1 Criminal Writ Petition No.454 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.454 OF 2011 Ramrao S/o.Madhav Barve, Age-50 years, Occu-Business, R/o.Mondha Road, Basmat, Rq.Hingoli, Dist. Hingoli PETITIONER VERSUS State of Maharashtra RESPONDENT Mr.S.J.Salgare h/f.Ms.S.S.Jadhav, learned counsel for the petitioner. Ms.Y.M.Kshirsagar, learned A.P.P. for respondent State (CORAM : A.V.POTDAR, J.) DATE : 29/08/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 2. By the present writ petition under Article 227 of the Constitution of India, the petitioner has assailed the legality and correctness of the order passed by the Principal Secretary (Appeal) of State of Maharashtra in Appeal No.47/2011 on 09/05/2011. 3. I have heard learned counsel for the petitioner and learned 2 Criminal Writ Petition No.454 of 2011 A.P.P. for State. It appears that the petitioner was served with show cause notice u/s. 59 of the Bombay Police Act dated 28/11/2009 Before issuance of the said show cause notice, on 04/10/2009, P.I.Basmat forwarded a proposal to S.D.P.O. Basmat for externment of the petitioner. On 06/10/2009, directions were given to investigate in the matter submitted for externment of the petitioner by S.D.P.O. Basmat to P.I.Basmat. On receipt of report from the concerned, show cause notice dated 20/11/2009 came to be issued showing 3 offences registered against the petitioner. It appears that the reply was given by the petitioner to the said show cause notice on 11/12/2009. Thereafter, an externment order was passed by the S.D.P.O. which came to be challenged before the Principal Secretary (State of Maharashtra) by preferring Appeal No.47/2011, which came to be dismissed on 09/05/2011, which order is impugned in this writ petition. 4. During the course of submissions across the bar, learned counsel appearing for the petitioner submits that the order impugned in this writ petition is bad mainly on 3 grounds that the notice u/s. 59 is bad as it is vague and does not disclose the pre-requisite conditions to send the proposal for externment against the present petitioner. Secondly, there is delay of 2 years in passing the externment order after reply was given to the show cause notice by the petitioner and lastly the order is excessive. It is also urged that in CR No.145/2009, registered in Basmath Police Station ‘C’ 3 Criminal Writ Petition No.454 of 2011 summary report was filed by the Investigation Officer. 5. Per contra, learned APP supports the order impugned and prayed for dismissal of the present writ petition. Even Though it is urged by the learned A.P.P. that the reply is filed to this writ petition, but that reply in not tagged in the record, hence at the time of her submissions, she had placed the affidavit in reply, which is taken on record. 6. Perusal of the show cause notice u/s. 59 of the Bombay Police Act does not indicate that during the preliminary inquiry, statements of witnesses were recorded in camera and those statements disclose that due to terror of the present petitioner, they are not coming forward to give the evidence either during the investigation or during the pendancy of trial before the Court concerned. So also the notice is also silent on the point that the activities of the present petitioner are dangerous to the personal liberty so also to the properties of the residents in that area. 7. At this stage, it is useful to give the reference of the observations of this Court in the matter of Gulshan Arif Tase versus Sub Divisional Magistrate, Thane Division, 2010(2) Bom.C.R. (Cri.) 778, which reads as : “In show cause notice, no reference made about prejudicial activities committed by him in other four districts. Further submits no 4 Criminal Writ Petition No.454 of 2011 opportunity given to explain in respect of in-camera statements. Held, show cause notice not refer to any such activity by petitioner in other districts except village Kashimira and District Thane. Order is clearly excessive. No reference made about said in-camera statements. Externing authority relied on certain material which is not referred to in show cause notice. Order of externment is quashed.” 8. In the matter of Namdeo Laxman Charde versus Sub Divisional Magistrate, Katol and another , 1997(Supp.) Bom.C.R. 788 : 1996(1) Mh.L.J. 483, it is observed that, “Contention that Annexure A notice issued under section 59 is defective and consequently proceedings taken on basis of said notice as well as orders are vitiated. Held, there is no mention at all as to in which Court the said cases are pending or as to within jurisdiction of which Police Station, respective offences took place. Notice even does not give date, which would suggest that on account of his behaviour, the witnesses are reluctant to appear and give evidence against him in open. Hence Annexure A notice is vitiated.” “The notice does not mention that on account of the aforesaid behaviour of the petitioner, witnesses are not willing and ready to depose openly against the petitioner. According to the learned counsel, failure to make an allegation to that effect affects the validity of the notice. Reliance was placed by the learned counsel in support of his argument in the case of (Ayub Yusuf versus S.D.M.) 4, 1986(1) Bom.C.R. 144 : 1986 Mah.L.R. 254, wherein after quoting sections 5 Criminal Writ Petition No.454 of 2011 56(1)(b) and 59, the Division Bench of this Court proceeded to hold that not only there should be mention of the prosecutions for the offences punishable under Chapters XII, XVI or XVII of Indian Penal Code but in addition the officer concerned should be of the opinion that the witnesses are not willing to come forward to give evidence in public against the person against whom the externment proceedings have been started by reason of apprehension on their part as regards the safety of their person or property.” 9. Further, it is useful to give the reference of the observations of this Court in the matter of Ayub Yusuf Mansuri versus Sub- Divisional Magistrate, Nandurbar and others, 1986(1) Bom.C.R. 144, wherein it is held that, “Notice under section 59, Notice not satisfying requirements of section 56(1)(b), order passed pursuant to said notice would be bad. Where the notice issued under section 56(1)(b) did not mention that in the opinion of the Sub-Divisional Police Officer who issued the notice, the witnesses were not willing to come forward to give evidence in public against the person against whom the externment proceedings had been stated by reason of apprehension on their part as regards the safety of their person on property, the order of externment passed in absence of such averments in the notice would be bad and liable to be set aside.” Considering the parameters and guidelines as discussed by this Court in the rullings referred in above paragraph, it is clear that the contents of the notice to satisfy the requirements of Section 56(1)(b) to pass the externment order and in 6 Criminal Writ Petition No.454 of 2011 absence of the requisite contents in the show cause notice, the notice is bad in law and the externment order passed on suchy notice, required to be quashed and set aside. Perusal of the show cause notice dated 17/08/2010 which is basis of the externment order and the order passed in appeal by the State, on the face of it, these requisite requirements are silent in the said notice. In view of this, show cause notice, basis of the externment order, itself is bad in law.” 7. Delay in passing the externment order itself can not be termed as an illegality committed by the authority concerned while coming to the conclusion. It is to be considered that while passing the externment order, whether there is any subjective justification of the authorities concerned that in the interest of justice and to maintain law and order, it is necessary to extern the externee from a certain area as his activities are dangerous to the personal liberty so also to the property of the local residents of that area. 8. The last submission of learned counsel for petitioner is that the impugned order suffers from exercising excessive jurisdiction in externing the externee from the 3 districts i.e. Hingoli, Parbhani and Nanded for the period of 2 years, as according to him, the entire record is silent about the alleged activities of the present petitioner in the area from which he was externed. At this juncture, it is useful to give reference of the judgment of the Division Bench in the matter of Umar Mohammed Malbari versus K.P.Gaikwad, 1988 (2) Bombay 7 Criminal Writ Petition No.454 of 2011 C.R. 724, which reads as follows : “if the record indicates that criminal activities, which are creating law and order problem, are restricting to certain police station, then the externment order relating to the other area, is excessive. Admittedly, the criminal activities of the petitioner are restricted to Gangakhed Police Station Only. It is observed in the said judgment that if an excessive order is passed by the competent authority, then it is not open for this Court, either to correct the excessive externment order or to curtail the area of externment. The only option open for this Court is to quash and set aside the excessive order. Bearing in mind this consistent view taken by this Court, the impugned order of externment, externing the petitioner from Beed and Parbhani districts for one year, is liable to be quashed and set aside.” 9. On perusal of the record, it is clear that the show cause notice served on the petitioner is vague and without application of mind, so also the externment order is excessive. Thus on these grounds, the petition succeeds. Petition is allowed in terms of prayer clause ‘C’ and stands disposed of. 10. Rule thus made absolute as indicated above. (A.V.POTDAR, J.) khs/AUG.2011/cri.w.p.454-11