* 1 * W.P.1444.2011 14.11.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1444 OF 2011 Swapnil Jaychand Deshmukh .....Petitioner V/S. The State of Maharashtra & Ors. .....Respondents * * * * * Mr. Amol Joshi, Advocate for the petitioner. Mr. J.P. Kharge, APP for the State. CORAM :- SMT. R.P. SONDURBALDOTA, J. 14th NOVEMBER, 2011. P.C. : 1. Rule. Rule made returnable forthwith. By consent of the parties, the petition is immediately taken up for final hearing. 2. Heard the submissions of the counsel for both the sides. 3. The action impugned in the present petition is of externment of the petitioner out of the city and district of Pune for a period of 2 years. Respondent no.3-the Deputy Commissioner of Police, Zone- I, Pune passed the order dated 21st October, 2010 under Section 56(1)(b) of the Bombay Police Act externing the petitioner out of the city and district of Pune. The petitioner had preferred an appeal against the order of externment to respondent no.2. The appeal * 2 * W.P.1444.2011 14.11.2011 came to be rejected by the order dated 24th December, 2011. The action of externment against the petitioner was preceded by notice dated 20th September, 2010 under Section 59 of the Bombay Police Act issued by respondent no.4 calling upon the petitioner to show cause as to why he should not be externed from the city and district of Pune for a period of 2 years. This notice had been replied to by the petitioner by his letter dated 29th September, 2010. 4. The challenge to the action of externment in the petition is essentially on two grounds, firstly that the same is based on old and stale material and secondly that part of the material referred to in the show cause notice fell beyond the purview of consideration, it having already been considered at the time of passing of the earlier order of externment against the petitioner. The petitioner has undergone the earlier externment term. Therefore, consideration of material forming basis of the earlier externment order while passing the impugned order amounts to double jeopardy”. The “ petitioner also contends that in yet another proceedings the respondents have taken a bond from him for good behaviour for a period of one year. 5. The show cause notice under Section 59 of the Bombay Police Act served upon the petitioner referred to as many as fifteen cases * 3 * W.P.1444.2011 14.11.2011 registered against him in various police stations i.e. Kothrud Police Station, Lashkar Police Station, Vishrambaug Police Station and Varjemalwadi Police Station during the period 2000 to 2010. It also referred to the preventive action initiated by Kothrud Police Station and Varjemalwadi Police Station under Section 110 Criminal Procedure Code against the petitioner and the earlier order of externment dated 23rd April, 2007. It is obvious from the show cause notice itself that out of the 15 cases mentioned therein, atleast 8 must have formed basis of the earlier externment order. Therefore, the same were out of purview of consideration for the present order. But, perusal of the impugned order of externment, shows that four of the earlier cases i.e. C.R. No. 520/2005, C.R. 204 of 2006, C.R. No. 632/2006 and C.R. No. 7/2007 have been considered by respondent no.3 while passing the impugned order. The order therefore cannot be sustained. 6. There is one more reason for non-sustainability of the impugned order. It reflects non-application of mind by respondent no.3. The petitioner had sent reply to the show cause notice in which he had named two witnesses he desired to examine in support of the explanation offered in the reply. The impugned order merely mentions that respondent no.3 had heard the petitioner and read * 4 * W.P.1444.2011 14.11.2011 the reply sent by him without making any reference to the contents of the reply. It also does not indicate whether any opportunity was given to the petitioner to examine his witnesses. Respondent no.3, the Externing Authority has filed affidavit-in-reply to oppose the petition. In the reply there is bald denial that the petitioner was not given an opportunity to examine defence witnesses produced by him. There is however no averment as to when and how the hearing was given to the petitioner in which opportunity to examine his witnesses was afforded to him. 7. Mr. Kharge, the learned APP, submits that the record shows that activities of the petitioner have continued despite two preventive actions against him. Mr. Kharge, points out that immediately on expiry of the earlier externment order, the petitioner has committed the offence in C.R. No. 110/2009 after his return to the area. Even if that is so, respondent no.3 acting as quasi-judicial authority in the matters of preventive actions under Chapter-VIII of Criminal Procedure Code cannot be absolved of the responsibility of adopting fair procedure and pass reasoned order. Hence, the petition is allowed in terms of prayer clauses (a) and (b). [SMT. R.P. SONDURBALDOTA, J]