1 WP 3337 OF 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 3337 OF 2010 Santosh Balu Gondhali .. Petitioner -versus The State of Maharashtra .. Respondent. Mr. U. N. Tripathi, for the Petitioner. Mr. J. P. Kharge, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 25th January, 2011 P.C. 1. Rule. By consent made returnable forthwith and the matter is finally heard. 2. The petition is directed against the order, passed by the Principal Secretary, Government of Maharashtra, dismissing the petitioner’s appeal against his externment from five districts, passed by the Sub Divisional Officer, Thane Division, Thane on 11.2.2010. 3. According to petitioner, the petitioner was first issued with the notice to show cause as to why he should not be externed and then after considering the petitioner’s reply Sub Divisional Magistrate, Thane, by his order dated 11.2.2010, externed the petitioner from Brihan Mumbai, Thane, Raigad, Nashik and Ratnagiri districts. 4. This order was passed because the petitioner was 2 WP 3337 OF 2010 alleged to have been involved in 8 crimes. They are (i) crime No. 39 of 2002, registered at Kalyan Taluka Police Station for the offences under Sections 147, 148, 149, 326, 504, 506 of the Indian Penal Code (case pending), (ii) Crime No.83 of 2002 for the offences under Sections 147, 148, 149 and 307 of the IP, (case pending), (iii) crime No.17 of 2006 for the offences punishable under Sections 323, 324, 143, 147, 148, 149, 504 and 506 of the Indian Penal Code(case pending), (iv) crime No.121 of 2006 under Section 37(1) and 135 of the Bombay Police Act(case pending), (v) crime No. 127 of2006 for the offence under Sections 324, 323 read with 34 of the Indian Penal Code, (case pending), (vi) Crime No. 357 of 2006; Sections 143, 147, 148, 149, 326 and 323 of the Indian Penal Code (case pending), (vii) Crime No.148 of 2008 for the offence under Sections 143, 147, 148, 149, 472, 324, 323, 504 and 506 of the Indian Penal Code (under investigation), and (viii) Crime No.489 of 2009 is for offence punishable under Sections 504 and 506 of the Indian Penal Code (case pending). 5. According to Sub Divisional Magistrate, by these crimes the applicant created terror in and around six villages from Kalyan Taluka, therefore, the petitioner was required to be externed from five districts. He, therefore, ordered petitioner’s externment invoking the provisions under Section 57 (a)(1) of the Bombay Police Act. 6. Learned counsel for the petitioner submitted that 3 WP 3337 OF 2010 having first invoked provisions under Section 56(a)(1) of the Bombay Police Act, it was not open to the Magistrate to pass order under section 57(a) of the Act and that there seems to be a typing mistake in details of one of the crime by mentioning under Section 307 of the Indian Penal Code in place of Section 326 of IPC. These seem to be typing mistakes and do not have any bearing on merits of the case. However, even the learned Additional Public Prosecutor could not point out as to why the petitioner was required to be externed from five districts even though his activities were restricted to six villages in Kalyan Taluka. The learned counsel for the petitioner points out that the petitioner has been acquitted in two crimes and there is not a single conviction to the discredit of petitioner. He also submits that two offences were registered in 2002, four in 2006 and crime registered in 2008 is under investigation. The relevant requirement of clause (a) of section 56, is that the movements or acts by a person are causing or calculated to cause alarm, danger, harm to the person or property. It is not that the petitioner is involved regularly in the offences relating to property or person. In the year 2009, only one offence for insulting and abusing a person is registered. Learned counsel for the petitioner may be right in submitting that the earlier offences could not have been looked into by the Magistrate as they are stale. 4 WP 3337 OF 2010 7. Learned counsel for the petitioner relied on the judgment of Division bench of this Court, in case of Umar Mohamed Malbari -vs- K.P. Gaikwad Dy.Commissioner of Police and anr 1988 Mh. L. J. p.1034 which has been followed by this Court in Shri. Silva @ Gora Silva Ayanar Arjun -vs- Shri.Nawal Bajaj Deputy Commissioner of Police and anr, 2007, ALL MR (Cri) 84, and submitted that since the order externing the petitioner from five districts is excessive, it reflects non application of mind and therefore deserves to be quashed and set aside. In view of above, since it is not clear from the order of Sub Divisional Magistrate as to why the petitioner was required to be externed from five districts, when his activities related to six villages from Kalyan Taluka, in the light of observations in the two judgments referred to above, the petition is allowed. The impugned orders are quashed and set aside. (R. C. CHAVAN, J.)