1 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NOs.939/2010, 1036/2010, - 1095/2010, 1182/2010, 1184/2010 . Date of decision:30/6/2011 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/30-6-10: 939-10crwpgr 2 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.939/2010 Shri Kishor s/o Shankarrao Wagh, Age: 30 years, Occ. Agri., r/o Ganesh Nagar, Sakri-Navapur Road, Sakri, Tq Sakri, Dist. Dhule. ...PETITIONER VERSUS 1. The State of Maharashtra, Through its Principal Secretary, Home Department, Mantralaya, Mumbai-32. 2. The Sub Divisional Magistrate, Dhule Division, Dhule, Dist. Dhule. ...RESPONDENTS ... Mr. R.S.Shinde, Advocate, h/f Mr. N.L.Choudhari, Adv., for the petitioner. Mr. P.P.More, APP for respondent State. ... WITH 3 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, CRIMINAL WRIT PETITION NO.1036 OF 2010 Manoj Shankar Parerao, Age: 23 years, Occ: Worker, r/o. Bhimnagar, Sakri Road, Dhule, Dist. Dhule. ...PETITIONER VERSUS 1. The State of Maharashtra Through its Secretary, Home Department, Mantralaya, Mumbai -32 2. The Sub Divisional Magistrate, Dhule Division, Dhule, District Dhule. ...RESPONDENTS ... Mr. R.S.Shinde, Advocate, h/f Mr. N.L.Choudhari, Adv., for the petitioner. Mr. P.P.More, APP for respondent State. ... WITH CRIMINAL WRIT PETITION NO.1095/2010 Yashwant Suresh Bagul, Age 33 years, Occ: Labourer, r/o. Shirur, present Milind Society, Sakri Road, Dhule, Dist. Dhule. ...PETITIONER VERSUS 4 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, 1. The State of Maharashtra Through its Secretary, Home Department, Mantralaya, Mumbai-32. 2. The Sub Divisional Magistrate, Dhule Division, Dhule, District Dhule. ...RESPONDENTS Mr. R.S.Shinde, Advocate, h/f Mr. N.L.Choudhari, Adv., for the petitioner. Mr. P.P.More, APP for respondent State. ... WITH CRIMINAL WRIT PETITION NO.1182 of 2010 Nishant s/o Shamrao Vidhate, Age 30 years, Occ. Private Service, r/o. Yeshwant Nagar, Sakri Road, Dhule, Tq. & Dist. Dhule. ...PETITIONER VERSUS 1. The State of Maharashtra, Through its Secretary, Home Department, Mantralaya, Mumbai-32. 2. The Sub Divisional Magistrate, Dhule Division, Dhule, Dist.Dhule. ...RESPONDENTS ... Mr. R.S.Shinde, Advocate, h/f Mr. N.L.Choudhari, Adv., for the petitioner. Mr. P.P.More, APP for respondent State. 5 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, WITH CRIMINAL WRIT PETITION NO.1184 of 2010 Vinod s/o Ramesh Thorat, Age 30 years, Occ. Business & Agri. r/o Manmad Jin, Tq. & Dist.Dhule. ...PETITIONER VERSUS 1. The State of Maharashtra, Through its Secretary, Home Department, Mantralaya, Mumbai-32. 2. The Sub Divisional Magistrate, Dhule Division, Dhule. Dist.Dhule. ...RESPONDENTS ... Mr. R.S.Shinde, Advocate, h/f Mr. N.L.Choudhari, Adv., for the petitioner. Mr. P.P.More, APP for respondent State. ... CORAM: K.U.CHANDIWAL, J. DATE : June 30th, 2011 ORAL JUDGMENT: 1. Heard Mr. Shinde, learned Counsel for petitioner in respective writ petitions and Mr. P.P.More, learned A.P.P. 6 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, Rule, made returnable forthwith by consent and the matters are finally heard. 2. The common ground in the individual writ petition revolves around challenge to the externment orders recorded by the competent authority - the Sub Divisional Magistrate and, in few of the petitions, confirmed by the appellate authority - the Principal Secretary at Mumbai. 3. CRIMINAL WRIT PETITION NO.939/2010 (Kishor s/o Shankarrao Wagh) (a) The petitioner resides at Sakri with his family members and old parents, possesses agricultural land. The Office Order No.50/2008 dated 19/11/2008 provides for an Inquiry Officer to initiate proceedings under Section 59 of the Bombay Police Act, 1951. After completion of the inquiry, the learned Sub Divisional Police Officer, Dhule, Rural Division, Sakri, submitted inquiry report on 16/3/2009 and recommended the petitioner for externment for a period of two years from Dhule, Nandurbar, Jalgaon, Nashik and Ahmednagar districts. After service, petitioner replied on 20th Nov.,2009. By externment order dt.11.5.2010, he has been directed to be externed from Dhule district for a period of two years. Appeal was preferred by him, where also he faced 7 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, same fate. (b) Learned Counsel reiterates that the notice was issued on 25.3.2009 whereas the learned Sub Divisional Magistrate has passed order on 11.5.2010, which is inordinate delay. The reference to the subsequent prosecution pending inquiry, according to him, is an eye wash as Crime No.95/2008, refers to offenses of rioting where group of more than 100 persons was allegedly involved, giving rise to infraction of Section 307 of IPC. Learned Counsel pointed, in Crime No.94/2008 of identical event, Petitioner has been acquitted. Crime No.17/2005 is for an offense under Section 341 read with Sections 34 IPC and 37(1)(3) of Bombay Police Act. (c) There is no explanation for the delay from the date of notice under Section 56(A) dt. 25.3.2009, and submission of reply by the externee. In order to stress his point, learned Counsel has relied on 1991(1) Mh.L.J. 833. The Division Bench, in the matter of Dilip Laxman Kokare Vs. S.M.Ambedkar and another ( 1991(2) Bom.C.R. 85) in paragraph No.4 observed that, " The casual and cavalier manner in which these proceedings were hitherto conducted, will have to be replaced by a 8 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, sense of purpose and vigour. In serious matters of public security, such as these, speed is the watchword, where the eye should be guided by the clock rather than the calender, if at all there is honesty of approach." The Division Bench also informed that, for prolonged period the externee has followed good behaviour and the earlier adverse action, even if justified, may no longer be valid. The cases referred above are outburst of a mob may be communally spirited. Identification and participation is to be assessed at proper stage. These two instances, stale in point of time, would not lead for inference of adverse extreme order of externment. Considering these aspects, the externment of the applicant Kishore Shankarrao Wagh is quashed and set aside. Criminal Writ Petition No.939/2010 allowed accordingly. Rule made absolute. 4. CRIMINAL WRIT PETITION NO.1036/2010 (Manoj Shankarrao Parerao) (a) The applicant Manoj has to his discredit nine cases. By order dt.21.9.2010, he has been externed from Dhule district for one year. Learned Counsel reiterates, the same judgment in respect of the notice dt.12.8.2009, vide order is dt.21.9.2010. 9 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, (b) Considering the volume of cases pending, spread over from 2006, 2007, 2008, 2009, including two chapter cases, I find that the movement of the externee in the area was detrimental to the public peace and tranquility. Reasonable opportunity was given to the externee of tendering an explanation regarding the offenses faced by him and the situation of turmoil in the area. It cannot be said that the allegations were irrelevant and had influenced the mind of the externing authority while passing the order. The authorities have, considering the period of different offenses committed by the accused/applicant, applied mind and passed the order of externment. The externee has been primarily found to be troublesome in the area. His presence leans to disturbance and loss to smooth administration. c) Though I find that already nine months have elapsed, however, that by itself, would not be a ground to brand order of externment to be erroneous or illegal. Criminal Writ Petition (No.1036/2010) lacks merit, dismissed. Rule discharged. 10 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, 5. CRIMINAL WRIT PETITION NO.1095/2010 (Yashwant Suresh Bagul) a) The applicant Yashwant questions the orders and informs that he has preferred satisfactory explanation, the inquiry report submitted by the Sub Divisional Police Officer, Dhule Division, has influenced the mind of the District Authorities to pass the impugned order. (b) The proposal under Section 56(A) of the Bombay Police Act was received from the Police Inspector through Superintendent of Police, Dhule, and thereafter, the proposal indicated, the petitioner has indulged in the activities of threatening citizens of the area, he was involved in rowdism and several cases illustrated his attempt and behaviour to cause grievous hurt. The cases to which reference is given are Crime Nos.14/2006, 77/2008, 257/2008, 364/2008, 128/2003 and 257/2005 of Dhule city and Dhule Taluka. The proposal of the Police Inspector was considered by the Sub Divisional Police Officer, Dhule city as Inquiry Officer and after his inquiry, the Sub Divisional Police Officer submitted his report and recommended that the petitioner be externed from Dhule, Jalgaon, Nashik and Nandurbar for a period of two years. 11 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, c) The report of the Sub Divisional Police Officer was sent to the competent authority - the Sub Divisional Magistrate, Sub Division Dhule, who applied his mind and served a show cause notice to the petitioner. The petitioner appeared before him on 6.11.2009 along with Advocate and filed his reply. The written submissions of the petitioner were also considered. d) The record illustrate that the order is passed by following due process as is required and all sorts of opportunities were given to the petitioner herein. At all stages independently different authorities visualized the record and whether to exhaust extreme step of externment. Hardened offenders does not bother for ordinary law and, consequently, invited the action of externment. It was, in order to ensure public peace and protect the life and property of the public at large, the presence of the petitioner in the area of Dhule would have been more detrimental. To repeat, the ordinary law, for which he has been prosecuted, did not result in mending his ways and, the correctness of method followed by Authorities does not create doubt. The action of the authorities against the petitioner Yashwant Suresh Bagul does not call 12 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, for any interference. Writ Petition No.1095/2010 lacks merit, dismissed. Rule discharged. 6. CRIMINAL WRIT PETITION NO.1182/2010 (Nishant s/o Shamrao Vidhate) (a) The externee had to his discredit four cases as is referred in the notice dt.24.11.2008, however, he has been acquitted in three cases and only one case is pending against him. It is informed, one more Crime being Crime No.141/2010 is committed by the externee during pendency of externment proceedings. (b) Though I find that the externee has been acquitted from three cases, however, he has not mend his conduct as he suffered Crime No.131/2010 dt.27.5.2010 which involves Sections 147, 149, read with Section 307 of IPC. The crimes in which the externee is acquitted are of 2007, the other cases are of 2008 and latest, he has faced, is of 2010. I quite see, the latter Crime No. 131/2010 could not be informed to the externee as the date of the order is 6.8.2010 and the appellate order is dt.9.11.2010, in between the process of taking action by the Sub Divisional Police Officer dt.7.8.2009, the offense has been committed by the externee Nishant. The authorities informed, in order to maintain law 13 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, and order and public peace and protect the life and property of the citizens in the area, the externment of the applicant is imperative. He has been externed from Dhule district for one year. The mindset of externee does not call for a lenient approach to curtail his liberty. c) The criminal record of the petitioner was verified and it was the need of the time that law and order to be maintained, the conduct of the petitioner also does not call for interference. The Writ Petition NO.1182/2010 lacks merit, dismissed. 7. CRIMINAL WRIT PETITION NO.1184/2010 (Vinod s/o Ramesh Thorat) (a) The petitioner Vinod has a very peculiar situation to face. The petitioner claims that he hails from reputed family and is permanent resident of Manmad Jin, Tq. and Dist. Dhule, residing with his old parents and family members and carrying on business of hotel and agriculture. He has been externed from the area of Dhule district for a period of one year. (b) An Inquiry Officer was appointed to initiate proceedings under Section 59 of Bombay 14 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, Police Act against the petitioner since there were Crime Nos.90/2003, 157/2003, 56/2004, 146/2005, 208/2005 under Bombay Police Act and Indian Penal Code registered at Azad Nagar Police Station, dist. Dhule. Learned Counsel for the externee informs, from the bunch of above referred offenses, two offenses were mentioned in the earlier externment proceedings already dropped. (c) The order, subject of challenge, dt. 26.8.2010, could not be attended by the externee as he was away. He challenged the same before the appellate authority, however, failed in the appeal, as per the order dt.6.12.2010. (d) The petitioner canvassed that the proposal was forwarded on 7.7.2006 and 7.7.2007. The notice was not served and ex parte order was passed by the learned Sub Divisional Magistrate on 26.8.2010. The petitioner points and rightly that there is inordinate delay in passing the externment order by the externing authority. Considering this position and the fact that the earlier proceedings were dropped against the petitioner, I do not see that his continuation in the city of Dhule and its vicinity would be detrimental to the peace and tranquility in the 15 CR.WP NOS.939/2010, 1036/2010, 1095/2010, 1182/2010 1184/2010, area. It does not appear, petitioner has scared the people or caused extortion or indulged in heinous offense with identical modus. He has no gang to coordinate the plans to terrorize the citizen. Consequently, the externment order for one year; in fact, nine months from which have already elapsed, is excessive in its nature and calls for interference. Writ Petition No.1184/2010 is allowed. The impugned order is set aside. Rule made absolute. (K.U.CHANDIWAL) JUDGE ... AGP/939-10crwpgr