IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1054 OF 2008 Mr.Pandurang Krishna Bhosale .. Petitioner Vs. The State of Maharashtra & Ors. .. Respondents Mr.Mahesh M. Thorat for the petitioner. Mr.Y.M.Nakhwa, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 05th September 2008. : 05th September 2008. : 05th September 2008. JUDGMENT: JUDGMENT: JUDGMENT: . Heard the learned advocate for the petitioner and learned A.P.P for the State. By order dated 17th July 2008 this petition was ordered to be disposed of finally at the stage of admission. The challenge in this petition under Article 227 of the Constitution of India is to the order of externment passed under section 56(1)(a)(b) of the Bombay Police Act, 1951 (hereinafter referred to as the said Act of 1951). The order of externment was passed on 15th March 2008 by the Sub Divisional Magistrate, Satara by which the petitioner was ordered to be externed from the districts of Satara, Pune, Sangli, Kolhapur and Solapur for a period of two years. In an appeal preferred by the petitioner, the appellate authority has modified the order by confining the order to district Satara and by reducing the period to one year from two years. : 2 : 2. The challenge to the order of externment is on various grounds. The first challenge is that the order is malafide. The second challenge is that extraneous material has been considered by the Sub Divisional Magistrate while passing the order of externment in as much as two offences which are not referred to in the show cause notice have been considered while passing the order of externment. The third challenge is on the ground that the order is excessive and that once the appellate authority finds the order to be excessive, the same is required to be quashed and set aside and the same cannot be modified. The learned A.P.P opposed the petition by submitting that the appellate authority can always modify the order of externment. He submitted that while passing the order of externment, there is a reference to two offences registered against the petitioner at Khandala police station which have been registered after the date on which show cause notice was issued. He submitted that the said offences could not have been referred to in the show cause notice. He submitted that the order of externment is not based on the said two offences registered against the petitioner. He submitted that on the basis of the available material on record, the authority has recorded subjective satisfaction which cannot be interfered with in this : 3 : Writ Petition under Article 227 of the Constitution of India. 3. I have carefully considered the submissions. Under section 59(1) of the said Act of 1951, a person who is proposed to be externed is required to be informed in writing the general nature of allegations against him. The section provides that a reasonable opportunity of tendering an explanation regarding the said allegations shall be given to the person concerned. Apart from right of filing a written statement, the person to whom show cause notice is served can adduce evidence by examining witnesses. In the present case, show cause notice has been issued on 16th June 2007 setting out the general nature of material allegations against the petitioner. In the show cause notice, reliance has been placed on four offences registered against the petitioner with Satara police station. On the basis of show cause notice, the Sub Divisional Police Officer who was appointed to conduct enquiry held an inquiry and submitted the report to the Sub Divisional Magistrate. The Sub Divisional Magistrate issued show cause notice dated 05th September 2007 to the petitioner calling upon the petitioner to show cause as to why he should not be externed. In the said show cause notice reference has been made only to the first : 4 : information reports registered against the petitioner with Satara City police station. Perusal of the order dated 15th March 2008 passed by the Sub Divisional Magistrate shows that reference has been made to two additional offences registered in the year 2008 against the petitioner at Khandala police station. Not only that a reference has been made to the said offences, in the order, the Sub Divisional Magistrate has stated that apart from four offences registered against the petitioner at Satara police station two more similar offences have been registered against the petitioner with Khandala police station. The order shows that all seven offences set out in the order have been considered by the Sub Divisional Magistrate while recording his subjective satisfaction. Therefore, on plain reading of order dated 15th March 2008 it is very clear that the additional material in the form of two offences registered against the petitioner at Khandala police station has been considered while passing the order of externment. Apart from the fact that there was no opportunity to the petitioner to deal with the allegations based on two offences registered with Khandala police station as the same were not referred to in the show cause notice, the subjective satisfaction of the Sub Divisional Magistrate is vitiated by consideration of the said extraneous material. An order : 5 : of externment affects freedom of an individual. It is true that the order of externment is neither a judicial nor quasi-judicial order. Nevertheless the order has to be passed after complying with principles of natural justice as incorporated in section 59(1) of the said Act of 1951. In the circumstances, extraneous material could not have been considered by the Sub Divisional Magistrate. If two more offences were registered against the petitioner subsequent to the date of show cause notice, the authority concerned could have withdrawn the show cause notice and issued a fresh show cause notice so that the petitioner could be clearly informed of the general nature of material allegations against him. In the present case the petitioner was never made aware that the aforesaid two offences registered against him at Khandala police station will be considered against him while passing the order of externment. 4. Only on the aforesaid ground, the impugned order of externment is vitiated and the same deserves to be quashed and set aside. 5. Hence, I pass the following order: . Rule is made absolute in terms of prayer : 6 : clause (b). (A.S.Oka,J)