1 Cri.W.P.No.31/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.31 OF 2011 Dnyaneshwar s/o Ramrao Tandale, Age 28 years, Occ. Business, R/o Hussain Colony, Aurangabad ... PETITIONER VERSUS 1. The State of Maharashtra 2. The Deputy Commissioner of Police, Aurangabad. 3. The Assistant Commissioner of Police (Urban Division), Aurangabad (Copies to be served through Public Prosecutor, High Court of Bombay, Bench at Aurangabad) ... RESPONDENTS ..... Shri D.S. Manorkar, Advocate for petitioner Mrs. R.K. Ladda, A.P.P. for respondents ..... CORAM : U.D. SALVI, J. DATED : 25th & 28th November, 2011. ORAL JUDGMENT : 1. Heard. Perused. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by mutual consent of parties. 2 Cri.W.P.No.31/2011 3. Externment order bearing No.DCB/Extt/18/7878/2010, passed by the Deputy Commissioner of Police, Aurangabad and the order of confirmation thereof, dated 14.12.2010, passed by the Secretary, Home department, Mantralaya, Mumbai are the subject matter of the present petition. 4. Notices dated 7.12.2007 and 25.2.2008, seeking cause as to why there should not be his externment for the period of two years from the local jurisdiction of Districts Aurangabad and Jalna were issued under the provisions of Section 159 of the Bombay Police Act, 1951 to the petitioner by the Assistant Commissioner of Police, CIDCO, Aurangabad city and Deputy Commissioner of Police, Circle, Aurangabd respectively. Reply dated 11.3.2008 was given by the petitioner to the said notices and the externment proceedings were dropped vide order dated 26.3.2008 at Exhibit C. 5. It appears that, show-cause-notice dated 19.4.2010 requiring the petitioner to show cause again as to why he should not be externed from the limits of Aurangabad city and district as well as from district Jalna for two years, was served on the petitioner. According to the petitioner, he responded to the said notice and filed his say; and thereafter again another notice dated 3 Cri.W.P.No.31/2011 30.7.2010, calling upon him to appear before the authorities and to make further submissions in his favour was again served on him and in response thereto, he appeared and made oral submissions. On 30.8.2010, the externment order directing externment of the petitioner for the period of two years from the local jurisdiction of Aurangabad city and district was passed. An appeal preferred against the said order, being Appeal No.190/2010, under Section 60 of the said Act before the Secretary, Home Department, Mantralaya, Mumbai came to be rejected vide order dated 14.12.2010, annexed to the petition at Exhibit B. 6. Firstly, learned Advocate for the petitioner submitted that the Deputy Commissioner of Police, Circle Aurangabad was not competent to issue the externment order as there was no General or special order of the State Government, empowering Deputy Commissioner of Police to exercise and perform any of the powers, functions and duties of the Commissioner under the orders of the Commissioner as required under Section 10(2) of the Bombay Police Act, 1951. In this connection, learned A.P.P. for the State pointed out the deletion of the phrase “In accordance with the general or special orders of the State Government in this behalf” appearing in Section 10(2) by virtue of Bombay Police (Amendment and Validation) Act, 1994 and the judgments passed 4 Cri.W.P.No.31/2011 by this Court, reported in 1995(1) Mh.L.J. 352 (Afjalkhan Sulemankhan Pathan Vs. State of Maharashtra and another) and 1998(1) Mh.L.J. 157 (Abdul Wasim s/o Mohammad Faruq Musalman Vs. State of Maharashtra and another) in that regard. Faced with this answer, Mr. Manorkar, learned counsel for the petitioner withdrew his submissions. 7. Secondly, Mr. Manorkar, learned Advocate for the petitioner submitted that, he had replied the show-cause-notice dated 19.4.2010 and raised contentions in his defence, and yet there is no reflection of it in the impugned order of externment dated 30.8.2009 passed exparte without application of mind by the concerned authority to the contentions raised by him, and as such, the impugned order is bad in law. Answering this submission, learned A.P.P. for the State submitted that the elaborate show- cause-notice giving the list of the crimes registered against the petitioner with Mukundwadi Police Station as well as chapter cases initiated against him, was duly served on the petitioner and complete opportunity was given to the petitioner to respond thereto, and the petitioner did avail of such opportunity and had tendered reply and the petitioner was heard, and ultimately, as a result of said hearing, preliminary enquiry report was submitted by the Enquiry Officer, Assistant Commissioner of Police, CIDCO, 5 Cri.W.P.No.31/2011 Aurangabad before the Deputy Commissioner of Police, Circle Aurangabad and further opportunity was given to make submissions in that regard and the petitioner did not respond to the same. She further pointed out that there is a reference to these facts in the externment order. 8. Though the petitioner refers to filing of say to the notice dated 19.4.2010, a copy of the said reply has not been annexed to the petition. On the other hand, the impugned order speaks of hearing given to the petitioner before preliminary enquiry officer – Assistant Commissioner of Police, CIDCO, Aurangabad, presentation of preliminary enquiry report before the Deputy Commissioner of Police, Circle, Aurangabad and failure of the petitioner to respond to the notice dated 30.7.2010 issued in respect of the preliminary enquiry report. Impugned order also reveals consideration of eight criminal cases concerning body and property, registered against the petitioner at Mukundwadi Police Station. It further reveals that looking to the criminal cases registered and confidential statements of the witnesses, the petitioner was found indulging in criminal and terrorizing activities by use of force thereby creating feeling of insecurity, fear and danger to the people’s lives and property within the limits of Mukundwadi, Aurangabad city and district and the same are likely 6 Cri.W.P.No.31/2011 to be continued in future and, therefore, the need for externment. It also records, the scrutiny of the record pitted against the petitioner for proposed externment including report of the Mukundwadi Police Station and preliminary enquiry report of the Assistant Commissioner of Police, CIDCO, by the Deputy Commissioner of Police, Circle, Aurangabad before recording his opinion regarding the need to extern the petitioner. In absence of the reply on record in the petition, it is difficult to come to the conclusion that the material collected in the preliminary enquiry done following the issuance of notice dated 19.4.2010 was not considered by the Deputy Commissioner of Police, Circle Aurangabad and the order came to be passed mechanically. 9. Thirdly, Shri D.B. Manorkar Advocate for the petitioner argued that the impugned order suffers from vice of being excessive inasmuch as the criminal activities referred to by the police were within the limits of Mukundwadi Police Station situate within the city of Aurangabad and the externment order extended to the entire District of Aurangabad. In support of his argument he relied on the judgment of this Court in Bhapkar’s case [ Ajit Champatrao Bhapkar V. State of Maharashtra and Ors.; 2007(11) LJSOFT, 93]. 7 Cri.W.P.No.31/2011 10. Learned A.P.P. Mrs. R.K. Ladda for the State, submitted that Section 56 of the Bombay Police Act, 1951 (for Short “B.P. Act, 1951), conferred enough jurisdiction on the authorities to pass orders of exernment extending beyond the areas wherein questionable activities had taken place, for securing the aim and object of the externment of an individual whose activities affect the society in general. She further pointed out that the area of Mukundwadi Police Station were well connected with the area within the Aurnagabad District, and as such, the order cannot be said to be excessive. 11. In Bhapkar’s case (Supra), the order of externment based on the alleged activities of the petitioner confined to areas falling in urban Nagpur was found to be excessive, as it extended to Nagpur Rural area, wherein not a single offence was registered against the petitioner, and in support this Court referred to Katare’s case [ Ganpat @ Ganesh Tanaji Katare V Assistant Commissioner of Police & Ors : 2006(1) Mh.L.J. 510] wherein it was argued :- “ The learned Public Prosecutor appearing in these petitions have opposed the petitions. The submission in brief is that the orders are not excessive and considering the close proximity of the concerned districts, the orders cannot be said to be excessive. It is submitted that material allegations against the petitioners and the general nature of those allegations is reflected in the show cause 8 Cri.W.P.No.31/2011 notices. It is submitted that this Court cannot interfere with the subjective satisfaction of the authority and therefore, the petitions may be dismissed.” While dealing with this argument based on geographical proximity of areas from which the externment was sought, this Court in Katare’s Case (supra) held that a larger area may always form part of externment order. This Court further observed: “In a case where activities are confined to particular district and geographically contiguous district is shown to be intimately connected to the said district, the order may extend to both the districts. Mere geographical proximity is no ground to extend the order of externment to another district in which there are no objectionable activities by the externee.” 12. Thus, it can be seen that mere geographical proximity is not material for extending the order of externment to the geographically contiguous areas. What is essential is that the area of the alleged activity and the area to which the order is extended are intimately connected by means of easily accessible transit facilities. If such, intimate connection between the two exist, the order of externment can be extended to such intimately connected area, wherein prejudicial activities of the person are not reported. While delivering Katarer’s Judgment, this Court referred to the 9 Cri.W.P.No.31/2011 judgment of the Hon’ble Apex Court in Pandharinath Rangnekar’s case [Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra ; (1973 Mh.L.J. 413) ]. The Hon’ble Apex Court held that the excessive order can be set aside because no greater restraint on the personal liberty of the externee can be permitted than what is reasonable in the facts of the case. In Para No. 15 therein the Hon’ble Apex Court observed “as regards the last point, it is primarily for the externing authority to decide how best the externment order can be made effective, so as to subserve its real purpose. How long, within the statutory limit of two years fixed by Section 58, the order shall operate and to what territories, within the statutory limitations of Section 56 it should extend, are matters which must depend for their decision on the nature of the data which the authority is able to collect in the externment proceedings.” 13. It is common knowledge that city of Aurangabad is a tourist center where large industrial belts have come up within and outside its limits spreading over District Aurangabad, and city of Aurangabad is well connected to the areas within the District of Aurangabad by several means of communication. If this is taken into account, it can be seen that the authority had passed the order of externment extending to the area not only within the limits of city 10 Cri.W.P.No.31/2011 of Aurangabad but to Aurangabad District in order to make it effectively sub-serve its real purpose of isolating the externee from the area of his operations. No analogy, therefore, can be drawn between the instant case and the Bhapkar’s case (Supra). 15. In view of the aforesaid discussion, no interference is warranted in the impugned order of externment. Criminal Writ Petition No. 31/2011 therefore stands dismissed. Rule is therefore, discharged. Sd/- ( U.D. SALVI, J. )