- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1014 OF 2009 WRIT PETITION NO.1014 OF 2009 WRIT PETITION NO.1014 OF 2009 Arun Shripati Bhalerao ...Petitioner vs. The Dy.Commissioner of Police, Zone-IV,Pune City,Pune & others ...Respondents Ms V.R.Raje for the petitioner Ms A.T.Javeri A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 29,2009 : APRIL 29,2009 : APRIL 29,2009 JUDGMENT: JUDGMENT: JUDGMENT: 1. Submissions of the learned counsel for the parties were heard on 21st April 2009, 23rd April 2009 and 27th April 2009. The parties were put to notice that the petition will be disposed of at the stage of admission. The challenge in this petition is to the order of externment passed by the first respondent in purported exercise of power under section 56(1) (b) of the Bombay Police Act,1951. 2. The challenge is to the order dated 26th February 2009 passed by the first respondent. By the said order, the petitioner was ordered to be externed from limits of Pune Commissionerate of police, District Pune, District Solapur, District Ahmednagar, District Raigad. A statutory appeal was preferred by the petitioner. By order dated 13th April 2009, the order of externment was modified by the appellate authority by confining the order of externment only to the - 2 - area falling within the jurisdiction of the Commissionerate of police Pune and by reducing the period of externment to six months. 3. The learned counsel for the petitioner submitted that the impugned order shows non application of mind. The learned counsel invited my attention to the order of externment and submitted that out of the offences registered against the petitioner which are referred to in the impugned order, he has been acquitted of 5 cases and some of the cases are non cognizable cases. Reliance has been placed on the decision of this court dated 12th August 2008 in case of Zakir Hussein vs. State of Maharashtra (criminal writ petition no.1909 of 2007). It is submitted that once the appellate authority found that the order of externment was excessive, the same will have to be quashed and set aside. 4. The learned A.P.P opposed the petition by submitting that the appellate authority has a power to modify the order of externment. She submitted that the appellate power conferred on the appellate authority is not restricted and the appellate authority can correct all the errors. She submitted that the error committed by the externing authority by passing an order which is excessive is corrected by the appellate authority by confining the area of operation of the order of externment to the extent to the area falling within the jurisdiction of - 3 - Commissionerate of police, Pune . She submitted that while exercising the writ jurisdiction, this court cannot enter into merits of the impugned order, as in writ jurisdiction what is to be tested is the decision making process. She submitted that compliance has been made with the principles of natural justice. She placed reliance on the decision of this court in case of Gazi Saduddin vs. State of Maharashtra and another (AIR 2003 SC 3116). Inviting my attention to what is held by the Apex Court in the said decision, she submitted that no interference is called for. 5. I have carefully considered the submissions. Going by the order passed by the appellate authority, it is obvious that the appellate authority found that the order of externment was excessive and therefore direction not enter in five districts was set aside . The offences alleged against the petitioner and the prejudicial activities alleged against the petitioner were confined to area of certain police stations falling within the limits of commissionerate of police at Pune and the order of externment was passed extending not only to the district Pune, but to the Districts of Satara, Solapur, Ahmednagar and Raigad. 6. The order of externment was passed relating to areas falling within the limits of the Commissionerate of police at Pune and Districts Satara, Solapur, Ahmednagar and Raigad - 4 - affected liberty of the petitioner which is guaranteed by the Constitution of India. Once it is noticed that order of externment is excessive it shows complete non application of mind on the part of the competent authority. The order of externment which is excessive becomes per se illegal as the same is excessive. As a result of non application of mind, the order of externment is vitiated and therefore, the appellate authority cannot simply modify the said order and confine it to a particular area. In fact, the appellate authority ought to have set aside the said order. Hence, the petition must succeed. 7. Hence, I pass the following order : i) Rule is made absolute in terms of prayer clauses (a) and (b). JUDGE JUDGE JUDGE