1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.114 OF 2010 Vijay Aabarao Raje Age : 32 years, Occ : Agri., R/o Petwadaj, Tq.Kandhar, District Nanded. ..PETITIONER -VERSUS- 1. The State of Maharashtra Through Principal Secretary, Home Department, Mantralaya, Mumbai. 2. The Sub-Divisional Magistrate, Nanded. 3. The Police Station, Kandhar, Through its Police Inspector. ..RESPONDENTS ........ Mr.A.M. Gaddime holding for Mr.V.D. Gunale, advocate for applicant. Mrs.B.R. Khekale, learned A.P.P. for respondent nos.1 to 3. ....... (CORAM : SHRIHARI P. DAVARE, J.) DATE : 19 th July, 2010. ORAL JUDGMENT : 1. Leave to amend prayer clause `B’ granted. 2. Heard learned counsel for the parties. 3. Rule. Rule made returnable forthwith. By consent of learned counsel for respective parties, the matter is taken up for 2 final hearing, at the stage of admission. 4. By the present Petition filed by the petitioner under Article 226 of the Constitution of India prayed for issuance of appropriate writ for quashment of impugned order dated 19th January, 2010 in Appeal No.2009/305/VS-5 passed by the respondent no.1 and consequently prayed that the said appeal preferred by the petitioner be allowed and also prayed for quashment of impugned order dated 15th September, 2009 passed by respondent no.2 externing the petitioner from three districts i.e. Nanded, Latur and Parbhani. 5. FACTUAL MATRIX :- It is the case of the petitioner that notice dated 23rd June, 2009 under Section 56-B of the Bombay Police Act, 1951 issued by respondent no.2 was served upon petitioner alleging therein that the Incharge Officer of Kandhar Police Station has submitted the proposal through Superintendent of Police, Nanded against the petitioner for externment, and therefore, respondent no. 2 has initiated the proceeding, and accordingly by the said notice, respondent no.2 asked petitioner why he should not be externed from districts of Nanded, Parbhani, Hingoli and Latur for a period of 2 years, copy of the said notice is annexed at Exh.B (Page 23) to the Petition. In response to the said notice, petitioner herein filed his Reply and pointed out to respondent no.2 that he is graduate and agriculturist and the proceeding has been initiated against him due to political rivalry, and as well as he also pointed out that he has assisted the police Personnel during the procession of Ganesh festival and he was given appreciation certificate in that respect 3 and consequently requested that he may not be externed as proposed, copy of the said reply is annexed at Exhibit-C (Page 24). However, it is the contention of petitioner that respondent no.2 has passed order on 15th September, 2009 without considering the above referred explanation given by petitioner and thereby externed the petitioner from three districts namely; Nanded, Latur and Parbhani for the period of two years from the date of said order, copy of said order is at Exhibit `D’ (Page 31). 6. Being aggrieved and dissatisfied by the said order, petitioner preferred appeal No.EXT-2009/305/VS-5 before respondent no.1 under Section 60 of the Bombay Police Act, 1951. However, said appeal also came to be dismissed by order dated 19th January, 2010 by respondent no.1, confirming order dated 15th September, 2009 passed by respondent no.2. Hence, petitioner approached to this Court under extraordinary jurisdiction and filed present Writ Petition under Article 226 of the Constitution of India praying for quashment of the above referred two orders dated 19th January, 2010 and 15th September, 2009 respectively. 7 SUBMISSIONS : Learned counsel for petitioner canvassed that offences mentioned in impugned order dated 15th September, 2009 in tabular form are the offences pertaining to Kandhar police station, Dist.Nanded but still petitioner has been externed from other two districts i.e. from Latur and Parbhani, and therefore, it is submitted by learned counsel for petitioner that impugned order dated 15th September, 2009 is excessive and without jurisdiction. It is also submitted by learned counsel for petitioner that there is no record in respect of alleged criminal activities of petitioner in the 4 other two districts i.e. Latur and Parbhani, and alleged offences registered against him are at Kandhar in Nanded district as aforesaid but still he has been not only externed from Nanded district but from other two districts i.e. Latur and Parbhani, and therefore, also the said impugned order dated 15th September, 2009 is excessive and without jurisdiction and is liable to be set aside. Even learned counsel for petitioner also submitted that on perusal of offences alleged against petitioner, the said offences pertain to the year 2001 and 2002 and only one offence pertains to the year 2008 and one Chapter case of 2007 i.e. C.R. No.36/2007 and other alleged offences are of earlier year of 2001 and 2002, but still action of externment is initiated against petitioner on the basis of the said offences, which itself exhibits non application of mind. According to learned counsel for petitioner, even though alleged offence under C.R. No.171/2001 pertaining to Kandhar police station has been compromised and same was mentioned in the impugned order still the said C.R. was taken into consideration while initiating action of externment against the petitioner, which also shows arbitrariness. Learned counsel for petitioner further submitted that impugned order dated 19th January, 2010 passed by respondent no.1 in appeal although recites that said C.R. No. 171/2001 was compromised, still the said aspect was not considered by Appellate Authority and confirmed the order passed by respondent no.2 without application of any mind and arbitrarily, and therefore, same deserves to be quashed and set aside. 8. To substantiate the said contention, learned counsel for petitioner invited my attention to the view taken by this Court Bench at Nagpur in the case of "Vilas Siddharth Sirsat V/s State of Maharashtra & anr. reported in (2010 ALL MR (Cri) 424), wherein it is observed that, " this application deserves to be 5 allowed only on the point that the externment order passed by the non-applicant no.2 externing the applicant from five districts is not sustainable, in view of the admitted position that, the alleged offences and activities against the applicant are within the area of Akola City." 9. Learned A.P.P. opposed Petition vehemently and submitted that impugned orders dated 15th September, 2009 and 19th January, 2010 have been passed after giving due opportunity of hearing to petitioner and the said orders have been passed on merit in accordance with law and no interference is warranted therein under writ jurisdiction. It is also canvassed by learned A.P.P. that show-cause notice was given to petitioner on 23.06.2009 Exh.B and accordingly an opportunity of hearing was given to petitioner to put forth their case before respondent no.2 and even the petitioner has also filed reply and same has also considered and thereafter, the impugned order dated 15th September, 2009 came to be passed externing petitioner from three districts i.e. Nanded, Latur and Parbhani since the activities of the petitioner were in Nanded District and other two districts i.e. Latur and Parbhani which are the adjoining districts, and therefore, there is no illegality in impugned order passed by respondent no.2 dated 15th September, 2009 and consequently, there is no illegality in the order passed on 19th January, 2010 by the Appellate Authority i.e. respondent no.1 confirming the order passed by respondent no.2 and hence, no interference is warranted therein in the present Petition, and accordingly, submitted that the present Petition bears no substance and same is devoid of any merits and is liable to be dismissed. 6 CONSIDERATION :- 10. At the outset, the alleged activities of petitioner and the alleged criminal cases registered against petitioner are at Kandhar Police Station, Dist.Nanded, but still he has been externed not only from Nanded district but also from Latur and Parbhani districts and there is no logic in the argument canvassed by learned A.P.P. that two other districts are adjoining districts to Nanded district in which there were criminal activities of petitioner and since there is no material on record to show that petitioner was having any objectionable criminal activities in other two districts i.e. Latur and Parbhani, impugned order passed by respondent no.2 on 15th September, 2009 externing the petitioner not only from Nanded district but also from Latur and Parbhani districts is excessive and without jurisdiction, and hence, the entire impugned order dated 15.09.2009 itself shall not sustain and is liable to be quashed and set aside. 11. Moreover, it is also settled law and the said point is no more Res Integra and this Court in number of Judicial pronouncements held that, if the externment order is passed externing the person more than one district/s and his activities or offences alleged against him are only in one district, then the externment order externing the concerned person is liable to be set aside being excessive and having no jurisdiction. Thus, if the alleged activities of the petitioner were restricted to Kandhar police station, Dist.Nanded then action of externing petitioner from other two districts i.e. Latur and Parbhani is, undoubtedly, excessive, and therefore, the said excessive order has necessarily to be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the present 7 case and the reliance can be very well placed on the decision of Division Bench of this Court in the case of "Shri.Umar Mohamed Malbari V/s K.P. Gaikwad Deputy Commissioner of Police, Zone-II, Thane" reported in "1988 Cr.L.R. (Mah) 480". 12. In the circumstances, the impugned order dated 15th September, 2009 passed by respondent no.2 and consequent impugned order dated 19th January, 2010 passed by respondent no.1 confirming the order passed by respondent no.2 suffers from vice of excess and can not sustained in the eye of law and hence, both the said impugned orders are erroneous and unsustainable, and therefore, deserve to be quashed and set aside, allowing the present Petition by exercising extra ordinary jurisdiction under Article 226 of the Constitution of India. 13. In the result, present Petition succeeds and same is allowed in terms of prayer clause `B' thereof and impugned order dated 15th September, 2009 passed by respondent no.2 as well as impugned order dated 19th January, 2010 passed by respondent no.1 stand quashed and set aside. Rule is made absolute in the aforesaid terms. (SHRIHARI P. DAVARE), JUDGE gas/criwp114.10