deserves to be quashed and set aside relying upon the observations made in the aforesaid Rulings (cited supra). 17. Besides that, although the apprehension is posed that petitioner is involved under Chapters 16 and 17 of the Indian Penal Code, learned counsel for petitioner pointed out that no offence has been registered against petitioner under Chapter 16 of the Indian Penal Code, and therefore, the apprehension posed by 13 learned A.P.P. for respondents bears no substance. 18. Apart from aforesaid legal submissions and factual aspects, learned counsel for petitioner urged that petitioner is 63 years old and suffers from ailments and the impugned orders cause harassment and inconvenience to him at the old age and said said submission also can not be overlooked and ignored. 19. In the light of the aforesaid factual and legal position, I am of the view that the impugned orders are erroneous and unsustainable and therefore, I am inclined to accept the submissions advanced by learned counsel for petitioner and hence, present Petition succeeds and the above referred impugned orders dated 24th December, 2009 passed by respondent no.2 and 20th April, 2010 passed by respondent no.1 deserve to be quashed and set aside since this is fit case to exercise extra ordinary jurisdiction under Article 227 of the Constitution of India. 20. In the result, present Petition is allowed in terms of prayer clause `B' thereof and the order dated 20th April, 2010 passed by the Principal Secretary (Appeals & Hearing), Home Department, State of Maharashtra, Mantralaya, Mumbai in Appeal 14 No.EXT-2010/15/VS-5 thereby confirming the order dated 24th December, 2009 passed by the Sub-Divisional Officer, Sangamner Division, Sangamner, Dist.Ahmednagar vide externment order No.EX/SR/4/2009 stand quashed and set aside. Rule is made absolute in the aforesaid terms. (SHRIHARI P. DAVARE) JUDGE gas/criwp567.10